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7/1

TOWARDS A PEOPLE’S HISTORY OF THE LAW: BIOCULTURALJURISPRUDENCE AND THE NAGOYA PROTOCOL

ON ACCESS AND BENEFIT SHARING

Kabir Bavikatte and Daniel F. Robinson

ARTICLE

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The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Châtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, [email protected]

This document can be cited asKabir Bavikatte and Daniel F. Robinson, ‘Towards a People’s

History of the Law: Biocultural Jurisprudence and the NagoyaProtocol on Access and Benefit Sharing’,

7/1 Law, Environment and Development Journal (2011), p. 35,available at http://www.lead-journal.org/content/11035.pdf

Kabir Bavikatte, Lawyer and Co-Director, Natural Justice (Lawyers for Communities and the Environment), Doctoralcandidate, Department of Public Law, University of Cape Town, www.naturaljustice.org, Phone: +27 21 4261633.Email: [email protected]

Daniel F. Robinson, Lecturer and Masters Coordinator, Institute of Environmental Studies, Vallentine Annexe,University of New South Wales (UNSW), Sydney, NSW Australia 2052. Phone: +612 9385 9809. Email:[email protected]

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

ARTICLE

TOWARDS A PEOPLE’S HISTORY OF THE LAW: BIOCULTURALJURISPRUDENCE AND THE NAGOYA PROTOCOL

ON ACCESS AND BENEFIT SHARING

Kabir Bavikatte and Daniel F. Robinson

TABLE OF CONTENTS

1. Introduction 371.1 Background to Bioprosepecting, Access and Benefit Sharing 371.2 Theoretical Contexts 39

2. The Calm Before the Storm: Status Quo Prior to the Nagoya Protocol 402.1 The Arts of Resistance: Negotiating Towards the Nagoya Protocol 41

3. The Optimism of will Against the Pessimism of Intellect: The Gains of Nagoya 443.1 The ‘Subject to National Law’ Sleight of Hand 453.2 Recognising Customary Laws and Community Protocols 453.3 Securing Rights over Genetic Resources 463.4 Reference to UNDRIP 473.5 Compliance Measures Relating to Traditional Knowledge 47

4. Field Notes from the Frontline: The Emergence of Biocultural Jurisprudence 48

5. Conclusion: Minding Biocultural Rights 49

1INTRODUCTION

The English Marxist historian E.P Thompson in hisclassic work ‘The Making of the English Working Class’1marshals rich evidence to disprove what he called ‘theenormous condescension of posterity’ where history iswritten as if it is a result of great figures or global forces,erasing the struggles of the ordinary people who haveresisted and informed these forces. History accordingto Thompson is not just made by the forces of themarket but also by the struggles, aspirations and hopesof ordinary people striving to influence the conditionof their lives.

Thompson’s argument to view events not merely asresults of the systemic juggernaut but as outcomes of adialectic between social and political ‘structures’ and the‘agency’ of people resisting and challenging thesestructures offers a good lens through which to criticallyview the Nagoya Protocol.2

We proffer that the Nagoya Protocol should be analysedwith the aid of three guiding questions:

1) What was the status quo prior to the NagoyaProtocol?

2) What did indigenous peoples and localcommunities seek to achieve through theNagoya Protocol and how did they go aboutdoing this?

3) What is the outcome of these communityefforts in the Nagoya Protocol?

Our analysis of the Nagoya Protocol comes from anunderstanding of the law as neither a neutral terrainnor an impregnable system of vested interests. Instead

we approach law as a ‘site of struggle’3 where differentgroups lobby for their interests. Some of these groupsare clearly more powerful than others, which explainthe reticence of State law regarding rights of indigenouspeoples and local communities. However it is critical toacknowledge that power begets resistance and thatindigenous peoples and local communities have not justbeen passive victims of the law but on the contrary havefought strategic and pitched battles to stem andsometimes turn the legal tide. They have used a varietyof arenas that range from streets and courtrooms tosupranational forums such as negotiations towardsmultilateral environmental agreements.

In answering the three questions we have posed, we willattempt cartography of the emerging biocultural rightsof indigenous peoples and local communities under theConvention on Biological Diversity (CBD)4 and therebyalso map their struggles specifically within the WorkingGroup on ABS and the Working Group on Art 8j andother related provisions. Through this we hope to havetaken the first step towards writing a peoples history ofthe Nagoya Protocol. The objective of such cartographyis to trace the trajectory of the activism of indigenouspeoples and local communities in the CBD processesthereby providing us with a political compass with whichto strategise on the nature, direction and the terrain ofthe fight to come.

1.1 Background to Bioprosepecting,Access and Benefit Sharing

The interest in establishing rules to ensure that scientificcollecting activities (particularly commercial activities)‘give back’ to the various communities involved inbiodiversity conservation culminated in language on‘facilitated access’ and ‘fair and equitable benefit sharing’in relation to genetic resources within the 1992Convention on Biological Diversity (CBD). The term

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1 E.P. Thompson, The Making of the English Working Class(London: Gollancz, 1963).

2 Nagoya Protocol on Access to Genetic Resources and theFair and Equitable Sharing of Benefits Arising from theirUtilization to the Convention on Biological Diversity,Nagoya, 29 October 2010, available at http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.

3 See J.C. Scott, Domination and the Arts of Resistance: HiddenTranscripts (New Haven CT: Yale University Press, 1990) andhis discussion of public and hidden transcripts in chapterone (pp 1-16); and Nick K. Blomley, Law, Space and theGeographies of Power 7-59 (NY: Guildford Press, 1994)particularly chapters one and two which discuss law as a siteof struggle, and the many spaces or geographies of legalstruggle.

4 Convention on Biological Diversity, Rio de Janeiro, 5 June1992, 1760 UNTS 79; 31 ILM 818 (1992).

http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf

‘bioprospecting’, which was likely coined by Eisner in anumber of his papers between 1989 and 1992, triggeredmuch expectation about the scientific use of biologicalmaterials, particularly where they were associated withindigenous knowledge and uses of the materials.

The bioprospecting concept is based on recognition ofthe importance of natural product discovery for thedevelopment of new crops and medicines, often basedon traditional knowledge. For example in manydeveloping countries, a large part of the populationdepends upon traditional medicines for their primaryhealth care needs. In India, 65 per cent of the populationhas access to traditional systems of medicine, and inAfrica 80 per cent of the population uses traditionalmedicines5. Much of this knowledge has not beenexamined using the most advanced scientific methods,however this is rapidly changing. As Laird and Wynberg6

note, natural products continue to play a dominant rolein the discovery of new leads for the development ofdrugs. They contribute significantly to the bottom linesof large pharmaceutical companies: between January1981 and June 2006, for example, 47 per cent of cancerdrugs and 34 per cent of all small molecule new chemicalentities for the treatment of all disease categories wereeither natural products or directly derived therefrom7.Research into specific natural products is usually directedby existing knowledge, often directly from indigenousor local communities, but now in many cases astransferred through the ‘public domain’.8

The book Biodiversity Prospecting by Reid et al.,9 describebioprospecting as: ‘the exploration of biodiversity forcommercially valuable genetic and biochemical

resources’. For these authors, when conductedappropriately bioprospecting can:

… contribute greatly to environmentally sounddevelopment and return benefits to the custodiansof genetic resources – the national public at large,the staff of conservation units, the farmers, theforest dwellers, and the indigenous people whomaintain or tolerate the resources involved.

