Community Protocols and Biocultural Rights 15
By extension, PIC and benefit-sharing reverberate through, and reinforce, the
vast array of rights which are deemed essential to maintain this stewardship role
and which cannot be uncoupled from rights over genetic resources and TK,
namely the right to land and territory, the right to self-determination, and the
right to cultural identity. Admittedly, some of these rights, as now enshrined
in the UNDRIP,
49 have been considerably reinforced by human rights treaty
bodies and, most of all, by regional human rights courts over the past decades
(Charters, 2018; Errico, 2018; Gilbert, 2018; Saul, 2016). But progress achieved
by the Inter-American Court of Human Rights notwithstanding (Gilbert, 2018,
pp. 72–73, 76–79), provisions on PIC and benefit-sharing remain fragile in international human rights law. For instance, the right to property and natural
resources continues to be built on the assumption – traced back to the doctrine of
eminent domain – that “[…] the state has underlying title to the land and the natural resources it contains” (Gilbert, 2018, p. 42). From this, it follows that, albeit
subject to compensation (as against benefit-sharing),
50 states often retain both the
“[…] overall power […] to expropriate any private property in land without the
owner’s consent, even if such a right is legally and constitutionally protected”
(Gilbert, 2018, p. 37) and the right to dissociate the regime of property in land
and property over natural resources (Almeida, 2017). PIC and benefit-sharing
obligations enshrined in the Nagoya Protocol certainly go further by imposing
PIC and benefit-sharing obligations in respect of land, resources, and cultural
heritage even in the absence of any restriction or deprivation and sustain the dynamic interpretation that PIC/FPIC comes very close to a veto right.
51 PIC and
benefit-sharing also give new support to the right to self-determination over natural resources (Gilbert, 2018, pp. 26–28). Obviously, all these developments are
of considerable interest to groups that do not have the status of Indigenous peoples (Morgera et al., 2014, p. 120),
52 i.e. local communities
53 whose rights could
be extended based on the inseparable link between territory, genetic resources,
TK and cultural identity, and their role in the preservation of biodiversity,
54 a
reading that is now reinforced by the centrality of (communal) land in the UN
Declaration on the Rights of Peasants and Other People Working in Rural Areas
(Errico & Claeys, 2020; Le Teno et al., Forthcoming).
55
Scope of the Book: Key Themes in (Biocultural) Community
Protocols and Biocultural Rights
Genesis: From Cultural Protocols to Biocultural Community Protocols
The preceding pages provide the context within which BCPs or CPs first
appeared in scholarly work and in international law. Their advent is inseparable
from the debates around ABS law on how to have “a more level-playing field
among the parties” (Morgera et al., 2014, p. 222) in negotiating PIC and MATs,
in a context of growing disagreement over practices denounced as “biopiracy”
By extension, PIC and benefit-sharing reverberate through, and reinforce, the
vast array of rights which are deemed essential to maintain this stewardship role
and which cannot be uncoupled from rights over genetic resources and TK,
namely the right to land and territory, the right to self-determination, and the
right to cultural identity. Admittedly, some of these rights, as now enshrined
in the UNDRIP,
49 have been considerably reinforced by human rights treaty
bodies and, most of all, by regional human rights courts over the past decades
(Charters, 2018; Errico, 2018; Gilbert, 2018; Saul, 2016). But progress achieved
by the Inter-American Court of Human Rights notwithstanding (Gilbert, 2018,
pp. 72–73, 76–79), provisions on PIC and benefit-sharing remain fragile in international human rights law. For instance, the right to property and natural
resources continues to be built on the assumption – traced back to the doctrine of
eminent domain – that “[…] the state has underlying title to the land and the natural resources it contains” (Gilbert, 2018, p. 42). From this, it follows that, albeit
subject to compensation (as against benefit-sharing),
50 states often retain both the
“[…] overall power […] to expropriate any private property in land without the
owner’s consent, even if such a right is legally and constitutionally protected”
(Gilbert, 2018, p. 37) and the right to dissociate the regime of property in land
and property over natural resources (Almeida, 2017). PIC and benefit-sharing
obligations enshrined in the Nagoya Protocol certainly go further by imposing
PIC and benefit-sharing obligations in respect of land, resources, and cultural
heritage even in the absence of any restriction or deprivation and sustain the dynamic interpretation that PIC/FPIC comes very close to a veto right.
51 PIC and
benefit-sharing also give new support to the right to self-determination over natural resources (Gilbert, 2018, pp. 26–28). Obviously, all these developments are
of considerable interest to groups that do not have the status of Indigenous peoples (Morgera et al., 2014, p. 120),
52 i.e. local communities
53 whose rights could
be extended based on the inseparable link between territory, genetic resources,
TK and cultural identity, and their role in the preservation of biodiversity,
54 a
reading that is now reinforced by the centrality of (communal) land in the UN
Declaration on the Rights of Peasants and Other People Working in Rural Areas
(Errico & Claeys, 2020; Le Teno et al., Forthcoming).
55
Scope of the Book: Key Themes in (Biocultural) Community
Protocols and Biocultural Rights
Genesis: From Cultural Protocols to Biocultural Community Protocols
The preceding pages provide the context within which BCPs or CPs first
appeared in scholarly work and in international law. Their advent is inseparable
from the debates around ABS law on how to have “a more level-playing field
among the parties” (Morgera et al., 2014, p. 222) in negotiating PIC and MATs,
in a context of growing disagreement over practices denounced as “biopiracy”