36 Fabien Girard et al.
by the General Assembly of the States Parties to the Convention at its second session ( UNESCO Headquarters, Paris, 16 to 19 June 2008), 7.GA (2018), Art. 189
(“ Knowledge concerning nature and the universe”).
44 See UNEP/CBD/WG-ABS/7/INF/5, 6 March 2009, p. 5; and UNEP/CBD/WGABS/7/INF/1, 2 February 2009, p. 70.
45 Declaration on the Right to Development, Adopted by General Assembly resolution
41/128 of 4 December 1986 (A/RES/41/128).
4 6 See also the Declaration on the Right to Development (A/RES/41/128), Article 1(2).
47 This explains why states such as Canada waged a battle for the inclusion of “ approval
and involvement” or participation rather than PIC in the Nagoya Protocol (iisd
Reporting Services, 2009, p. 9).
4 8 Nagoya Protocol, Preamble; Resolution 2 Plan of Implementation of the World
S ummit on Sustainable Development, UN Doc A/CONF.199/20 (World Summit
on Sustainable Development & United Nations, 2002, para 54, (h)).
49 On the rights to lands, territories, and resources: UNDRIP, Artt. 10, 25, 26, 27
& 8(2)(b). On the rights pertaining to cultural heritage, TK, traditional cultural
expressions, as well as intellectual property thereupon: UNDRIP, Art. 31 (genetic
resources, seeds, medicines, knowledge of the properties of fauna and flora, oral
traditions specifically fall within the purview of the text) (Stoll, 2018, pp. 310–315,
322–325; Xanthaki, 2014, pp. 224–227). Regarding cultural rights: UNDRIP, Artt.
11(1), 12, 13(1), 15 & 34 (Charters, 2018; Gibson, 2011) (Expert Mechanism advice
No. 8 (2015): Promotion and protection of the rights of Indigenous peoples with
respect to their cultural heritage, A/HRC/30/53, Annex). The meaning of intellectual property must be understood within the context of human right law (right
to science and culture), i.e. “the human right to benefit from the protection of the
moral and material interests resulting from one’s scientific, literary and artistic productions” (Shaheed, 2015, para. 32). It fundamentally aims at safeguarding the “personal link between authors and their creations and between peoples, communities or
other groups and their cultural heritage, as well as their basic material interests, which
are necessary to enable authors to enjoy an adequate standard of living” (ibid.). For
IPLCs, it is therefore closely tied to self-determination and the right to maintain and
develop their culture (ibid., para. 37; Anderson, 2015, pp. 772, 775). States should
“ensure availability of legal measures and remedies to ensure the control by indigenous peoples and local communities over their biocultural heritage” (Shaheed, 2015,
paras 32, 144).
5 0 In fact, under Article 28(1) of the UNDRIP, “just, fair and equitable compensation”
is inherently linked to the right to redress. This is a reparation measure which is
totally disconnected to the idea of consent, normative and institutional autonomy
that accompanies PIC and benefit-sharing (Morgera et al., 2014, p. 119). See also the
Case of Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and
Costs), IACtHR Series C No 172 (28 November 2007). See also Gilbert (2018, p. 80).
51 Under the UNDRIP, the FPIC regime varies depending on the nature of legislative
or administrative measures or development projects likely to take place in the lands
or territories of Indigenous peoples or to affect them. For measures aimed at removing Indigenous peoples from their lands or territories or for the storage or disposal of
hazardous materials in the land or territories, Articles 10 and 29(2), respectively, state
that “no relocation shall take place” and “no storage or disposal” “shall take place”
without “their free, prior and informed consent”. In contrast, Articles 19 and 32(2)
both provide that “States shall consult and cooperate in good faith […] in order to
obtain their free and informed consent”. It remains, as Barelli stressed, based on the
negotiating history and the “spirit and normative context of the Declaration”, that
[…] Articles 19 and 32 must be approached with a certain degree of flexibility.
