1. introduction
A paradox characterizes international environmental law today. The present era of legitimacy – of elaborate global regimes, ever more high-profile summits, rigorous scientific reports and ambitious strategic plans – has also been a period of increasing difficulty in building upon the existing achievements of the field.Footnote 1 In the 21st century, the spectre of ineffectiveness haunts the long-established paradigm of international environmental law.Footnote 2 The steadfast faith in the structure of the issue-specific environmental regime, the insistence on the widest consensus, and the attachment to the ‘formalist culture of the international legal process’ as the primary defence against the excesses of polarized environmental politicsFootnote 3 no longer seem to produce the desired effects.
A succinct summation of the field can be found in the first issue of this journal: ‘(l)aw’s prowess as a stabilizing force operating within clearly defined jurisdictional boundaries is well established, but its credentials as an engine for global social change are much shakier’.Footnote 4 It is proposed that this contradiction does not stem from any conflict between the domestic and the international jurisdictions, but instead identifies a methodological challenge. The paradox is the effect of the unravelling of the methodological fusion between what Daniel Bodansky has distinguished as the doctrinal and the policy approaches to international environmental law – that is, the fusion between articulating what the law is and what the law should be.Footnote 5 In a manner hinting at its common law origins, the normativity of international environmental law had methodologically been based on the discovery of already existing legal norms and principles. It will be argued in this article that the unravelling of this foundational descriptive/prescriptive fusion is the result of the loss of the field’s capacity to describe, that is, to comprehend the presently evolving social and ecological realities, and thus provide a compelling account of global social change. There is no hope for the field to be an engine for global social change when it can no longer understand it.
In line with a commitment to methodology in the sense of ‘developing methodologies that are best suited to the type of questions being asked’,Footnote 6 this article will present a theoretical framework, constructed from the works of Michel Foucault, capable of tracing this loss of descriptive capacity, as well as the resultant prescriptive confusion. This is achieved by shifting analytical emphasis from the proliferation of discourse towards the emergence of actors or active subjects. This theoretical framework calls for attention to micro-politics, in the shape of the practices and mechanisms (the apparatuses) for the production of environmental subjectivity that operate outside the formal structures of the international legal sphere. A unique methodological contribution of this approach lies in its Foucaultian conception of power that enables analytical connections to be made between changes occurring at the level of the person and the processes of global environmental governance.
The following section outlines the case study of the historical transformation of biodiversity into genetic gold, before the concept of micro-politics is introduced in the third section. The fourth section applies this framework and outlines practices for the production of subjectivity under the sign of genetic gold. The final section outlines the adverse reaction of law towards these micro-political processes and concludes that only a confrontation with its own end(s) will enable international environmental law to move past the paralyzing paradox.
2. change, value and nature: the many guises of biodiversity
Under the method of the prescriptive/descriptive fusion, international environmental law seeks to assign values to an external ecological reality for a protective environmental norm to be posited. The necessity of locating environmental value has been firmly established as self-evident: ‘[p]lainly, if action is to be taken to protect or conserve elements of the natural world, that must equally be based upon the recognition of some form of value in their continued existence’.Footnote 7 However, as we know from Max Weber, value is, as Sunder Rajan calls it, a ‘double-jointed word’.Footnote 8 It suggests both a process of material economic valuation by the market, as well as a different valuation from an ethical perspective. Secondly, leaving aside the environmentalist normativity, nature is always already both a material space in relation to which certain human practices are formed as well as a concept that guides human thought.Footnote 9 Although remaining largely unacknowledged, this duality of both value and nature invariably complicates the traditional legal method in the environmental field.
A major sub-field where this phenomenon can be clearly observed is biodiversity. Writing on the topic, Geoffrey Bowker alludes to the difficulty of engaging with this double duality in the context of global change:
[W]hile it is clear in a general sense that we as a globalizing species and globalizing economy are currently deeply renegotiating the relationship between nature and culture, we really have no place to site a reflective discourse about the range of ecological and economic issues.Footnote 10
Biodiversity was declared dead in 1997.Footnote 11 For the conservationist making that claim, its formal biological-ecological definition as variability across the three levels of genes, species and ecosystems – the ‘catch-all term of everything biotic’,Footnote 12 – was ‘so all-inclusive that it has become meaningless’.Footnote 13 Despite the attempt to frame disparate ecological traditions and concerns regarding the loss of species, habitats and ecosystems under a single umbrella conservation agenda, neither a normative ethic for nature nor a practical set of conservation solutions materialized.Footnote 14 By increasing knowledge complexity, ecology was left with a vacuous universal banner-word that could only function as a declensionist narrative of environmental loss. According to this type of ecological thought, the attempt to include all environmental values under a single umbrella term had ended up being worthless.
