Community Protocols and Biocultural Rights 21
& Dutfield, 1996), the two lawyers and their collaborators went on to reason
that something along the same lines must be wrought to preserve and foster the
stewardship role of IPLCs. Seeing the “ethic of stewardship” as the keystone of
this role (Bavikatte, 2014; Bavikatte & Bennett, 2015), they further argued for
providing IPLCs with a comprehensive bundle of rights, referred to as “biocultural rights” (Bavikatte, 2014; Bavikatte & Robinson, 2011; Sajeva, 2018),
aimed at protecting their “ traditional” lifestyles” which they saw as the bedrock
of their stewardship of nature.
68 Importantly, as mentioned earlier, the basket of
biocultural rights consists of three categories of rights to which is added a duty,
placing them in an uneasy position within the human rights tradition (Sajeva,
2015): (i) rights to land, territory, and natural resources, i.e. the right to access
and use traditional lands and territories, and access to and use rights over biotic
and abiotic resources present in the land; (ii) rights to self-determination, i.e.
self-governance, itself comprising two strands: (a) the aptitude of each people and
community to regulate their internal matters through the use of their traditional
legal institutions and rules (Anaya, 2004); (b) protection from the imposition of
decisions taken by external actors and regarding matters that can influence the
community (e.g. exploitation of resources by extractive industry); (iii) cultural
rights, including the rights and conditions necessary to safeguard the integrity of
the values, worldviews, institutions, practices, and knowledge of IPLCs. These
rights are accompanied by a duty of sustainability, stemming from the stewardship ethic at the core of biocultural rights (Sajeva, 2015). The political pathway
already being tread by the PIC principle can be discerned here: from a procedural
guarantee to an engagement with foundational issues of sovereignty. Here, much
like concentric circles expanding from their central procedural core, CPs/BCPs
appear to expand the scope of their politico-legal claim from PIC to cultural
identity, right to lands, territories and resources, and normative and institutional
autonomy (Gilbert, 2016, p. 69; Morgera et al., 2014, p. 37).
The fact that biocultural jurisprudence and the “bundle of rights” approach
underwrite past and current reflections on BCPs/CPs is clearly visible throughout the case studies included in the book. As several examples presented below
illustrate, current protocols in the context of ABS frequently outline communities’ core ecological, cultural, and spiritual values, as well as their stewardship of
nature, and generally do more than simply lay down the rules and procedures to
be followed in negotiations with researchers or private companies on access to
genetic resources and TK.
What, though, are the implications of BCPs/CPs as an outgrowth of biocultural jurisprudence? Should they be understood as a challenge to “the fragmentary
nature of state law” (Bavikatte, 2014, p. 234), or a claim to a non-Westphalian
sovereignty (Lenzerini, 2006, pp. 22–23) based “on special dependency on and
attachment to the land”,
69 biocultural heritage (Shaheed, 2015, para. 35), the
right to science and culture (Shaheed, 2012, para. 65), stewardship of biodiversity, right to food
70 and food sovereignty (Edelman et al., 2014),
71 and the right
to seed?
& Dutfield, 1996), the two lawyers and their collaborators went on to reason
that something along the same lines must be wrought to preserve and foster the
stewardship role of IPLCs. Seeing the “ethic of stewardship” as the keystone of
this role (Bavikatte, 2014; Bavikatte & Bennett, 2015), they further argued for
providing IPLCs with a comprehensive bundle of rights, referred to as “biocultural rights” (Bavikatte, 2014; Bavikatte & Robinson, 2011; Sajeva, 2018),
aimed at protecting their “ traditional” lifestyles” which they saw as the bedrock
of their stewardship of nature.
68 Importantly, as mentioned earlier, the basket of
biocultural rights consists of three categories of rights to which is added a duty,
placing them in an uneasy position within the human rights tradition (Sajeva,
2015): (i) rights to land, territory, and natural resources, i.e. the right to access
and use traditional lands and territories, and access to and use rights over biotic
and abiotic resources present in the land; (ii) rights to self-determination, i.e.
self-governance, itself comprising two strands: (a) the aptitude of each people and
community to regulate their internal matters through the use of their traditional
legal institutions and rules (Anaya, 2004); (b) protection from the imposition of
decisions taken by external actors and regarding matters that can influence the
community (e.g. exploitation of resources by extractive industry); (iii) cultural
rights, including the rights and conditions necessary to safeguard the integrity of
the values, worldviews, institutions, practices, and knowledge of IPLCs. These
rights are accompanied by a duty of sustainability, stemming from the stewardship ethic at the core of biocultural rights (Sajeva, 2015). The political pathway
already being tread by the PIC principle can be discerned here: from a procedural
guarantee to an engagement with foundational issues of sovereignty. Here, much
like concentric circles expanding from their central procedural core, CPs/BCPs
appear to expand the scope of their politico-legal claim from PIC to cultural
identity, right to lands, territories and resources, and normative and institutional
autonomy (Gilbert, 2016, p. 69; Morgera et al., 2014, p. 37).
The fact that biocultural jurisprudence and the “bundle of rights” approach
underwrite past and current reflections on BCPs/CPs is clearly visible throughout the case studies included in the book. As several examples presented below
illustrate, current protocols in the context of ABS frequently outline communities’ core ecological, cultural, and spiritual values, as well as their stewardship of
nature, and generally do more than simply lay down the rules and procedures to
be followed in negotiations with researchers or private companies on access to
genetic resources and TK.
What, though, are the implications of BCPs/CPs as an outgrowth of biocultural jurisprudence? Should they be understood as a challenge to “the fragmentary
nature of state law” (Bavikatte, 2014, p. 234), or a claim to a non-Westphalian
sovereignty (Lenzerini, 2006, pp. 22–23) based “on special dependency on and
attachment to the land”,
69 biocultural heritage (Shaheed, 2015, para. 35), the
right to science and culture (Shaheed, 2012, para. 65), stewardship of biodiversity, right to food
70 and food sovereignty (Edelman et al., 2014),
71 and the right
to seed?