Thus, while FPIC should not be read as conferring an overreaching right to veto,
it “may mean that, on occasion, Indigenous peoples should be able to say ‘no’ to
by the General Assembly of the States Parties to the Convention at its second session ( UNESCO Headquarters, Paris, 16 to 19 June 2008), 7.GA (2018), Art. 189
(“ Knowledge concerning nature and the universe”).
44 See UNEP/CBD/WG-ABS/7/INF/5, 6 March 2009, p. 5; and UNEP/CBD/WGABS/7/INF/1, 2 February 2009, p. 70.
45 Declaration on the Right to Development, Adopted by General Assembly resolution
41/128 of 4 December 1986 (A/RES/41/128).
4 6 See also the Declaration on the Right to Development (A/RES/41/128), Article 1(2).
47 This explains why states such as Canada waged a battle for the inclusion of “ approval
and involvement” or participation rather than PIC in the Nagoya Protocol (iisd
Reporting Services, 2009, p. 9).
4 8 Nagoya Protocol, Preamble; Resolution 2 Plan of Implementation of the World
S ummit on Sustainable Development, UN Doc A/CONF.199/20 (World Summit
on Sustainable Development & United Nations, 2002, para 54, (h)).
49 On the rights to lands, territories, and resources: UNDRIP, Artt. 10, 25, 26, 27
& 8(2)(b). On the rights pertaining to cultural heritage, TK, traditional cultural
expressions, as well as intellectual property thereupon: UNDRIP, Art. 31 (genetic
resources, seeds, medicines, knowledge of the properties of fauna and flora, oral
traditions specifically fall within the purview of the text) (Stoll, 2018, pp. 310–315,
322–325; Xanthaki, 2014, pp. 224–227). Regarding cultural rights: UNDRIP, Artt.
11(1), 12, 13(1), 15 & 34 (Charters, 2018; Gibson, 2011) (Expert Mechanism advice
No. 8 (2015): Promotion and protection of the rights of Indigenous peoples with
respect to their cultural heritage, A/HRC/30/53, Annex). The meaning of intellectual property must be understood within the context of human right law (right
to science and culture), i.e. “the human right to benefit from the protection of the
moral and material interests resulting from one’s scientific, literary and artistic productions” (Shaheed, 2015, para. 32). It fundamentally aims at safeguarding the “personal link between authors and their creations and between peoples, communities or
other groups and their cultural heritage, as well as their basic material interests, which
are necessary to enable authors to enjoy an adequate standard of living” (ibid.). For
IPLCs, it is therefore closely tied to self-determination and the right to maintain and
develop their culture (ibid., para. 37; Anderson, 2015, pp. 772, 775). States should
“ensure availability of legal measures and remedies to ensure the control by indigenous peoples and local communities over their biocultural heritage” (Shaheed, 2015,
paras 32, 144).
5 0 In fact, under Article 28(1) of the UNDRIP, “just, fair and equitable compensation”
is inherently linked to the right to redress. This is a reparation measure which is
totally disconnected to the idea of consent, normative and institutional autonomy
that accompanies PIC and benefit-sharing (Morgera et al., 2014, p. 119). See also the
Case of Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and
Costs), IACtHR Series C No 172 (28 November 2007). See also Gilbert (2018, p. 80).
51 Under the UNDRIP, the FPIC regime varies depending on the nature of legislative
or administrative measures or development projects likely to take place in the lands
or territories of Indigenous peoples or to affect them. For measures aimed at removing Indigenous peoples from their lands or territories or for the storage or disposal of
hazardous materials in the land or territories, Articles 10 and 29(2), respectively, state
that “no relocation shall take place” and “no storage or disposal” “shall take place”
without “their free, prior and informed consent”. In contrast, Articles 19 and 32(2)
both provide that “States shall consult and cooperate in good faith […] in order to
obtain their free and informed consent”. It remains, as Barelli stressed, based on the
negotiating history and the “spirit and normative context of the Declaration”, that
[…] Articles 19 and 32 must be approached with a certain degree of flexibility.
Thus, while FPIC should not be read as conferring an overreaching right to veto,
it “may mean that, on occasion, Indigenous peoples should be able to say ‘no’ to