During the same period, biodiversity was debated in starkly contrasting terms, as ‘a metaphorical magnate that currently galvanizes the conservation, scientific and funding communities’.Footnote 15 The addition of the funding to pre-existing conservation expertise and ecological movement strands was indicative of a change in perceptions of biodiversity. The complexity of biodiversity inherently implied a large-scale undertaking, which certain strands of environmental thought had abandoned; if it had become a magnate, what was it attracting? Although couched early on in terms of a North-South ‘grand bargain’,Footnote 16 which can admittedly be used to interpret the quid pro quo of a number of international negotiations at state level both in the environmental field and beyond, the debate on biodiversity had started to attract new sets of non-state actors, and predominantly private actors seeking to realize economic value out of biodiversity.Footnote 17
The initial commercialization of biodiversity as a set of valuable genetic resourcesFootnote 18 was made possible by the development of the biotechnology industry. From the 1970s onwards, advances in molecular biology and genomics, and in particular recombinant DNA technology, made possible not only the identification of specific genes, but also the extraction and re-application of this genetic code in the production of new genetic matter in the shape of DNA or protein. Applied biotechnology expanded the possible uses of biodiversity,Footnote 19 transforming it into a set of genetic resources – ‘raw material inputs for medical and agricultural biotechnology’.Footnote 20 New pharmaceuticals, crops and other substances appeared to be just around the corner. The promise of these technological advances transformed mostly publicly funded natural product discovery programmes that searched for bioactive compounds by screening samples from plants, insects and other micro-organismsFootnote 21 into mostly private for-profit bioprospecting enterprises.
Biotechnology transformed biodiversity into a form of natural capital from which economic value could be extracted. Initially, the potential of this transformation was conceived only in terms of enhancing funding for conservation. This led to a very limited conception of the ‘grand bargain’ as the coming together of the conservation, scientific and funding communities or, in even more simplistic terms, the nebulous entity of the South extracting additional funds by restricting access to a resource that had become valuable to the equally nebulous entity of the North.Footnote 22 This initial commercialization of biodiversity was conceived as fuelling a perpetually positive economic ‘feedback loop’.Footnote 23 Based on the assumption that accelerating the collection and screening of genetic samples would increase the chances of new commercial products, and that the profits from these products would, in turn, fund further conservation of areas containing collectable samples, both the odds of finding new profitable genes and the ecological status of conservation areas would be perpetually improved.
Development economics picked up this specific feedback loop and generalized it as an alternative development path based on taking advantage of the ‘unique asset’ of biodiversity to produce goods and services for the global markets – that is, adding a new form of capital to developing countries’ portfolios.Footnote 24 In that guise, the environmental concern over biodiversity loss was transmogrified into an economic concern over achieving sustainable development via an ‘alternative path’.Footnote 25 In its most ambitious versions, this alternative elevated bioprospecting to the level of ‘another type of agriculture, a very sophisticated agriculture’,Footnote 26 fully capable of competitively displacing other more intensive land uses. Farming was to be supplemented by bioprospecting, and selling agricultural products by selling genetic information. In the end, the economic innovation associated conception of biodiversity as genetic goldFootnote 27 made a mockery of its dismissal by ecologically minded biologists.
A number of writers from the late 1980s onwards criticized this close connection between biodiversity and biotechnology (‘they already sound as if they were made for each other’Footnote 28), highlighting the ethical implications of biological life becoming raw material for industry and of the attempt to ‘offer nature the opportunity to earn its own right to survive in a world market economy’.Footnote 29 These critiques were directed against the anthropocentric, utilitarian and economic values assigned to nature within the discourse of genetic gold, the prominence of the global markets as regulatory instruments, as well as the impact of this change for farmers’ practices and lives in the South.Footnote 30
The International Futures Programme of the Organisation for Economic Co-operation and Development (OECD) spent 18 months between 2007 and the end of 2008 examining ‘a world where biotechnology contributes to a significant share of economic output’Footnote 31 – the world of a global bioeconomy characterized by the diffusion of biotechnology. According to the OECD, the three main elements of this bioeconomy are predicted to be:
the use of advanced knowledge of genes and complex cell processes to develop new processes and products, the use of renewable biomass and efficient bioprocesses to support sustainable production, and the integration of biotechnology knowledge and applications across sectors.Footnote 32
This emerging bioeconomy would span the agriculture, health and industry sectors. The OECD report is effusive in its praise of the technological solutions proposed by biotechnology, but this praise is based on forecasts of likely future scenarios, and not on existing applications. As a consequence, the proposed policy interventions and regulatory mechanisms are geared towards enabling this biotechnological potential that is set to arrive in the future.
This new biotechnology-driven bioeconomy is not, however, a singular triumphant stage of future innovation, but firmly belongs within an existing larger phenomenon of financialization.Footnote 33 Very briefly, financialization, viewed as the latest phase in the history of neoliberalism, refers to the domination of financial markets and their particular economic rationality across all political, economic and social formations. This dominance has remained largely unaffected by the most recent global financial crisis. Financialization installs the constant future modelling, the speculation of the stock market, ‘the crazed prophecies of financial analysts and the cynical advice of interested investment bankers’Footnote 34 at the centre of a post-industrial economic system and society itself. ‘The evaluation of future profits becomes the decisive factor in determining price’Footnote 35 and thus promise becomes the ‘one fundamental’, that which ‘enables production to remain in a permanent state of self-transformation, arming it with a capacity to respond to the most unpredictable of circumstances, to anticipate and escape the possible “limit” to its growth long before it has even actualized’.Footnote 36 In this way, surplus value is disconnected from actual production and extracted from the potential of speculative hype itself. Attracting investment through this promise (for example, through an attractive business plan) becomes central, while realizing profit through production for exchange is only of secondary importance.
