The Sovereign Stewards of Biodiversity 273
“knowledge, innovations and practices” within the meaning of Articles 8( j) and
10(c) of the CBD. Some have continued to explore the possibility of sui generis intellectual property rights (IPRs) vested in IPLCs (see Brush & Stabinsky,
1996; Greaves, 1996). The negotiation, adoption, and entry into force of the
Nagoya Protocol, however, have given hope to all those who advocate holistic
approaches and do not believe that IPRs and the attendant transformation of
genetic resources and knowledge tradable on global markets would do any good
to the communities concerned. Ongoing work on the interpretation of the relevant provisions of the CBD and Articles 5, 6, and 7 of the Nagoya Protocol is
still encumbered by a significant level of uncertainty, but a great deal of hope has
been pinned on community protocols – referred to here as Biocultural Community Protocols (BCPs) – as now enshrined in the Nagoya Protocol.
8 In particular,
seen within a dynamic policy and advocacy context around “territories and areas
conserved by indigenous peoples and local communities” (ICCAs),
9 Indigenous
Biocultural Territories (Argumedo & Pimbert, 2008), rights of nature (Iorns
Magallanes, 2019; Kotzé & Villavicencio Calzadilla, 2017; Tănăsescu, 2020),
and biocultural rights (Bavikatte, 2014; Girard, 2019; Sajeva, 2018), BCPs have
been heralded as able to solve the ABS conundrum for IPLCs. They ensure
communities’ rights to development, while supporting their role in biodiversity
conservation and maintenance (Posey & Dutfield, 1996, p. 95), without letting
their unique livelihoods and ways of life be shattered by the unfettered extension
of disembedded markets and the language of trade.
There is no intention here to walk away from the “win-win” approach
10 at
the core of ABS; the commodification of traditional and indigenous seeds and
traditional knowledge (TK) is still believed to open new opportunities to development, thereby strengthening IPLCs’ effectiveness in conservation. However,
what is new is the procedural framework that goes along with BCPs, which is
thought to give IPLCs more substantial control over their resources and TK.
This control occurs through the right to say “no” and to set out the conditions
of negotiations. It also enables IPLCs to uphold the market-inalienability (extra
commercium quality) of certain aspects of their heritage – land, sacred sites, seeds,
and language – on which communities depend for their survival, well-being, and
to thrive (Bavikatte et al., 2010, p. 298).
It remains to be seen whether a more significant transformation can be
expected from tools so far initiated and facilitated by NGOs within the constraints set by the States and international organisation funders (Parks, 2019, p.
82). They inevitably accept strong linkages between what are still mainly “moral
economies” and disembedded global markets, without really pondering over the
disruptive impact that the irruption of the market-oriented and instrumental
rationality may have on many communities in the medium run (see Gudeman,
2001, pp. 27–29, 2012, p. 29).
11 At the very least, BCPs may help rebalance
centuries- old asymmetrical relationships between IPLCs and (mainly) Northbased bioprospectors, extra commercium things and tradable properties, and reinforce local or community prior and informed consent (PIC) procedures or support
“knowledge, innovations and practices” within the meaning of Articles 8( j) and
10(c) of the CBD. Some have continued to explore the possibility of sui generis intellectual property rights (IPRs) vested in IPLCs (see Brush & Stabinsky,
1996; Greaves, 1996). The negotiation, adoption, and entry into force of the
Nagoya Protocol, however, have given hope to all those who advocate holistic
approaches and do not believe that IPRs and the attendant transformation of
genetic resources and knowledge tradable on global markets would do any good
to the communities concerned. Ongoing work on the interpretation of the relevant provisions of the CBD and Articles 5, 6, and 7 of the Nagoya Protocol is
still encumbered by a significant level of uncertainty, but a great deal of hope has
been pinned on community protocols – referred to here as Biocultural Community Protocols (BCPs) – as now enshrined in the Nagoya Protocol.
8 In particular,
seen within a dynamic policy and advocacy context around “territories and areas
conserved by indigenous peoples and local communities” (ICCAs),
9 Indigenous
Biocultural Territories (Argumedo & Pimbert, 2008), rights of nature (Iorns
Magallanes, 2019; Kotzé & Villavicencio Calzadilla, 2017; Tănăsescu, 2020),
and biocultural rights (Bavikatte, 2014; Girard, 2019; Sajeva, 2018), BCPs have
been heralded as able to solve the ABS conundrum for IPLCs. They ensure
communities’ rights to development, while supporting their role in biodiversity
conservation and maintenance (Posey & Dutfield, 1996, p. 95), without letting
their unique livelihoods and ways of life be shattered by the unfettered extension
of disembedded markets and the language of trade.
There is no intention here to walk away from the “win-win” approach
10 at
the core of ABS; the commodification of traditional and indigenous seeds and
traditional knowledge (TK) is still believed to open new opportunities to development, thereby strengthening IPLCs’ effectiveness in conservation. However,
what is new is the procedural framework that goes along with BCPs, which is
thought to give IPLCs more substantial control over their resources and TK.
This control occurs through the right to say “no” and to set out the conditions
of negotiations. It also enables IPLCs to uphold the market-inalienability (extra
commercium quality) of certain aspects of their heritage – land, sacred sites, seeds,
and language – on which communities depend for their survival, well-being, and
to thrive (Bavikatte et al., 2010, p. 298).
It remains to be seen whether a more significant transformation can be
expected from tools so far initiated and facilitated by NGOs within the constraints set by the States and international organisation funders (Parks, 2019, p.
82). They inevitably accept strong linkages between what are still mainly “moral
economies” and disembedded global markets, without really pondering over the
disruptive impact that the irruption of the market-oriented and instrumental
rationality may have on many communities in the medium run (see Gudeman,
2001, pp. 27–29, 2012, p. 29).
11 At the very least, BCPs may help rebalance
centuries- old asymmetrical relationships between IPLCs and (mainly) Northbased bioprospectors, extra commercium things and tradable properties, and reinforce local or community prior and informed consent (PIC) procedures or support