The book generally champions a ‘win-win’ scenario of‘benefit sharing’ and respect for indigenous or traditionalknowledge, and also a boon for humanity throughscientific research. The authors do note that there havebeen past instances where resource exploitation has hadnegligible or harmful effects on biodiversity conservationand local communities. Therefore they premise theirsuggestions on the need for appropriate policies andinstitutions ’to ensure that the commercial value obtainedfrom genetic and biochemical resources is a positiveforce for development and conservation.’10 It was thispremise, as well as the push for language on the‘sustainable use of biodiversity’ that saw the CBD textinclude elements on ‘access and benefit-sharing’ (ABS)and then documents such as the Bonn Guidelines onAccess to Genetic Resources and Fair and EquitableSharing of Benefits Arising out of their Utilisation,11

which have been used to clarify ethical approaches toprior informed consent and mutually agreed terms onwhich to gain access and establish benefit-sharing whenaccessing genetic resources and associated traditionalknowledge. Due to the voluntary nature of the BonnGuidelines, and without clear national systems of ABSin a number of countries, many users of genetic resourceand associated traditional knowledge (whethercommercial and industrial researchers or academics) havenot necessarily felt obliged to follow principles of priorinformed consent and benefit-sharing.12 As a result,

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5 World Health Organization, WHO Traditional Medicine Strategy2002-2005 (Geneva: WHO, 2002); K. Timmermans,‘Intellectual Property Rights and Traditional Medicine: PolicyDilemmas at the Interface’ 57/4 Social Science and Medicine745 (2003).

6 Sarah Laird and Rachel Wynberg eds., Access and Benefit Sharingin Practice: Trends in Partnerships Across Sectors 12, Conventionon Biological Diversity Secretariat, Montreal: TechnicalSeries, No. 38 (2008).

7 D.J. Newman and G.M. Cragg, ‘Natural Products as Sourcesof New Drugs Over the Last 25 Years’ 70/3 Journal ofNatural Products 461 (2007).

8 Daniel F. Robinson, Confronting Biopiracy: Challenges, Cases andInternational Debates 11 (Earthscan: London, 2010).

9 W.V. Reid et.al., Biodiversity Prospecting: Using Genetic Resourcesfor Sustainable Development 1 (Washington DC: WorldResources Institute, 1993).

10 Id. at 2-3.11 Bonn Guidelines on Access to Genetic Resources and Fair

and Equitable Sharing of Benefits Arising out of theirUtilization, in Report of the Sixth Meeting of the Conferenceof the Parties to the Convention on Biological Diversity, UNDoc. UNEP/CBD/COP/6/20 (2002), available at http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf.

12 As noted by Evanson Chege Kamau, Bevis Fedder and GerdWinter, ‘The Nagoya Protocol on Access to GeneticResources and Benefit Sharing: What is New and What are theImplications for Provider and User Countries and the ScientificCommunity?’ 6/3 Law, Environment and Development Journal 24 (2010).

many of the bio-diverse developing countries as well asindigenous peoples had sought to develop bindinginternational obligations that build upon the principlesenshrined in the Bonn Guidelines.

This then led to several sessions of the ‘Ad Hoc WorkingGroup on ABS’, which has sought to balance variousinterests in biodiversity (commercial exploitation,conservation, sustainable use, indigenous peoples andlocal community (IPLC) use and conservation) throughthe lens of bioprospecting. This was paralleled by aWorking Group on Article 8(j) and Related Provisions,which has had a traditional knowledge focus, and whichhas gradually transferred indigenous peoples and localcommunities viewpoints and interests into the ABSWorking Group. Before exploring these in more detail,it is worth raising some of the deeper theoretical contextssurrounding ABS and the development of the NagoyaProtocol.

1.2 Theoretical Contexts

There are two main theoretical contexts for which webelieve it is important to explore and understand theconcept of ABS, and the development of the NagoyaProtocol. They can probably be described most simply as:

1. The neoliberalisation (particularly theprivatisation and marketisation) of nature,which, in the ABS context has seen manydifferent stakeholders trying to balance usevalues, exchange values and intrinsic values ofbiodiversity;

2. The concept of (subaltern) ‘cosmopolitanlegality’, which posits law as a site of struggleand implicates a grass-roots movement that‘seeks to expand the legal canon beyondindividual rights and focuses on theimportance of political mobilisation for thesuccess of rights-centered strategies.’13

First, whilst there is clearly no consensus on what exactlyis meant by the ‘neoliberalisation of nature’, there is

definitely an expansive literature on the topic that hasbeen surveyed comprehensively by Castree.14 Presentingan ideal-typical characterisation of the elements ofneoliberalisation, Castree15 describes two key elementsof privatisation and marketisation as such:

Privatisation (that is, the assignment of clearprivate property rights to social or environmentalphenomena that were previously state-owned,unowned, or communally owned. New ownersof hitherto unprivatised phenomena canpotentially come from anywhere across theglobe).

Marketisation (that is, the assignment of pricesto phenomena that were previously shieldedfrom market exchange or for various reasonsunpriced. These prices are set by markets thatare potentially global in scale, which is whyneoliberalism is often equated withgeographically unbounded ‘free trade’).

Certainly bioprospecting evokes elements of both theprivatisation and marketisation of biodiversity eitherdirectly or indirectly. The privatisation of biologicalresources is occurring through international agreementssuch as the WTO Agreement on Trade-Related Aspectsof Intellectual Property Rights (TRIPS), which requiressome form of intellectual property protections in allMember countries for biological resources.16 Thistypically allows for patent or plant variety protectionsover biological materials and plants (and often associatedtraditional knowledge) that have been bioprospected,researched and are being commercialised. This then leadsto new marketisation of biological resources andassociated traditional knowledge – new modes ofownership and market exchange over the intangible orvalue-added aspects of these resources or knowledge


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13 Boaventura de Sousa Santos and Cesar A. Rodriguez-Garavito, ‘Law, Politics and the Subaltern in Counter-Hegemonic Globalization’, in Boaventura de Sousa Santosand Cesar A. Rodriguez-Garavito eds., Law and Globalizationfrom Below: Towards a Cosmopolitan Legality 1, 15 (Cambridge:Cambridge University Press 2005).

14 Noel Castree, ‘Neoliberalising Nature: The Logics ofDeregulation and Reregulation’ 40/2 Environment and PlanningA, 142 (2008).

15 N. Castree cites Brenner and N. Theodore, ‘Cities and theGeographies of ‘Actually Existing Neoliberalism’’ 34Antipode 349 (2002); J. Peck and A. Tickell, ‘NeoliberalizingSpace’ 34 Antipode 380 (2002); J. McCarthy and S. Prudham,‘Neoliberal Nature and the Nature of Neoliberalism’ 35Geoforum, 276 (2004).

