The Complementarity Between the Nagoya Protocol and Human Rights: Genetic Resources, Traditional Knowledge and the Rights of Indigenous Peoples and ... (Sustainable Development Goals Series) 9819935121, 9789819935123

Table of contents :
Foreword
Preface
Acknowledgements
Introduction
Contents
Abbreviations
Setting the Stage
1 The Nagoya Protocol and International Human Rights Law
1.1 The CBD, the Nagoya Protocol, and the International ABS Framework
1.2 Linkage Between the Nagoya Protocol and Human Rights
1.3 Indigenous Peoples and Local Communities in International Law
1.3.1 Who Are They?
1.3.2 From ILCs to IPLCs: An Overview of the Development Under the CBD Framework
1.3.3 Indigenous Peoples and Local Communities in International Human Rights Law
References
2 Mutual Supportiveness and the Complementarity Thesis
2.1 The Fragmentation of International Law and the VCLT Article 31(3)(C)
2.2 The Principle of Systemic Integration
2.3 The Principle of Mutual Supportiveness and Its Multiple Dimensions
2.3.1 The Emergence of Mutual Supportiveness
2.3.2 The Dimension of International Law-Making
2.3.3 The Dimension of Treaty Implementation
2.4 Envisaging the Complementarity Between the Nagoya Protocol and Human Rights
References
The Three Pillars of the ABS Framework and Related Human Rights Implications
3 Access
3.1 Key Concepts: Genetic Resources and Associated Traditional Knowledge
3.1.1 Genetic Resources
3.1.2 Traditional Knowledge
3.1.3 Genetic Resources and Traditional Knowledge in International Law
3.2 Access-Related Principles and Procedural Requirements
3.2.1 The Principle of State Sovereignty and Its Relationship with the Rights of IPLCs
3.2.2 A Focus on Prior Informed Consent
3.2.2.1 Development of PIC in International Environmental Law
3.2.2.2 Content and Specificity of PIC Under the ABS Framework
3.2.3 IPLCs’ Customary Laws and Community Protocols
3.2.4 Responsibilities of States
3.3 Human Rights Implications on Access-Related Provisions
3.3.1 Right of Self-determination
3.3.2 Right to Free, Prior and Informed Consent
3.3.2.1 Definition of FPIC
3.3.2.2 International Human Rights Standards of FPIC via Law-Making
3.3.2.3 FPIC in Human Rights Jurisprudence
3.3.2.4 Implications
3.3.3 Human Rights Pertaining to IPLCs’ Customary Laws
References
4 Benefit-Sharing
4.1 Benefits and Beneficiaries in the ABS Context
4.1.1 Realisation of Monetary and Non-monetary Benefits
4.1.2 Provider Countries as Beneficiaries
4.1.3 ILCs or IPLCs? A Sleight of Hand Under the CBD Framework
4.2 Benefit-Sharing Obligations of State Parties
4.2.1 Obligations of Benefit-Sharing at Inter-state and Intra-state Levels
4.2.2 MAT as a Procedural Safeguard
4.3 Fair and Equitable Standards of Benefit-Sharing
4.4 Human Rights Implication on Benefit-Sharing Related Provisions
4.4.1 Property Rights to Land, Natural Resources and Traditional Knowledge
4.4.1.1 Property and Related Human Rights
4.4.1.2 Property Rights and Benefit-Sharing in Human Rights Jurisprudence
4.4.1.3 Implications
4.4.2 Right to Equality and Non-Discrimination
4.4.2.1 Indigenous Peoples and Minorities
4.4.2.2 Women and Gender Equality
4.4.2.3 Implications
4.4.3 Right to Development
References
5 Compliance
5.1 Inter-state Dispute Settlement: Possibility and Normative Ground
5.1.1 To Enforce or to Facilitate?
5.1.2 Nature of the States’ Obligations
5.2 International Compliance Mechanism
5.3 Domestic Compliance Measures
5.4 The Role of IPLCs and Challenges Ahead
5.4.1 Under the International Compliance Mechanism
5.4.2 Under the Domestic Compliance Measures
5.5 Human Rights Implications on Compliance-Related Provisions
5.5.1 The Right of Access to Justice
5.5.1.1 Why a Right of Access to Justice?
5.5.1.2 The Standards-Setting of Access to Justice in International Law
5.5.1.3 Access to Justice in Practice: Regional Human Rights Courts and UN Treaty Bodies
5.5.1.4 Access to Justice at the Domestic Level
5.5.1.5 Implications
5.5.2 Compliance with States’ Responsibilities from an Inter-state Perspective
5.5.2.1 Different Approaches to Compliance: From “Wrongful Act” to “Non-Compliance”
5.5.2.2 Inter-state Procedures in International Human Rights Law
5.5.2.3 Implications
References
Looking Forward
6 The Value Added of Complementarity Thesis and Its Limitations
6.1 Key Findings
6.1.1 Strengths and Limitations of the Nagoya Protocol in Advancing the Human Rights of IPLCs
6.1.2 Interrelationship Between the Nagoya Protocol and Human Rights on States’ Obligations vis-à-vis IPLCs
6.1.3 A Mutually Supportive Approach to Interpretation and Implementation
6.1.4 Normative and Practical Implications
6.2 The Value Added and Challenges Ahead
6.3 Final Remarks
References
Appendix_1
1 International Court of Justice
2 Permanent Court of International Justice
3 Human Rights Committee
4 African Commission on Human and Peoples’ Rights
5 African Court on Human and Peoples’ Rights
6 Inter-American Commission on Human Rights
7 Inter-American Court on Human Rights
8 European Commission of Human Rights
9 European Court of Human Rights
10 World Trade Organisation
10 World Trade Organisation
1 International Instruments
1.1 Treaties
1.2 General Comments/General Recommendations
1.3 UN Resolutions/Declarations
1.4 Guidelines and Other “Soft” Instruments
2 Regional and Domestic Instruments

Citation preview

SDG: 15 Life On Land

Xiaoou Zheng

The Complementarity Between the Nagoya Protocol and Human Rights Genetic Resources, Traditional Knowledge and the Rights of Indigenous Peoples and Local Communities

Sustainable Development Goals Series

The Sustainable Development Goals Series is Springer Nature’s inaugural cross-imprint book series that addresses and supports the United Nations’ seventeen Sustainable Development Goals. The series fosters comprehensive research focused on these global targets and endeavours to address some of society’s greatest grand challenges. The SDGs are inherently multidisciplinary, and they bring people working across different fields together and working towards a common goal. In this spirit, the Sustainable Development Goals series is the first at Springer Nature to publish books under both the Springer and Palgrave Macmillan imprints, bringing the strengths of our imprints together. The Sustainable Development Goals Series is organized into eighteen subseries: one subseries based around each of the seventeen respective Sustainable Development Goals, and an eighteenth subseries, “Connecting the Goals,” which serves as a home for volumes addressing multiple goals or studying the SDGs as a whole. Each subseries is guided by an expert Subseries Advisor with years or decades of experience studying and addressing core components of their respective Goal. The SDG Series has a remit as broad as the SDGs themselves, and contributions are welcome from scientists, academics, policymakers, and researchers working in fields related to any of the seventeen goals. If you are interested in contributing a monograph or curated volume to the series, please contact the Publishers: Zachary Romano [Springer; [email protected]] and Rachael Ballard [Palgrave Macmillan; rachael. [email protected]].

Xiaoou Zheng

The Complementarity Between the Nagoya Protocol and Human Rights Genetic Resources, Traditional Knowledge and the Rights of Indigenous Peoples and Local Communities

123

Xiaoou Zheng School of Law Xiamen University Xiamen, Fujian, China

ISSN 2523-3084 ISSN 2523-3092 (electronic) Sustainable Development Goals Series ISBN 978-981-99-3512-3 ISBN 978-981-99-3513-0 (eBook) https://doi.org/10.1007/978-981-99-3513-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

For my family

Foreword

There is still little academic literature on the tensions and synergies between international human rights law and international biodiversity law. This book makes a timely, original and significant contribution to both scholarship and ongoing law-making processes at the national and international levels by clarifying whether and to what extent the Nagoya Protocol can contribute to protecting Indigenous peoples’ and local communities’ human rights. This monograph addresses this technically and politically complex issue by taking a systematic approach to the pillars of access, fair and equitable benefit-sharing and compliance under the Nagoya Protocol, shedding light on well-known human rights standards such as self-determination, free prior informed consent, non-discrimination and access to justice, when they operate in an idiosyncratic and little-known context of as bio-based innovation. In addition, the monograph explores issues that are less frequently raised in the literature, such as the recognition of Indigenous peoples’ and local communities’ customary laws, the right to development and community protocols. On all these issues, this book is highly commendable for engaging in equal measure with international human rights law practice and scholarship, and international biodiversity law practice and scholarship. The findings are wide-ranging and as the author argues, have both normative and practical relevance. Fundamentally, they demonstrate how the wide margin of discretion that States sought to preserve under international biodiversity law generally, and the Nagoya Protocol in particular, should not be understood in isolation from relevant international human rights law obligations owed to Indigenous peoples’ and local communities. The mutually supportive interpretation of the Nagoya Protocol and international human rights law in this connection is in fact necessary to address continuing injustices and power asymmetries between these communities, state authorities and private companies. From a practical perspective, international human rights law serves to clarify ambiguities under the Protocol, and provide clearer procedural approaches to ensure a predictable, transparent and accountable approach to the implementation of the Nagoya Protocol. The conclusions consolidate the author’s view that interpretation and implementation of the Nagoya Protocol need to be compliant with international human rights standards, thereby taking in due consideration “human rights risks and impacts, exclude[ing] arbitrary and discriminatory application, and incorporate[ing] effective and appropriate safeguards and remedies”. vii

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Foreword

The author demonstrated not only a courageous, tenacious and rigorous approach to legal analysis but also foresight—State Parties to the Convention on Biological Diversity only recognised in December 2022, as part of the Kumming-Montreal Global Biodiversity Framework (December 15/4), both the “contribution and rights of [I]ndigenous peoples and local communities as custodians of biodiversity and as partners in its conservation, restoration and sustainable use”. This was accompanied by the clarification that the Framework’s implementation “must ensure that the rights, knowledge, including traditional knowledge associated with biodiversity, innovations, worldviews, values and practices of [I]ndigenous peoples and local communities are respected, and documented and preserved with their free, prior and informed consent, including through their full and effective participation in decision-making, in accordance with relevant national legislation, international instruments, including the United Nations Declaration on the Rights of Indigenous Peoples, and human rights law. In this regard, nothing in this framework may be construed as diminishing or extinguishing the rights that indigenous peoples currently have or may acquire in the future”. Arguably a new era of more intense collaboration between international biodiversity law experts and international human rights law experts has been ushered by the Kumming-Montreal Global Biodiversity Framework, which includes a goal on substantially increasing by 2050 the fair and equitable sharing of monetary and non-monetary benefits from the utilisation of genetic resources, digital sequence information and associated traditional knowledge with indigenous peoples and local communities. This book provides an invaluable contribution towards the realisation of that goal, by building a bridge between two communities of practice that could work together even more closely. March 2023

Prof. Elisa Morgera School of Law University of Strathclyde Glasgow, UK

Preface

This book is based on my Ph.D. thesis defended at the University of Edinburgh in October 2019. All relevant progress in law and practice since then until 30 December 2022 have been included in the current version to the author’s best efforts. Overall, it is a research project focusing on the Nagoya Protocol, a multilateral treaty under the Convention on Biological Diversity (CBD), that pioneered principles and rules on access to genetic resources and associated traditional knowledge and the fair and equitable benefit sharing (ABS), especially when Indigenous Peoples and local communities (IPLCs) are involved. Adopted in 2010 and entered into force in 2014, the Nagoya Protocol now has 138 state parties, and the CBD has almost universal recognition from states. The implementation process of the Nagoya Protocol is accelerating, and the impact of its ABS rules is profound and increasing, not only in shaping the behaviours and obligations of states and multinational corporations vis-à-vis IPLCs but also in understanding the dynamics and interrelations between international environmental law and other branches of international law, especially the human rights law. IPLCs are stewards of biodiversity and holders of traditional knowledge, playing an important role in the preservation of the world’s remaining biodiversity and cultural diversity. The intrinsic and diverse interconnectedness between IPLCs and nature bring to light features that are embedded in human rights norms and principles, such as self-determination, non-discrimination, sustainable development and access to justice. In this context, this book unravels the principles, norms, mechanisms and procedures of the Nagoya Protocol and asks how they can contribute to protecting IPLCs’ human rights, as well as how they are limited for the same purpose. It examines the relevant human rights law and their implications on the interpretation and implementation of the Nagoya Protocol based on the guidance of the principle of mutual supportiveness of international law. The premise is that ABS and human rights should not and cannot be isolated from one another for achieving the objectives of either field of international law. The ABS principles and rules of the Nagoya Protocol, as they concern genetic resources and traditional knowledge, inevitably interlink and interact with human rights norms regulating lands and natural resources, intellectual property, as well as issues of Indigenous and traditional ownership over such resources and knowledge, and more broadly their cultural identities and ways of life. A mutually supportive understanding of the Nagoya Protocol in light of human rights is also underpinned by the scholarly opinion that international ix

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Preface

law is a dynamic, complex and interconnected system in which norms operate and evolve interdependently—a stance increasingly supported by various international and regional judicial practices. The book focuses on a range of international treaties and “soft” instruments and their interpretations, as well as the practices of the United Nations, international treaty bodies, courts, other international organisations and sometimes NGOs. It aims to provide a pragmatic account of the complementary interactions between the Nagoya Protocol and international human rights law with a sharpened focus on IPLCs. The key findings could inform the processes of international and national law-making and policymaking on ABS in a way that can better accommodate IPLCs’ aspirations in order to fully support the realisation of their human rights. Some arguments put forward in Chap. 5 with respect to the role of IPLCs have been published previously in “Empowering Indigenous Peoples and Local Communities: A Human Rights-based Appraisal of the Compliance Mechanism of the Nagoya Protocol, (2021) 30 (1) Review of European, Comparative and International Environmental Law”. Similarly, the discussion about the terminological change of the term “IPLCs” under the CBD framework in Chap. 1, Sects. 1.3.2 and 1.3.3, as well as in Chap. 4, Sect. 4.1.3, has been included in the publication “From ‘ILCs’ to ‘IPLCs’: a victory for Indigenous Peoples’ rights advocacy under the Convention on Biological Diversity? (2023) 35 (2) Journal of Environmental Law”. The permission of the publishers is gratefully obtained. Xiamen, China

