Concluding Thoughts 321
of the necessary rights and entitlements to protect IPLCs’ distinct ways of life.
Even within the framework of the Nagoya Protocol, it is assumed that IPLCs are
not in a position to maintain their practices relating to the conservation of biodiversity. Nor is it easy for them to negotiate fairly and equitably the terms and
conditions under which their genetic resources and TK are accessed or to preserve the part of their heritage that must remain extra commercium (insusceptible
of being traded). Before these processes, IPLCs must first acknowledge and then
counter the piecemeal nature of law. The value of BCPs/CPs, as Kabir Bavikatte
contends, lie precisely
[…] in their ability to act as the glue that holds together the total mosaic of
a community life that is fragmented under different laws and policies, with
the understanding that the conservation of Nature is a result of a holistic
way of life.
(Bavikatte, 2014, p. 233)
However crucial the preceding clauses may be in the context of ABS, IPLCs’ primary efforts are often expended in articulating, based on customary law and traditional institutions, clear terms and conditions to regulate access to their knowledge
and resources as well as benefit-sharing. In the BCP covering the farming communities of Analavory, in Madagascar, the protocol first sets out conditions and procedures for accessing PGRFA (for a detailed account of this prong of the protocol, see
Halewood et al., 2021). It then moves on to set out the conditions and procedures
for accessing genetic resources other than PGRFA, distinguishing in the process
two separate regimes depending on whether the access is intended for commercial
use or not. A similar pattern is found in most BCPs, notably in the Khoikhoi Community’s Rooibos Biocultural Community Protocol, while at times, less sophisticated documents can be used (i.e. different media, posters, and signs).
Most significantly, from the standpoint of legal scholars, these terms, conditions,
and processes form the core of BCPs/CPs in an ABS context. They first address
relations between the community and putative or would-be bioprospectors by laying down a comprehensive framework to seek the community’s PIC and negotiate
the MAT and sharing of benefits. To a certain extent, this allows a “community to
prepare in advance for negotiations of an ABS arrangement, rather than enter into
such negotiations in an ad hoc manner, contributing thus to a more level playing
field among the parties” (Morgera & Tsioumani, 2010, p. 157). Second, the core
part of BCPs/CPs is also intended as a governance tool whereby the community
can tackle intra-community equity and prevent conflicts (Ibid., 158). This is especially important, as Miri (Margaret) Raven and Daniel Robinson demonstrate in
Vanuatu, where communities are heavily involved in “biotrade” or are inclined
towards developing or improving an existing ABS value chain (Oliva et al., 2012).
At this juncture, several caveats must be borne in mind: compliance with the
provisions of BCPs usually remains voluntary, unless domestic legislation makes
it mandatory for bioprospectors to abide by the terms and conditions outlined in
of the necessary rights and entitlements to protect IPLCs’ distinct ways of life.
Even within the framework of the Nagoya Protocol, it is assumed that IPLCs are
not in a position to maintain their practices relating to the conservation of biodiversity. Nor is it easy for them to negotiate fairly and equitably the terms and
conditions under which their genetic resources and TK are accessed or to preserve the part of their heritage that must remain extra commercium (insusceptible
of being traded). Before these processes, IPLCs must first acknowledge and then
counter the piecemeal nature of law. The value of BCPs/CPs, as Kabir Bavikatte
contends, lie precisely
[…] in their ability to act as the glue that holds together the total mosaic of
a community life that is fragmented under different laws and policies, with
the understanding that the conservation of Nature is a result of a holistic
way of life.
(Bavikatte, 2014, p. 233)
However crucial the preceding clauses may be in the context of ABS, IPLCs’ primary efforts are often expended in articulating, based on customary law and traditional institutions, clear terms and conditions to regulate access to their knowledge
and resources as well as benefit-sharing. In the BCP covering the farming communities of Analavory, in Madagascar, the protocol first sets out conditions and procedures for accessing PGRFA (for a detailed account of this prong of the protocol, see
Halewood et al., 2021). It then moves on to set out the conditions and procedures
for accessing genetic resources other than PGRFA, distinguishing in the process
two separate regimes depending on whether the access is intended for commercial
use or not. A similar pattern is found in most BCPs, notably in the Khoikhoi Community’s Rooibos Biocultural Community Protocol, while at times, less sophisticated documents can be used (i.e. different media, posters, and signs).
Most significantly, from the standpoint of legal scholars, these terms, conditions,
and processes form the core of BCPs/CPs in an ABS context. They first address
relations between the community and putative or would-be bioprospectors by laying down a comprehensive framework to seek the community’s PIC and negotiate
the MAT and sharing of benefits. To a certain extent, this allows a “community to
prepare in advance for negotiations of an ABS arrangement, rather than enter into
such negotiations in an ad hoc manner, contributing thus to a more level playing
field among the parties” (Morgera & Tsioumani, 2010, p. 157). Second, the core
part of BCPs/CPs is also intended as a governance tool whereby the community
can tackle intra-community equity and prevent conflicts (Ibid., 158). This is especially important, as Miri (Margaret) Raven and Daniel Robinson demonstrate in
Vanuatu, where communities are heavily involved in “biotrade” or are inclined
towards developing or improving an existing ABS value chain (Oliva et al., 2012).
At this juncture, several caveats must be borne in mind: compliance with the
provisions of BCPs usually remains voluntary, unless domestic legislation makes
it mandatory for bioprospectors to abide by the terms and conditions outlined in