16 Article 27.3(b) of the Agreement on Trade-Related Aspectsof Intellectual Property Rights (Annex 1C to the MarrakechAgreement establishing the WTO, 1995).

sees them commodified in new ways.17 This hasobviously resulted in various concerns from indigenouscommunities, bio-diverse developing countries, farmer’sand peasant groups, and conversely, there are championsof bioprospecting. On bioprospecting, Castree18 alsonotes that:

‘rival theoretical discourses on the ‘selling natureto save it’ approach to environmentalconservation... currently de rigueur in mainstreamglobal environmental organizations, is touted byits advocates in the academic and policy worldas an effective tool for ‘green developmentalism’.For a cohort of university-based left critics,however, bioprospecting is one more troublingexample of ‘post-modern ecological capital’ inaction, representing the further commodificationof nature for profit purposes.

The ABS negotiations which seek to regulatebioprospecting activities internationally have sought tofind compromise and balance between the various waysthat biodiversity can be valued, privatised and marketised,and importantly on what terms. Thus we examine theterms of this balance and the terms of the NagoyaProtocol with an evaluation of the resistances made bysome of the potentially most vulnerable groups and alsopotential beneficiaries to the Protocol – indigenouspeoples and local communities.

This leads to the second theoretical note, that the NagoyaProtocol is the result of an ongoing struggle to assertthe rights of indigenous peoples and local communitiesto their natural resources. This might be described byde Sousa Santos and Rodriguez-Garavito (2005) as a‘counter-hegemonic’ movement, at least in part, againstthe neoliberal institutionalisation of biological resourcesthat are conserved by indigenous peoples and localcommunities and also to protect their knowledge fromthe same.19 The Nagoya Protocol could certainly be seen

as an expansion of ‘cosmopolitan legality’ which, weargue, has led/is leading to what could best be callednew forms of ‘bio-cultural jurisprudence’.

There has been a considerable push for recognition ofcommunity rights over natural resources, with attemptsto see ‘decentralisation’ of government control as wellas the recognition of forms of legal pluralism orcustomary/community control.20 Aspects of theNagoya Protocol have taken this a step further, withformal international recognition of communityprotocols and customary laws in relation to indigenouspeoples and local communities traditional knowledge.Although there are limits regarding the extent oftraditional knowledge protection that the NagoyaProtocol provides, the resulting text appears to providenew opportunities for ILPCs to assert their rights overtraditional knowledge associated with genetic resources,and to resist misappropriation or biopiracy.

2THE CALM BEFORE THE STORM:STATUS QUO PRIOR TO THENAGOYA PROTOCOL

The decision of the Seventh Conference of Parties(COP) to the CBD in 2004 in Kuala Lumpur was asignificant one. The specific paragraph of the COPSeven decision that sowed the seed of the NagoyaProtocol read:


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17 See Kathleen McAfee, ‘Neoliberalism on the Molecular Scale,Economic and Genetic Reductionism in BiotechologyBattles’ 34/2 Geoforum, 203 (2003) and Kathleen McAfee,‘Selling Nature to Save it?’ 17/2 Environment and Planning D:Society and Space 133 (1999).

18 Noel Castree, ‘Bioprospecting: From Theory to Practice(And Back Again)’ 28/1 Transactions of the Institute of BritishGeographers 35, 38 (2003).

19 See Santos and Rodriguez-Garavito, note 13 above.

20 See J.F. McCarthy, ‘Between Adat and State: InstitutionalArrangements on Sumatra’s Forest Frontier’, 33/1 HumanEcology 57 (2005); J.C. Ribot, A. Agrawal and A.M. Larson,‘Recentralizing While Decentralizing: How NationalGovernments Reappropriate Forest Resources’ 34/11 WorldDevelopment, 1864 (2006); J.C. Ribot, ‘Authority Over Forests:Empowerment and Subordination in Senegal’s DemocraticDecentralization’ 40/1 Development and Change 105 (2009); S.Randeria, ‘Cunning States and Unaccountable InternationalInstitutions: Legal Plurality, Social Movements and Rightsof Local Communities to Common Property Resources’ 44/1 Arch. Europ. Sociol. 27 (2003); R.J. Fisher, ‘Devolution andDecentralization of Forest Management in Asia and thePacific’ 50/4 Unasylva 1 (1999).

the equitable sharing of the benefits arising from the utilizationof such knowledge, innovations and practices.

From a purely rights perspective Article 8(j) is weak. Itpresents itself as an outcome of politically fraughtnegotiations with States peppering it with a number of‘exit clauses’. It begins with the words ‘…shall as far aspossible and as appropriate, subject to its national legislation….’.In negotiations speak, words like this are hard fought‘get out of jail free’ passes designed to weaken Stateobligation and to limit any inroads into nationalsovereignty. The watering down of State obligationscontinues with the words ‘….promote their wider applicationwith the approval and involvement of the holders of suchknowledge, innovations and practices and encourage the equitablesharing of the benefits…’. Note that nowhere does Article8(j) speak of the mandatory nature of the ‘priorinformed consent’ and ‘benefit sharing’ when it comesto the utilisation of traditional knowledge (knowledge,innovations and practices) of indigenous peoples andlocal communities- something that has been graduallybecoming an established norm through theencouragement of use of the Bonn Guidelines on ABS.

Article 15, which is the main article the implementationof which the Seventh COP asked the Working Groupon ABS to negotiate, makes no mention of any rights ofindigenous peoples and local communities over geneticresources. It begins with an unassailable ‘Recognizing thesovereign rights of States over their natural resources, the authorityto determine access to genetic resources rests with the nationalgovernments and is subject to national legislation’. There are no‘exit clauses’ here and compared with Article 8(j) andStates wanted to eliminate any doubts and establish irrefutablytheir absolute rights over their genetic resources.

Jurisprudentially speaking, the rights of communitieswithin the CBD prior to the commencement of thenegotiations of the Working Group on ABS wereenervated. This pre-negotiations state of play begs oursecond question: What did indigenous peoples and localcommunities seek to achieve through the NagoyaProtocol and how did they go about doing this?

2.1 The Arts of Resistance:Negotiating Towards the NagoyaProtocol

In his insightful work ‘Domination and the Arts ofResistance’, James C. Scott, labels as ‘masks of power’

‘Decides to mandate the Ad Hoc Open-ended Working Groupon Access and Benefit-sharing with the collaboration of the AdHoc Open ended Inter-Sessional Working Group on Article 8(j)and Related Provisions, ensuring the participation of indigenousand local communities, non- governmental organizations, industryand scientific and academic institutions, as well asintergovernmental organizations, to elaborate and negotiate aninternational regime on access to genetic resources and benefit-sharing with the aim of adopting an instrument\instruments toeffectively implement the provisions in Article 15 and Article8(j) of the Convention and the three objectives of the Convention;’

The COP Seven decision was a result of intensivelobbying by developing countries that gatheredmomentum with the adoption of the Bonn Guidelinesby the Sixth COP at the Hague in 2002.21 Their primaryconcern was that since the coming into force of theCBD in 1993, user countries22 had done little to meettheir compliance obligations under the CBD therebyeffectively nullifying its third objective which is ‘fair andequitable benefit sharing’. The inclusion of Article 8(j)as an article that would need to be implemented alongwith Article 15 is in itself a testimony to the efforts ofindigenous peoples and local communities.

