scholarly journals The Rooibos Benefit Sharing Agreement–Breaking New Ground with Respect, Honesty, Fairness, and Care

2019 ◽  
Vol 29 (2) ◽  
pp. 285-301
Author(s):  
DORIS SCHROEDER ◽  
ROGER CHENNELLS ◽  
COLLIN LOUW ◽  
LEANA SNYDERS ◽  
TIMOTHY HODGES
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Global Policy ◽  
Nagoya Protocol ◽  
Major Benefit ◽  
Government Leadership

AbstractThe 1992 Convention on Biological Diversity (CBD) and its 2010 Nagoya Protocol brought about a breakthrough in global policy making. They combined a concern for the environment with a commitment to resolving longstanding human injustices regarding access to, and use of biological resources. In particular, the traditional knowledge of indigenous communities was no longer going to be exploited without fair benefit sharing. Yet, for 25 years after the adoption of the CBD, there were no major benefit sharing agreements that led to significant funding streams for indigenous communities. This changed with the signing of the Rooibos Benefit Sharing Agreement in South Africa, described in this paper. As the authors report, the Rooibos Agreement is a superlative in two respects. It is the biggest benefit sharing agreement between industry and indigenous peoples to date. It is also the first industry-wide agreement to be formed in accordance with biodiversity legislation. This article is a co-production between traditional knowledge holders, the lawyer who represented their interests, the Co-Chair of the Nagoya Protocol negotiations, and an ethicist who analyzed the major challenges of this historic agreement. With no precedent in the benefit sharing world, the agreement stands as a concrete example of the ‘art of the possible.’ Although the rooibos case is unique in a number of aspects, the experience offers many transferable insights, including: patience; incrementalism; honesty; trust; genuine dialogue; strong legal support; a shared recognition that a fair, win-win deal is possible; government leadership; and unity amongst indigenous peoples. Such ingredients of success can apply well beyond southern Africa.

Protecting Traditional Knowledge Holders' Interests and Preventing Misappropriation—Traditional Knowledge Commons and Biocultural Protocols: Necessary but Not Sufficient?

2012 ◽  
Vol 19 (3) ◽  
pp. 401-422 ◽  
Author(s):  
Krishna Ravi Srinivas
Keyword(s):  
Informed Consent ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Prior Informed Consent ◽  
Knowledge Commons

AbstractThe experience of the indigenous communities regarding access and benefit sharing under the national regimes based on provisions of Convention on Biological Diversity and Bonn Guidelines has not been satisfactory. The communities expect that noncommercial values should be respected and misappropriation should be prevented. Some academics and civil society groups have suggested that traditional knowledge commons and biocultural protocols will be useful in ensuring that while noncommercial values are respected, access and benefit sharing takes place on conditions that are acceptable to the communities. This proposal is examined in this context in the larger context of access and benefit sharing under the Convention on Biological Diversity and implementing prior informed consent principles in access and benefit sharing. This article examines knowledge commons, provides examples from constructed commons in different sectors and situates traditional knowledge commons in the context of debates on commons and public domain. The major shortcomings of traditional commons and bicultural protocol are pointed out, and it is suggested that these are significant initiatives that can be combined with the Nagoya Protocol to fulfill the expectations of indigenous communities.

scholarly journals RECOGNITION OF INDIGENOUS PEOPLES IN ACCESS AND BENEFIT SHARING (ABS) LEGISLATION AND POLICIES OF THE PARTIES TO THE NAGOYA PROTOCOL

2018 ◽  
Vol 5 (3) ◽  
pp. 86-113
Author(s):  
H. Arjjumend
Keyword(s):  
Informed Consent ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Free Access ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Prior Informed Consent

The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of indigenous peoples and local communities (ILCs) in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). States Parties are obliged to take legislative, administrative and technical measures to recognize, respect and support/ensure the prior informed consent of indigenous communities and their effective involvement in preparing mutually agreed terms before accessing genetic resources and associated traditional knowledge or utilizing them. Within the ambit of contemporary debates encompassing indigenous peoples’ right to self-determination, this paper examines the effectiveness of the percolation of the legal intent of international law into existing or evolving domestic laws, policies or administrative measures of the Parties on access and benefit sharing. Through an opinion survey of indigenous organizations and the competent national authorities of the Parties to the Convention on Biological Diversity (CBD), the findings indicate that the space, recognition and respect created in existing or evolving domestic ABS measures for the rights of indigenous communities are too inadequate to effectively implement the statutory provisions related to prior informed consent, mutually agreed terms and indigenous peoples’ free access to biological resources as envisaged in the Nagoya Protocol. As these bio-cultural rights of indigenous peoples are key to the conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation to be sufficiently effective in translating the spirit of international ABS law and policies.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