Xiaoou Zheng

Acknowledgements

The current book is impossible without the generous help from many dear friends, professors and colleagues whom I met at the University of Edinburgh and the Xiamen University. They have kindled my curiosity and encouraged this pursuit at the beginning of my Ph.D. journey and provided essential support to this seemingly infinite process of writing ever since. First and foremost, I would like to express my gratitude to Prof. Elisa Morgera and Dr. Michelle Burgis-Kasthala, who not only supervised my Ph.D. project with unparalleled expertise and patience but also lent me invaluable advice on my early career development in academia. I am in special debt to Prof. Morgera for her unwavering faith and optimism about the idea of consolidating environmental law and human rights. I would also like to thank my doctoral thesis examiners, Prof. James Harrison and Prof. Jérémie Gilbert, without whose insightful comments the current book, especially some key arguments, would have been much poorer. I am also greatly indebted to all the professors, scholars, practitioners and fellow academics I met at Edinburgh and Xiamen, who at various stages offered me indispensable comments and help. Individual thanks should be made to: Prof. Lihong Gao, my first professor on environmental law and the role model responsible for implanting a long-lasting passion for this subject in my heart; Ms. Maria Julia Oliva, a professional practitioner of biodiversity law and international law, who has taught me a great deal about execution and efficiency, leadership and teamwork, diligence, focus and much more beyond. Finally, thanks to my dearest friends who have seen me through the ups and downs and helped me with their laughter, wisdom and energy—Dani, Dawoon, Himani, Laurence, Lanqi, Lucas, Pablo, Jiahong, Johan, Wenlong, Xinxiang and Zheng (my apology for being unable to mention every person). You have shown me the diversity and beauty of the world and its many perspectives. Most importantly, I shall thank my family, whose unconditional love has companied every and each minute of this intellectual journey, and to whom this work is dedicated with the most profound gratitude. Xiamen, China December 2022

Xiaoou Zheng

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Introduction

Hoodia, a flowering plant native to Southern Africa, has been used by the San People as a hunger suppressant for centuries when hunting or going on long trips in the Kalahari Desert. This traditional practice attracted attention from a South African research institution in the 1960s, who successfully isolated the active molecule from the plant in 1996 and gained a patent on it. The work resulted in a collaboration between the institution and two pharmaceutical companies with a commercialisation plan to promote Hoodia as an appetite-suppressant and anti-obesity drug. The market, especially in the United States and the United Kingdom, responded with a roaring trade on Hoodia products. The San People, on the other hand, has been fighting for a fair share of the commercial benefits and recognition of the ownership over Hoodia ever since.1 Similarly, a Dutch company, based on a benefit-sharing agreement with Ethiopia in 2005 for using Teff, an ancient Ethiopian grain, obtained two patents for processing Teff in 2007. Instead of receiving the promised benefits, Ethiopia was left empty-handed as the company declared bankruptcy in 2009, even though Teff was quickly gaining popularity as a superfood in the European market. Ethiopia also lost its rights to utilise its own Teff genetic resources as the patents remained valid in many European countries.2 The appropriation of the world’s genetic resources and associated traditional knowledge by powerful companies is not a new phenomenon. Yet legal and ethical scrutiny that questions the legitimacy of these activities only emerged during the past three decades. The San-Hoodia case opened the ground for investigations into similar cases concern many biological resources that are well known: from potatoes to Basmati rice, from Enola beans to Soybeans, from quinine to Maca to Rooibos tea and the list could go on and on.3 Scholars have written extensively on how some of these

Roger Chennells and Rachel P. Wynberg, ‘Green Diamonds of the South: An Overview of the San-Hoodia Case’ in Roger Chennells, Doris Schroeder and Rachel P. Wynberg (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia case (Springer 2009) 89 and Daniel F. Robinson, Confronting Biopiracy: Challenges, Cases and International Debates (Earthscan 2010) 61. 2 These two patents remained valid until 2019, see discussion in the next paragraph and also Regine Andersen and Tone Winge, The Access and Benefit-Sharing Agreement on Teff Genetic Resources: Facts and Lessons (Fridtjof Nansen Institute, 2012) 7. 3 Roger Chennells, Doris Schroeder and Rachel P. Wynberg (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia Case (Springer 2009) 3. 1

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appropriations amount to a plunder of natural resources and their associated knowledge, especially those held by vulnerable communities in developing countries.4 A new term “biopiracy” was created in this regard, which according to the Oxford English Dictionary, means the practice of commercially exploiting naturally occurring biochemical or genetic material, especially by obtaining patents that restrict its future use, while failing to pay fair compensation to the community from which it originates.5 Now, biopiracy and misappropriation of genetic resources and associated traditional knowledge are no longer accepted. It is not only criticised on an ethnic basis but also increasingly outlawed by the recent legal developments at both international and national levels.6 For instance, South Africa adopted the Biodiversity Act in 2004 and its implementing Regulation on Bioprospecting, Access and Benefit-sharing in 2008. This national legal framework recognises and protects the rights of the providers of indigenous biological resources and associated traditional knowledge by requiring the users to obtain permits and share benefits from their utilisation.7 Furthermore, in February 2019, a court in the Netherlands has ruled that the Dutch patents for processing Teff are null and void, against the background that the European Union has adopted a regulation on access and benefit-sharing in 2014.8 The South African law and the Dutch case are two manifestations of the changing legal landscape concerning the rights and obligations associated with genetic resources and traditional knowledge worldwide. Specifically, the 1992 Convention on Biological Diversity (CBD) included this issue in its three-fold objectives, namely, (A) the conservation of biological diversity, (B) the sustainable use of the components of biological diversity and (C) the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.9 Almost two decades after, the CBD parties adopted the landmark treaty that focuses on the realisation of the CBD’s third benefit-sharing objective—the 2010 Nagoya Protocol on Access to genetic resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol).10 This emerging international ABS framework, founded by the CBD and substantiated by the Nagoya Protocol, has profound implications on the legal 4

Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (South End Press 1999) 5 and Mgbeoji Ikechi, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (UBC Press 2005) 9. 5 Oxford English Dictionary, “biopiracy, n.” (Oxford University Press). 6 Peter Drahos, Intellectual Property, Indigenous People and their Knowledge (Cambridge University Press 2014) 138. 7 Biodiversity Act [2004] (SA) and Regulations on Bio-Prospecting, Access and Benefit-Sharing [2008] (SA). 8 Information available at Rechtbank Den Haag, ‘Uitspraken’ (Rechtbank Den Haag, 07/12/2018) accessed 08/10/2022. 9 Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, art 1. 10 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1.

Introduction

Introduction

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constructions of the principle of states’ sovereign rights over their natural resources and the rights of Indigenous Peoples and local communities (IPLCs). Specifically, the Nagoya Protocol explicitly requires respect for the participatory rights of IPLCs and their customary laws in ABS transactions concerning their genetic resources and associated traditional knowledge. Thus, the ABS framework inevitably interacts with norms and rules regulating lands and natural resources, intellectual property, as well as issues of Indigenous and traditional ownership over such resources and knowledge, and more broadly their cultural identity and ways of life—all fundamental aspects of the human rights of IPLCs. The intricacies of these interrelations between the Nagoya Protocol and international human rights law generate contested concepts and complex practices for interpreting and implementing the Nagoya Protocol at both inter-state and intra-state levels.11 Focusing on IPLCs and their rights pertaining to genetic resources and traditional knowledge, this book examines the complementarity between the Nagoya Protocol and relevant human rights law. This is because scholarly attention on the particular interface between ABS law and human rights law is scarce, especially compared to the academic work attributed to the legal interaction between ABS law and intellectual property rights (IPRs) law.12 Nevertheless, the connection between ABS and human rights is important and increasingly recognised, in not only scholarly debates, but also the United Nations human rights machinery and international and regional human rights case laws.13 Indeed, one fundamental premise of this research is that the Nagoya Protocol and human rights law should not be isolated from one another for protecting IPLCs and their rights over genetic resources and traditional knowledge. The overarching objectives of safeguarding human dignity and pursuing equity and fairness require a holistic and systemic approach to integrate human rights standards into the process of interpreting and implementing the Nagoya Protocol. In this mindset, this book intends to provide a pragmatic account of how, and/or to what extent, to understand the provisions of the Nagoya Protocol in relation to relevant international human rights law, may shed light on the persisting normative uncertainties and practical challenges in applying the ABS principles and rules, especially in Indigenous and local contexts. It articulates the complementary interactions between the Nagoya Protocol and international human rights law based on

11

See essays in Evanson C. Kamau and Gerd Winter (eds), Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing vol 19 (Routledge 2009) 3 and Sebastian Oberthür and G. Kristin Rosendal (eds), Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol (Routledge 2014) 1. 12 See, for instance, Graham Dutfield, Intellectual Property, Biogenetic Resources and Traditional Knowledge (Earthscan 2004) 3, Drahos (n 6) 108 and Johanna Gibson, Community Resources: Intellectual Property, International Trade, and Protection of Traditional Knowledge (Routledge 2016) 185. 13 See Elisa Morgera, ‘The Need for an International Legal Concept of Fair and Equitable Benefit Sharing’ (2016) 27 (2) European Journal of International Law, 355 and Jérémie Gilbert Natural Resources and Human Rights: An Appraisal (First edn, Oxford University Press 2018) 80.

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the interpretive and implementation guidance of the principle of mutual supportiveness. Against this background, the book is structured as follows. Chapters 1 and 2 in Part I set the stage for the entire discussion. It includes an introduction about the general relationship between the Nagoya Protocol and the human rights law with a sharpened focus on IPLCs, which demonstrates the normative and practical interactions between these two branches of international law (Chap. 1). The principle of mutual supportiveness is then unpacked as an overarching theoretical framework with three dimensions, including treaty interpretation, law-making and treaty implementation (Chap. 2). Part II contains three chapters that constitute the main body of this research, examining the three pillars of the ABS framework in turn—access, benefit-sharing and compliance—followed by an analysis on relevant human rights and their implications. Specifically, the key concepts (genetic resources and associated traditional knowledge), fundamental principles and procedural requirements of access as adopted under the Nagoya Protocol (states’ sovereign right over natural resources and PIC) and the role of IPLCs’ customary laws and community protocol, are investigated in relation to the human rights of self-determination, FPIC and the cultural rights pertaining to IPLCs’ customary laws (Chap. 3). Fair and equitable benefit-sharing and its key elements, including forms of benefits, legitimate beneficiaries and the standards of fair and equitable, are then discussed in light of the human rights to property, equality and non-discrimination, and development (Chap. 4). Finally, the issue of compliance is unravelled through three different approaches, including inter-state dispute settlement, international compliance mechanism and domestic compliance measures. The unprecedented role of IPLCs in the latter two approaches is highlighted, followed by a discussion about their right of access to justice. In the same chapter, human rights implications based on the principle of mutual supportiveness are also provided on compliance with states’ responsibilities from an inter-state perspective (Chap. 5). The final Part III concludes on the key findings and their relevance in response to the research questions and summarises the value added of the complementarity thesis between the Nagoya Protocol and human rights law (Chap. 6).

Introduction

Contents

Part I

Setting the Stage

1 The Nagoya Protocol and International Human Rights Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 The CBD, the Nagoya Protocol, and the International ABS Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Linkage Between the Nagoya Protocol and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Indigenous Peoples and Local Communities in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Who Are They? . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 From ILCs to IPLCs: An Overview of the Development Under the CBD Framework . . . . . 1.3.3 Indigenous Peoples and Local Communities in International Human Rights Law. . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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2 Mutual Supportiveness and the Complementarity Thesis . . . . . 2.1 The Fragmentation of International Law and the VCLT Article 31(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Principle of Systemic Integration . . . . . . . . . . . . . . . . . . 2.3 The Principle of Mutual Supportiveness and Its Multiple Dimensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 The Emergence of Mutual Supportiveness . . . . . . . . 2.3.2 The Dimension of International Law-Making . . . . . . 2.3.3 The Dimension of Treaty Implementation . . . . . . . . . 2.4 Envisaging the Complementarity Between the Nagoya Protocol and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Part II

19 21 25 25 27 30 33 35

The Three Pillars of the ABS Framework and Related Human Rights Implications

3 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Key Concepts: Genetic Resources and Associated Traditional Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Genetic Resources . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

3.1.2 Traditional Knowledge . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 Genetic Resources and Traditional Knowledge in International Law . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Access-Related Principles and Procedural Requirements . . . . 3.2.1 The Principle of State Sovereignty and Its Relationship with the Rights of IPLCs . . . . . . . . . . . 3.2.2 A Focus on Prior Informed Consent . . . . . . . . . . . . . 3.2.3 IPLCs’ Customary Laws and Community Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Responsibilities of States . . . . . . . . . . . . . . . . . . . . . . 3.3 Human Rights Implications on Access-Related Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Right of Self-determination . . . . . . . . . . . . . . . . . . . . 3.3.2 Right to Free, Prior and Informed Consent . . . . . . . . 3.3.3 Human Rights Pertaining to IPLCs’ Customary Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Benefit-Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Benefits and Beneficiaries in the ABS Context . . . . . . . 4.1.1 Realisation of Monetary and Non-monetary Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Provider Countries as Beneficiaries . . . . . . . . . . 4.1.3 ILCs or IPLCs? A Sleight of Hand Under the CBD Framework . . . . . . . . . . . . . . . . . . . . . 4.2 Benefit-Sharing Obligations of State Parties . . . . . . . . . 4.2.1 Obligations of Benefit-Sharing at Inter-state and Intra-state Levels . . . . . . . . . . . . . . . . . . . . 4.2.2 MAT as a Procedural Safeguard . . . . . . . . . . . . 4.3 Fair and Equitable Standards of Benefit-Sharing . . . . . . 4.4 Human Rights Implication on Benefit-Sharing Related Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Property Rights to Land, Natural Resources and Traditional Knowledge . . . . . . . . . . . . . . . . 4.4.2 Right to Equality and Non-Discrimination . . . . 4.4.3 Right to Development . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Inter-state Dispute Settlement: Possibility and Normative Ground . . . . . . . . . . . . . . . . 5.1.1 To Enforce or to Facilitate? . . . . . . . 5.1.2 Nature of the States’ Obligations . . . 5.2 International Compliance Mechanism . . . . . 5.3 Domestic Compliance Measures . . . . . . . . . 5.4 The Role of IPLCs and Challenges Ahead .

