BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

PART I / CHAPTER 1
2. The CBD and ABS
Article 8(j) should be read together with Article 10(c), which
calls on parties to “protect and encourage customary use of
biological resources in accordance with traditional cultural
practices that are compatible with conservation or sustainable
use requirements.” Article 8(j) is unprecedented to the extent
that it acknowledges a symbiotic relationship between “in situ
conservation” of biodiversity and the “traditional lifestyles” of
indigenous peoples and local communities (ILCs) 3
These
lifestyles however are manifested through the knowledge,
innovations and practices (collectively referred to as traditional
knowledge, or TK) of ILCs and States are asked to respect,
preserve and maintain this TK and promote its wider application.
Article 8(j) also states that any use of such TK should be based
on the approval and involvement of the holders of such
knowledge and that they should be entitled to a fair and
equitable share of the benefits arising from the utilization of
their knowledge.
The full and effective implementation of Article 8(j) requires
equal consideration to be given to each of the following
three components:
• Conservation of biological diversity is integrally linked
to the traditional lifestyles of ILCs.
• TK is embodied in the traditional lifestyles of ILCs and the
in situ conservation of biological diversity globally can
be achieved through the protection, preservation and
wider application of the TK of ILCs.
• The wider application of the TK of ILCs has to be based
on their approval and involvement and any benefits
arising from its utilization must be shared with the
communities providing it.
Despite the wide-ranging implications of the nature of TK,
the WGABS’s debate around Article 8(j) has focused narrowly
on knowledge that may have commercial applications.
Indeed, as we approach the two meetings of the WGABS
before COP 10, the shape of the incumbent regime is
becoming increasingly clear. 4
Users of GR will be expected
A BIO-CULTURAL CRITIQUE OF THE CBD AND ABS
to fulfill a range of obligations in order to gain access to GR
and associated TK. The three most important of these
obligations are:
• Free, Prior and Informed Consent (FPIC): Article 15(5) of
the CBD requires that access to GR shall be made subject
to FPIC. The Bonn Guidelines (Para 26 (d)) specify that FPIC
has to be obtained from all relevant stakeholders, including,
where appropriate, from ILCs. Users also have to deliver
evidence of FPIC before being granted access to GR.
• Mutually Agreed Terms (MAT): Article 15(7) of the CBD further
calls on parties to implement benefit-sharing agreements
on MAT, which have to be finalized in a written format.
The Bonn Guidelines (Para 42) further expands on this
requirement by giving guidance on how to implement MAT
through different contractual mechanisms and specifies a
range of subjects that have to be included in order for a
benefit-sharing agreement to qualify as having MAT.
• Benefit-Sharing Agreements: Finally, the CBD demands the
sharing of all benefits arising out of the use of GR. The Bonn
Guidelines 5
(Paras 45-50) again provide more guidance on
this matter, stating that all relevant stakeholders should
receive a fair and equitable share of benefits and that the
nature of the benefits and their distribution have to be
agreed upon on a case-by-case basis.
The above stipulations regulate access of GR and associated
TK by non-community stakeholders. Yet because the IRABS
intends only to regulate and facilitate the trade in TK and GR,
it largely ignores communities’ knowledge, innovations and
practices that are not commercially attractive but still
important for the conservation and sustainable use of genetic
resources. Before looking more closely at concerns stemming
from the WGABS’s overemphasis on commercialization,
we turn to explore the subjects of Article 8(j): bio-cultural
communities.
3. Indigenous peoples have repeatedly asked to be referred to as “Peoples,” as referenced in the Declaration on the Rights of Indigenous Peoples, and we acknowledge
that the acronym “ILC” as recognized by the CBD refers to the full term.
4. A range of national governments in the meantime also have developed their own regimes, in anticipation of a future multilateral regime. These include, among others,
South Africa, Uganda, Kenya, Ethiopia, the Andean Pact, Brazil, India, Malaysia, and the Philippines.
5 . While the Bonn Guidelines are not a plenipotentiary instrument, they augment the CBD.
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