Overcoming epistemic injustices in the biomedical study of ayahuasca: Towards ethical and sustainable regulation

2022 ◽  
pp. 136346152110629
Author(s):  
Eduardo Ekman Schenberg ◽  
Konstantin Gerber
Keyword(s):  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Therapeutic Potential ◽  
Indigenous Rights ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Epistemic Authority ◽  
Double Blind

After decades of biomedical research on ayahuasca's molecular compounds and their physiological effects, recent clinical trials show evidence of therapeutic potential for depression. However, indigenous peoples have been using ayahuasca therapeutically for a very long time, and thus we question the epistemic authority attributed to scientific studies, proposing that epistemic injustices were committed with practical, cultural, social, and legal consequences. We question epistemic authority based on the double-blind design, the molecularization discourse, and contextual issues about safety. We propose a new approach to foster epistemically fair research, outlining how to enforce indigenous rights, considering the Brazilian, Peruvian, and Colombian cases. Indigenous peoples have the right to maintain, control, protect, and develop their biocultural heritage, traditional knowledge, and cultural expressions, including traditional medicine practices. New regulations about ayahuasca must respect the free, prior, and informed consent of indigenous peoples according to the International Labor Organization Indigenous and Tribal Peoples Convention no. 169. The declaration of the ayahuasca complex as a national cultural heritage may prevent patenting from third parties, fostering the development of traditional medicine. When involving isolated compounds derived from traditional knowledge, benefit-sharing agreements are mandatory according to the United Nations’ Convention on Biological Diversity. Considering the extremely high demand to treat millions of depressed patients, the medicalization of ayahuasca without adequate regulation respectful of indigenous rights can be detrimental to indigenous peoples and their management of local environments, potentially harming the sustainability of the plants and of the Amazon itself, which is approaching its dieback tipping point.

Power Relations in the Traditional Knowledge Debate: A Critical Analysis of Forums

2011 ◽  
Vol 18 (2) ◽  
pp. 143-178 ◽  
Author(s):  
Charles Kamau Maina
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Policy Outcomes ◽  
United Nations General ◽  
The World ◽  
International Decade

AbstractAn ongoing debate on the protection of traditional knowledge was prompted by the United Nations General Assembly declaration of the International Decade of the World's Indigenous Peoples in 1995 and the declaration of the Second International Decade in 2004. These two declarations challenged governments and the international community to address, nationally and internationally, issues that affect indigenous communities. One such issue is the protection of traditional knowledge. The three key international multilateral forums that are debating traditional knowledge issues are the World Intellectual Property Organization, the World Trade Organization, and the Convention on Biological Diversity. Using a political economy framework, this study analyzes the policymaking processes and mandates of the three multilateral forums in order to highlight stakeholders' levels of involvement in these processes. The study found that the multilateral forums' power structures, mandates, and decision-making processes disadvantage indigenous peoples and hinder their full participation in the forums' processes. The study recommends establishing a forum that would take into account indigenous peoples' worldviews; otherwise policy outcomes from these discussions will probably disadvantage indigenous peoples.

scholarly journals Awareness of the Convention on Biological Diversity and provisions regarding access and benefit sharing among multiple stakeholder groups in Bhutan

Oryx ◽  
2019 ◽  
Vol 54 (5) ◽  
pp. 735-742
Author(s):  
Sonam Wangyel Wang ◽  
Woo Kyun Lee ◽  
Jeremy Brooks ◽  
Chencho Dorji
Keyword(s):  
Rural Communities ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
National Level ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Structured Interviews ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Stakeholder Groups