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5.4.1 Under the International Compliance Mechanism . . . . 5.4.2 Under the Domestic Compliance Measures . . . . . . . . 5.5 Human Rights Implications on Compliance-Related Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 The Right of Access to Justice . . . . . . . . . . . . . . . . . 5.5.2 Compliance with States’ Responsibilities from an Inter-state Perspective . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part III

133 134 135 135 146 151

Looking Forward

6 The Value Added of Complementarity Thesis and Its Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Key Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 Strengths and Limitations of the Nagoya Protocol in Advancing the Human Rights of IPLCs . . . . . . . . 6.1.2 Interrelationship Between the Nagoya Protocol and Human Rights on States’ Obligations vis-à-vis IPLCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.3 A Mutually Supportive Approach to Interpretation and Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.4 Normative and Practical Implications . . . . . . . . . . . . 6.2 The Value Added and Challenges Ahead . . . . . . . . . . . . . . . 6.3 Final Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

159 159 159

160 161 162 163 165 165

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Table of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Abbreviations

ABS ACHPR ACHR CBD CEDAW CERD CESCR CITES COP COP-MOP ECHR FAO FPIC HRC ICCPR ICERD ICESCR ICJ ILCs ILO ILO Convention 169

IPLCs IPRs ITPGRFA MAT MEAs

Access and Benefit-Sharing African Charter on Human and Peoples’ Rights American Convention on Human Rights Convention on Biological Diversity Convention on the Elimination of All Forms of Discrimination Against Women Committee on the Elimination of Racial Discrimination Committee on Economic, Social and Cultural Rights Convention on International Trade in Endangered Species of Wild Fauna and Flora Conference of the Parties Conference of the Parties Serving as the Meeting of the Parties European Convention on Human Rights Food and Agriculture Organization of the United Nations Free Prior Informed Consent Human Rights Committee International Covenant on Civil and Political Rights The International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Court of Justice Indigenous and Local Communities International Labour Organization International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries Indigenous Peoples and Local Communities Intellectual Property Rights International Treaty on Plant Genetic Resources for Food and Agriculture Mutually Agreed Terms Multilateral Environmental Agreements xxi

xxii

PIC TRIPS UNCLOS UNCTAD UNDRIP UNDROP UNESCO UNPFII VCLT WTO

Abbreviations

Prior Informed Consent Trade-Related Aspects of Intellectual Property Rights United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United Nations Declaration on the Rights of Indigenous Peoples United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas United Nations Educational, Scientific and Cultural Organization United Nations Permanent Forum on Indigenous Issues Vienna Convention on the Law of Treaties World Trade Organization

Part I Setting the Stage

1

The Nagoya Protocol and International Human Rights Law

This chapter begins with an introduction of the framework, rationale, and key objectives of the CBD and its Nagoya Protocol (Sect. 1.1). It then provides an overview of the fundamental and complex linkage between the Nagoya Protocol and international human rights law (Sect. 1.2). It also addresses the crucial question about the identification of IPLCs and its legal recognition accorded by international law (Sect. 1.3). The terminological debate about whether to include “peoples” into the term ILCs under the CBD framework is examined against a general background of the history of IPLCs in international human rights law, which reveals the synergies and conflicts in integrating the development in human rights law into the ABS framework with respect to IPLCs.

1.1

The CBD, the Nagoya Protocol, and the International ABS Framework

Opened for signature at the Rio Earth Summit in 1992 and entered into force in December 1993, the CBD is dedicated to the conservation of biodiversity, sustainable use of the components of biodiversity and fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.1 Fundamentally, the CBD 1

Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, art 1.

recognises states’ sovereign rights over their natural resources, which determines that access to such resources is subject to states’ domestic laws and regulations.2 To implement the third objective of “fair and equitable benefit-sharing”, the CBD requires its parties to facilitate access to genetic resources and take measures to ensure benefit-sharing based on prior informed consent (PIC) and mutually agreed terms (MAT).3 Significantly, it also requires parties to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities” and encourages “equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”.4 The Nagoya Protocol was adopted in 2010 under the CBD and entered into force in 2014. It aims to substantiate the ABS provisions of the CBD by elaborating obligations with respect to access, utilisation and fair and equitable benefit-sharing of genetic resources and associated traditional knowledge, including those held by IPLCs. In a nutshell, parties of the Nagoya Protocol are obliged to establish appropriate legislative, administrative or policy measures to ensure that PIC is obtained for access and that MAT are negotiated for fair and equitable benefit-sharing with the provider countries of the genetic resources, and/or the IPLCs who hold genetic 2 3 4

Ibid art 15(1). Ibid art 15. Ibid art 8(j).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_1

3

4

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The Nagoya Protocol and International Human Rights Law

resources and associated traditional knowledge. Meanwhile, the provider countries are entitled to regulate access and receive agreed benefits generated from the utilisation of their genetic resources. To date, the CBD has nearly universal recognition in the world with 196 parties5 and the Nagoya Protocol has 138 parties.6 Thus, an international ABS framework regulating genetic resources and associated traditional knowledge is in place. It is worth noting that ABS agreements have been seen in several different international legal regimes, including those regulating genetic resources for food and agriculture,7 marine genetic resources8 and traditional knowledge related intellectual property rights.9 As a matter of scope, the “international ABS framework” as referred to in this book does not automatically include ABS provisions of those other regimes— it considers specifically a treaty-based framework envisaged by the CBD and the Nagoya Protocol. However, as many ABS rules that are incorporated in these other regimes originated from the CBD and often interact with the specific 5 Only two member States of the United Nations are not Parties to the CBD: United States of America and the Holy See, information available at CBD, ‘List of Parties’ (CBD, 1992) accessed 03/07/2022. 6 Information available at CBD, ‘Access and Benefit‐ Sharing Clearing‐House’ (CBD) accessed 10/07/2022. 7 The binding instrument is the International Treaty on Plant Genetic Resources for Food and Agriculture [adopted 3 November 2001, entered into force 29 June 2004] 2400 UNTS 303. For scholarly discussion see Claudio Chiarolla, Sélim Louafi and Marie Schloen, ‘An Analysis of the Relationship between the Nagoya Protocol and Instruments related to Genetic Resources for Food and Agriculture and Farmers’ Rights’ in Elisa Morgera et al. (2012). 8 Under the UN, the discussion of a binding instrument regulating marine genetic resources is ongoing, see UNGA Res 72/249, 'International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction' (19 January 2018) UN Doc A/RES/72/249. For scholarly discussion see Petra Drankier et al. (2012). 9 The binding instrument is the Agreement on TradeRelated Aspects of Intellectual Property Rights [adopted 15 April 1994, entered into force 1 January 1995] WTO. For scholarly discussion see Daniel J. Gervais (2005).

processes overseen by the Nagoya Protocol, the book will address the differences and the interaction between the ABS provisions established by the CBD and the Nagoya Protocol vis-à-vis these other regimes when it is relevant.10 In practice, both parties and non-party states are implementing the ABS principles and rules of the Nagoya Protocol at the national level to varying degrees according to different domestic circumstances. Multiple stakeholders are on the frontline in achieving the ABS objectives, including states’ authorities, public institutions, private sectors and IPLCs, among whom transnational partnership is a key and challenging aspect.11 The need for an international ABS framework emerges from the rapid advancements in the field of bioscience and technology. Research and development (R&D) of genetic components of biological resources has empowered broad application of these resources in various industrial sectors such as pharmaceutics, botanical medicines, food and cosmetics.12 The growing realisation and prospects of the economic value of genetic resources thus encourage institutions and companies from developed countries to search for novel compounds derived from plant and animal species, often from developing countries with rich biodiversity.13 In the past few decades, large-scale bioprospecting and commercial exploitation of genetic resources without fair compensation to its original holders has triggered increasing legal and political concerns worldwide. Successful commercialisation and patents of genetic resources and associated traditional knowledge, such as San Hoodia, yellow Enola beans and Basmati rice, are criticised as biopiracy. They directly prompted the international regulatory discussion of a fair and equitable solution for accessing and utilising genetic 10

For instance, IPLCs may include a disclosure requirement on potential patents in the MAT negotiated with a pharmaceutical company with respect to the use of a particular medicinal herb, which then would require consideration of both the ABS framework and the IPRs framework. 11 Tomme R. Young (2013); Elisa Morgera et al. (2014). 12 Kerry Ten Kate and Sarah A. Laird (2002). 13 Sarah A. Laird and Rachel P. Wynberg (2012).

1.2 Linkage Between the Nagoya Protocol and Human Rights

resources and associated traditional knowledge.14 Furthermore, the principle of equity demands fair distribution of benefits among those who have created, managed and developed the concerned genetic resources and associated traditional knowledge.15 Thus, as developing countries call for the recognition of their sovereign control over living and inanimate natural resources, an ABS mechanism is proposed under the CBD framework.16 It is designated to provide biodiversityrich countries and communities with economic incentives and financial support in order to achieve global goals of biodiversity conservation and sustainable use of its components.17 To this end, the Nagoya Protocol was adopted after lengthy negotiation in Japan in October 2010 amidst significant controversies and compromises among key state actors.18

1.2

Linkage Between the Nagoya Protocol and Human Rights

The concept of ABS is not only articulated under the CBD framework, but also increasingly incorporated in several other international legal frameworks, including sustainable development, intellectual property and most importantly, human rights.19 This demonstrates the multifaceted nature of ABS issues. Specifically, an ABS issue is often a human rights issue when IPLCs are concerned, which can be understood from two perspectives. First, human rights could provide a normative basis for many ABS claims of IPLCs. For instance, the right to natural resources of IPLCs can lend support to certain claims of the IPLCs as the legitimate right-holder of genetic resources and associated traditional knowledge, which then underpins their entitlement to issue access permits and receive 14

Daniel F. Robinson (2010); Mgbeoji Ikechi (2005). Thomas Greiber (2012). 16 Morten W. Tvedt and Tomme R. Young (2007). 17 See Greiber and others (n 15) 83 and Kate and Laird (n 12) 75. 18 Linda Wallbott (2014). 19 Charles Lawson (2012). 15

5

benefits. IPLCs’ human right to culture can also strengthen the normative ground of the requirement of the state parties to “take into consideration” IPLCs’ customary laws and community protocols when implementing their ABS obligations.20 Second, the unjust behaviours of bioprospecting, for instance, the notorious biopiracy cases, may cause damage to both sets of rights of IPLCs—a violation of IPLCs’ ABS-related rights may also have adverse impacts on their right to development in carrying out traditional ways of life and economic practices. As a result, the Nagoya Protocol and the human rights law share a similar legal toolbox in dealing with the procedural issues. For instance, PIC as established by the Nagoya Protocol is a way to ensure IPLCs’ control over their genetic resources and traditional knowledge, which explicitly overlaps with the procedural requirement of free, prior, informed consent (FPIC) in fulfilling IPLCs’ participatory human rights pertaining to lands, natural resources and development.21 These connections indicate that the Nagoya Protocol and international human rights law share certain normative ground as well as procedural safeguards when it concerns the issue of protecting the rights of IPLCs regarding their natural resources and traditional knowledge.22 As a logical consequence, the realisation of the rights of IPLCs in one context could be complementary and mutually supportive to the realisation of the rights established in the other. However, as will be discussed in the following chapters of this book, there are also situations in which ABS and human rights claims might conflict with each other, for instance, when certain customary norms of IPLCs undermine the participatory rights of women.23 The relationship between ABS and human rights, thus needs to be articulated against a theory of international law that can address the dynamic and complex nature of 20

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1, art 12. 21 Annalisa Savaresi (2013). 22 Ibid and Morgera, Tsioumani and Buck (n 11) 117. 23 See for instance, Sect. 3.3.3 of this book.

6

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The Nagoya Protocol and International Human Rights Law

the normative and practical interactions between different branches of international law. States play an imperative role in implementing international norms and fulfilling international obligations with respect to IPLCs. The political willingness, economic and legal capacities of states to implement the international standards and cooperate with other states may vary dramatically, hence the efficiency of the transposition of internationally agreed norms into domestic and local contexts. The Nagoya Protocol is a multilateral treaty underpinned by its recognition of states’ sovereign rights over natural resources. International human rights law, likewise, is part and parcel of public international law that is founded on the principle of state sovereignty, although some human rights norms and mechanisms indeed limit and challenge the traditional notions of state sovereignty.24 Thus, both the Nagoya Protocol and international human rights law need to deal with the margin of state discretion to different extents and in various ways, as domestic authorities interpret and implement their international obligations.25 Furthermore, in the context of global environmental challenges such as biodiversity loss and climate change, especially from a human rights perspective, it is widely agreed that state’s sovereignty is never absolute but shaped by its obligations to respect and protect corelated rights.26 This consensus requires states to cooperate for the good of the international community and to balance their sovereign rights and duties.27 For instance, the CBD proclaims that the conservation of biodiversity is a “common concern of humankind”.28 According to the International Court of Justice (ICJ), some human rights obligations are established as binding erga omnes—

owned “towards the international community as a whole” and “by their nature, are the concern of all States”.29 This implies the collective interests underline certain issues that require every concerned state to fully respect international norms and to be held accountable in cases of noncompliance. Furthermore, although natural resources are subject to states’ sovereign rights, parties to the CBD and the Nagoya Protocol are frequently called upon to, inter alia, facilitate the IPLCs in their capacity-developing, enhance IPLCs’ participation in the decision-making process and develop “culturally appropriate processes” to benefit-sharing.30 In the human rights context, states bear obligations to not only refrain from interfering (so that the rights of individuals and groups are respected), but also to safeguard and facilitate (so that their rights are protected and fulfilled).31 States also play an increasing role in regulating relations and behaviours in private arenas in order to make sure that the nonstate actors are in compliance with the human rights standards too.32 States’ obligation, therefore, could be a helpful entry point to examine the human rights implication in the ABS context of the Nagoya Protocol. A key premise is that by considering states’ human rights obligations while implementing ABS rules, states could fulfil their obligations imposed by both international laws in a synergetic manner vis-à-vis IPLCs. Furthermore, since the international ABS framework and human rights law are based on multilateral treaties, it is also feasible to compare their compliance mechanisms and the ways state parties are held accountable in cases of violations and/or non-compliance, which is a point scrutinised in Chap. 5 of this book. 29

24

For instance, individual compliant mechanism under human right law could be seen as a direct challenge to State sovereignty. See Rhona K. M. Smith (2018). 25 Frédéric Mégret (2018). 26 The 2001 document The Responsibility to Protect can be seen a manifesto of sovereignty being non-absolute and conditional. See Daniel Philpott (2020); Alain Pellet (2000). 27 Nico Schrijver (1997); Patricia W. Birnie et al. (2009). 28 CBD, pmbl.

Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [5 February 1970] (ICJ) Rep 6 para 33. 30 CBD Working Group on Article 8(j), ‘Participatory Mechanisms for Indigenous and Local Communities’ (27 November 2001) UN Doc UNEP/CBD/WG8J/2/4 para 73 and CBD COP Decision XIII/18, ‘Article 8(j) and related Provisions’ (17 December 2016) UN Doc CBD/COP/ DEC/XIII/18 para 17. 31 Mégret (n 25) 97. 32 Jacob Katz Cogan (2011).

1.3 Indigenous Peoples and Local Communities …

These connections provide a snapshot of the necessity and the legal ground for considering the interrelationship between the Nagoya Protocol and international human rights law, especially their possible complementarity. Essentially, the dynamics of ABS and human rights issues require an approach to interpretation and implementation that could adequately reflect and address their legal complexity and interrelations. Since the adoption of the CBD, a “rights-based approach” to achieve the objectives of the CBD has been increasingly discussed by legal scholars.33 The possibility and content of a mutually supportive interpretation of the ABS framework in light of the relevant international human rights law are the main subjects for investigation, especially with respect to IPLCs and their rights of selfdetermination, development, culture, science and so on.34 Human rights issues in the ABS context also have attracted attention at the UN level. For instance, the United Nations Permanent Forum on Indigenous Issues (UNPFII)—the high-level advisory body to the UN Economic and Social Council—has frequently addressed recommendations to the CBD,35 covering issues such as the protection of Indigenous traditional knowledge and the recognition of Indigenous Peoples as “peoples” instead of “communities” as in ILCs.36 In 2018, the UN Special Rapporteur on human rights and the environment Mr. John H.

33

See Morgera et al. (2009); Elisa Morgera (2013). See various comments in Morgera et al. (2015); Elisa Morgera (2019). 35 Especially to its the Ad Hoc Open-ended Working Group on Access and Benefit-sharing and the Ad Hoc Open- ended Inter-sessional Working Group on Article 8 (j) and Related Provisions. These working groups then, makes recommendations for the consideration of the Conference of the Parties of the CBD. 36 See for example, CBD Working Group on Article 8(j), ‘Recommendations From the United Nations Permanent Forum on Indigenous Issues to the Convention on Biological Diversity’ (14 July 2017) UN Doc CBD/WG8J/10/9 It has also has commissioned a specific study on the Nagoya Protocol in 2011, see Permanent Forum on Indigenous Issues, ‘Nagoya Protocol: Substantive and Procedural Injustices relating to Indigenous Peoples’ Human Rights’ (16 May 2011) 1. 34

7

Knox proposed 16 principles relating to human rights and the environment, which explicitly includes benefit-sharing.37 Most recently, the UN General Assembly adopted a landmark resolution with 161 votes in favour, recognising the human right to a safe, clean, healthy and sustainable environment—a significant statement about the broad and fundamental link between human rights and the environment.38

1.3

Indigenous Peoples and Local Communities in International Law

1.3.1 Who Are They? According to a range of UN documents, the approximate Indigenous population worldwide nowadays is somewhere between 450 to 500 million, representing over 5000 different cultures and constituting 6% of the world’s population.39 They spread across 90 countries and live in all geographic regions. Many of these peoples and communities have become familiar with the public: the San in the Kalahari Desert, the Inuit of the Arctic regions, the Sami reindeer herders in Norway, the Yanomami hunters in the Amazon rainforest, the Maoris of New Zealand, the Cree, the Maya, the Mapuche, the Maasai, and so it goes on and on.40 Many of them had suffered in the age of colonialism with their lands brutally claimed, people slaughtered and property taken.41 Many still face severe risks of marginalisation, assimilation and dispossession of lands,

Human Rights Council, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (24 January 2018) UN Doc A/HRC/37/59 18. 38 UNGA, ‘The Human Right to a Clean, Healthy and Sustainable Environment’ (26 July 2022) UN Doc A/76/L.75. 39 See UNEP (2007); Rodolfo Stavenhagen (2004). 40 Julian Burger (1990). 41 Kenneth Coates (2004); Julian Burger (1987); Dee Brown (1971). 37

8

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The Nagoya Protocol and International Human Rights Law

territories, and resources today.42 This history of inequity has resulted in their vulnerability to the impacts of climate change, poverty and global pandemics. For instance, according to the Indigenous World 2021—the annual report published by the International Work Group for Indigenous Affairs, Indigenous Peoples across the world have been disproportionately affected by the COVID-19 pandemic with respect to a severe lack of health service, basic living goods, as well as opportunities of distant learning and online education.43 However, remarkable resilience and strength can also be observed in the ongoing legacy of Indigenous Peoples worldwide in claiming recognition and protection over their rights and identities. In comparison to Indigenous Peoples, the concept “local communities” embodies much more ambiguity. The term itself is often used interchangeably with “traditional and rural communities” in the current literature, which may include small-scale farmers, livestock breeders, pastoralists, fishers, hunters, and forest-dwellers.44 Undoubtably, local communities exist everywhere in the world. Their self-identification and public recognition vary dramatically in different societies and their interests relating to lands and natural resources often conflict with those of states and corporations.45 In the CBD context, local communities have no set definition but a

strong association with land, waters, and natural resources they have traditionally relied on for livelihood.46 Over millennia, these Peoples and communities have developed significant knowledge about flora and fauna taxonomy and usage, gathering, hunting, and cultivating skills, and management of a variety of ecosystems. They are now explicitly recognised as the “custodians of biodiversity” under the framework of the CBD.47 Furthermore, as the linkage between cultural and biological diversity is increasingly recognised worldwide, IPLCs also has become an imperative player in safeguarding the world’s remaining biological and cultural diversity.48 In recent decades, their traditional knowledge and practices have inspired innovative solutions for modern agriculture,49 pharmacology,50 sustainable management of local ecosystems and resources.51 It shall be noted that divergent opinions and practices exist with respect to whether the initial letter of the term “Indigenous Peoples” should be written in lower case or upper case. The same question arises with respect to other terms such as “Aboriginal Peoples” and “First Nation(s)”. Although the CBD and the Nagoya Protocol did not use the capital initials when referring to “indigenous and local communities” in their treaty texts, there is increasing advocacy with valid reasons that the use of the upper case should be adopted in both international and national contexts.52 This book uses the terms “Indigenous

42

In August 2017, for example, more than 100 Maasai huts in Tanzania were reported to have been burned down near the Serengeti National Park, with hundreds of Indigenous Maasai people evicted at gunpoint, see BBC, ‘Maasai Displaced after Huts Burned in Tanzania’ (BBC, 16 August 2017) accessed 08/11/2018. In general, see Colin Samson (2017); Gillette H. Hall and Harry A. Patrinos (2012). 43 IWGIA (2021). 44 The UN Declaration on the Rights of Peasants and Other People Working in Rural Areas suggests a rather broad understanding of these communities, see United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas [28 September 2018] HRC A/HRC/RES/39/12, art 1. For scholarly discussions, see Adriana Bessa (2015); Jérémie Gilbert (2018). 45 See, for instance, essays in Fred Nelson (ed) (2010); Johanna Gibson (2016).

CBD Working Group on Article 8(j), ‘Report of the Expert Group Meeting of Local Community Representatives within the Context of Article 8(j) and Related Provisions of the Convention on Biological Diversity’ (4 September 2011) UN Doc UNEP/CBD/WG8J/7/8/Add.1* anx. 47 Nagoya Protocol, pmbl. See also Manuel Ruiz and Ronnie Vernooy (2012). 48 For an anthropologic study on the subject, see Luisa Maffi (2005); Lj Gorenflo et al. (2012). 49 M. Kat Anderson (2005); Miguel A. Altieri (2004). 50 Ababacar Maiga et al. (2005); Richard Evans Schultes (1989). 51 See Andre Lalonde (1993); K. P. Laladhas et al. (2017). 52 Gregory Younging (2018). 46

1.3 Indigenous Peoples and Local Communities …

Peoples”, “First Nation” and “Aboriginal” with capital initials in order to convey respect to their special identities and the associated political, legal and cultural importance.

1.3.2 From ILCs to IPLCs: An Overview of the Development Under the CBD Framework Indigenous and local communities (ILCs) is a special right-holder under the CBD framework. Specifically, they are recognised as holders and providers of genetic resources and associated traditional knowledge in the CBD and the Nagoya Protocol; therefore, are entitled to issue PIC, negotiate benefit-sharing terms, and receive agreed benefits.53 The Preamble of the CBD recognises the “close and traditional dependence” of many ILCs on biological resources and their desire to share equitably benefits arising from the use of their traditional knowledge, innovations, and practices. Accordingly, Article 8(j) of the CBD further requires that, subject to national legislation, the parties of the CBD shall “respect, preserve and maintain” knowledge, innovations, and practices of ILCs and “promote their wider applications with the approval and involvement of the holders”. Article 8(j) also obliges the parties of the CBD to “encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”. In order to substantiate the commitments to Article 8(j), the parties to the CBD have established a Working Group on Article 8(j) in 1998, which contributed significantly to the development of the CBD framework on matters of ILCs since then.54 These include standardsetting efforts often resulted in the form of voluntary guidelines,55 as well as facilitative work in 53

Nagoya Protocol, arts 5(2) 5(5) 6(2) and 7. CBD COP Decision IV/9, ‘Implementation of Article 8 (j) and related Provisions’ (15 June 1998) UN Doc UNEP/CBD/COP/DEC/IV/9 para 1. 55 So far, four voluntary guidelines have been adopted by the CBD Parties, i.e., the 2004 Akwé: Kon Voluntary 54

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support of the subsequent CBD COP meetings on ILCs-related issues, especially in terms of fostering involvement of ILCs and their representatives in the process of decision-making and identifying relevant development in international law relating to ILCs. Overtime, with respect to the identification of ILCs, the CBD parties have elaborated that the notion of “ILCs” contains essentially two groups— “Indigenous Peoples” and “local communities embodying traditional lifestyles”, although these terms are still subject to intense political and legal controversies and conceptual ambiguities.56 The Nagoya Protocol advances Article 8(j) and the ABS-related provisions in the CBD. In its Preamble, it states that genetic resources and traditional knowledge are interrelated and they together are inseparable for ILCs—an acknowledgement then connected with the UNDRIP and the “existing rights” of the ILCs.57 The operative clauses of the Nagoya Protocol also assign particular obligations to its parties to “take legislative, administrative or policy measures, as appropriate” to ensure that access to traditional knowledge that is held by ILCs is properly accessed and benefits are equitably shared.58 Against this background, it is fair to observe that the CBD and its Nagoya Protocol have contributed to the legal recognition and protection of ILCs’ interests and claims relating to their genetic resources and traditional knowledge, from where the exploration of the human rights implications of these progresses of international environmental law became possible.59 However, the question of who are ILCs under the CBD framework is not straightforward since the term “ILCs” is neither defined, nor is it selfexplanatory. Even though self-identification is generally accepted as the most appropriate way Guidelines, the 2010 Tkarihwaié:ri Code of Ethical Conduct, the 2016 Mo'otz Kuxtal Voluntary Guidelines and the 2018 Rutzolijirisaxik Voluntary Guidelines. 56 CBD COP Decision XII/12, ‘Article 8(j) and related Provisions’ (13 October 2014) UN Doc UNEP/CBD/ COP/DEC/XII/12 section F. 57 Nagoya Protocol, pmbl. 58 Ibid arts 5(2) 5(5) 6(2) and 7. 59 Morgera, Tsioumani and Buck (n 11) 32.

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to establish who may be Indigenous and/or local communities in scholarly discourse, legal and political recognition at the national level often determine the factual extent to which ILCs are concerned in the ABS transactions.60 Since 2010, the UNPFII has been calling on CBD parties to adopt the terminology “Indigenous Peoples and local communities” in order to better reflect the international human rights development especially with respect to Indigenous Peoples.61 After four years of consideration, the CBD parties finally agreed that the term “Indigenous Peoples and local communities” should be used in their future decisions and secondary documents as appropriate but under very tight conditions.62 For instance, the parties made sure that the new term “shall not affect in any way the legal meaning of Article 8(j) and related provisions of the Convention” and “may not be interpreted as implying for any Party a change in rights or obligations under the Convention”.63 This outcome indicates a compromise between states and ILCs representatives—mostly non-governmental organisations promoting Indigenous rights.64 States are reluctant to change the terminology because it would have a clear influence on the current interpretation of the related provision in the CBD and possibly create subsequent obligations to the parties to the CBD and the Nagoya Protocol.65 60

CBD Expert Group Meeting of Local Community Representatives, ‘Guidance for the Discussions concerning Local Communities within the Context of the Convention on Biological Diversity’ (7 July 2011) UN Doc UNEP/CBD/AHEG/LCR/1/2 para 7. 61 UNPFII, “Report on the ninth session” (19–30 April 2010) UN Doc E/2010/43– E/C.19/2010/15. 62 XII/12 (n 57) section F. The parties to the Nagoya Protocol have also decided to apply, mutatis mutandis, the CBD’s decision on the use of the terminology IPLCs in 2016, see NP MOP 2 Decision NP-2/7, ‘Use of the Term “Indigenous Peoples and Local Communities”’ (10 December 2016) UN Doc CBD/NP/MOP/DEC/2/7 1. 63 XII/12 (n 57) art 2. 64 CBD COP, 'Compilation of Views on Use of The Term “Indigenous Peoples and Local Communities”' (26 June 2014) UN Doc UNEP/CBD/COP/12/INF/1. 65 A concern expressed by the French representatives, see CBD COP, ‘Report of the Eighth Meeting of the Ad Hoc Open-ended Inter-sessional Working Group on Article 8 (J) and Related Provisions of the Convention on

Indigenous advocates, on the other hand, suggest that the term “ILCs” undermines Indigenous Peoples’ legal status as “Peoples” under international law, and further criticise that the final COP decision, particularly the reservations about the legal implications of the term “IPLCs”, violates treaty interpretation rules as established by the VCLT.66 As such, the inclusion of the term IPLCs in the CBD framework has not solved the issue at hand. Instead, it reflects a growing divergence in the understanding of the rights of IPLCs in international law, specifically in the context of biodiversity conservation and ABS in this case. Against this background, this book considers the potentials and limitations of a mutually supportive understanding of the ABS framework and the human rights of IPLCs, especially of Indigenous Peoples.67 In comparison, the term “local communities” has a low profile in international law. The CBD was the first international framework that called upon the global community to pay attention to the essential role played by local communities with respect to biodiversity conservation and to recognise their rights in fair and equitable benefitsharing. However, the effective involvement of local communities in realising Article 8(j) of the CBD is limited for various reasons.68 The predominant obstacle is the general lack of legal recognition and established rights with respect to local communities under and beyond the CBD

Biological Diversity’ (1 November 2013) UN Doc UNEP/CBD/COP/12/5 para 92. 66 See arguments presented in CBD COP, ‘Additional Information Received on Use of the Term “Indigenous Peoples and Local Communities”’ (1 October 2014) UN Doc UNEP/CBD/COP/12/INF/1/Add.2. 67 Scholars have appraised the Nagoya Protocol for its Preamble explicitly established the linkage with the international human rights law with respect to ILCs, see Kabir S. Bavikatte and Daniel F. Robinson, ‘Towards a Peoples History of the Law: Biocultural Jurisprudence and the Nagoya protocol on Access and Benefit Sharing’ (2011) 7 (1) Law, Environment and Development Journal, 46. 68 CBD COP Decision X/43, ‘Multi-year programme of work on the implementation of Article 8(j) and related provisions of the Convention on Biological Diversity’ (29 October 2010) UN Doc UNEP/CBD/COP/DEC/X/43 para 21.

