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