As an industry, biotechnology fits very well within this new economic paradigm. As Rajan points out, it represents ‘a game that is constantly played in the future in order to generate the present that enables that future’.Footnote 37 This framing is evident in the OECD report, where the promise of wondrous new pharmaceuticals, crops and chemicals will be realized in the future only if the correct regulatory framework is implemented in the present. By speculating on nature and the biological potential of life itself, biotechnology attaches the promise to transcend natural limits to the promise of financialization to transcend the economic limits on growth.Footnote 38 In this way, the relationship between nature and value is being renegotiated via the establishment of this close link between life and finance.Footnote 39 Thus, the earlier lament that biodiversity and biotechnology ‘already sound as if they were made for each other’ now reflects only a partial view; it is also the case that the foundational rationalities of biotechnology and neoliberalism are equally entwined.
In light of this bioeconomic promise to transcend all limits, biodiversity as genetic gold can also be reconceptualized as signifying a triptych of biodiversity/biotechnology/neoliberalism, indicating a different stage in the commercialization of biodiversity, this time within a context of a knowledge-based bioeconomy. Following the argument of Kean Birch and David Tyfield regarding the particularities of biocapital,Footnote 40 it can be argued that the transformation of biodiversity into valuable genetic resources now constructs this newly discovered resource as an asset rather than a commodity. If we accept that an asset is a resource that both possesses latent value in itself and can also be used to realize surplus value without the necessity of exchange (as in the case of a patent) – whereas a commodity can only produce value by being profitably exchanged (such as a product) – then it becomes clear that biodiversity is not solely a ‘genetic crop’ as Shiva and others critics have intimated (a commodity to be exchanged for profit) but also possesses asset-like characteristics. This represents a significant strategic change. Funding conservation, in the sense of making biodiversity pay its own way through sustainable use, is no longer important. Attracting investment based on biodiversity’s future potential is paramount. In that sense, the previous feedback loop that underpinned the bioprospecting rationality is no longer in operation. There is no need for genetic resources to be profitably exchanged in the global marketplace as raw material input to be conserved, as long as there is a corporation or investment fund that will believe in the forecasts about the future profitability of the associated biotech venture.Footnote 41
The ever-elusive construction of biodiversity as genetic gold (conservation ethic, development path, funding source, land-use type or financial asset) points towards a series of changes in the value of biodiversity. In the most recent guise of genetic gold as the triptych between biodiversity, biotechnology and biodiversity, global social change manifests as a dual attempt to transcend all ecological and economic limits through the application of scientific and economic knowledge. In that case, biodiversity will be used to restructure social relations,Footnote 42 once more making prominent the duality of nature as both physical and conceptual space.
Looking at this brief historical background to the different values attached to biodiversity, we now know that it is not only that biodiversity has found a mirror in biotechnology, but that also biotechnology comes with its own mirror in the shape of the political economy of neoliberalism.Footnote 43 This most recent stage in the decades-long transformation of biodiversity into genetic gold, set within a broad political economic context, now goes far beyond what environmental law has been asked to engage in the roughly 40 years since its inception. In fact, it is not the case that the link between biodiversity and biotechnology resulted in the renegotiation of the boundaries between nature and value, but rather that biotechnology in itself already both represents and perpetuates significant change in these boundaries.
This section has outlined key stages of the historical case study of the transformation of biodiversity into genetic gold. It was also written with reference to the methodological tasks outlined in the introduction. Following a theoretical framework broadly related to the interpretative or constructivist tradition, the section has traced the emergence of environmental norms in relation to biodiversity, thus challenging positivist understandings of law by focusing on value and norms, rather than facts and rules. The emphasis on ideas and concepts, on the notion that the reality of biodiversity is socially constructed, may also lead the reader to identify the section as employing an ‘environmental discourse analysis’ method, which is derived from the same social science tradition.Footnote 44 In the context of what Bodansky terms ‘the explanatory approach’,Footnote 45 the next step would then have involved linking this historical context back to environmental law by examining the effectiveness of these constructed norms, most commonly by way of evaluating their path towards legalization.