1.3 Indigenous Peoples and Local Communities …

framework. To this end, an Ad Hoc Expert Group Meeting of Local Community Representatives was convened, which provided a comprehensive report about the experiences and advice of various local communities around the world.69 The experts also recommended that a working definition of “local communities” might be possible based on several common characteristics of these communities, including, inter alia, selfidentification as a local community, lifestyles linked to traditions associated with natural cycles, traditions that are dynamic and may evolve, and a set of social rules and institutions.70 Furthermore, the experts provided advice on measures to improve effective participation of local communities at both international and national levels.71 The CBD parties considered this report in 2012 and “took note” of the listed characteristics, but only as “potentially useful advice” in identifying local communities within its mandate.72 After this expert group meeting, no more in-depth discussion has been held under the CBD framework. In general, the lack of legal sources on “local communities” as a legal subject in international law makes it more difficult to establish their rights and corelated states’ responsibilities than Indigenous Peoples.73

1.3.3 Indigenous Peoples and Local Communities in International Human Rights Law The reluctance of the CBD parties to fully acknowledge the term IPLCs has it reasons, one of which relates to the distinct legal status of Indigenous Peoples in international law.74 In

69

8(j) (n 47) item 4. Ibid anx Sect. 1. 71 Ibid anx Sects. 2–5. 72 CBD COP Decision XI/14, ‘Article 8(j) and related Provisions’ (5 December 2012) UN Doc UNEP/CBD/ COP/DEC/XI/14 para 19. 73 Greiber and others (n 15) 91. 74 Russel Lawrence Barsh (1994); Benedict Kingsbury (1998). 70

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comparison, even though “local communities” is not yet an established right-holder in international human rights law, there is recent progress at the UN level which cannot be overlooked. In order to clarify the human rights context of this book, the following paragraphs provide a sketch to the relevant developments of international law in general and explain the particular relevance of the human rights law as it was established after the Second World War. It demonstrates the different and evolving ways in which the rights of Indigenous Peoples are recognised in international law over time. Now, it has been made clear that the right to self-determination, as well as the rights with respect to lands, natural resources, development and culture, are of paramount value to Indigenous Peoples, which require international and domestic safeguards.75 Since Indigenous Peoples first encountered the European explorers over approximately 500 years ago,76 the interaction and relationship between Indigenous communities and European emperors have become a topic of increasing political and economic importance.77 To this end, international law has played a significant role in structuring and shaping the legal and social understanding of Indigenous Peoples in the Western World. The earliest international legal reference to Indigenous Peoples can be traced back to the naturalist discussion about legality and morality of European settlement in America, covering issues such as whether it is just to claim the land of American Indians for the Spanish 75 See, inter alia, Kingsbury (n 75) 414, Mattias Åhrén (2016); G. Pentassuglia (2002). 76 The year 1492 is often seen as the starting point of the interaction between Indigenous Peoples in America and Europeans as Christopher Columbus and his Spanish fleet arrived at the Caribbean and encountered Arawak, Taino, and Lucayan Peoples. However, it shall be noted that in the following century, French, Portuguese, and British explorers also interacted with numerous Indigenous Peoples across the American continent in various patterns. It has also been estimated that the very initial contact between Indigenous and European cultures may be traced back to the encounter between the Thule People and the Scandinavians in Greenland. See chapters in Paul Havemann (1999) and information provided at National Geographic Society (2022). 77 Catherine J. Iorns Magallanes (1999).

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Emperor and whether the “barbarians” can have true public and private dominion (rights).78 Francisco de Vitoria (1486–1547) and Hugo Grotius (1583–1645) concluded that the American Indians possessed true dominion by virtue of natural law, which however, could be lost through conquest following a “just” war.79 Emerging in the seventeenth century, the theory of the law of nations established the ground for a dichotomy of rights, including the rights of the individual on the one hand and the sovereignty of the total social collective on the other.80 This doctrine had a powerful influence on the early judicial decisions handed down by Chief Justice John Marshall regarding the rights and status of native Indians in the North America. Cases including Johnson v. M’Intosh in 1823,81 Cherokee Nation v. Georgia in 1831,82 and Worcester v. Georgia in 183283 indicated the progressive disqualification of Indigenous Peoples as nations and the attendant dispossession of their property and sovereign rights.84 Overall, the

naturalist theories of international law provide a limited form of recognition of Indigenous identities and rights through an ill-fitting legal system for Indigenous Peoples. The dilemma for Indigenous Peoples is conspicuous: they do not have status as an independent nation, nor have they as individuals obtained equal rights as the colonial settlers.85 The nineteenth century was the era of positivism.86 It promoted a system prioritising certain European nation states as lawful subjects over Indigenous Peoples.87 Its corollary has led to the denial of validity and legality of the treaties made between Indigenous Peoples and states,88 which drifted so far as to contest the capability of Indigenous Peoples of possessing rights at all on the international plane.89 These dismissive positions manifest in cases such as the 1926 Cayuga Indians award 90 and the 1928 Island of Palmas Case.91 Specifically, the Cayuga award elaborated that the legal identity and status of an Indian tribe only exist “by virtue of the domestic

78 Francisco de Vitoria (1991) and Vitoria, ‘On the American Indians’ #On the American Indians# (n ##) 231–292. 79 On this topic, Vitoria first listed three unjustified reasons and cases of just war, i.e. difference of religion, enlargement of empire, and the personal glory or convenience of the prince. Then he argued that “the sole and only just cause for waging war is when harm has been inflicted’ and further clarifies that ‘not every or any injury gives sufficient grounds for waging war”. See Vitoria, ‘On the Law of War’ (n 79) 302 and S. James Anaya (2004). 80 Prominent legal philosophers and theorists of this doctrine include Thomas Hobbes (1588–1679), Christian Wolff (1679–1754) and Emmerich de Vattel (1714– 1769), see Anaya (n 80) 14. 81 Johnson v M'Intosh [1823] (SCOTUS) 21 US 8 Wheat. 543 590. 82 Cherokee Nation v Georgia [1831] (SCOTUS) 30 US 5 Pet. 1 17. 83 In the discovery doctrine, a European power gains radical title/sovereignty to the land it discovers. Marshall affirmed this doctrine and asserted the principle that the European claim to Indian land create the sole right to acquiring it from the Indians and the Indians could not convey rights in the lands to others. See Worcester v Georgia [1832] (SCOTUS) 31 US 6 Pet. 515 518. 84 Marshall described the Indians as “fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest”. He continued that, “to

leave them in possession of their country, was to leave the country a wildness”. Johnson v M'Intosh (n 82) 590. 85 Anaya (n 80) 20. 86 Arthur Nussbaum (1954); Charles Henry Alexandrowicz (1973). 87 Siegfried Wiessner (1999). 88 Westlake argued that the treaties with indigenous tribe could not create titles of lands or sovereignty because the “uncivilised” tribes did not comprehend the full attributes of territorial sovereignty. See John Westlake (1894). 89 Hyde concluded that the American Indians have never been regarded as constituting persons or States of international law and that States were agreed that the native inhabitants possessed no rights of territorial control at the time of European exploration. See Charles Cheney Hyde (1922). 90 In this case, an Indian tribe was not recognised as “a legal unit of international law”, because of the lack of such recognition by the Western power from the time of the discovery. Cayuga Indians (Great Britain) v United States [22 January 1926] (PCA) 6 RIAA 173 176. 91 Max Huber concluded in this arbitral award that treaties established by the island’s Indigenous Peoples and the Dutch East India Company were not, “in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties.” Island of Palmas case (Netherlands, USA) [4 April 1928] (PCA) 2 RIAA 829 831.

1.3 Indigenous Peoples and Local Communities …

law of the sovereign nation within whose territory the tribe occupies the land”; and so far only as that domestic law recognises it.92 Relying upon the core premise that international law is made by states (mostly European states, on the basis of their consent and recognition) and only operates between states, the positivist doctrine of international law ultimately excluded Indigenous Peoples from its prospects.93 The colonial order and sovereign claims over Indigenous lands have thus been legitimised and justified in the contemporary international law, which forms the foundation of the international legal system as we know it today. Entering the mid-twentieth century, the emergence of “human rights” has shifted the positivist landscape of international legal system. Under the UN framework, important human rights instruments have been negotiated and adopted. These include the Charter of the United Nations in 1945, the Universal Declaration of Human Rights in 1948, the UN Convention on the Prevention and Punishment of the Crime of Genocide in 1951, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1965,94 the International Covenant on Civil and Political Rights (ICCPR)95 and the International Covenant on Economic, Social and 92 Cayuga Indians (Great Britain) v United States (n 91) 176. 93 Oppenheim explained the mechanism of a positive international law in his famous treatise International Law regarding the role of consent and recognition: “As this basis is the common consent of the civilised States, there are three conditions for the admission of new members into the circle of the Family of Nations. A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations, Such State must, secondly, expressly or tacitly consent to be bound for its future international conduct by the rules of International Law. And, thirdly, those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member.” Lassa Oppenheim (1926). 94 International Convention on the Elimination of All Forms of Racial Discrimination [adopted 21 December 1965, entered into force 4 January 1969]. 95 International Covenant on Civil and Political Rights [adopted 16 December 1966, entered into force 3 January 1976] 999 UNTS 171.

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Cultural Rights (ICESCR)96 in 1966. These instruments affirm fundamental human rights and dignity to all human persons, and some specifies the rights of “peoples” and/or “minorities” to varying degrees.97 In particular, Indigenous advocates have often used Article 27 of ICCPR to claim their cultural rights as “minorities” within states.98 These instruments contain not only human rights obligations for state parties, but in many cases erga omnes obligations that apply to all states.99 Around the same time, the International Labour Organization (ILO) and other UN agencies, such as the Food and Agriculture Organisation of the United Nations (FAO) and World Health Organisation (WHO), also started to consider the rights of Indigenous Peoples in their respective organisational policies. However, an overarching theme of integration and assimilation underpinned the achievements and efforts of this stage.100 For instance, firstly articulated concerns about the plight of native labour in 1921, the ILO adopted the ILO Convention No. 107 on the Protection and Integration of Indigenous, Tribal and Semi-tribal Populations in Independent Countries (ILO Convention 107) in 1957. The ILO Convention 107 considers integrating Indigenous and other tribal and semitribal populations into the national community a main objective in order to alleviate the social and economic inequality faced by these populations.101 In the 1960s, the ILO and the FAO, WHO and other UN agencies have also initiated 96

International Covenant on Economic, Social and Cultural Rights [adopted 16 December 1966, entered into force 3 January 1976]. 97 For instance, the ICCPR and the ICESCR affirm peoples’ right of self-determination. Moreover, the ICCPR specifies protection of minorities’ right to practice their culture. ICCPR, arts 2 and 27. 98 Karen Engle (2010). 99 See Maurizio Ragazzi (2000); Stefan Kadelbach (2005). 100 For a thorough study on the ILO Conventions and the “fall of integration”, see Luis Rodríguez-Piñero (2005). 101 Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and SemiTribal Populations in Independent Countries [entered into force 26 June 1957, no longer in force] ILO C107, pmbl, arts 1 and 24.

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the Andean Indian Programme to facilitate development and help integrate the estimated 10 million Indians living in isolated areas of the Andes Mountains into the national communities —mainly Bolivia, Ecuador and Peru, which constitutes another major international effort under the integrationist framework.102 This echoes the observation of Magallanes that regardless of the ground breading development of human rights between 1940 and 1970s, this initial system of the international human rights law did not significantly influence the rights of Indigenous Peoples in international and national contexts for its persisting and prevailing positivist ideology of international law.103 Nevertheless, human rights concepts have become the cornerstone of contemporary international law, as demonstrated by the UN Charter, that the purpose of the UN is based on the principle of “equal rights and self-determination of peoples”.104 It was not until the 1970s that international human rights law started to establish the rights of Indigenous Peoples as distinct peoples and communities associated with their diverse cultural identities and traditions.105 Under the UN framework, the UN Human Rights Commission set up the Working Group on Indigenous Populations,106 which promoted the drafting work that eventually led to the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007—so far the most comprehensive and extensive recognition of the rights of Indigenous Peoples.107 Several UN-level mechanisms have also been established for promoting 102

See Jef Rens (1964). Magallanes (n 78) 237. 104 Charter of the United Nations [signed 26 June 1945] 1 UNTS XVI, art 1(2). 105 Magallanes (n 78) 238 Engle (n 99) 141. 106 The absence of the term “peoples” was because States were threatened by its statistic overtones, see Catherine J. Iorns (1992). 107 It recognises, inter alia, Indigenous Peoples’ right to self-determination; land/resource rights; the right to restitution; cultural rights; the right to separate political institutions and systems; the right of to participate in governmental decision-making processes. For a collection of analysis of the Declaration, see Steve Allen and Alexandra Xanthaki (2011).

