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 3 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 5 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 4 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. 13

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