Such a step would not take us closer to an international environmental law that needs to account for change before it can push for it. It would simply rehash the unravelling descriptive/prescriptive fusion by internally evaluating the legitimacy and normative potential of the preceding discourses. In line with the methodological task of providing tools for comprehending global social change that is already occurring, the next section will instead chart a Foucaultian approach that, in terms of its analytical objects, substitutes actors or subjects for structures, and the concept of the apparatus for the concept of discourse. This framework is thus distinguished from existing applications of Foucault to environmental law by conceiving environmental subjects as constituted primarily through practices rather than discursive structures.Footnote 46
3. the micro-politics of the subject
The starting point for this approach involves ‘de-institutionalizing and de-functionalizing relations of power’.Footnote 47 Foucault seeks to make the present operation of power explicit. He argues that asking questions such as ‘what legitimates power?’ or ‘what is the state?’ are not sufficient for analyzing the everyday operation of power.Footnote 48 The standard legal and institutional models require expansion; power should not be reified as an entity or a thing held, lost or handed out in pieces by the state:
(f)or let us not deceive ourselves: if we speak of the power of laws, institutions and ideologies, if we speak of structures or mechanisms of power, it is only insofar as we suppose that certain persons exercise power over others.Footnote 49
Contrary to any legal, structural or institutional understandings, power, then, emerges as a relation between persons. Power is most visible at the micro level and manifests as an action upon a human subject (whether an individual or a collective) who is free in the sense of being capable of various paths of action. This understanding of the necessary role of subjectivity within the exercise of power goes against the passive legal subject viewed as the abstract object of law. In Foucaultian terms, power:
… operates on the field of possibilities in which the behaviour of active subjects is able to inscribe itself. It is a set of actions on possible actions; it incites; it induces, it seduces, it makes easier or more difficult; it releases or contrives, makes more probable or less; in the extreme, it constrains or forbids absolutely, but it is always a way of acting upon one or more acting subjects by virtue of their acting or being capable of action.Footnote 50
Any possible definition of power under this conception would be broad, such as that proposed by Michael Barnett and Raymond Duvall: ‘Power is the production, in and through social relations, of effects that shape the capacities of actors to determine their own circumstances and fate’.Footnote 51
From this micro-political conception of the operation of power, Foucault derives a broad conception of government not as a formal institution, but as a form of power in itself understood as the ‘conduct of conduct(s) and [a] management of possibilities’,Footnote 52 or even more broadly as ‘the right disposition of things arranged so as to lead to a suitable end’.Footnote 53 Understanding governing as ‘disposition’ distinguishes it from the imposition associated with more traditional conceptions of the sovereign power of states.Footnote 54 In this formulation, ‘the conduct of conduct’ has multiple meanings; it can refer to the government of others, that is the activity of managing or governing; it can also refer to the practices of conducting oneself or allowing oneself to be conducted by others, as well as generally how one behaves in relation to the required or imposed conduct.Footnote 55 In this broad sense, then, ‘to govern is to structure the possible field of action of others’,Footnote 56 namely by enabling these others (subjects) to govern themselves through their capacity to calculate and evaluate their actions. In Foucault’s work ‘the self is not a natural, given entity but a political one, in the sense that it is constituted by power relations’.Footnote 57 In a circular fashion, the subject on which power acts is produced by that very exercise of power.
Therefore, the art of governing any aspect or domain of our political, economic and social realities – a world society, a sovereign state, a corporation, a social group, the environment, poverty, hunger or development or, for the purposes of this analysis, global social change – in effect relies upon governing a particular representation of these entitiesFootnote 58 produced within an ‘ensemble formed of institutions, procedures, analyses and reflections, calculations, and tactics’.Footnote 59 This relationship between knowledge and power, or thought and government, draws attention to the notion that governing today is not simply a process or an activity, but a set of interconnected discourses and practices – in effect, a collection of rationalities and technologies that continuously produce the human subject that they are tasked with governing.
This analytics of government can access behind the composite reality and abstract entities, such as ‘the state’ or ‘treaty regime’, to the micro level and the contingent relations between these structures, the exercise of power and the production of subjectivity. By focusing on governing as a process of subjectivation, this analytics provides an effective tool to study phenomena such as the rise of non-state agency and the diffusion of political authority, which a global governance literature ‘tied to the triad between sovereignty, authority and legitimacy’ has failed to provide.Footnote 60
Following this diagram, the proposed theoretical framework is able to disaggregate obfuscated, abstracted and macro concepts, such as biodiversity governance or environmental regime, into ‘a set of raw elements: texts, institutions, statements, gestures, architectural and material forms, formalised roles and competences, and self-descriptions’.Footnote 61 The idea of identifying a permeable ensemble contingent upon heterogeneous elements and factors that contribute to the production of subjectivity thus replaces the search for immobile, rigid institutional structures.Footnote 62 The framework can then disassemble the engine of international environmental law in order to observe how its constituent parts function and interact with each other as an ensemble, rather than an institution or structure. The fluid nature of the ensemble – compared with the fixedness and rigidity associated with the latter terms – is crucial.
