18 Fabien Girard et al.
benefit-sharing in relation to TK associated with genetic resources under
the Nagoya Protocol. For legal scholars, if anything, BCPs/CPs are tools –
encompassing relevant views, laws, and procedures – which must be weaved
into local PIC procedures and duly acknowledged by domestic legislation along
state PIC mechanisms. The common view is that states are obligated to support
the implementation of, and ensure compliance with, community protocols,
“giving them legal effect in n ational legal system with a view to ensuring
compliance by users and collaboration with user countries in that endeavour”
(Morgera et al., 2014, p. 356). In other words, de lege ferenda if not de lege lata,
61
BCPs ought to be an integral part of domestic ABS legislation and compliance
with provisions of community protocols ought to be made mandatory (Nagoya
Protocol, Art. 6(2) and 7(2)).
This effect may already be seen in some BCPs related to TEK in Peru
62 and
it will probably be reflected in the recent move in Malagasy legislation, which
has broadly recognised the legal status of BCPs both for genetic resources and
for associated TK. Within the framework of the Darwin Initiative project on
mutually supportive implementation of the Nagoya Protocol and the ITPGRFA,
Bioversity International, together with international organisations and partners
such as Natural Justice, worked from 2015 to 2018 to develop ABS laws and
agreements that contribute to pro-poor rural development and offset the cost
of conserving genetic resources in Madagascar and Benin. In Madagascar, the
main result is the enactment of Decree No. 2017–066 of 31 January 2017 on
the regulation of ABS arising out of the use of genetic resources. Importantly,
the Decree states that,
in cases where the subject matters of the application are resources located
on lands (“terres”) managed or occupied by private individuals, the applicant shall need to obtain PIC of any legal or natural person with power to
access the land and collect the resources herein. This person may be the
private owner, local custodians (“gestionnaires”) of natural resources, or the
holders of TK associated with genetic resources.
(Art. 12)
“Local custodians of natural resources” are defined as “groups of inhabitants
who legally and/or traditionally manage the resources for which access is requested and whose way of life is relevant for the conservation and sustainable use
of biodiversity”. The text adds that for the local custodians of natural resources
and holders of associated TK, consent shall be given in the form of a written
contract. This contract is established according to customary rules, traditional
values, and practices as locally prescribed and cannot be contrary to statutes
and regulations in force (Art. 14). Finally, a paragraph specifies that in cases
where traditional values and practices are already documented in an instrument
implemented by the communities, that instrument must be consulted and embedded in the contract (Art. 14). This is a clear reference to BCPs, which is
benefit-sharing in relation to TK associated with genetic resources under
the Nagoya Protocol. For legal scholars, if anything, BCPs/CPs are tools –
encompassing relevant views, laws, and procedures – which must be weaved
into local PIC procedures and duly acknowledged by domestic legislation along
state PIC mechanisms. The common view is that states are obligated to support
the implementation of, and ensure compliance with, community protocols,
“giving them legal effect in n ational legal system with a view to ensuring
compliance by users and collaboration with user countries in that endeavour”
(Morgera et al., 2014, p. 356). In other words, de lege ferenda if not de lege lata,
61
BCPs ought to be an integral part of domestic ABS legislation and compliance
with provisions of community protocols ought to be made mandatory (Nagoya
Protocol, Art. 6(2) and 7(2)).
This effect may already be seen in some BCPs related to TEK in Peru
62 and
it will probably be reflected in the recent move in Malagasy legislation, which
has broadly recognised the legal status of BCPs both for genetic resources and
for associated TK. Within the framework of the Darwin Initiative project on
mutually supportive implementation of the Nagoya Protocol and the ITPGRFA,
Bioversity International, together with international organisations and partners
such as Natural Justice, worked from 2015 to 2018 to develop ABS laws and
agreements that contribute to pro-poor rural development and offset the cost
of conserving genetic resources in Madagascar and Benin. In Madagascar, the
main result is the enactment of Decree No. 2017–066 of 31 January 2017 on
the regulation of ABS arising out of the use of genetic resources. Importantly,
the Decree states that,
in cases where the subject matters of the application are resources located
on lands (“terres”) managed or occupied by private individuals, the applicant shall need to obtain PIC of any legal or natural person with power to
access the land and collect the resources herein. This person may be the
private owner, local custodians (“gestionnaires”) of natural resources, or the
holders of TK associated with genetic resources.
(Art. 12)
“Local custodians of natural resources” are defined as “groups of inhabitants
who legally and/or traditionally manage the resources for which access is requested and whose way of life is relevant for the conservation and sustainable use
of biodiversity”. The text adds that for the local custodians of natural resources
and holders of associated TK, consent shall be given in the form of a written
contract. This contract is established according to customary rules, traditional
values, and practices as locally prescribed and cannot be contrary to statutes
and regulations in force (Art. 14). Finally, a paragraph specifies that in cases
where traditional values and practices are already documented in an instrument
implemented by the communities, that instrument must be consulted and embedded in the contract (Art. 14). This is a clear reference to BCPs, which is