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65 Swiderska with Milligan, Kohli, Shrumm, Jonas, Hiemstra and Oliva
Box 4: The Nagoya Protocol
The Nagoya Protocol (2010) was developed to
implement the Convention on Biodiversity’s third
objective on access to genetic resources and benefitsharing. Its objective is:
…the fair and equitable sharing of benefits arising
from the utilisation of genetic resources, including by
appropriate access to genetic resources… thereby
contributing to the conservation of biological
diversity and the sustainable use of its components.
The Protocol will enter into force after 50
ratifications. See: www.cbd.int/abs
The Nagoya Protocol requires parties to:
• Take measures to ensure the prior informed
consent (PIC) or approval and involvement of
indigenous and local communities (ILCs) for access to
traditional knowledge, and for access to genetic
resources where they have the established right to
grant access (Article 6.2).
• Set out criteria and/or processes for obtaining PIC
or approval and involvement of ILCs for access to
genetic resources (Article 6.3f).
• Endeavour to support the development by ILCs,
including women, of community protocols for
access to traditional knowledge and equitable
benefit-sharing (Article 12.3a).
• Take into consideration ILC’s customary laws,
community protocols and procedures in
implementing their obligations on traditional
knowledge (Article 12.1).
protocols for ABS by indigenous and local
communities (Box 4).
While these are important developments, they also have some limitations.
UNDRIPs is non-binding, so although
FPIC has been incorporated in a few
national laws and institutions (Buxton),
many countries still do not require it.
However, companies in the mining, oil
exploration and forestry sectors are
increasingly going above the minimum
standards required in national law to
obtain a ‘social licence to operate’, i.e. to
gain the support of local communities. In
the forestry sector, respect for FPIC is seen
as corporate best practice, as a means of
averting and resolving conflicts with
communities. Companies as varied as the
US oil exploration company Talisman Oil
and the Singapore-based pulp and paper
giant APRIL have made public statements
endorsing FPIC (Colchester, 2010).
Although the Nagoya Protocol introduces new requirements to ensure the PIC
of indigenous and local communities, these
are significantly weakened by the clauses
‘in accordance with domestic law’ and ‘as
appropriate’. In relation to genetic
resources these measures are only required,
‘where they have the established right to
grant access’. Thus, the impact of these
provisions depends to a large extent on
existing national legislation, and how the
Protocol is implemented and interpreted
by national governments.
In Latin America and the Caribbean
region, most ABS legislation requires PIC
of indigenous and local communities for
access to genetic resources on land owned
or managed by them (Cabrera et al., 2011).
But in other countries, such as India, there
is no such requirement in national ABS
legislation. Community protocols for ABS
are also not widely recognised, although
they are now included in draft ABS legislation in Malaysia (Sabah) and Namibia; and
in Bhutan’s policy on ABS.
There are also concerns about the ABS
framework within which these rights are
recognised. The overall premise of the
Protocol rests on obtaining economic benefits from biodiversity and traditional
knowledge. Many ILCs have raised ethical
arguments as to whether a seed or knowledge that is commonly-held heritage
should be accessed by private or individual
interests for commercial development and
protected by exclusive intellectual property
rights (e.g. patents) (Ramdas).
Furthermore, the scope of these laws is
somewhat limited. The Nagoya Protocol
only requires support for community
protocols for ABS, whereas community
protocols focus on many other issues.
UNDRIPs, on the other hand, only applies
to indigenous peoples, and does not require
FPIC for non-indigenous communities.
About this special issue of PLA
This special issue reviews the experiences
of communities in Asia, Latin America and