To complete the framework, it is important that these parts remain distinct and do not coalesce back into the entity that was broken up in the first place. Otherwise, the whole exercise becomes an empty gesture, again succumbing to the descriptive/prescriptive fusion, leading through grand theory back to the normative project that represented the point of departure. This ensemble must remain an ensemble of different parts, a contingent collection of heterogeneous elements, always on the edge of coherence but never achieving it, in order to signify ‘a notion of emergent ordering – a kind of arrangement that is, paradoxically, constituted by its own effects’.Footnote 63 For this purpose, the framework is complemented by the Foucaultian concept of the apparatus. Foucault describes this apparatus as:
a thoroughly heterogeneous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions, in short the said as much as the unsaid.Footnote 64
A number of heterogeneous, ‘raw’ elements can therefore co-exist and link up within the construct. Foucault explains that ‘the apparatus itself is the system of relations that can be established between these elements’.Footnote 65 These elements retain their heterogeneity; they are not fused into a fixed, hierarchical structure. Gilles Deleuze’s loose attribution of a ‘multi-linear’ character to the apparatus emphasizes this same point:
It is composed of lines, each having a different nature. And the lines in the apparatus do not outline or surround systems which are each homogeneous in their own right … but follow directions, trace balances which are always off balance, now drawing together then distancing themselves from one another. Each line is broken and subject to changes in direction, bifurcating and forked, and subject to drifting.Footnote 66
By identifying such a ‘tangle’ of lines, the apparatus is clarified as a self-constituting, fluid and temporal assemblage, not put together into a coherent, fixed, hierarchical structure by individuals, organizations or entities that ‘hold’ power. Instead, it ‘has as its major function at a given historical moment that of responding to an urgent need’.Footnote 67 It is thus driven by a ‘strategic imperative’,Footnote 68 which is understood as ‘a rational and concrete intervention in the relations of forces, either so as to develop them in a particular direction, or to block them, to stabilize them, and to utilize them’.Footnote 69
Therein lies the cyclical nature of the apparatus as a mechanism of power ‘constituted by its own effects’; it produces solutions to a problem it has itself articulated in terms that make the produced solutions plausible. Through the notion of the apparatus, it is thus possible to identify and analyze ‘a set of practices and mechanisms … that aim to face an urgent need and to obtain an effect that is more or less immediate’.Footnote 70 It is important to note that both the urgent need and the effect to be obtained – around which the exercise of power as governing is organized – is internalized and conceived through the lens of the knowledge mechanisms of the apparatus itself. For this reason,
[t]he ‘term’ apparatus designates … a pure activity of governing devoid of any foundation in being. This is the reason why apparatuses must always imply a process of subjectification, that is to say, they must produce their subject.Footnote 71
In this sense, this apparatus functions as a ‘complex of subjectification’,Footnote 72 a mechanism that produces the correct type of subjectivities in response to the problematization that the apparatus itself continuously (re)articulates. In other words, the apparatus is an urgent and practical manifestation of a foundation-less power; it constitutes itself by constituting subjects capable of being governed under the diagram of a specific strategic need, thus making apparent the link between knowledge and power, as well as between thought and government. Writing on Foucault’s apparatus, Giorgio Agamben goes on to simplify this concept even further:
I shall call an apparatus literally anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviours, opinions, or discourses of living beings.Footnote 73
This broad concept of the apparatus thus enables an engagement with the question of power without resorting to the binaries between law and politics. Instead of following the structure of international environmental law and thus starting the analysis from the treaty that spawned the respective issue-specific regime, one can instead begin with identifying the elements that have coalesced into an apparatus, and their interactions would, in turn, render explicit and visible the operation of power. By extension, instead of the nebulous goal of ‘global social change’ that international environmental law has to engineer at an impossibly abstract, macro level, one can begin with the specific effect of subjectification arising from power relations, of the process by which governable subjects are produced by apparatuses.
The following section applies this analytics of government – that is, the Foucaultian conception of government as a form of power encapsulated in the production of subjectivity – to the bioeconomic promise of genetic gold in order to identify relevant micro-politics of subjectification.
4. the subjects of genetic gold
The conjunction of biodiversity, biotechnology and neoliberalism housed under the idea of genetic gold poses significant challenges for international environmental law. The bioeconomic intrication inherent in genetic gold clearly identifies the genetic resources of biodiversity as an important factor of global social change in the shape of a coming bioeconomy to arrive shortly in the future, but not necessarily of any pressing concern to arrest environmental decline. Keeping this realization in mind, it may well be that if genetic gold is functioning in the micro-political terms identified in the previous section, then the kinds of subjectivity that are produced may be unrelated or downright inimical to any environmentalist concern. The following section revisits the history of biodiversity as genetic gold and identifies key apparatuses where this production has taken place in the last two decades.
4.1. The Training Course
The National Biodiversity Institute of Costa Rica (INBio) was established in 1989 as a private, non-profit, public interest organization.Footnote 74 INBio’s task was two-fold: (i) to create a comprehensive inventory of wild biodiversity present in Costa Rica’s conservation areas; and (ii) to promote and integrate ‘environmentally responsible’ and non-destructive uses of this biodiversity into the state’s economy and society.Footnote 75 The image of its Central American location as an ecological paradise (a ‘Canaan for biodiversity’ Footnote 76) perpetuated by conservation biologists for decades, coupled with the environmental credentials of the Costa Rican government, made the location an ideal choice for what was heralded as a biodiversity ‘pilot project’.Footnote 77
INBio was able to ‘receive grants, enjoy tax-free status … tightly linked to national institutions … but not legally obligated to any of them … [as well as] fully empowered to enter into contracts and agreements with national and international institutions and individuals’.Footnote 78 It was quite clearly not an environment or conservation agency, but an early manifestation of the bioeconomic triptych of biodiversity, biotechnology and neoliberalism. It had no mandate in terms of managing the conservation of protected areas; it was simply designed as a vehicle for attracting funding based on the future potential of genetic gold.
To fulfil the objective of creating a biodiversity inventory, from the outset the institute began to train collectors, which were known as ‘parataxonomists’. They were distinguished from university educated or scientifically trained sample collectors, taxonomists or technicians,Footnote 79 although ultimately the specific task assigned to them was similar in practice: the collection and screening of samples. The training course was promoted as an attempt to educate rural people, although the first course focused internally on public sector workers already employed within the administrative structure responsible for managing the national conservation areas.