Indigenous rights, including the Expert Mechanism on the Rights of Indigenous Peoples, the UNPFII, and the Special Rapporteur mechanism addressing situations of the human rights and fundamental freedoms of Indigenous Peoples. In 1989, the ILO adopts Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), revising its previous Convention 107, especially its assimilationist approach. The ILO Convention 169 reflects much of the discussion that had took place in the UN context, confirming the international obligations of states to safeguard Indigenous Peoples’ rights of cultural selfdetermination, participation and rights to lands and resources.108 Having said that, it should also be noted that the ILO Convention 169 is not widely recognised with only 24 state parties to date.109 Case laws of international and regional tribunals, as well as communications issued by international human rights treaty bodies, also provide important implications on the legal status of Indigenous Peoples in international law. A milestone was the decision of the International Court of Justice (ICJ) in the Western Sahara case in 1975. In this case, the ICJ held that the Indigenous inhabitants of the Western Sahara were entitled to self-determination and rejected the principle of terra nullius under the laws and principles of decolonisation.110 Began in 1980s, regional human rights courts and tribunals have been established to ensure compliance of international human rights, which are further complemented by various domestic enforcement measures.111 Furthermore, the international

103

108

Anaya (n 80) 58. ILO, ‘Ratifications of C169’ (1991) accessed 08/04/ 2022. 110 Western Sahara (Advisory Opinion) [16 October 1975] (ICJ) Rep 12 para 79. 111 For discussion of various regional and national approaches to establishing courts commission and tribunals for Indigenous Peoples, see Jo M. Pasqualucci (2006); Arthur J. Ray (2016); Ben Saul (2016). 109

1.3 Indigenous Peoples and Local Communities …

treaty bodies under the UN system have also issued numerous interpretations of general human rights standards “in a manner favourable to indigenous claims”.112 They all have contributed progressive case laws and articulated regional judicial standards with respect to various Indigenous rights. With respect to local communities, the UN Human Rights Council adopted the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) in 2018, which riches the understanding of “local communities” with a specific focus on rural groups, such as small-scale farmers, artisanal fishing communities, island, and mountain communities. This Declaration is the first internationally negotiated instrument bridging cross-cutting issues such as food security, sustainable agriculture system, agrobiodiversity and human rights relating to the use and control of natural resources.113 It recognises a wide range of rights of local communities regarding, inter alia, land and other natural resources,114 a safe, clean and healthy environment,115 right to biological diversity116 and cultural rights and traditional knowledge,117 which creates important opportunity to consider the synergies between the human rights development with respect to local communities and the CBD framework, as well as the challenges that might arise from this connection.118 Against this background, many scholars have observed that international law has evolved, perhaps rather “grudgingly and imperfectly”,119 from an instrument to facilitate colonialism before the twentieth century to recognise and protect Indigenous Peoples around the world in

112

Alexandra Xanthaki (2009). For a review of this Declaration, see essays in Mariagrazia Alabrese et al. (2022). 114 UNDRIP, art 17. 115 Ibid art 18. 116 Ibid art 20. 117 Ibid art 26. 118 Adriana Bessa and Jérémie Gilbert (2022). 119 Anaya (n 80) 5. 113

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the twentieth and twenty-first centuries.120 Today, human rights law has become the most dominant rubric for Indigenous Peoples to assert their claims and address the “historic injustices” they had suffered at both international and national levels,121 which may shed light on the very early-stage development of the human rights associated with local communities. The normative reality is that the international human rights law recognises the rights of Indigenous Peoples and local communities to different extents, but with an evolving attitude. Admittedly, human rights norms and their national compliance are far from satisfactory—one only needs to look at the Rohingya people in Myanmar122 and the Maasai people in Tanzania123 to realise that the most fundamental human rights, after half a century’s establishment, are still facing severe threats and in deep political turmoil. In scholarly discussion, the difference between human rights terms including

120

Wiessner (n 88) 98. Engle (n 99) 141. Anaya (n 80) 66 and Engle (n 99) 46. For reference to “historic injustices”, see United Nations Declaration on the Rights of Indigenous Peoples [13 December 2007] UNGA Res 61/295, pmbl. 122 In August 2017, a military crackdown by Myanmar’s army on Rohingya Muslins has led to more than 700,000 people fleeing to Bangladesh in the same year, while hundreds of Rohingya villages have been reportedly destroyed. Zeid Ra'ad Al Hussein, the UN High Commissioner for Human Rights denouncesd the treatment of the Rohingya in Myanmar and described it as “a textbook example of ethnic cleansing”. In 2019, Gambia filed a case before the ICJ alleging Myanmar's military action against the ethnic Rohingya population in Myanmar's northern Rakhine State violations of the Genocide Convention. In 2020, the ICJ imposed provisional measures requiring Myanmar to prevent all genocidal acts against the Rohingya. At the time of writing, the ICJ case, as well as the multi-fold humanitarian crisis faced by the Rohingya Muslins, are still ongoing. See, UN News, ‘UN human rights chief points to ‘textbook example of ethnic cleansing’ in Myanmar’ (UN, 2017) accessed 10/ 07/2022. and ICJ, ‘Lastest Developments: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)’ (ICJ, 2022) accessed 10/07/2022. 123 BBC (n 43). 121

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Indigenous Peoples, minorities, and local communities, also remains a controversial matter. Anaya, Kymlicka, Kingsbury and others have written extensively on the theories and normative grounds of various Indigenous rights and minority rights, as well as their collective and individual aspects.124 Their work in general reveals that the “rights” accorded to Indigenous Peoples and minority groups by international law are far from “perfect” normative conceptions. However, in the rich literature about the role of Indigenous Peoples and local communities in the history of international law, it is not difficult to identify an overarching theme of recognising and respecting cultural pluralism and fundamental human rights such as the rights of lands, natural resource and culture of these Peoples and communities.125 Furthermore, this legal development translates into states’ human rights obligations and the commitments of state parties to introduce measures for domestic compliance and adaptions for domestic policies would have far-reaching consequences.126 124

Anaya and Kingsbury tackle the subject from an international legal perspective while Kymlicka addresses the cultural distinctiveness from a political-theorist perspective. See Anaya (n 80) 3, S. James Anaya and James E. Rogers (2009); Will Kymlicka (1995, 2007). 125 Generally see, Anaya and Rogers (2009); Rhiannon Morgan (2011); Rachel Sieder (2002); Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (n 125) 88. 126 In scholarly debate, contemporary human rights are often categorised into “generations”. Specifically, the obligations of States to abstain from interference to respect human rights, for instance, the right to freedom, are related to the first generation of human rights (negative duties). States’ obligations to accommodate and facilitate the realisation of human rights, for instance, the right to food, health, and development, especially in social and economic contexts. These rights are related to the second generation of human rights (positive duties). Since the 1980s, human rights have undergone a normative reform of “solidarity”, often considered as the third generation of human rights, predetermined by the prevailing global issues such as world peace, sustainable development and biodiversity conservation and resulted in the debate of some rather controversial “collective human rights”. See, inter alia, Stephen P. Marks (1981); Philip Alston (1982); Quincy Wright (1949), Human Rights Council (2007); Cindy L. Holder and Jeff J. Corntassel (2002); Christian Tomuschat (2014).

References Ababacar Maiga, others (2005) A survey of toxic plants on the market in the district of bamako, mali: traditional knowledge compared with a literature search of modern pharmacology and toxicology. J Ethnopharmac 96(1) Adriana Bessa, Jérémie Gilbert (2022) Indigenous peoples and traditional local communities in the UNDROP: synergies and challenges, in Mariagrazia Alabrese and others (eds), The United Nations’ Declaration on Peasants' Rights (Routledge) Adriana Bessa (2015) Traditional local communities: what lessons can be learnt at the international level from the experiences of Brazil and Scotland? Rev Eur Comp Int Environ Law 24(3), 331 Anaya and Rogers (n 125) (2009) Wiktor Osiatyński. Human rights and their limits (Cambridge University Press), p 88 Alain Pellet (2000) State sovereignty and the protection of fundamental human rights: an international law perspective (Pugwash Occasional Papers) Alexandra Xanthaki (2009) Indigenous rights in international law over the last 10 years and future developments. Melbourne J Int Law 10(1) Andre Lalonde (1993) African indigenous knowledge and its relevance to sustainable development, in Julian T Inglis (ed) Traditional ecological knowledge: concepts and cases (International Program on Traditional Ecological Knowledge and IDRC), p 55 Annalisa Savaresi (2013) The international human rights law implications of the nagoya protocol, in Elisa Morgera, Matthias Buck, Elsa Tsioumani (eds) The 2010 nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges (Brill Nijhoff), p 53 Arthur Nussbaum (1954) A concise history of the law of nations (Revised edn, Macmillan), p 164 Arthur J. Ray (2016) Aboriginal rights claims and the making and remaking of history (McGill-Queen’s University Press), p 242 Benedict Kingsbury (1998) Indigenous peoples, in International law: a constructivist approach to the Asian controversy. Am J Int Law 92(3), 414 Ben Saul (2016) Indigenous peoples and human rights: international and regional jurisprudence (Hart Publishing), p 54 Catherine J. Iorns (1992) Indigenous peoples and selfdetermination: challenging state sovereignty. Case Western Res J Int Law 24(2), 251 Catherine J Iorns Magallanes (1999) International human rights and their impact on domestic law on indigenous peoples’ rights in Australia, Canada, and New Zealand, in Paul Havemann (ed), Indigenous Peoples’ Rights in Australia, Canada & New Zealand (Oxford University Press), p 235 Charles Cheney Hyde (1922) International law chiefly as interpreted and applied by the United States (Little Brown), p 165

References Charles Henry Alexandrowicz (1973) The EuropeanAfrican confrontation: a study in treaty making (A.W. Sijthoff), p 6 Charles Lawson (2012) Regulating genetic resources: access and benefit sharing in international law (Edward Elgar), p 240 Christian Tomuschat (2014) Human rights: between idealism and realism (Oxford University Press), p 136 Cindy L. Holder, Jeff J. Corntassel (2002) Indigenous peoples and multicultural citizenship: bridging collective and individual rights’. Human Rights Quart. 24 (1), 127 Colin Samson (2017) Indigenous peoples and colonialism: global perspectives (Polity Press), p 148 Daniel F. Robinson (2010) Confronting biopiracy: challenges, cases and international debates (Earthscan), p 3 Daniel J. Gervais (2005) Traditional knowledge & intellectual property: a TRIPS-compatible approach’. Michigan State Law Review, 138 Daniel Philpott (2020) Sovereignty, in Edward N Zalta (ed) The Stanford encyclopedia of philosophy (Stanford University) Dee Brown (1971) Bury my heart at wounded knee: an Indian history of the American west (Holt Rinehart & Winston), p 1 Drankier P et al (2012) Marine genetic resources in areas beyond national jurisdiction: access and benefitsharing. Int J Marine Coastal Law 27(2):375 Elisa Morgera, Matthias Buck, Elsa Tsioumani (eds) (2012) The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges (Brill Nijhoff), p 83 Elisa Morgera (2015) Fair and equitable benefit-sharing at the cross-roads of the human right to science and international biodiversity law. Laws 4(4), 803 Elisa Morgera, Elsa Tsioumani, Matthias Buck (2014) Unraveling the Nagoya protocol: a commentary on the nagoya protocol on access and benefit-sharing to the convention on biological diversity (Brill), p 2 Elisa Morgera (2013) No need to reinvent the wheel for a human rights-based approach to tackling climate change: the contribution of international biodiversity law, in Erkki J Hollo, Kati Kulovesi, Michael Mehling (eds) Climate change and the law (Springer Netherlands), p 359 Elisa Morgera (2019) Under the radar: fair and equitable benefit-sharing and the human rights of indigenous peoples and local communities related to natural resources. Int J Human Rights 23(7), 2 Frédéric Mégret (2018) Nature of obligations, in Daniel Moeckli, others (eds) International human rights law (Third edn, Oxford University Press), p 97 Fred Nelson (ed) (2010) Community rights, conservation and contested land-the politics of natural resource governance in Africa (Earthscan), Gilbert (n 45), p 34 Francisco de Vitoria (1991) On the law of war, in Anthony Pagden, Jeremy Lawrance (eds), Political Writings (Cambridge University Press), p 293

17 Gregory Younging (2018) Elements of indigenous style: a guide for writing by and about indigenous peoples (Brush Education), p 50 Gillette H Hall, Harry A Patrinos (2012) Introduction, in Gillette H Hall, Harry A Patrinos (eds) Indigenous peoples, poverty and development (Cambridge University Press), p 2 Human Rights Council (2007) Human rights and international solidarity (7 February) UN Doc A/HRC/4/8 pp 41–45 IWGIA (2021) The indigenous world 2021 (IWGIA), p 6 Jacob Katz Cogan (2011) The regulatory turn in international law. Harvard Inter Law J 52(2), 324 James Anaya S (2004) Indigenous peoples in international law (Second edn, Oxford University Press), p 12 James Anaya, James E Rogers (2009) International human rights and indigenous peoples (Aspen Publishers). Kingsbury 15(n 75), 414 Jérémie Gilbert (2018) Natural resources and human rights: an appraisal (First edn, Oxford University Press), p 179 Jef Rens (1964) The development of the andean Indian programme and its future. Ekistics 18(104), 29 Jessica Campese, others (eds) (2009) Rights-based approaches: exploring issues and opportunities for conservation (CIFOR and IUCN), p 47 Johanna Gibson (2016) Community resources: intellectual property, international trade, and protection of traditional knowledge (Routledge), p 127 Jo M. Pasqualucci (2006) The evolution of international indigenous rights in the inter-American human rights system. Human Rights Law Rev 6(2), 281 John Westlake (1894) Chapters on the principles of international law (Cambridge University Press), p 143 Julian Burger (1987) Report from the frontier: the state of the world's indigenous peoples (Zed), p 36 Julian Burger (1990) The Gaia Atlas of first peoples: a future for the indigenous world (Robertson McCarta), p 180 Karen Engle (2010) The elusive promise of indigenous development: rights, culture, strategy (Duke University Press), p 141 Kat Anderson M (2005) Tending the wild: native American knowledge and the management of California’s natural resources (First edn, University of California Press), p 309 Kerry Ten Kate, Sarah A. Laird (2002) The commercial use of biodiversity: access to genetic resources and benefit-sharing (Earthscan), p 1 Kenneth Coates (2004) A global history of indigenous peoples: struggle and survival (Palgrave Macmillan), p 18 Lassa Oppenheim (1926) International law: a treatise (Fourth edn, Longmans, Green and Co.), p 32 Laladhas KP, Preetha Nilayangode, Oommen V Oommen (eds) (2017) Biodiversity for sustainable development (Springer), p 165 Lj Gorenflo, others (2012) Co-occurrence of linguistic and biological diversity in biodiversity hotspots and

