PART III / CHAPTER 7
BIO-CULTURAL JURISPRUDENCE
2. Free, Prior and Informed Consent
Within the context of the Convention on Biological
over objects which include land, property, knowledge etc.
Diversity (CBD), there is a tendency by parties to equate
The legal subject is therefore separate from the thing s/he has
the idea of FPIC of ILCs only with the notion of consent
rights over and ‘Nature’ for e.g. is separate from the ‘self’ or the
in contract law. This perception is unduly limited. The right to
legal subject who has rights over it. The legal subject has no
FPIC in Article 8(j) in the context of bio-cultural communities
obligations towards Nature nor does Nature have
rests on the twin foundations of the right to self-determination
corresponding rights over the legal subject. Nature in property
and customary law. The FPIC that Article 8(j) refers to is a
jurisprudence is a commodity over which legal subjects
consent that at its core affirms and furthers a bio-cultural
exercise different sets of competing rights.
way of life. Such consent stems from the bio-cultural values
of ILCs, constituting an act of self-determination and affirming
The legal subject as separate from Nature emerges when a
customary law. Article 8( j) indicates that the current
part of experience is cut from the general stream of experience
environmental emergency is not a result of the inability of
and classified as the separate self. This allows for a different
ILCs to freely alienate their ‘physical and intellectual property’
kind of relationship - one of self and other. Our ability to
to the highest bidder but stems from their diminishing ability
discriminate between self and Nature is merely one function
to use and share their TK, lands, territories and natural resources
of consciousness of splitting up our conscious universe into
in accordance with their bio-cultural values - values that have
parts. But this ability to discriminate provides us with endless
ensured the conservation and sustainable use of biological
possibilities and not just a self/Nature binary.
diversity through history.
The state of duality between self/Nature and the state of unity
We turn briefly to explore each of the twin foundations of
where Nature becomes an extension of the self is a tension
FPIC, namely, the right to self-determination and respect for
that constantly needs to be maintained to have a holistic
customary laws and practices, and highlight their importance
picture of reality. This tension is crucial since it comprehends
for ILCs to be able to secure their way of life.
the essence of our consciousness that cuts up the
undifferentiated stream of experience into a variety of binary
2.1 Self- Determination
combinations of subject/object, thought/thing, knower/known
etc. The problem of the legal subject is the privileging of the
At the heart of the right to self-determination lies the challenge
subject/Nature binary at expense of its interconnectedness -
of articulating the ‘self’ that needs to be determined. The ‘self’
the legal subject as separate from Nature is not an absolute
that gives consent in contract law is rooted in property
but a functional category and this functional separation from
jurisprudence, which at a fundamental level splits the world
Nature should not deny our integral connectedness.
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into legal subjects and objects that can be traded and alienated
by such subjects. This begs the question of whether the
Article 8(j) poses a challenge to the classical notion of the
determining ‘self’ of bio-cultural communities that Article 8(j)
legal subject as an insular bearer of property rights by
refers to is the same ‘self’ that gives consent in contract law
juxtaposing it with the understanding that ILCs have of the
and whether such consent can ensure a way of life that has
‘self’ as a bio-spiritual relationship with the ecosystem. The ILCs
conserved and sustainably used biodiversity.
that Article 8(j) refers to are bio-cultural communities whose
cultural practices and spiritual beliefs are integrally tied to the
The nature of the legal subject or the self in property
ecosystem. The wellbeing of the community is contingent on
jurisprudence is conceived of as an enclosed entity and the
the wellbeing of the ecosystem and the cultural rituals and
role of law is to resolve conflicts that arise out of competing
spiritual foundations of the community continually make
rights between such entities and to safeguard their rights
sacred and affirm the self’s connectedness to the land, its flora
and fauna.
2.
James, William, ‘Does Consciousness Exist’, Essays in Radical Empiricism (1904) ; Nishida, Kitaro, An Enquiry into the Good, New Haven: Yale University Press,
1990 and Banoobhai, Shabbir, If I Could Write,
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