5. The Policy Context for developing the InterCommunity Agreement: key elements and
shortcomings
5.1 International policy: FAO, CBD, WIPO
Since the adoption of the Convention on Biological Diversity (CBD) in 1992, governments, NGOs, international
organizations, and Indigenous Peoples have been exploring practical mechanisms to conserve and sustainably
use biodiversity at the local level. The rights and obligations of indigenous and local communities have
frequently been central to these processes. They are also supported by a number of other international
instruments, including:
a) The United Nations Declaration on the Rights of Indigenous Peoples
• A
rticle 3, Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.
• A
rticle 4, Indigenous peoples, in exercising their right to self-determination, have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions.
b) ILO Convention 169 concerning Indigenous and Tribal Peoples
• Article 7 providing for prioritisation and self-determination in development and conservation activities
• Article 8 providing for the recognition of customary law
• Article 13 recognising relationships with land
• Article 14 recognising the ownership of, or other rights to, land
• Article 15 recognising rights to natural resources
• Article 16 providing for the right not to be displaced
Nevertheless, after up to two decades of implementation of these, and a number of other binding and nonbinding instruments, the proposed approaches have proved both ineffective and inadequate.
Recently, two efforts related to the CBD framework have sought to develop practical mechanisms in the
conservation and sustainable use of biodiversity, particularly in the area of access to genetic resources and
benefit sharing. The International Treaty on Plant Genetic Resources for Food and Agriculture (2001) and the
Nagoya Protocol on Access to Genetic Resources and Benefit Sharing (2010) both have the potential for
significant impact on the interests of indigenous communities.
The International Treaty on Plant Genetic Resources for Food and Agriculture
The International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) was adopted in
2001, entered into force in 2004 and, today, has 127 contracting parties.6 The Treaty is closely related
to the CBD, with an overall goal of the conservation and sustainable use of plant genetic resources for
food and agriculture and the fair and equitable sharing of the benefits arising out of their use. The central
pillar of the Treaty’s support for sustainable agriculture and global food security, is the establishment of a
Multilateral System for selected agricultural genetic resources; in effect an international commons pool. The
MLS guarantees access to these resources and the sharing of benefits generated from their use.
A supporting element of the Plant Treaty is Article 9, Farmers’ Rights. This recognizes the contribution that
indigenous and local communities and farmers have made to the conservation and development of crop
genetic resources and recommends various options for the protection of their rights, although these are all
subject to national discretion. In addition to their lack of enforceability, these provisions do not address the
problems of a lack of secure rights to land and genetic resources and only marginally address the challenge
of policies that favour industrial agriculture and monocultures to the exclusion of smallholder agriculture.
It has been argued that the financial benefit sharing required of some users of the Multilateral System can
ensure predictable and continuing benefit-sharing, which might be directed to a broad approach that includes
the creation of measures for the protection of farmers’ customary rights over genetic resources and associated
landscapes, cultural values and customary laws, on which the continued conservation and improvement of
crops by farmers depends. However, the Benefit Sharing Fund presents several challenges in this regard.
6 http://www.itpgrfa.net/International/content/127-nations-signatories-global-treaty-save-and-share-crop-diversity
Community Biocultural Protocols
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