AbstractAs part of the Convention on Biological Diversity (CBD), the Nagoya Protocol on Access and Benefit Sharing calls for ‘fair and equitable sharing of benefits’ derived from the use of genetic resources and traditional knowledge. However, implementation of the Convention and the Nagoya Protocol has been challenged by the inadequacies of existing policies, lack of national-level frameworks, and inadequate knowledge among stakeholders. We used focus group meetings and structured interviews with rural communities, government representatives, researchers and Members of Parliament in Bhutan to collect data on awareness, knowledge and perceptions of components of the CBD related to access and benefit sharing. Our study indicated generally low levels of awareness about most components of the Convention, particularly among rural residents. Although local people in rural communities feel that benefits derived from local biological resources and traditional knowledge should be shared, there is uncertainty about who owns these resources. These results indicate that there is an urgent need to develop educational and awareness programmes, using a variety of media, to target particular stakeholder groups, with emphasis on residents in rural communities. This could empower local communities to participate meaningfully in decision-making processes to develop Bhutan's national access and benefit sharing framework, and to allow them to benefit from the conservation and sustainable use of local resources.

Tackling biopiracy in Southeast Asia: the need for a legally binding regional instrument

2020 ◽  
Vol 23 (1) ◽  
pp. 74-98
Author(s):  
Jinyup Kim
Keyword(s):  
Southeast Asia ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Biological Resources ◽  
Knowledge Based ◽  
Consistent Manner

Biopiracy, largely defined as misappropriation of biological resources and associated traditional knowledge, has occurred all around the world. Southeast Asia, one of the world's biodiversity hotspots, has been a victim of biopiracy in a number of cases across the region. Despite the high occurrence of the exploitation of resources, the region has not responded to the problem of biopiracy adequately. One of the most important reasons for this lack of response to biopiracy is the absence of a legally binding regional instrument(s). However, considering that (i) biopiracy does not respect national borders, (ii) most of the Southeast Asian states have ratified the Nagoya Protocol to the Convention on Biological Diversity, and (iii) soft law instruments adopted so far have failed to tackle biopiracy, this article argues that a legally binding regional regime should be established to tackle biopiracy in a consistent manner. Following an analysis of a number of biopiracy cases in the region, this article discusses why a legally binding instrument(s) is necessary. It suggests how to improve the current regional instruments pertaining to access and benefit sharing in relation to biological resources and associated traditional knowledge, based on the analysis of instruments adopted to tackle biopiracy in other regions.

Right of Indigenous Communities to Prior Informed Consent under Article 7 of the Nagoya Protocol and a Comparative Analysis of Its Implementation by India and Bhutan

2021 ◽  
Vol 28 (1) ◽  
pp. 36-63
Author(s):  
Mohit Gupta
Keyword(s):  
Informed Consent ◽  
Biological Diversity ◽  
Sustainable Use ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
The Third ◽  
Prior Informed Consent

The Convention on Biological Diversity (cbd) was adopted in 1992. This Convention had three major objectives: conservation of biological diversity, sustainable use of its component, and access and benefit sharing of biological resources arising out of their utilisation. The Nagoya Protocol to the cbd was adopted in 2010 for the fulfilment of the third objective of the cbd, access and benefit sharing. Article 7 of the Nagoya Protocol imposes an obligation on states parties to ensure that “prior and informed consent or approval or involvement” of the indigenous and local communities is taken before their knowledge is accessed. The present study first analyses the contents of Article 7 of the Nagoya Protocol. It will throw light on the meaning of the phrase “prior and informed consent or approval and involvement” as used in Article 7. It then highlights the implementation of Article 7 by two states parties, namely, India and Bhutan.

scholarly journals JUSTICE, EQUITY AND BENEFIT-SHARING UNDER THE NAGOYA PROTOCOL TO THE CONVENTION ON BIOLOGICAL DIVERSITY

2015 ◽  
Vol 24 (1) ◽  
pp. 113-141
Author(s):  
Elisa Morgera
Keyword(s):  
Environmental Justice ◽  
Genetic Resources ◽  
International Law ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Legal Concept ◽  
Nagoya Protocol ◽  
Case Basis

This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of benefit-sharing in international law. To that end, the article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: (i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge; and (ii) relating different notions of justice to the different functions that equity plays in international law. The aim is to test the potential wider application of linking a pluralist notion of environmental justice to different functions of equity in other areas of international law that refer to benefit-sharing. It is argued that this helps systematically unveil implicit legal design choices in relation to the pursuit of justice through international lawmaking, and interpret international legal instruments in ways that can contribute to negotiate concrete understandings of justice on a case-by-case basis.

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