4.8 Harmony with national and international laws
The Potato Park, ANDES and IIED believe that the Inter-community Agreement represents a traditional
approach to community driven development that is more socially and ecologically sustainable than many of
the prevalent interpretations of frameworks discussed at the international policy level. At the same time, the
Inter-community Agreement, and the Potato Park biocultural system more generally, provide an option for an
integrated interpretation of a series of international instruments and principles, such as: the United Nations
Declaration on the Rights of Indigenous Peoples (Art 34) (United Nations, 2007); the International Labour
Organisation Convention 169 (Article 8) (ILO, 1989); and the right to cultural life more generally as enshrined
in international law (United Nations Universal Declaration of Human Rights [Art. 27.2] (United Nations, 1948)
and the International Covenant on Economic, Social and Cultural Rights, e.g, Art. 15 [1] and Art 11 (United
Nations, 1966).
The Potato Park also provides an example of a local, but more widely adaptable, framework for the
implementation of the most recent agreement touching on the conservation and sustainable use of biodiversity,
the Nagoya Protocol on Access and Benefit Sharing. The example of the Potato Park has obvious relevance
to the situation of most indigenous communities but it may also be informative for other communities seeking
to enhance local conservation and sustainable use related activities. The following table provides examples
of provisions of the Nagoya Protocol and their practical implementation in the Potato Park and the InterCommunity Agreement, illustrating how the Protocol may be adapted to paradigms beyond the orthodox
Western economic exploitation model:
12
NAGOYA PROTOCOL
INTER-COMMUNITY AGREEMENT AND POTATO PARK
Objective of the Protocol (Art.1)
Contribution to the conservation and sustainable use of genetic resources. Fair and
equitable sharing of the direct and indirect benefits derived from the biocultural
resources of the Potato Park. Transfer of technology.
Fair and Equitable Benefit-Sharing (Art. 5.2
and 5.5)
Example of framework for benefit sharing. Criteria developed to ensure that the
monetary and non-monetary benefits derived from the Potato Park activities were
distributed in a manner agreed upon by all communities. Creation of Intercommunity
Fund, Cultural Affirmation Fund and the Fund for Reinvestment for Sustainability.
Development of legal, administrative or
policy measures (several articles)
Ordinances passed by the regional government of Cusco against biopiracy and GMO.
Development of intercommunity decision making processes and structure.
PIC to access to traditional knowledge
associated with genetic resources (Art
7) and prior informed consent to access
genetic resources (Art.6.3)
Intercommunity governance system structure for decision-making has been
strengthened. Stronger position to grant and negotiate prior informed consent
Food Security (Art.8)
Assurance of survival and livelihood of communities. Access to adequate food
and natural resources, free from adverse substances, and acceptable within the
communities’ culture.
Contribution to conservation and sustainable
use of biodiversity (Art. 9)
Integrated in-situ-ex-situ model of conservation. 1345 varieties of potato in 2011.
Restoration of local habitats and ecosystems, ensuring cultural survival promotion of
local rights and sustainable use of genetic resources.
Taking into consideration indigenous and
local community customary laws (Art.
12.1) Development by indigenous and local
communities of Community Protocols,
mutually agreed terms and Model Contract
(Art.12.3)
Key feature. The research, consultation and negotiation processes that resulted
in agreement based on customary law. The principles of reciprocity, duality and
equilibrium are the pillars of the agreement and the decision-making structure.
Information to potential users about their
obligations (Art.12.2)
Provides example of a practical application of a benefit sharing agreement and a
methodology to develop future agreement based on customary laws.
Customary use and exchange of genetic
resources amongst indigenous and local
communities (Art. 12.4)
Ensure the free flow of resources among communities and their members.
Dispute Resolution (Art. 6.3.g, 7, and 18)
Intercommunity conflict resolution mechanism based on family, tradition and the
community’s General Assembly.
Model Contractual Clauses, best practices,
guidelines (Art. 19 and 20)
Provides examples of best practice. The experience and methodology could be used
in similar schemes to define benefit-sharing agreements. Clarifies the definition and
representation of the beneficiaries of collective rights.
Awareness Raising (Art. 21)
The development of the inter-community agreement has shown that supporting
community protocols can be a powerful tool for raising awareness of ABS issues
amongst indigenous and local communities.
Capacity (Art.22)
Contribution to the construction of an Indigenous Governance Model and to the
definition of sui generis system for the protection of traditional knowledge and
the role of customary law. Stronger capacity to negotiate mutually agreed terms,
develop and implement measures, legal and institutional development.
Technology Transfer (Art.23)
2004 Repatriation Agreement with the International Potato Center renewed. First
community organization to make agricultural genetic resources available under the
multilateral benefit sharing mechanism of the FAO Plant Treaty. Submission of potato
varieties to the Svalbard Global Seed Vault in response to concerns about the long
term in situ conservation of the varieties in the context of climate change in the
Peruvian Andes
Protecting Community Rights over Traditional Knowledge: Implications of customary laws and practices