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The Nagoya Protocol and International Human Rights Law

high biodiversity wilderness areas. Proc Nat Acad Sci US Am 109(21) Linda Wallbott, Franziska Wolff, Justyna Pozarowska (2014) The negotiations of the Nagoya protocol: issues, coalitions and process, in Sebastian Oberthür, Kristin Rosendal G (eds) Global governance of genetic resources: access and benefit sharing after the nagoya protocol (Routledge), p 33 Luisa Maffi (2005) Linguistic, cultural and biological diversity. Annual Rev Anthropol 34 Luis Rodríguez-Piñero (2005) Indigenous peoples, postcolonialism, and international law: the ILO regime (1919–1989) (Oxford University Press), p 215 Mariagrazia Alabrese, others (eds) (2022) The United Nations’ declaration on Peasants' rights (Routledge) Mattias Åhrén (2016) Indigenous peoples' status in the international legal system (First edn, Oxford University Press) Maurizio Ragazzi (2000) The concept of international obligations Erga Omnes (Oxford University Press), p 1 Manuel Ruiz, Ronnie Vernooy (eds) (2012) The custodians of biodiversity: sharing access and benefits to genetic resources (Earthscan) Mgbeoji Ikechi (2005) Global biopiracy: patents, plants, and indigenous knowledge (UBC Press), p 119 Miguel A Altieri (2004) Linking ecologists and traditional farmers in the search for sustainable agriculture. Front Ecol Environ 2, 35 Morten W Tvedt, Tomme R Young (2007) Beyond access: exploring implementation of the fair and equitable sharing commitment in the CBD (IUCN), p 1 National Geographic Society (2022) Resource library of national geographic society (National Geographic Society). https://education.nationalgeographic.org/resource/ first-contact-americas. Accessed 08/07/2022 Nico Schrijver (1997) Sovereignty over natural resources: balancing rights and duties (Cambridge University Press), p 368 Paul Havemann (ed) (1999) Indigenous peoples' rights in Australia, Canada & New Zealand (Oxford University Press) Patricia W Birnie, Alan E Boyle, Catherine Redgwell (2009) International law and the environment (Third edn, Oxford University Press), p 192 Pentassuglia G (2002) Minorities in international law: an introductory study (Council of Europe Pub.), p 23 Philip Alston (1982) A third generation of solidarity rights: progressive development or obfuscation of international human rights law? Netherlands Int Law Rev 29(3), 307 Quincy Wright (1949) Relationship between different categories of human rights’ in UNESCO, Human Rights: Comments and Interpretations (A. Wingate), p 147

Rachel Sieder (ed) (2002) Multiculturalism in Latin America: indigenous rights, diversity and democracy (Palgrave Macmillan), p 1 Rhiannon Morgan (2011) Transforming law and institution: indigenous peoples, the united nations and human rights (Ashgate), p 117 Richard Evans Schultes (1989) Reasons for ethnobotanical conservation, in Robert E Johannes (ed) Traditional ecological knowledge: a collection of essays (IUCN), p 31 Russel Lawrence Barsh (1994) Indigenous peoples in the 1990s: from object to subject of international law? Harvard Human Rights J 7, 33 Rhona K. M. Smith (2018) International human rights law (Eighth edn, Oxford University Press), p 69 Rodolfo Stavenhagen (2004) Indigenous peoples in comparative perspective (United Nations Development Programme), p 1 Sarah A. Laird, Rachel P. Wynberg (2012) CBD Factsheet’ (CBD, 2012), p 1. https://www.cbd.int/abs/doc/ protocol/factsheets/policy/ABSFactSheets-Overviewweb.pdf. Accessed 14/03/2019 Siegfried Wiessner (1999) Rights and status of indigenous peoples: a global comparative and international legal analysis. Harvard Human Rights J 12, 98 Stephen P. Marks (1981) Emerging human rights: a new generation for the 1980s? Rutgers Law Rev 33(2), 441 Steve Allen, Alexandra Xanthaki (eds) (2011) Reflections on the UN declaration on the rights of indigenous peoples (Hart) Stefan Kadelbach (2005) Jus Cogens, Obligations Erga Omnes, Other Rules—the Identification of Fundamental Norms’ in Christian Tomuschat and Jean-Marc Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Brill), p 21 Thomas Greiber, others (2012) An explanatory guide to the Nagoya protocol on access and benefit-sharing (IUCN), p 83 Tomme R. Young (2013) An international cooperation perspective on the implementation of the nagoya protocol’ in Elisa Morgera, Matthias Buck and Elsa Tsioumani (eds) The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges (Brill Nijhoff), p 457 UNEP (2007) 10 things to know about Indigenous peoples (29 July 2021) UNPFII, Who are Indigenous peoples? (UN PFII, 21 October), p 1 Will Kymlicka (1995) Multicultural citizenship: a liberal theory of minority rights (Clarendon), p 7 Will Kymlicka (2007) Multicultural Odysseys: navigating the new international politics of diversity (Oxford University Press), p 27

2

Mutual Supportiveness and the Complementarity Thesis

Chapter 1 depicts the general relationship between the Nagoya Protocol and the human rights law while highlighting the role of IPLCs. It shows that these two branches of international law are interconnected, both as a matter of fact and as a matter of legal and normative designs. A theoretical framework thus becomes crucial for assessing this interconnectedness and eventually, demonstrates scope and content of the proposed complementarity thesis between the Nagoya Protocol and the human rights law. This chapter aims to define the theoretical framework and the prisms through which their interaction is studied. The famous discourse about the fragmentation of international law is first unpacked to provide the normative background (Sect. 2.1). Two relevant principles, namely, the principles of systemic integration (Sect. 2.2) and mutual supportiveness (Sect. 2.3), are then discussed in turn to demonstrate their implications in the processes of treaty interpretation, law-making and treaty implementation. In this chapter, the principle of mutual supportiveness is introduced as an important theoretical architecture within which the strengths and limitations of the complementarity thesis can be construed via multiple dimensions. The specific questions that guide the investigation are provided at the end (Sect. 2.4).

2.1

The Fragmentation of International Law and the VCLT Article 31(3)(C)

After the Second World War, the process and the work of international law-making witnessed a rapid and substantial expansion and growth.1 Treaties that were mostly bilateral and addressing issues of diplomatic relations and trade, have become multilateral and regulating a wide range of subjects from environment, health to human rights.2 This transforming process has resulted in a significant proliferation of international norms and an increasing concern about the fragmentation of international law.3 Admits the theoretical debate about the fragmentation of international law, international legal scholars have also considered its practical implications in dealing with specific conflicts between different branches of international law, for instance, biodiversity law, climate change and trade law.4 An overarching theme in this body of literature is how to address real and potential conflicts between different sets

1

Brierly (1981, 58). Shelton (2014, 139). 3 See generally, Pauwelyn (2003), Abi-Saab (1999, 919), Koskenniemi and Leino (2002, 554). 4 Van Asselt et al. (2008, 423). 2

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_2

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of norms while safeguarding the integrity and coherence of the international legal system.5 One way to address this concern about fragmentation is through treaty interpretation, particularly through the rules on treaty interpretation as enshrined in Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties (VCLT).6 Adopted in 1969 and entered into force in 1980, the VCLT deals with essential issues about treaty such as what is a treaty, how it is made, brought into force, amended, terminated and how it operates; therefore, is often referred to as the “treaty on treaties”.7 The Vienna rules cover general and supplementary means of interpretation,8 as well as interpretation of treaties authenticated in two or more languages of interrelation.9 Specifically, Articles 31 and 32 provide an inclusive approach to treaty interpretation, emphasising on both the “ordinary meaning” of the treaty terms and the importance of its “object and purpose”; it respects the consent of the parties and meanwhile requires interpretation in good faith—these rules are now widely recognised as reflecting customary international law.10 In addition to the VCLT, there are also the so-called conflict resolution principles, established in the long-standing legal scholarship and accepted by the most legal systems, to deal

with normative conflicts arising from fragmentation, including: (a) lex specialis (with respect to the specificity of international norms); (b) lex posterior (with respect to the temporality of international norms); (c) lex superior (with respect to the status of international norms).11 As concluded by Martii Koskenniemi—as the chairman of the Study Group of the International Law Commission (ILC)—in the famous 2006 Report on the Fragmentation of International Law (ILC Report on Fragmentation), these legal techniques are “perfectly capable” of resolving normative conflicts or overlaps if the most relevant aspect can be determined in each case, that is, whether it is a problem of specificity, temporality or priority.12 The reality, however, often shows that normative conflicts and interpretation do not follow a one-way linear continuum but instead a circular one, that not only ascertained conflicts demands subsequent interpretation, but also “…rules appear to be compatible or in conflict as a result of interpretation”.13 To this end, Article 31(3) of the VCLT envisages a possibility that interpreters may read relevant norms through a systemic, compatible and mutually supportive light instead of a conflicting one. It does so in stating that, when interpreting a treaty, together with the context, there shall also be taken into account:

5 See, for instance, Doelle (2004, 75), Van Asselt, Sindico and Mehling (n 4) 423 and Oberthür and Pożarowska (2013, 100). 6 Vienna Convention on the Law of Treaties [adopted 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331. 7 Kearney and Dalton (1970, 495). 8 VCLT, Articles 31 and 32. 9 ibid Article 33. 10 Various international courts and tribunals have unwaveringly held that Articles 31–33 are customary international law, see, inter alia, Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) [12 November 1991] (ICJ) Rep 53 para 48, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [15 February 1995] (ICJ) Rep 112 para 33, Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) [3 February 1994] (ICJ) Rep 6 para 41, Case Concerning Oil Platforms (Iran v United States of America) [6 November 2003] (ICJ) Rep 803 para 23 and more cases see Dörr and Schmalenbach (2012, 523).

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.

In general, international legal scholars have agreed on the necessity of perceiving international law as “a normative system and a process”

International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L.682 paras 56–409. 12 ibid para 410. 13 ibid para 412. 11

2.2 The Principle of Systemic Integration

rather than as separated rules.14 In numerous cases, the International Court of Justice (ICJ) has also established that individual treaties are by no means mechanistic or static, but rather should “be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”.15 Article 31(3) enables interpreter to read treaty norms in light of subsequent agreement and practice of the parties, and further creates space for taking into consideration “any relevant rules of international law” in treaty interpretation, as long as they are “applicable in the relations between the parties”. In 2005, McLachlan suggested that Article 31(3)(c) codifies a general principle of “systemic integration”, which implies that the treaties that govern particular subject matter are all part of the international law system; therefore, must be “applied and interpreted against the background of the general principles of international law”.16 In 2006, the ILC Report on Fragmentation also concluded that Article 31(3)(c) and its potential uses have important implications in understanding the alleged problem of fragmentation, and that the principle of “systemic integration” constitutes an important mechanism in ensuring that international legal disputes are resolved in the broader context of international law.17 Thus, emerged from the discourse about the fragmentation of international law and based on the text of Article 31(3)(c) of the VCLT, the principle of system integration has become an important benchmark in addressing interactions between different branches of international law.

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2.2

The principle of systemic integration and the interpretation and application of Article 31(3)(c) of the VCLT have been receiving increasing attention from international legal scholars.18 The formulation of Article 31(3)(c), that “any relevant rules of international law applicable in the relations between the parties” shall be “taken into account”, however, appears general and inevitably unclear.19 What is the scope of the “international law”? What does it mean by “taking into account”? How to determine the relevant and applicable rules? The uncertainty around its meaning as well as the increasing expectation of systemic integration to address overlaps and conflicts between different treaties renders the principle an interesting status in both scholarly discourse and judicial practices. In fact, it has been applied and referred to in an expanding body of case laws by various tribunals in distinct manners and to different extents, for instance, human rights law,20 international trade law and investment law, especially when the disputes concern environmental purposes and obligations.21 The following paragraphs discuss some of the most relevant aspects of systemic integration by reference to several interpretative practices of international courts and tribunals. It shall be noted that the selected cases are by no means exhaustive but chosen on the basis of their relevance to the focus of this book. Within the World Trade Organization (WTO) system, there are three outstanding cases pertinent to the principle of systemic integration. The first is the 1998 US-Shrimp case, which 18

14

Higgins (1994, 8). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [21 June 1971] (ICJ) Rep 16 32–33 and Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [25 September 1997] (ICJ) Rep 7 68. 16 McLachlan (2005, 280). 17 International Law Commission (n 11) paras 410–460. 15

The Principle of Systemic Integration

For a thorough research on the principle of systemic integration and Article 31(3)(c) of the VCLT see Panos Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in Plato’s Cave (Brill Nijhoff 2015). Also see McLachlan (n 16) and Matz-Lück (2008, 39). Tzevelekos (2010, 624). 19 Merkouris (n 18) 18–22. 20 For instance, with respect to the human rights jurisprudence, see Tzevelekos (n 18) and Rachovitsa (2017, 557). 21 Pavoni (2010) and Viñuales (2012, 151).