For indigenous peoples and local communities Article8(j) was the seemingly benign Trojan horse, which onceintroduced into the citadel of the Protocol negotiationswould beget a range of community rights to geneticresources and traditional knowledge. To get a sense ofthe status quo prior to the Nagoya Protocol is tocomprehend the innocuous and limited nature of Article8(j) of the CBD. Article 8(j) reads:

Each contracting Party shall as far as possible and as appropriate,subject to its national legislation, respect, preserve and maintainknowledge, innovations and practices of indigenous and localcommunities embodying traditional lifestyles relevant for theconservation and sustainable use of biological diversity and promotetheir wider application with the approval and involvement of theholders of such knowledge, innovations and practices and encourage


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21 See, for example, Manuel Ruiz Muller, Thinking Outside theBox: Innovative Options for an Operational Regime on Access andBenefit Sharing 3-5 (Geneva: International Centre for Tradeand Sustainable Development, 2010) on the incorporationof Traditional Knowledge into the draft Protocol text.

22 Parties to the Convention Biological Diversity in whosejurisdictions a predominant number of commercial usersof genetic resources were located.

public performances that are designed to placate boththe dominant and the subordinate groups. But what goeson behind the scenes or what Scott calls the ‘hiddentranscripts’ reveal the real nature of resistance. From thisperspective, the setting of the Working Group on ABSis a theater, where an elaborate charade is enacted withdiplomats referring to each other by the names of theStates they represent, giving politely indignant speechesabout the scope of the CBD and with indigenous peoplesand local communities abiding by UN rules clearly biasedtowards States. But witnessing these negotiations tellsus little about the hidden transcripts of feverish lobbying,threats, deal making and the political sleight of hand thathappens behind the scenes.

While the negotiations within the Working Group onABS from 2004 onwards proceeded with regularity, theylacked direction, since there was very little agreementamongst Parties as to even the primary elements of aninternational agreement on ABS. Decision IX/1223 ofNinth CBD COP in Bonn marked a radical departurefrom this state of affairs thanks to four significant pointsof convergence amongst Parties. They were:

1) The agreement on Annex 1 of Decision IX/12 which for the first time since 2004 providedthe framework and the elements of an‘international regime’ on ABS. The elementswere divided along a ‘bricks’ and ‘bullets’formula, where ‘bricks’ were those elementsof an ‘international regime’ whose inclusionin the regime Parties agreed upon but whichstill needed further elaboration. ‘Bullets’ onthe other hand were those possible elements,which required further consideration becausethere was no consensus as to whether theyshould be included in the ‘internationalregime’.

2) An agreement to begin text based negotiationsthrough an invitation to Parties, inter-governmental organisations, indigenouspeoples and local communities and otherrelevant stakeholders to submit operational

text and explanations based on the elementslisted in Annex 1 of Decision IX/12.

3) The establishment of three Groups ofTechnical and Legal Experts to advise theWorking Group on ABS on i) Concepts, terms,working definitions and sectoral approachesii) compliance and iii) traditional knowledgeassociated with genetic resources

4) The agreement on escalating the pace and theintensity of the negotiations through thescheduling of three meetings of the WorkingGroup on ABS, each for an extended periodof seven days to ensure the completion ofthe negotiations towards an internationalregime on ABS in time for the deadline ofthe tenth COP in Nagoya, Japan.

The first crucial opportunity for indigenous peoples andlocal communities to substantially inf luence thenegotiations of the WG on ABS presented itself inHyderabad at the July 2009 meeting of the Group ofTechnical and Legal Experts (GTLE) on TraditionalKnowledge associated with Genetic Resources that wasset up at the Ninth COP in Bonn by the Working Groupon ABS.24 The Ninth COP also set up two other GTLEson ‘Concepts, Terms and Definitions’ and ‘Compliance’.The setting up of the GTLE nearly broke thenegotiations with the Like Minded Mega DiverseCountries (LMMC) grouping threatening to walk outof the negotiations arguing that GTLEs were a timewasting tactic by the developed countries. The AfricanGroup however supported the establishment of GTLEswith the express intent of getting expert views on someof the issues that were deadlocked.

Countries and other stakeholders (CSOs, IPLCs,research and the business sector) were asked to nominate‘experts’ on issues relating to traditional knowledge forthe meeting of the GTLE on Traditional Knowledge.Based on the list of nominations the Secretariat of the


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23 CBD Secretariat, Access and Benefit-Sharing, DecisionAdopted by the Conference of the Parties to the Conventionon Biological Diversity at its Ninth Meeting, 19-30 May 2008,IX/12, UNEP/CBD/COP/DEC/IX/12.

24 See CBD Secretariat, Report of the Meeting of the Groupof Technical and Legal Experts on Traditional KnowledgeAssociated with Genetic Resources in the Context of theInternational Regime on Access and Benefit-Sharing. Ad HocOpen-Ended Working Group on ABS, Eighth Meeting,Montreal, 9-15 November 2009, UNEP/CBD/WG-ABS/9/2, regarding the 15 July 2009 meeting in Hyderabad.

CBD identified a pre-specified number of expertsbearing in mind proportional regional representation.The final decision on choosing the experts for the GTLEmeeting, amidst the large pool of individuals nominated,rested with the Secretariat of the CBD.

It is interesting to note that the Secretariat of the CBDin narrowing down the final list of country nominatedexperts, chose nominees who were well versed withcommunity concerns rather than individuals who werejust technically versed or represented State interests. Thiswas fortuitous since the experts who had a goodgrounding on community issues were also sympatheticto community concerns. Except for the experts whorepresented Canada and industry, the rest of the expertsknew each other and tended to agree on virtually everyissue. Furthermore a sizeable number of chosen expertsnominated by countries were from indigenouscommunities some of who chaired the different sessionsof the GTLE thereby palpably shifting the balance ofpower towards community interests.

The Working Group on ABS had provided the GTLEwith a set of questions to be answered, and it was inanswering these questions that the first cache ofcommunity rights within the Trojan horse of Article8(j) emerged. The GTLE achieved a jurisprudential featby expansively interpreting Article 8(j) in a way that hadnever been done before. There were five critical victoriesfor indigenous peoples and local communities throughthe GTLE process the fruits of which are seen in theNagoya Protocol. They were:

1) An inseparable link between genetic resourcesand traditional knowledge was establishedthereby paving way for a discourse on therights of communities over genetics resources.

2) The absolute requirement for prior informedconsent and benefit sharing in relation totraditional knowledge of indigenous peoplesand local communities was read into Article8(j) effectively closing the ‘exit clauses’ thatStates had given themselves.

3) The need to comply with customary laws andcommunity level procedures when accessingcommunity resources and knowledge wasaffirmed, introducing the element of self-determination into Article 8(j).


4) The ‘subject to national law’ component withinArticle 8(j) was substantially weakened byinterpreting it as the duty of States to facilitatethe rights of indigenous peoples and localcommunities and not giving States thediscretion to decide whether or not to upholdthese rights.

5) Clear reference was made to the importanceof the United Nations Declaration on theRights of Indigenous Peoples (UNDRIP)25

in interpreting the provisions of the CBD forthe purposes of the Protocol.

