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Whose access and whose
benefit? The Nagoya
Protocol and customary
rights in India
3
by SAGARI R. RAMDAS
Introduction
Adivasis (the indigenous people of India)
and peasants, pastoralists and fisherfolk
need to defend their rights to the resources
on which they depend (land, forests and
water) in order to live and carry out their
livelihoods with dignity. These communities have nurtured, shaped and conserved
these resources, including their genetic
diversity (crops, trees, livestock, poultry,
micro-organisms). Their mutually sustaining, complex, multi-layered relationship
with the living world is one based on custodianship and stewardship over the
resources to be handed down to future
generations. It sustains life, livelihoods and
spirituality, sows the seeds for future generations, and is grounded in the moral and
political economy of the rights of mother
Earth. This relationship, in the worldview
of indigenous and other local communities,
cannot be reduced to a commodity to be
traded or ‘accessed and benefited’ via
monetary payment, as is implied by the
recently agreed Nagoya Protocol to the
Convention on Biodiversity (CBD).
This article provides a critique of the
Nagoya Protocol in the Indian context,
concluding that it is unlikely that the Protocol’s provisions on prior informed consent
(PIC) and community protocols will enable
communities to protect their customary
rights. It then explores how Adivasi and
pastoralist communities have used other
national laws and self-mobilisation to
protect their biodiversity and intellectual
rights and safeguard their access to genetic
resources for livelihoods and ‘benefits’, as
understood according to their worldview.
The Nagoya Protocol in the Indian context
The Nagoya Protocol elaborates Article 15
of the CBD that deals with access to genetic
resources and benefit-sharing (ABS).
‘Access’ and ‘benefits’ in this case are
grounded in an intellectual property rights
(IPR) framework because they often
involve the development and patenting of
commercial products to generate benefits.
IPRs include patents, geographical indications, trademarks, plant variety protection,
copyrights and protection of undisclosed