The training went beyond the transfer of the requisite scientific knowledge for sample collection (that is, the basics of botany, entomology, genetics, evolution, mathematics, and so on), and focused on broader job-related skills:
The course also touched on the definition of administration, the structure and content of environmental legislation and conservation propaganda, research funding, personal relationships with government and [non-governmental organization] NGO administrators, teaching skills, and self-confidence.Footnote 80
The training went even further, away from any notion of supporting the performance of core parataxonomist tasks. It sought to impart life skills, ‘practical skills as how to drive a car, operate a chainsaw … use a computer and a topographic map … manage a budget and petty cash fund, and fathom and tolerate foreigners’.Footnote 81 It went further still, to fashioning a different sense of self: ‘Others needed to learn how to work alone at night in the forest without fear, how to lose weight, and how to absorb constructive criticism’.Footnote 82 It is thus clear that this course packaged additional objectives under the vocational title of teaching taxonomic and biological literacy. Students were to ‘acquire a new vision, a new way of seeing nature’.Footnote 83
Traces of the course’s rationality can be found in the older notion of ‘biocultural restoration’Footnote 84 that was proposed by American biologist, Daniel Janzen, one of the founders of the INBio project. In its early formulations, this proposed restorative axis of biodiversity betrayed its Northern descent through its colonial problematizations. For example, the human subject to be restored through this process was initially conceptualized as ‘tropical people ... experiencing ... intellectual deprivation represented by the upcoming obliteration of tropical wildlands’.Footnote 85 Their communities were perceived as stable, unchanging and thus declining in the fast-moving world of globalization and biocapital. INBio’s founders argued that ‘biodiversity must again be a grand intellectual resource for rural tropical people, who otherwise lack intellectual challenges and cultural opportunities’,Footnote 86 intricating the natural and the social. This perception of a loss of opportunity and of an absence of (e)valuation in terms of both nature and oneself, was what the training course was seeking to address.
4.2. The Contract
In pursuit of private funding, very soon after its inception INBio signed a bioprospecting contract with Merck in 1991 and became a partner in a joint medical biotech venture. The contract provided the pharmaceutical corporation with access to the institute’s future biodiversity inventory (specifically samples from plants, insects and micro-organisms collected from publicly administered conservation areas) for the purpose of developing new pharmaceuticals. In exchange, Merck agreed to finance the creation of this inventory, to contribute funds to biodiversity conservation and, crucially, to royalty payments in the event of successful drug development. This may have constituted a fairly standard licensing arrangement between a pharmaceutical company and a new biotech start-up engaged in upstream activities when both entities belonged to the private sector, but the blurring of the previously separate private and public, as well as commercial and academic, research domains signalled the arrival of biotechnology. This contract then became the core template, ‘widely hailed as the example of what the Convention [on Biological Diversity (CBD)Footnote 87] would do’,Footnote 88 and was celebrated as a ‘watershed’ in the history of bioprospecting.Footnote 89
Contemporary analyses of the impact of the Merck/INBio agreement published shortly after the entry into force of the CBD tended to view the two legal texts on an equal footing and as events in a single biodiversity-related continuum, without reference to their obvious legal differences. For example, one such commentary underlined how ‘the cooperative spirit that encompasses ... the transaction stands in stark contrast to the divisiveness between North and South which has characterized the negotiations on the Convention’.Footnote 90 In a clear message to the CBD it had rejected, the endorsement by the United States (US) biotechnology industryFootnote 91 further distinguished the INBio project as a pragmatic, practical, market-friendly and business-oriented initiative. Being a dynamic market transaction as opposed to a slow diplomatic negotiation, it was heralded as a milestone for establishing a different biodiversity value.
The impact of the hype associated with the Merck/INBio contract was significant. Within a seven-year span from 1995 to 2002, over 100 states – possessing the majority of the world’s remaining biodiversity – introduced national and regional laws which de facto restricted access to genetic resources,Footnote 92 often in explicit and direct contrast to the CBD provisions requiring them to facilitate access.Footnote 93 This was an example of biotechnology-induced financialization: enacting laws in the hope of taking advantage of an uncertain future market opportunity. Since the INBio template had framed this legislative intervention in terms of a choice between the exciting promise of biotechnology within a global bioeconomy and the dour, statist, consensus-based collectivisms of international law, it was no surprise that the market rationality of genetic gold won over the formal legal discourse of the CBD.
Despite the fact that the original Merck contract was concluded without yielding any marketable products, the now so-called ‘research collaborative agreements’ have flourished without significant changes from the initial bioprospecting arrangement.Footnote 94 Even if the OECD’s specific predictions regarding the bright future of the bioeconomy are challenged,Footnote 95 as long as the bioeconomic promise of the triptych of biotechnology, neoliberalism and biodiversity remains, these partnerships will continue to attract funding globally. Bowker argues that there have been two ways of dealing with biodiversity’s complexity and scope: the ‘list’ and the ‘coin’.Footnote 96 The trajectory initiated by the Merck/INBio arrangement clearly illustrates that INBio was not restricted to classifying or selling biodiversity as a genetic crop, but also crucially hyping and promoting its potential locally and globally.
