Community Protocols and Biocultural Rights 13
these TK
43 and genetic resources are shared in a fair and equitable way with the
IPLCs concerned (Morgera et al., 2014). In recent years, academic research has
particularly focused on three main and interwoven issues with a view to securing
IPLCs’ engagements through contracts with stakeholders on access to genetic
resources and TK. First, making sure that bioprospecting contracts do not arbitrarily “cut collectives”, in other words create some sort of ad hoc collectives or
“political sociality” aimed at distinguishing between “deserving” and “underserving” “contributors” to the production of a new technology, and exclusively
made of those relatively few groups who are, in fact, best able to articulate their
demands (Hayden, 2007). Second, guaranteeing that bioprospecting contracts
do involve IPLCs and that they do address the asymmetrical relations and inequitable bargaining power that characterise ABS negotiations (Robinson, 2014,
p. 12). Third, securing the “market-inalienability” (e.g. that which touches on
language, sacred sites, and ancestral ties) of certain aspects of seeds, plants, and
TK (Bavikatte et al., 2010, p. 298; Gilbert, 2018, p. 83).
Furthermore, biocultural approaches have naturally rekindled proposals made
at the start of the UNCED and CBD negotiations (Halewood, 1999, p. 955)
aimed more radically at steering the debate away from considerations about
contracts on, and trade in, TK, and to refocus it on what should be deemed fundamental prerequisites to protect the ecological values and traditional lifestyles
that sustain the conservation of biological diversity. Clear evidence of this is
the work of the Ad Hoc Open-ended Working Group on Access and BenefitSharing – which prepared the ground for negotiations on the Nagoya Protocol –
replete as it is with calls to take new ground in the field of the protection of TK,
and framing the discussion in terms of ontological conflicts, inalienability, divergences between legal traditions, and cultural values.
44
ABS within the Biocultural Nexus: From Participation to Sovereignty
and Self-Determination
This broad-strokes account manages to capture the pivotal role played by
“participation” on a new intellectual canvas which is dominated by the concept of “sustainable development”. Interlinkages between “participation” and
“ development” were already under way in the Declaration on the Right to
Development of 1986, Article 2 of which states that “the human person is the
central subject of development and should be the active participant and beneficiary of the right to development”.
45 This articulation – and in particular the
connexion between participation and benefits – has paved the way for a rightsbased approach to development and, above all, further provided the decisive
impetus for moving beyond participation and to embrace more radically the issue
of consent, sovereignty, and self-determination (Gilbert, 2018, pp. 65–66).
Under ILO Convention No. 169, references to participation are still
encumbered by a great deal of ambiguity. Along the lines of the 1980 World
Conservation Strategy (IUCN et al., 1980, Chapter 14, para. 10), it is believed
these TK
43 and genetic resources are shared in a fair and equitable way with the
IPLCs concerned (Morgera et al., 2014). In recent years, academic research has
particularly focused on three main and interwoven issues with a view to securing
IPLCs’ engagements through contracts with stakeholders on access to genetic
resources and TK. First, making sure that bioprospecting contracts do not arbitrarily “cut collectives”, in other words create some sort of ad hoc collectives or
“political sociality” aimed at distinguishing between “deserving” and “underserving” “contributors” to the production of a new technology, and exclusively
made of those relatively few groups who are, in fact, best able to articulate their
demands (Hayden, 2007). Second, guaranteeing that bioprospecting contracts
do involve IPLCs and that they do address the asymmetrical relations and inequitable bargaining power that characterise ABS negotiations (Robinson, 2014,
p. 12). Third, securing the “market-inalienability” (e.g. that which touches on
language, sacred sites, and ancestral ties) of certain aspects of seeds, plants, and
TK (Bavikatte et al., 2010, p. 298; Gilbert, 2018, p. 83).
Furthermore, biocultural approaches have naturally rekindled proposals made
at the start of the UNCED and CBD negotiations (Halewood, 1999, p. 955)
aimed more radically at steering the debate away from considerations about
contracts on, and trade in, TK, and to refocus it on what should be deemed fundamental prerequisites to protect the ecological values and traditional lifestyles
that sustain the conservation of biological diversity. Clear evidence of this is
the work of the Ad Hoc Open-ended Working Group on Access and BenefitSharing – which prepared the ground for negotiations on the Nagoya Protocol –
replete as it is with calls to take new ground in the field of the protection of TK,
and framing the discussion in terms of ontological conflicts, inalienability, divergences between legal traditions, and cultural values.
44
ABS within the Biocultural Nexus: From Participation to Sovereignty
and Self-Determination
This broad-strokes account manages to capture the pivotal role played by
“participation” on a new intellectual canvas which is dominated by the concept of “sustainable development”. Interlinkages between “participation” and
“ development” were already under way in the Declaration on the Right to
Development of 1986, Article 2 of which states that “the human person is the
central subject of development and should be the active participant and beneficiary of the right to development”.
45 This articulation – and in particular the
connexion between participation and benefits – has paved the way for a rightsbased approach to development and, above all, further provided the decisive
impetus for moving beyond participation and to embrace more radically the issue
of consent, sovereignty, and self-determination (Gilbert, 2018, pp. 65–66).
Under ILO Convention No. 169, references to participation are still
encumbered by a great deal of ambiguity. Along the lines of the 1980 World
Conservation Strategy (IUCN et al., 1980, Chapter 14, para. 10), it is believed