In the fifteen months from July 2009 to Nagoya inOctober 2010, there were a number of negotiations thatranged from the Working Group on ABS meetings toFriends of the Co-Chairs meetings to the Inter-regionalNegotiating Group sessions to the Co-Chairs InformalInter-regional Consultations. Indigenous peoples andlocal communities to shore up the victories that resultedfrom the GTLE meeting on traditional knowledgestrategically used every one of these negotiations. Theirmethods ranged from intensively lobbying delegatesduring the negotiations to working closely withgovernments sympathetic to indigenous issues in theinter-sessional period to networking with indigenouspeoples groups across the world to convince them tolobby their governments.

At the Ninth Meeting of the Working Group on ABSin Cali, the Co-Chairs provided the Parties with a Co-Chairs text to break the stalemate that had plagued thenegotiations until then.26 The Co-Chairs presented theirtext as a ‘package deal’ that balanced the interests ofthe different Parties and asked the Parties to begin theirnegotiations based on this text. While the Co-Chairstext was carefully drafted to cut the Gordian knot ofthe negotiations, for indigenous peoples and local

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25 United Nations Declaration on the Rights of IndigenousPeoples, UN General Assembly Resolution 61/295, 13September 2007, available at http://www.un.org/esa/socdev/unpfii/en/drip.html.

26 See CBD Secretariat, Report of the First Part of the NinthMeeting of the Ad Hoc Open-Ended Working Group onAccess and Benefit-Sharing. Ninth Meeting, Cali, Colombia,March 2010. UNEP/CBD/WG-ABS/9/3, (2010) and note21 above.

http://www.un.org/esa/socdev/unpfii/en/drip.html

communities it was the first step towards locking in thegains from the GLTE report.27

The Co-Chairs text was avowedly minimalist- it ensuredprior informed consent and benefit sharing provisionsvis-à-vis communities when their traditional knowledgeis used. It also required Parties to ensure that such consentand benefit sharing is in accordance with community’scustomary laws and community protocols. However thetext was completely silent on compliance provisionsobliging Parties to prevent the misappropriation oftraditional knowledge. It also made no mention of rightsof communities over genetic resources. The firstomission was in favor of the EU’s position that the WIPOIntergovernmental Committee should deal with allcompliance provisions relating to traditional knowledgeand the second omission had to do with no Partysupporting rights of communities to genetic resources.

The Co-Chair’s text was fiercely negotiated. When thesecond resumed session of the Inter-regional NegotiatingGroup (ING) met on 13 October 2010 in Nagoya forthe final round of negotiations, it had before it a heavilybracketed draft Protocol that had come out of the INGmeeting in Montreal a month before. The term ‘subjectto national law’ had been reintroduced by India and Chinainto the provision requiring prior informed consent ofindigenous peoples and local communities before theirtraditional knowledge is accessed. Furthermorereferences to customary laws and community protocolswere bracketed by the EU acting at the behest of France.

Indigenous peoples and local communities reintroducedinto the preamble section a reference to the UNDRIPwhich was immediately bracketed by Canada. They alsointroduced a provision on the rights of communitiesover their genetic resources, which some Parties basedon their comfort levels transformed into three possibletext options all of which were promptly bracketed byother Parties. In fact this provision was so fiercelycontested by the Group of Latin American Countries(GRULAC) in the September 2010 round of

negotiations in Montreal that after hours of discussionthe co-chairs of the small group negotiating theprovision suggested to drop it altogether. This resultedin a walk out by the representatives of the InternationalIndigenous Forum on Biodiversity (IIFB) stating thatthis was a redline issue as far as they were concerned. Inthe seemingly inevitable face of the continuedprivatisation of biodiversity, community rights overgenetic resources were sought by indigenousrepresentatives in resistance to dominant state andcorporate control, which has led to many issues ofbiopiracy. Outcome of these politically chargednegotiations was that Parties in the small group agreedto keep these options and take them back to the INGfor a resolution.

How did indigenous peoples and local communitiesovercome these odds that were so heavily stacked againstthem? The odds weren’t just relating to some Parties’white-knuckled reactions to what they perceived as a‘rights overreach’ of the limited scope Article 8(j). Themost insurmountable of odds was the cold fact thatindigenous peoples and local communities as per UNrules could participate in the negotiations, but wouldrequire the explicit support of a Party for any text thatthey wanted to introduce or retain in the Protocol. Asthe COP 10 deadline loomed, the negotiations gotincreasingly frenetic and Parties began to makecompromises, which exacerbated the danger thatcommunity concerns would be lost as collateral damage.

3THE OPTIMISM OF WILL AGAINSTTHE PESSIMISM OF INTELLECT:THE GAINS OF NAGOYA

When the final round of negotiations began in Nagoya,indigenous peoples and local communities were clearthat they had to secure five key positions in a potentialABS Protocol for it to have any rights potential. Thesekey positions were:

1. To eliminate the Article 8(j) term ‘subject tonational law’ out of the Protocol provisionsdealing with rights of communities over their


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27 Some background to this can be found in Daniel Robinsonand Brendan Tobin, ‘Dealing with Traditional Knowledgeunder the ABS Protocol’ 4/3 Bridges BioRes Review: SpecialNagoya Issue 8 (October 2010) and Kabir Bavikatte andBrendan Tobin, ‘Cutting the Gordian Knot: ResolvingConflicts over the Term ‘Utilisation’’ 4/3 Bridges BioResReview: Special Nagoya Issue 3 (October 2010).

traditional knowledge and genetic resourcesbefore it became a legal ‘term of art’ andstarted being used in other COP resolutions.

2. To retain references to compliance withcustomary laws and community protocols ofcommunities in the text of the Protocolthereby securing in treaty law obligations ofStates to respect community systems ofgovernance.

3. To secure rights of indigenous peoples andlocal communities over their genetic resourcesin the Protocol thereby creating a precedentof dynamic interpretation of the CBD in thelight of the UNDRIP.

4. To ensure reference to the UNDRIP in thepreamble of the Protocol thereby locking inthe jurisprudential opportunity to interpret theprovisions of the Protocol from theperspective of the UNDRIP.

5. To prevent the forum shifting to WIPO ofcompliance provisions relating to traditionalknowledge and affirm that the Protocol is themain instrument to enforce CBD related rightsover genetic resources and associatedtraditional knowledge.

These key positions had two dimensions to them:

Firstly they were ends in themselves as significant ‘rightsvictories’ that secured the rights of communities overtheir traditional knowledge and genetic resources.

Secondly, hard-nosed pragmatism understood that theoutcomes of Nagoya would not be perfect but thesepositions should be viewed as levers to open up greatergains in the long run under the CBD and related WIPO,WTO and UNFCCC processes.

3.1 The ‘Subject to National Law’Sleight of Hand

The elimination of the term ‘subject to national law’was a crucial hurdle to overcome. It had found itselfback into the Co-Chair’s text in Montreal and someParties were sticking to their guns about the provisionbeing retained. Interestingly though, countries like New

Zealand and Canada had begun to have reservationsabout the term since it undermined the treaties that theyhad with their indigenous peoples which were not‘subject to national law’ but were akin to agreementsbetween nations.