4.3. The Declaration
The extension of the bioeconomic promise into the realm of national salvation was formally unveiled at the international level with the fleeting formation of the group of Like-Minded Megadiverse Countries (LMMC).Footnote 97 The transformative idea of genetic gold, after being put into practice on the ground in Costa Rica, was now being transferred into abstract legal discourse. The LMMC’s 2002 Cancún Declaration ‘emphasized’ that:
The resources of biological diversity and the environmental services that depend on them have an immense strategic, economic and social value, and offer development opportunities to our populations and to the international community.Footnote 98
The emphasis on ‘development opportunities’ indicated the aspiration that some notion of a North-South ‘grand bargain’ should be installed as the strategic imperative, which seemed outdated within the financialized commercialization of biodiversity as genetic gold. However, this larger goal consisted of multiple smaller aims:
[To e]nsure that the goods, services and benefits arising from the conservation and sustainable use … are utilized for the development of our peoples, seeking among other objectives to improve upon food safety, overcome health problems that affect us, and preserve our cultural integrity.Footnote 99
In pursuit of these aims, the Declaration proposed a new general ethic of ‘equity’.Footnote 100 This ethic was not presented as a concrete proposal for a new general principle of international law, or a specific proposal for the re-orientation of the CBD, for example, by placing more weight on the equitable benefit-sharing objective. Conservation and sustainable use of biodiversity were to be ensured simply by ‘responsible attitudes’,Footnote 101 with no mention of additional regulation. It appeared as an ethic directed generally to individuals or to communities, and not, as expected, solely to institutions, such as the states themselves, the relevant treaty regime or other organizations. The influence of genetic gold and INBio turned the Declaration from a standard piece of development rhetoric into a guide for individual and collective conduct, directed at types of subject previously absent or conceived only as passive objects, receptacles of international environmental law implemented via the conduit of the state. In another subtle twist of the standard expectations of the field, concern was further expressed over the limitations of international instruments themselves in terms of protecting, not biodiversity itself, but the ‘legitimate interests of the countries of origin of biodiversity’.
This new ethic of responsibility was advanced as part of the coming bioeconomy ‘associated with the use of biological diversity, genetic resources and biotechnology’.Footnote 102 The urgency present in the Declaration is not related to a perceived environmental crisis or problem of biodiversity loss, but is instead associated with the need ‘to develop human resources, institutional capabilities, as well as an appropriate legal framework and public policies to enable our countries to take an active part in the new economy’– that is, with not losing out on the economic promise presented by biodiversity.
It is easy to denigrate the Cancún Declaration as ‘soft-law’, an aspirational discourse from a group of disparate states with very few common interests, and thus undeserving of the same attention and standing as formal international law. The LMMC initiative can be further belittled by arguing that any state grouping or consensus is easy to achieve when hard law commitments are absent. In fact, the transient nature of this grouping has now been proven by its swift dissolution, but that does not mean that the Declaration should be swept under the carpet. It represents a significant conceptual inversion, precisely because it uses nature as a conceptual space to govern human conduct rather than a physical space to be governed according to some environmental ethic. This inversion further confirmed the trajectory initiated by INBio in 1991. In the context of genetic gold, law reform itself had displaced biodiversity loss as the main concern. In 1993, prescient arguments were being put forward regarding a ‘policy vacuum’ that had to be filled in order to ensure that ‘the commercial value obtained from genetic and biochemical resources is a positive force for development and conservation’.Footnote 103
More than ten years before the OECD’s enthusiastic embrace of biotechnology, the INBio pilot project had already intervened to restructure the environmental subjectivities of its participants: ‘biodiversity is the product line, Costa Rica Inc. is the corporation, its citizens are the stockholders, and Rodrigo Gamez is the CEO’.Footnote 104 It also constituted a break from standard environmental advocacy revolving around the image of the ecologically aware scientist diligently sounding the alarm regarding a specific environmental problem, organizing support and lobbying national governments for stricter environmental laws or better enforcement. Instead, the ecologically aware scientist would, from now on, become an entrepreneur seeking financing for a new venture.
It is important to note the micro-political scale and dispositional character of this apparatus, operating outside the control or even awareness of the traditional actors of international environmental law and policy (international treaty system, organizations, and large Northern environmental NGOs). Under the banner of genetic gold, biodiversity – rather than an endpoint itself as the normative object, and in addition to its identification as a set of valuable resources capable of financing a virtuous circle of conservation and development – constituted an ‘intellectual resource’, associated with a set of entrepreneurial values connected with the emergence of an economic opportunity. Both the training course and the contract indicated, in effect, a different method of living and thinking through biodiversity, once the necessary knowledge and skills to take advantage of these opportunities were acquired.
The adoption of its rationality by the Declaration illustrated that INBio was an apparatus instituting change in society, rather than in the state’s environmental laws or its management of its conservation areas. Its strategic imperative, the urgent need that it was responding to, was an economic deficiency in human conduct preventing the maximization of the asset of biodiversity rather than an ecological deficiency resulting in biodiversity loss. It directed the government of the self rather than of the environment. In this way, this apparatus was not responding to a structural crisis at the level of the state or its institutions in terms of lack of environmental action, but a crisis of subjectivity that it had itself produced – the problem of having valuable genetic gold, but not having the tools to use this asset productively.
