Assessment of Domestic Policies Guiding the Fair and Equitable Sharing of Benefits From Utilization of Genetic Resources and Traditional Knowledge

Hasrat Arjjumend,Konstantia Koutouki

doi:10.11114/ijlpa.v3i1.4856

Abstract

The objective of the Nagoya Protocol guides Parties to regulate illegitimate access and utilization of biological resources or associated traditional knowledge, and also directs Parties to share with fairness, equity and justice the monetary or non-monetary benefits arising out of utilization of genetic resources. In a nod to the United Nations Declaration on Rights of Indigenous People, the Nagoya Protocol binds the Parties to create access and benefit sharing (ABS) laws, policies or administrative measures as envisaged in Articles 5.2 and 5.5 of the Protocol, and obliges the States to allow for benefits to flow to Indigenous peoples and local communities (ILCs). Present paper is based on an opinion survey of academic/research institutions, civil society organizations and concerned individuals apart from competent national authorities of Asian countries. Review of secondary information, especially domestic ABS laws of relevant countries, and participant observation were other means of legal and policy analysis. The findings of this paper illustrate that the accrued benefits from the utilization of genetic resources or traditional knowledge are not adequately realized by Indigenous people or local communities. State sovereignty occupies dominance when justice and equity principles are considered in benefit sharing mechanism. It leads to the infringement of Indigenous rights and conservation objectives. Discrepancies in domestic ABS laws and in the frameworks for their implementation could be addressed by ensuring the participation of ILCs in domestic ABS rulemaking, decision-making processes, and the participatory execution of ABS mechanisms at all levels. The resulting gains in efficiency in the ABS process could then better achieve the goal of conserving and sustainably using biodiversity, while also ensuring respect for the rights of Indigenous people.

Highlights

The fair and equitable sharing of benefits arising from access to, and utilization of, genetic resources and associated traditional knowledge (ATK) has been one of the backbones of international law governing biological diversity, namely the Convention on Biological Diversity and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol)
In compliance with the Nagoya Protocol, by mid-2018 nearly 65 countries have made progress in promulgating domestic ABS legislation, policy or administrative measures. It needs to be examined whether the domestic ABS measures have adequately incorporated the provisions requiring fair, equitable, just and mandatory sharing of benefits resulting from access and utilization of genetic resources or associated traditional knowledge (TK)
This paper argues that mutually agreed terms (MAT) should integrate the principles of equity and justice, be agreed upon with the

Summary

Introduction

The fair and equitable sharing of benefits arising from access to, and utilization of, genetic resources and associated traditional knowledge (ATK) has been one of the backbones of international law governing biological diversity, namely the Convention on Biological Diversity and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol). At the time of entry into force of the Protocol, 57 countries (40 developing countries and 17 developed countries) had enacted some kind of domestic legal access and benefit sharing (ABS) measures, according to the CBD Secretariat. In compliance with the Nagoya Protocol, by mid-2018 nearly 65 countries have made progress in promulgating domestic ABS legislation, policy or administrative measures (see section 3.4 below). It needs to be examined whether the domestic ABS measures have adequately incorporated the provisions requiring fair, equitable, just and mandatory sharing of benefits resulting from access and utilization of genetic resources or associated traditional knowledge (TK). This paper argues that mutually agreed terms (MAT) should integrate the principles of equity and justice, be agreed upon with the

Methods

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Conclusion