BIO-CULTURAL COMMUNITY PROTOCOLS AS A
COMMUNITY-BASED RESPONSE TO THE CBD
PART I / CHAPTER 2
4.2 Users
By setting out details of traditional leadership, values that
underpin FPIC and other issues such as local research priorities,
BCPs assist users to engage with communities on an ethical
potential users of communities’ TK and GR are in a better
basis. Business interests in the ABS negotiations have
position to appraise whether the community they intend
consistently underscored that whilst they support the principles
on approaching is suitable for their particular needs.
upon which ABS is founded, they find engaging with
By detailing the community’s bio-cultural realities, users are
traditional leadership and customary laws challenging and
put on notice that the TK or GR they seek to access is
draw a line between philanthropy and activities driven by the
something that constitutes more than just a tradable
triple bottom line. For them, uncertainty surrounds a range
commodity and forms a part of the community’s very
of issues involved in ABS negotiations, such as properly
existence. Increasingly, ethical users should find this level of
determining the holders of TK, what constitutes FPIC,
clarity from ILCs to be a benefit as opposed to a bane.
the uncodified nature of customary laws, and additional
Moreover, meeting with empowered communities ensures a
complicating factors such as trans-boundary resources.
more level playing field for any subsequent negotiations
While the policy instruments we set out in Chapter I such as
and can contribute a heightened legal certainty to any
the Bonn Guidelines provide users with guidance on how to
subsequent access and benefit-sharing deals. As such,
engage with communities, as we noted, they fail to empower
BCPs build a bridge between users and providers of GR and
ILCs to determine the terms of any negotiations.
associated TK.
5. Re-evaluating Local Integrity and Good ABS Agreements
In chapter I, we raise the issue of the importance of local
At the start of this chapter, we touched on the subject of
integrity; in this chapter, this point was brought to the forefront
what constitutes a good ABS agreement. Just like the merits
by the communities’ views provided above. We can discuss in
of ABS, much has been said on this subject. Most answers
abstract the pros and cons of an ABS regulatory framework,
deal with specifics such as arguing that good ABS agreements
but the only way to assess the real worth of ABS is by measuring
are those with the following characteristics: communities
its tangible impacts at the local level. Those most able to
are involved in the research; communities harvest wild plants
determine whether ABS might assist to preserve and maintain
(along a bio-trade model) and perhaps engage at some level
ILCs’ TK and promote the conservation and sustainable use of
in the processing of the plants; the deals are with smaller
biodiversity are ILCs themselves, according to their local needs.
local companies as opposed to multinationals; and either no
Once it is accepted that the IRABS and national ABS frameworks
patents are taken over innovations based on the TK or the
are not a panacea and have some very serious limitations
patent is jointly owned, among other stipulations. We agree
relating to the full implementation of Article 8(j), but will provide
with many of the increasingly nuanced approaches to ABS
bio-cultural communities with certain rights and can assist with
and understand the importance of learning from past
certain challenges, they will become more tangible from the
agreements whose initial luster has faded. Though it is another
community perspective. Empowered communities can then
subject entirely, considered support to communities before,
assess from their own contexts whether ABS offers them a
during and after an ABS agreement is of utmost importance.
means to tackle certain challenges they face and/or a way to
However, put simply, we argue that a good ABS agreement is
promote the management of certain elements of their TK. Based
one that is negotiated by an empowered community according
on our work, we argue that the development of BCPs empowers
to its bio-cultural values and customary laws on FPIC relating
communities to approach other stakeholders involved in ABS
to the sharing of its TK or GR, and that the terms of the agreement
on a more level playing field, and thus enables them to use the
lead to tangible benefits to the community in line with Article
legal framework towards their endogenous development plans
8(j). While BCPs are not a panacea, we feel that for many
and according to their customary values. Similarly, it helps them
communities, engaging with the process of developing a BCP
to avoid entering into ABS deals that lead them further from
will improve their ability to asses whether ABS offers tangible
their bio-cultural ways of life as envisaged in Article 8(j).
benefits and if so, to negotiate such agreements.
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