The African Group of countries proposed a way out byreplacing this term with a more temperate ‘in accordancewith national law’. This would retain the facilitative roleof the State in situations where Parties argued thatcommunities within their jurisdiction needed Stateprotection against exploitation. At the same time it wouldaffirm the GTLE interpretation of Article 8(j) that therights of communities under the CBD are not dependenton the discretion of States. This way forward was readilyaccepted by New Zealand and Canada and Article 7 inthe Nagoya Protocol finally read:

In accordance with domestic law, each Party shall take measures,as appropriate, with the aim of ensuring that traditional knowledgeassociated with genetic resources that is held by indigenous andlocal communities is accessed with the prior and informed consentor approval and involvement of these indigenous and localcommunities, and that mutually agreed terms have been established.

While Article 7 was not perfect, it had clearly achievedwhat it set out to do- It had eliminated the term ‘subjectto national law’, reinterpreted Article 8(j) in favor ofcommunity rights and created a new legal ‘term of art’that could henceforth be used in other parts of theProtocol and future COP decisions instead of the Article8(j) wording ‘subject to national law’. This new term ‘inaccordance with domestic law’ was clearly a lever thatwould reap big gains in the future.

3.2 Recognising Customary Lawsand Community Protocols

The next hurdle was the retention of the references to‘customary laws and community protocols’ in the textof the Protocol. France at a rather late stage in thenegotiations had received instructions from their foreignministry to under no circumstances agree to anyreferences to ‘customary laws, community protocols andindigenous and local community laws’ that wereprevalent in the draft Protocol text.28 They argued that


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28 Based on anonymous conversations with EU negotiators atthe Convention on Biological Diversity Conference ofParties.

making it a binding obligation on Parties to take intoconsideration ‘customary laws and communityprotocols’ in implementing their obligations under theProtocol. Thanks to some very fancy footwork, the doorin international law to legal pluralism and self-determination of indigenous peoples and localcommunities was now ajar. In years to come, thisachievement could see increased community rights andcontrol over natural resources where they are theappropriate ‘owners’ or resource-holders.

3.3 Securing Rights over GeneticResources

The next crucial step was to secure the rights ofcommunities over their genetic resources. This hadalways been a long shot in the negotiations since theCBD made no provision for such a right and if therewas one thing that was clear in the September ING inMontreal, it was that no Party would stick its neck outto support this claim. On the penultimate day of thenegotiations in Nagoya, there was still no support forthis claim and the Co-Chairs constituted a small closedgroup restricted only to Parties to discuss provisionsrelating to communities that were still bracketed. Asuggestion was made to drop this provision altogether.The African Group however on behalf of the IIFBsuggested that a decision such as this should not betaken within a closed group but must be discussed withinthe larger group.

In the larger group Parties reiterated that while they arewilling to recognise the rights of communities overgenetic resources, this right had to be strictly restrictedto national discretion especially since there were no CBDobligations to recognise such a right. Communities onthe other hand stated that they had emerging rights overgenetic resources through the UNDRIP which despitebeing a UN General Assembly resolution and thereforenon-legally binding had the moral authority that obligedcountries to take it seriously. Communities further statedthat while they were willing to live with references totheir rights over genetic resources in national law, theyalso wanted a clear reference to their rights ininternational law. This argument was promptly rejectedby the GRULAC.

Finally a compromise text was developed and agreed toby all Parties and is now in the Nagoya Protocol. Article6.2 reads:

this would affect the interests of France vis-à-vis theiroverseas territories and it would create a new precedentof references to customary laws in an international treatybetween States- something that hadn’t been done before.

It was clear that a direct and complete state acceptanceof ‘legal pluralism’ as far as France was concerned wasout of the question and through France’s insistence, therest of the EU had to back this position. Franceproposed the term ‘community level procedures’ as analternative to ‘customary laws and community protocols’.This was rejected by the African indigenous peoplesorganisations with the support of the African Grouparguing that ‘community level procedures’ were aeuphemism for State control and lacked the authenticityof genuine community processes.29 However the finalwording in the Nagoya Protocol in Art 12.1 now reads:

In implementing their obligations under this Protocol, Parties shallin accordance with domestic law take into consideration indigenousand local communities’ customary laws, community protocols andprocedures, as applicable, with respect to traditional knowledgeassociated with genetic resources.

How did indigenous peoples and local communitiesmanage to retain references to customary laws andcommunity protocols despite the opposition?

The short history of this un-bracketed text is that anagreement was reached in the margins of thenegotiations between France, the African Group andthe IIFB about the retention of the term ‘customarylaws and community protocols’ in exchange for theremoval of reference to ‘indigenous and localcommunity laws’. The African Group and the IIFB feltthat the words customary laws would in any case cover‘indigenous and local community laws’. France was alsoplacated by the addition of the term ‘in accordance withdomestic law’- the term that had replaced ‘subject tonational law’ and was now beginning to reap dividends.

France in return had to agree to the use of the term‘Parties shall’ at the beginning of the Article, thereby


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29 Susanna Chung, South African ABS Delegate emphasisedthe importance of customary laws and community protocolsfor African indigenous peoples and local communityorganisations in the ABS Working Group. She based herviews on the submissions made to the African Group bythe Meeting of the pan- African indigenous peoples andlocal community organizations in September 2010.

In accordance with domestic law, each Party shall take measures,as appropriate, with the aim of ensuring that the prior informedconsent or approval and involvement of indigenous and localcommunities is obtained for access to genetic resources where theyhave the established right to grant access to such resources.

There are two legal sleights of hand, which are worthyof note here. Firstly, the sentence begins with ‘inaccordance with domestic law’ thereby eliminating the‘subject to law’ term and making this a facilitativeprovision. The obligation on Parties is a ‘shall’ obligationthat makes it mandatory. The sentence ends with ‘wherethey have the established right to grant access to suchresources’. Note, that the words ‘established right’ areunqualified thereby leaving it to interpretation as towhether these rights are established in national orinternational law. In negotiations speak this is known asa ‘strategic ambiguity’- it is a shrewd silence, that leavesenough room for interpretation and jurisprudentialgrowth. The use of ‘established right’ may mean thatcommunities will have to prove that they are the rightful‘owners’ or ‘authorities’ in relation to the conservationof that genetic resource such that it is ‘in accordancewith domestic law’. For example, in the context of theNative Title legislation in Australia, to achieve recognitionas a native title-holder for limited traditional land userights, the individuals have to demonstrate continuedlineage and traditional use of that particular area or nation.A similar process may be required by some states in termsof the relationship between indigenous peoples and localcommunities, endemic genetic resource and the land (orsea) upon which it can be found.

Nevertheless, if we approach the law as a site of struggle,Article 6.2 of the Nagoya Protocol is a monumentalachievement by communities. It is a testimony to six yearsof hard work and careful lobbying and has extended thescope of Article 8(j) in ways that were inconceivable in1993. It had capitalised on the important victory in theGLTE report on traditional knowledge- that for indigenouspeoples and local communities, there is an inseparablelink between genetic resources and traditional knowledge.What is more is that the preamble to the Nagoya Protocolexplicitly recognises this link with in the paragraph:

Noting the interrelationship between genetic resources and traditionalknowledge, their inseparable nature for indigenous and localcommunities, the importance of the traditional knowledge for theconservation of biological diversity and the sustainable use of itscomponents, and for the sustainable livelihoods of these communities

The last two trials for communities were to ensure thatcompliance provisions relating to traditional knowledgewere retained in the Protocol and that the Protocol madereference to the UNDRIP in its preamble. For both theseprovisions communities had a significant amount ofsupport by Parties.