In the case of biodiversity, international environmental law during the 1990s was in direct competition with a project that redefined the problematization of biodiversity in practical terms through the micro-politics of the subject. As it was completely unaware that such competition was taking place, it lost badly. Environmental law was in the way – a relic attempting to protect a fixed idea of biodiversity based on a conception of environmental value that had already changed. The final section outlines the details of this failure, as well as the lessons that can be drawn from this episode in the history of environmental law.
5. reframing international environmental law: addressing failure
This article has identified a paradox in the present operation of international environmental law related to the unravelling of the descriptive/prescriptive fusion that defines the horizon of the field. This unravelling was compounded by the refusal to acknowledge fully the implications arising from the duality of both nature and value. The effect of this paradox is that law appears to be incapable of dynamically engineering global social change because of the absence of a theoretical framework for understanding change as already occurring across the world, outside the strict assumptions and fixed certainties of environmental discourse. To investigate this methodological hypothesis, the article then proceeded to discuss a node of significant changes in the way in which the environment is perceived and valued: biodiversity, as transformed over time under the elusive banner of genetic gold. In order to investigate how the idea of genetic gold operates in practice, the analysis eschewed the primacy of the legal text and took a step back from structural and institutional analyses, towards the micro-political level. Bringing methodological components from the work of Michel Foucault into an analytics of government, the article sought to illustrate how genetic gold proliferates through the production of the kinds of subject that would fit within the future of a knowledge-based, neoliberal bioeconomy: the parataxonomist and the biodiversity entrepreneur.
International environmental law remains strangely disconnected from these subjects of genetic gold. By the time of the LMMC’s Cancún Declaration, the CBD had been in force for approximately ten years, steadily instituting an elaborate legal regime working towards the formally stated goals of conservation, sustainable use, and equitable sharing of the benefits arising out of the use of biodiversity. The most recent result of this process has been the Nagoya Protocol on access to genetic resources,Footnote 105 which was adopted despite not instituting the legal mechanism (a global regime on access and benefit-sharing arising from the utilization of genetic resources) that was the object of its seven-year negotiation in the first place.Footnote 106 Article 10 masks the ongoing nature of the negotiations by stating that ‘the Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism’ in the future. The flipside of the paradox is precisely that international environmental law has to persevere, even when there is no consensus on what that law should be.
Under a conventional model of effectiveness built on a conception of power attached to the triad of sovereignty, authority and legitimacy, the effective operation of any environmental treaty regime, such as the CBD, depends on achieving consensus on an internationally agreed normativity that would then be translated by domestic law into sets of everyday impositions. This essential chain of legal fictions is required in the service of addressing the specific environmental problem as defined in the Treaty (that is, biodiversity loss). This is the model that the CBD is desperately hanging on to via its most recent protocol. Under a Foucaultian conception of power, this legal chain is not essential; indeed, it is challenged as irrelevant. Instead of any concerted global social change to address the problem of biodiversity loss, a multitude of other changes have occurred under the triptych of neoliberalism, biodiversity and biotechnology that is genetic gold today. These can be observed easily from just focusing on a few micro-political examples from the history of the transformation of biodiversity into genetic gold.
Of course, the suggestion that a short training course and a contract have irrevocably changed humanity’s valuation and treatment of biodiversity, while for two decades hundreds of international meetings fumbled in the dark, may be anathema to certain strands of legal thought. The additional dissemination of these templates, as evidenced in legal terms by the establishment of a heterogeneous tableau of access regulations regarding genetic resources, as well as the overall rationality of the Cancún Declaration, further challenged international practice. Perhaps strangely for an international treaty that is championing diversity, the CBD is seeking to reverse this micro-political process and re-establish its legal authority through the vacuous Nagoya Protocol. At this point, however, masking the paradox through a proliferation of legal text may need to give way to an engagement with changing practices on the ground.
A serious debate regarding methodology and theory in environmental law should not be exclusively self-serving. The construction of any pedestal for an active law dynamically driving global social change does not represent a quest for restoring the effectiveness of international environmental law ex ante. Maturity will emerge when not every change or critique is taken as an ontological challenge or a sign of the impending failure of the whole field. The task of international environmental law at this moment in time should consist of a confrontation with its own ends and possible end. In both questioning and fashioning a role for itself, it has to move from closed and isolated reactionary tasks to engaging with more complex governmental projects at play in the world today. The paradox can be seen as tracing such a novel path – no longer about engineering change in a fixed external entity, but simply about managing to incorporate what is already happening in an ever-changing heterogeneous world.
The field may be loath to abandon its long-cherished universals and normativity. But the question cannot yet be whether genetic gold or the neoliberal bioeconomy is ‘good’ or ‘bad’ from an environmental perspective. International environmental law has certainly made them dangerous for both environmental protection and its own existence, simply by being oblivious to the full scale of changes that they entail. In the end, the micro-politics of environmental subjectivity can offer the level of descriptive detail and the possibility of prescriptive connections needed to lift the paradox of international environmental law. Only further application will show whether that is enough.
