Date: Fri, 03 Mar 2000 21:33:55 +0000 From: Paul Temple <paultemple@ecologycal.demon.co.uk> To: cp@opus.hpl.hp.com Message-Id: <aabcdefg618$foo@default> Subject: Re: wild collected cultivars or new taxa
Jan
As is usually true, you are of course correct - well at least on the
validation/establishment point! A slip of my typing finger.
I meant "establsh" rather than "vaidate" - my error.
>This applies only to some countries (e.g. the UK and the USA, so it
>might be of importance to *most* readers of this list but definitely
>not to *all* persons world wide). The *international* regulations in
>operation at present concern 1. the protection of endangered species
>(CITES) and 2. the sustainable use of natural resources (Rio
>convention).
I'm not convinced. I've not received notification that the
international convention covering rights to endemics has been
re-inbterpreted. As a wild origin cultivar and endemic species both
fall within the endemic definition, I still believe that a county
automatically owns the rights to all material and all information
pertaining to such material (live, dead or preserved) until it revokes
such rights. If a non-endemic is involved, it's outside the scope. But
if a specimen starts as an endemic, and someone removes it, breeds from
it and develops a cultivar, I still belive the originating county of
origin owns all rights. But I have to say, there's been no tst case and
I wouldn't fancy the chances of a country winning such a case.
>Natural resources are principally/originally free of any proprietary
>claims, especially if a certain sample size is not exceeded. Only
>some countries or organizations *created* special restrictions. But
>these must not be mistaken for international agreements. They are
>local (most frequently national) legislation.
I'm definately not convinced. I thought this was exactly the problem of
the biodiversity convention in that it specifically did bind all
ownership of all natural resources (endemics) to the source country.
>Once it comes to selling plants, the Rio convention would of course
>demand an "appropriate" part of the revenue achieved to be shared with
>an "appropriate" authority in the country of origin. It is, however,
>at least in the case of cps rather difficult to assess the meaning
>and extent of "appropriate" here.
And unless the source country has the right to define "appropriate"
there would not be an agreement so to allow this, surely the convention
must, asI believe it does, bind ownership to the source country.
Back to your "German" example - I don't believe the convention
distinguishes between countries that allow natural resources to be
sampled (e.g. Germany) and those that don't (e.g. Mexico). The rights
exist and prsumably a country 9like germany) can not enforce it's rights
if it doesn't wish to. In any case, the convention isthere to stop
countries like Germany (and UK and USA and Japan, etc.) from removal of
resources from so called un-developed countries.
>You have to consider that it simply is not principally always illegal
>to collect wild plants. For the purposes of registration of its name,
>it is essentially immaterial how a given cultivar was created or
>selected. The only thing that matters for the IRA here is that the
>name is acceptable according to the (predominantly nomenclatural)
>rules of the ICNCP. It is *not* the responsibility of a registration
>authority to evaluate cultivars or persons who want to register
>names. It is perhaps rather a moral issue to the horticultural
>community if one wants to buy plants from a source known for
>poaching.
And I think yo8 are making my point. The IRA's indeed have no
responsibilty, by convention or law, to protect the environment or
uphold any rules that do so. But if one talks to the countries who most
support the bio convention implemenation within their bordrs, one
specific aim of implementation is that they can protect whaqt they view
as their rights to the material sourced within their boundaries. Thus,
a Cuban botanist no longer expects, and certain does not wish, to have
to ask a foreign herbarium for a loan of material originating from Cuba
(for new species, etc. originatiung since the bio convention). They (as
do Mexican botanists) consider it pure colonialism that foreign
botanists (not just comercial plant hunters) remove their endemic
material and lay claim to it. Tey are nt against research or
publication. They object to being excluded from the choice to
participate, and they object to ownership of endemic material being
dictated by anyone other than them.
As you said, this is an entirely moral point of view as regards the
IRA's. But as I said in the earlier mail, if an IRA agrees
establishment of a name then a can of worms has been opened and the IRA
will inevitably become a target of criticism, albeit that it has no
legal rsponsibility. Cubans, Mexicans, Venezuelans, and many others
will object if botanists are allowed to remove endemic material for
naming purposes without the express permission of the source country.
Most of these countries are not concerned with the financial issues yet
(though where native aboriginal peoples exist financial aspects are
definately a real issue), its therefore the botanists, professional or
not, that are their curent concern.
>But I trust most were written with at least some good intentions
>(albeit with limited expert knowledge and too little reflection on
>eventual consequences on a global scale).
Totally agree. Too many academics, lawyers, etc., not wide enough
discussion with others, especially thos e who are directly involved in
sampling, botanists or otherwise.
Still, I don't think we differ so much in what we think affects the
countries most concerned to protect their rich source of endemics. (But
if I did disagree, don't worry that I'll flame back a response - I like
debate, even if i'm proved wrong!) And while I admit to still being
unable to get better clarification of how the convention might be
reinterpreted, I hope to chat to an expert soon.
Regards
Paul
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