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 13

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