3.4 Reference to UNDRIP

Regarding the reference to the UNDRIP in the preambleof the Protocol- Canada ended up being the only Partythat refused to accept it. In order to goad Canada toagree to un-bracket this provision, it was made moreagreeable by phrasing it as:

Noting the United Nations Declaration on the Rights ofIndigenous Peoples

On the last day of the negotiations in Nagoya, Canadafinally relented to un-bracket this text after late nightconsultations with their capital. This un-bracketing owesa great debt to the media releases, press conferencesand lobbying that Canadian indigenous peoples’organisations undertook in Canada and Japan duringthe negotiations to force Canada’s hand. In many waysCanada’s acceptance of this paragraph, has alsocontributed to the recent Canadian endorsement of theUNDRIP.

3.5 Compliance Measures Relatingto Traditional Knowledge

Regarding the compliance provisions relating totraditional knowledge, a deal was finally made with theEU that in exchange for a paragraph in the COP 10decision that required the Parties to the Protocol to takenote of the developments at the WIPO IGC, the EUwould agree to un-bracketing these provisions. Theagreed text in the Nagoya Protocol under Article 16reads:

1. Each Party shall take appropriate, effective andproportionate legislative, administrative or policymeasures, as appropriate, to provide that traditionalknowledge associated with genetic resources utilizedwithin their jurisdiction has been accessed in accordancewith prior informed consent or approval andinvolvement of indigenous and local communities andthat mutually agreed terms have been established, as


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required by domestic access and benefit sharinglegislation or regulatory requirements of the other Partywhere such indigenous and local communities arelocated.

2. Each Party shall take appropriate, effective andproportionate measures to address situations of non-compliance with measures adopted in accordance withparagraph 1.

3. Parties shall, as far as possible and as appropriatecooperate in cases of alleged violation of domestic accessand benefit-sharing legislation or r egulator yrequirements referred to in paragraph 1.

Notably, the provisions for monitoring in Article 13,which will affect knowledge of compliance and non-compliance, were left quite vague as to the appropriatecheckpoints for collection of information includingcertificates of compliance. Despite the efforts of theLMMC to include mention of patent offices asdesignated checkpoints in the draft versions of theProtocol, this has not been included in the final version.This is somewhat disappointing because it could havehelped increase pressure in forums such as the WTOTRIPS Council towards an internationally bindingdisclosure of origin patent requirement that could helpmitigate the many cases of patent-related biopiracy. Forseveral years, since the CBD COP 4, there have beenbio-diverse countries raising calls for a disclosure oforigin requirement. It has also been mentioned in theBonn Guidelines that user countries should take intoaccount measures to promote the disclosure of originof genetic resources and the origin of knowledge,innovations, and practices in IPR applications (16.d.ii).30

This leaves the Nagoya Protocol falling significantlyshort in dealing with intellectual property and biopiracyconcerns, with the text remaining a compromise thatwould allow delegates in other forums such as the WIPOIntergovernmental Committee on Genetic Resources,Traditional Knowledge and Folklore (IGC), and theWTO TRIPS Council to pick up concerns from many

countries about the need for a disclosure of origin patentrequirement.31

4FIELD NOTES FROM THEFRONTLINE: THE EMERGENCE OFBIOCULTURAL JURISPRUDENCE

The previous sections endeavored to take seriously E.PThompson’s advice of avoiding the ‘profoundcondescension of posterity’ by engaging in cartographyof community rights gains in the Protocol resulting fromsix years of incredibly painstaking negotiations. Therights of communities we see in the Nagoya Protocoltoday cannot be attributed to manna from heaven orthe munificence of Parties but are a result of hard foughtbattles by the IIFB over every comma and word. Withthe strong support of sympathetic Parties especially theAfrican Group and Norway, communities gainedsignificant ground vis-à-vis their rights over traditionalknowledge and genetic resources and the recognitionof their customary laws.

The oft-quoted homily in the ABS negotiations was‘perfection is the enemy of the good’. While there weretimes when it sounded trite, it rings true when analysingthe Nagoya Protocol. The rights that were gained bycommunities in the Nagoya Protocol may not be perfect,but they are undeniably a giant leap from the tameprovisions of Arts 8(j) and 10(c) of the CBD. Goingback to the guiding questions that we posed at the outset-to truly understand the colossal achievement of theNagoya Protocol with regard to the rights of


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30 Jorge Cabrera Medaglia, The Disclosure of Origin Requirementin Central America: Legal Texts, Practical Experience andImplementation Challenges 2 (Geneva: International Centre forTrade and Sustainable Development, June 2010).

31 See Jorge Cabrera Medaglia, The Political Economy of theInternational ABS Regime Negotiations: Options and Synergies withRelevant IPR Instruments and Processes 4, 14 (Geneva:International Centre for Trade and SustainableDevelopment, July 2010) and the WTO Trade NegotiationsCommittee Communication from Albania, Brazil, China,Colombia, Ecuador, the European Communities, Iceland,India, Indonesia, the Kyrgyz Republic, Liechtenstein, theFormer Yugoslav Republic of Macedonia, Pakistan, Peru,Sri Lanka, Switzerland, Thailand, Turkey, the ACP Groupand the African Group calling for Draft Modalities for TRIPSRelated Issues, WTO doc. TN/C/W/52, 19 July 2008.

communities, we must learn to see how far we have comesince 1993. Slowly but surely indigenous peoples andlocal communities have started transforming their non-binding rights in the UNDRIP into binding rights intreaty law relying on nothing more than the moral forceof the Declaration. This has also been a win forindigenous peoples and local communities in terms oftheir ability to control or prevent access to and unwantedprivatisation of, plants, animals and associated traditionalknowledge. There will be many interested and concernedgroups monitoring the effectiveness of the NagoyaProtocol in preventing biopiracy in the years to come.

Every gain in the Nagoya Protocol is not an end in itselfbut the flat end of a lever to insert into the intersticesof other negotiations to pry open community rightsunder TRIPS, WIPO IGC, FAO and the UNFCCC.From the perspective of negotiations, this is the fine artof cross-leveraging rights- i.e. to take rights gains fromone Convention dealing with one subject matter andinsist that they be respected in another Conventiondealing with another subject matter. This emphasis bycommunities on a rights based approach to allmultilateral environmental negotiations is an effectivenostrum against the tendency of the law to fragmentthe holistic nature of community life by splitting it upinto different legal subjects such as land rights,intellectual property rights, cultural rights etc. On this,it is important to note that legal pluralism that worksfor indigenous peoples and local communities shouldreflect the sort of diverse range of communitarian ethicsthat they hold. It should not be an artificial fragmentationof rights for the sake of individualised neoliberalambitions as per the way the global intellectual propertyinstitutions divides their discussions on potential rightsin cultural expressions, folklore, traditional knowledgeand genetic resources. Put simply, it is important thatthese indigenous peoples and local communities are ableto self-determine their community rights over naturalresources.

So how do we begin to make sense of this emergingrights discourse? To make sense of this growingphenomenon is to first name it. By being thrown intothe general grab bag of rights, the potential of thesenew hard-fought rights have been insufficientlyunderstood by both community lawyers andorganisations. This has led to their inadequate use indomestic activism, which has paved the way for Statesto ignore their international commitments in the


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development and implementation of their national lawand policy relating to communities and their ecosystems.

To being the naming process- in the last two decades,through the movement for indigenous peoples’ rights,we are witnessing the growth of the discourse of thirdgeneration rights called ‘group rights or collective rights’which are different from the first generation civil andpolitical rights and the second-generation social andeconomic rights. While ‘group rights’ cover the gamutof rights required for the survival and flourishing ofindigenous peoples and ethnic groups, a sub-set of thirdgeneration rights have emerged unnoticed as an offshootof ‘group rights’. This sub-set of rights is what we termas ‘biocultural rights’.32

5CONCLUSION: MINDING BIOCUL-TURAL RIGHTS

Two monks were arguing about a ûag. One said, ‘The ûag ismoving’. The other said, ‘The wind is moving’. The sixth patriarch,Zeno, happened to be passing by. He told them, ‘Not the wind,not the ûag; mind is moving’.

Biocultural rights are group rights but they differ fromthe general category of ‘third generation’ rights throughtheir explicit link to conservation and sustainable useof biological diversity.33 Their unsung arrival in theinternational legal landscape has three important reasons:

1) The justificatory premise of biocultural rightshad less to do with ‘group rights’ and more to

32 The term ‘biocultural rights’ is a classificatory term that weuse here to distinguish this set of rights from the gamut of‘group rights’. As of yet, this term does not have commonusage.

33 Biocultural community protocols have been one attempt toensure indigenous peoples and local community self-determination of rights to conservation and sustainable useof biodiversity and can be seen as a subset of bioculturalrights. See Kabir Bavikatte and Harry Jonas eds, Bio-CulturalCommunity Protocols: A Community Approach to Ensuring theIntegrity of Environmental Law and Policy 20 (Nairobi: UnitedNations Environment Program, 2009).

nd

do with the crisis of biodiversity loss and itsramifications on food, health and economicsecurity. As a result of intensive lobbying byenvironmental groups and a growingmountain of empirical evidence, States havehad to make a policy U-turn from thedisastrous ‘fines and fences’ approach toconservation – an approach that involveddisenfranchising communities who hadhistorically been stewards of common landsin favor of State control or private ownership.This policy U-turn essentially meant that toensure conservation and sustainable use ofbiodiversity, States needed to affirm and securethe rights of communities who have been thecustodians of ecosystems for generations.

2) Biocultural rights were born as the shadowtwin of third generation ‘group rights’, butunlike ‘group rights’, which carried theundertone of self-determination that madeStates nervous, biocultural rights werepredominantly lobbied for under the RioConventions as ‘environmental rights’ ofcommunities to ensure biodiversityconservation. They initially appeared in benignforms like ‘farmers rights’, ‘livestock keepersrights’ and rights to traditional knowledge,which though were hard won, were not seenas a threat to State sovereignty.

3) Biocultural rights were advocated ininternational environmental negotiations as adefense against ‘biopiracy’, with communitiesessentially demanding State protection againstcorporate theft of their knowledge andresources. With the politically fraught legallandscape of the TRIPS negotiations,developing countries supported bioculturalrights as State assertions using communitiesas proxies of the same kind of intellectualproperty rights that companies and individualsclaimed, albeit in a sui-generis form.

As a subset of third generation rights, biocultural rightshave elements of the third-generation group rights butdiffer from the latter in their explicit commitment toconservation and sustainable use of biodiversity. In manyways, biocultural rights through their innocuousness haveachieved greater legal recognition than group rights

thereby acting as a bulwark for the more difficult thirdgeneration rights claims. Indigenous peoples and localcommunities who assert biocultural rights, base theirclaims on two foundations:

1) Conservation and sustainable use of biologicaldiversity by communities is reliant on a ‘wayof life’, and biocultural rights must protect this‘way of life’.

2) The ‘way of life’ relevant for conservation andsustainable use of biological diversity is linkedto secure land tenure, use rights and rights toculture, knowledge and practices.

‘Biocultural rights’ make the link between the community or whatwe refer to here as ‘peoplehood’ and ‘ecosystems’. This linkhowever is worked out through the assertion of a bundleof ‘property rights’. It is critical that we understand thespirit of biocultural rights as not a pure property claimby a hitherto excluded group in the typical market senseof property being universally commensurable,commodifiable and alienable. This is something thatindigenous peoples and local communities have oftenresisted as per the Kari-Oca Declaration and IndigenousPeople’s Earth Charter, amongst many other indigenousstatements and declarations. On the contrary bioculturalassertions of property rights are property claims in theform of use, stewardship and fiduciary rights. The‘peoplehood’ of biocultural communities is integrallylinked to the rights to stewardship of their lands andconcomitant traditional knowledge through a complexsystem of customary use rights and fiduciary duties.34

Biocultural jurisprudence then is the theory and practice of applyinga biocultural rights framework to law and policy, when such lawand policy affects a community whose peoplehood is integrally tiedto their traditional stewardship role and fiduciary duties vis-à-vistheir lands and concomitant knowledge.

Much of the international law dealing with bioculturalrights has emerged out of the CBD COP- path breakingrights work has also been done in the Working Groupon Article 8(j) resulting in the Akwe: Kon Guidelineson the conduct of social, cultural and environmental


34 The link between peoplehood and land, and the importanceof stewardship rights has been carefully developed, SeeAngela Riley, Sonia Katyal and Kristen Carpenter, ‘InDefense of Property’ 118 Yale Law Journal 1022 (2009).

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impact assessments on developments on the lands ofindigenous and local communities. The recentTakrihwaieri Ethical Code of Conduct for respectingthe cultural and intellectual heritage of indigenous andlocal communities adopted by COP 10 is another casein point.

While the discourse of group rights addresses the rangeof rights of indigenous peoples as exemplified by theUNDRIP and the ILO 169, CBD COP decisions havespecifically dealt with biocultural rights of indigenouspeoples and local communities. Currently there existsno research that has comprehensively reviewed the CBDCOP decisions and supporting resolutions over the last20 years and mapped the nature and content of the‘biocultural rights’ emerging there from. Mostapproaches to the CBD COP decisions are piecemealand refer to isolated COP resolutions or reports of theWorking Groups without tracing the trajectory of theemerging international law relating to biocultural rightsthat is affirmed through the consensual resolutions ofthe 193 Parties to the CBD.

From a rights perspective, this is a crisis of significantproportions. Little or no effort has been made toconsolidate this biocultural jurisprudence into a bodyof knowledge relating to biocultural rights that can beeffectively used and implemented by the very indigenouspeoples and local communities who struggled for it andwhose interests these rights seek to defend. To beginthis process of rights cartography is the task before usnow. We need to begin telling and retelling the story ofbiocultural rights starting with the Rio Conventions tomake them real. It is only by repeated public declamationand proactive use of these bio-cultural rights will theycome alive. It is also the only way we will truly knowhow far we have come and where we need to go.

The Nagoya Protocol is a significant event in the storyof biocultural jurisprudence and it is only by celebratingits gains can we truly honor indigenous peoples and localcommunities who have made it happen.


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