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concerned a domestic measure adopted by the United States (US) for the purpose of protecting sea turtles from being caught as by-catch with traditional shrimp fishing technology.22 This domestic requirement influenced the importation of shrimp and shrimp products from countries including Malaysia, India, Pakistan, and Thailand, who then jointly filed suit within the WTO in opposition to the US import ban. As part of its defence, the US invoked the paragraphs (b) and (g) of Article XX of the General Agreement on Tariffs and Trade (GATT)23 to argue that the sea turtles, as an endangered species, are exhaustible natural resources that merit protection and conservation from all parties to the dispute.24 Thus, a key concept merits clarification is the term “exhaustible natural resources” in Article XX(g). To this end, the WTO Appellate Body (AB) cited expansively on multilateral environmental treaties (MEAs) to clarify the meaning and scope of “exhaustible natural resources” based on the recognition that this generic term is by dentition “evolutionary” rather than “static”.25 After consulting the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the CBD, Agenda 21, and the Convention on the Conservation of Migratory Species of Wild Animals, the AB 22

United States—Import Prohibition of Certain Shrimp and Shrimp Products [1998] (WTO Panel) WT/DS58/R. 23 Article XX of the GATT sets out the general exceptions from obligations under other provisions in the GATT, provided that ‘such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguized restriction on international trade’, which include: (b) necessary to protect human, animal or plant life or health; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. General Agreement on Tariffs and Trade [adopted 30 October 1947, entered into force 1 January 1948], Article XX. 24 United States—Import Prohibition of Certain Shrimp and Shrimp Products (n 22) para 3.145. 25 United States—Import Prohibition of Certain Shrimp and Shrimp Products [12 October 1998] (WTO Appellate Body) WT/DS58/AB/R para 130.

eventually concluded that sea turtles are indeed “exhaustible natural resources” for purposes of Article XX(g) of the GATT 1994, as the general meaning of this term is widely established in international environmental law.26 It is true that the AB at the end upheld the Panel’ decision in concluding that the US unilateral shrimp ban is not in conformity with the chapeau of Article XX and discriminatory in nature.27 However, the explicit reference to a broad range of non-WTO sources of international law in this case has been widely appraised as holistic and evolutionary, which shed light on how an systemic interpretative approach may contribute to the balance and reconciliation between trade and environment in light of contemporary concerns of the protection and conservation of the nature.28 The second relevant WTO decision is the 2006 Panel Report in the EC-Biotech case, which provides a contrast to the US-Shrimp case with a rather restrictive understanding of Article 31 (3)(c).29 The case concerned a moratorium applied by the EC (European Communities, now the EU) and its member states on the approval of biotech products, which has influenced imports of agricultural and food products from the US. In this case, the EC argued that the legal issues concerning the authorisation and international trade of genetically modified organisms (GMOs) are not regulated exclusively by the WTO rules, but also other relevant rules, in particular those included in the CBD and the 2000 Cartagena Protocol on Biosafety,30 suggesting that the Panel is bound to follow the interpretative approach set forth in US–Shrimp.31 The Panel 26

ibid paras 130–134. United States—Import Prohibition of Certain Shrimp and Shrimp Products (n 22) paras 7.31–7.62. ibid 186. 28 See Panizzon (2006, 255); Pavoni (n 21) 663–665. And Bernasconi-Osterwalder (2007, 3). 29 European Communities—Approval and Marketing of Biotech Products [29 September 2006] (DSR) WT/ DS291/R; WT/DS292/R; WT/DS292/R. 30 Cartagena Protocol on Biosafety [adopted 29 January 2000, entered into force 11 September 2003] CBD EXCOP 1 Decision EM-I/3. 31 European Communities—Approval and Marketing of Biotech Products (n 29) paras 7.49–7.54. 27

2.2 The Principle of Systemic Integration

noted the decision of the US-Shrimp case and stated that, pursuant to Article 31(3)(c) of the VCLT, the general principles of international law are to be taken into account in interpreting the WTO provisions.32 The questions, then, are to determine: (A) whether the precautionary principle as enshrined in the Cartagena Protocol is a general principle of international law (hence a “rule of international law” within the meaning of Article 31(3)(c)), and (B) whether those rules of international law are “applicable in the relations between the parties” in accordance with Article 31(3)(c). Eventually, the Panel found itself not obliged to take the CBD or the Cartagena Protocol into account when interpreting WTO rules since neither of the extraneous treaties was ratified by all the parties to the WTO agreement, or by any of the complaining parties of that matter.33 It further concluded that since the legal status of the precautionary principle remains unsettled, and in addition to take a position on whether or not the precautionary principle is a recognised principle of general or customary international law is not necessary, the Panel refrained to provide more analysis on the issue.34 In comparison with the US-Shrimp case, this decision has been condemned by scholars as “an oversimplification of the complex, sophisticated and nuanced reasoning” followed by the AB in US-Shrimp and itself is not correct.35 The third case concerns a suit filed by the US against China with respect to several Chinese restrictive measures on exporting various forms of raw materials from China in 2009, including bauxite, fluorspar, magnesium, zinc, etc. The US alleged that China’s restrain on the exports in question violated several GATT provisions as well as China’s Accession Protocol to the WTO. As part of its defence, China invoked Article XX

23

(g) of the GATT to justify its export restrictions base on the international principle of permanent sovereignty over natural resources.36 In the decisions, both the Panel and later the AB considered that China could not rely on Article XX to justify a breach of its Protocol of Accession because the relevant paragraphs in the Protocol did not explicitly allow such an reference,37 but they nevertheless discussed the availability of Article XX arguendo, especially in connection with the concept of “conservation of exhaustible natural resources”.38 In its report, citing the ECBiotech, the Panel did not eschew from recognising the requirement of Article 31(3)(c) of the VCLT that “any relevant rules of international law applicable in the relations between the parties” should be taken into account together with the context.39 The Panel further confirmed that, in accordance with Article 31(3)(c), “a proper reading” of Article XX(g) should “take into account the challenge of using and managing resources in a sustainable manner that ensures the protection and conservation of the environment while promoting economic development”.40 It then went further to suggest that different policy objectives, including environmental protection and economic development, cannot be viewed in isolation as they are “related facets of an integrated whole”, and indeed, can “operate in harmony”.41 Based on this expressive endorsement of systemic integration, the Panel did not find it difficult to consider the principle of state sovereignty over natural resources as a general principle of international law, when understanding China’s rights and duties under the WTO.42 These three cases demonstrate that the endorsement of the principle of systemic integration as embedded in Article 31(3)(c) of the 36

32

ibid para 7.67. The CBD was by the time ratified by the EC, Argentina, and Canada; and signed by the United States (without ratification). The Cartagena Protocol was by the time ratified by the EC and signed by Argentina and Canada (without ratification). ibid paras 7.65–7.72. 34 ibid paras 7.76–7.89. 35 See for example, Pavoni (n 21), McGrady (2008) and Young (2007). 33

China—Measures related to the Exportation of Various Raw Materials [5 July 2011] (WTO Panel) WT/DS394/R WT/DS395/R WT/DS398/R para 7.364. 37 ibid paras 7.110–7.148. 38 ibid para 7.230. 39 ibid para 7.377. 40 ibid para 7.375. 41 ibid paras 7.376 and 7.381. 42 The Panel cited the Preamble of the CBD, ibid paras 7.380–7.386. Dupuy and Viñuales (2018, 476).

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VCLT is often explicit in the WTO system, but the extent to which it has been applied is not always consistent. The interpretation of several key elements of Article 31(3)(c) seem to be crucial in applying systemic integration in specific context, including the understandings of what constitutes “relevant rules of international law” and who the “parties” are. For instance, the precautionary principle was not seriously considered by the Panel in EC-Biotech but the principle of state sovereignty over natural resources was recognised without hesitation in China-Raw Material.43 To this end, defining what are the “relevant rules” is crucial. The ordinary meaning of “relevant rules” of international law refers to those touching on the same subject matter as the treaty provision or interpreted provisions or which in any way affect that interpretation.44 In light of the principle of systemic integration, McNair has argued that since all the rules are part of the international legal system, they are all relevant to the background of international law albeit limited in their respective scope and subject matters.45 This approach of interpretation manifests in the separate opinion of Judge Higgins on Oil Platforms case, in which Article 31(3)(c) provides a legal basis for bridging a bilateral treaty governing Iran-US relations and the principles of customary international law that are considered as “relevant rules”.46 It can also be found in Loizidou v Turkey, in which the European Court of Human Rights stated that “the principles underlying the Convention cannot be interpreted and applied in a vacuum… it must also take into account any relevant rules of international law”.47 43 The Panel cited the Preamble of the CBD, China— Measures related to the Exportation of Various Raw Materials (n 36) paras 7.380–7.386. Dupuy and Viñuales (n 42) 476. 44 Gardiner (2015, 299). 45 McNair (1961, 466). 46 Case Concerning Oil Platforms (Separate Opinion of Judge Higgins) [6 November 2003] (ICJ) Rep 803 para 46. 47 Loizidou v Turkey (Judgment on the Merits) [18 December 1996] (European Court of Human Rights) 23 EHRR 513 43. Similar analysis can also be seen in several other cases, including, Al-Adsani v The United Kingdom

With respect to the term “parties” in Article 31(3)(c), the problem is to apply this concept in a multilateral context: whether it refers to just those of parties to the same treaty who have a dispute, or a group of parties who have established some other international agreements among themselves, or whether the reference is to all parties to the treaty which is being invoked to provide applicable rules. On this issue, McLachlan has articulated four different ways in which the term “parties” can be constructed: (A) that all parties to the interpreted treaty should be parties to the treaty relied upon, (B) that reference to another treaty should be permitted if all parties to the dispute are also parties to the other treaty, (C) that if a treaty is not in force among all members of the treaty under interpretation, it can only be considered if the rule contained therein is customary international law, and (D) that an intermediate test is required, not based on a complete identity of parties, but on an evaluation that the other rules relied upon can reasonably be considered to express the common intentions or at least a common understanding of all the parties.48 The above WTO cases indicate the application of these options and their respective outcome. The AB in US-Shrimp interpreted the concerned provisions in the GATT considering several environmental treaties, including the UNCLOS, the CBD and the CITES, to which some of parties to the WTO dispute are not parties (Option D). In contrast, the Panel in ECBiotech applied the strictest Option A and reckoned that since neither of the extraneous treaties the EC had referred to was ratified by all parties to the WTO agreement, the rules derived from the extraneous treaty do not apply in the case concerned. Scholars in general are sceptical about the EC-Biotech approach as it does not seem to reflect the true meaning of Article 31

[21 November 2001] (European Court of Human Rights) 34 EHRR 11 paras 55–56, Fogarty v. the United Kingdom [21 November 2001] (European Court of Human Rights) 34 EHRR 12 paras 35–36 and McElhinney v Ireland [21 November 2001] (European Court of Human Rights) 34 EHRR 13 paras 36–37. 48 McLachlan (n 16) 314.

2.3 The Principle of Mutual Supportiveness …

(3)(c),49 nor would its application practically reckon other multilateral treaties as interpretative aids.50 Instead, it is the more inclusive approaches articulated by McLachlan that has been generally supported by scholars, including Pauwelyn and Young.51 Having said that, the principle of systemic integration as an interpretative guidance is not without controversies. The result of the above WTO cases shows that the effort of integrating environmental considerations into the international trade framework cannot be described as successful yet—as matter of fact, none of the trade-related considerations have been overridden in any of the cases. With respect to human rights, it has also been argued that the establishment of “an equilibrium” between the European Convention of Human Rights (ECHR) and “the logic and economy of the international legal system” is a very difficult task.52 In his 2010 analysis, Tzevelekos went on to conclude that at least within the ECHR framework, the extent to which systemic integration could help to address the issue about fragmentation is highly debatable.53 From a consequentialist perspective, Rachovitsa also warned that systemic integration does not necessarily yield the results that are hoped for, but may instead create more problematic scenarios, for instance, unwarranted jurisdictional powers attributed to international courts and eventually “a poorer and less diverse international law”.54 Overall, the principle of systemic integration as enshrined in Article 31(3)(c) of the VCLT enables interpreters to read treaty norms in light of relevant sources stemming from both general and special international law in a broad and integrated framework. These relevant sources, as noted by the ILC Report on Fragmentation, may include other relevant treaties, customary law, and general principles of international law.55 The 49 50 51 52 53 54 55

McGrady (n 35) 590 and Merkouris (n 18) 293–296. International Law Commission (n 11) para 450. Pauwelyn (n 3) 257 and Young (n 35) 914. Tzevelekos (n 18) 623. ibid 627. Rachovitsa (n 20) 557. International Law Commission (n 11) paras 462–472.

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exact ways in which systemic integration may be applied in legal reasoning appear divergent in judicial practice and its function vis-à-vis fragmentation remains controversial. All these aspects bear particular importance with respect to the factual and legal interconnectedness between the Nagoya Protocol and human rights law. For instance, the Preamble of the Nagoya Protocol explicitly notes the United Nations Declaration on the Rights of Indigenous Peoples, and states that “nothing in this Protocol shall be construed as diminishing or extinguishing the existing rights of indigenous and local communities”.56 A possible interpretation thus is that these existing rights also include the established human rights of IPLCs, and all state parties to multilateral human rights treaties shall bear in mind their human rights obligations owed to IPLCs when interpreting and implementing the Nagoya Protocol at both international and national levels. The following chapters will unpack the implications of systemic integration in understanding the interaction of the Nagoya Protocol and the human rights law in detail.

2.3

The Principle of Mutual Supportiveness and Its Multiple Dimensions

2.3.1 The Emergence of Mutual Supportiveness Against the background of fragmentation of international law and the discussion about its systemic integration, the principle of mutual supportiveness emerged at the crossroads where pursuits and conflicts of international economic development and environmental protection have become prominent. It connects closely with the principle of systemic integration, specifically as an objective of systemic integration.57 However, 56

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1, pmbl. 57 Matz-Lück (2012, 218). McDonald (2007, 530).

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2 Mutual Supportiveness and the Complementarity Thesis

as will be discussed, the principle of mutual supportiveness exceeds the mere scope of treaty interpretation to also bear legal implications on international law-making and the implementation process of international law. In other words, mutual supportiveness has multiple dimensions in which the complexity and connectedness of the interaction between different branches of international law, especially those concern environmental protection and human rights, can be better reflected and addressed. The emergence of mutual supportiveness in international law can be traced back to the Agenda 21—the key document adopted by the UN Conference on Environment and Development in 1992, which states that economic growth and environmental protection must be “mutually supportive” in order to achieve sustainable development at international and domestic levels.58 Over the past three decades, mutual supportiveness has been incorporated in a number of international instruments in order to elaborate the connection between international laws regulating different issues from a synergistic rather than a conflicting perspective. For instance, mutual supportiveness was established in a normative form in the Preamble of the 1998 Rotterdam Convention on Prior Informed Consent in light of the goal of sustainable development.59 Same formula has also been adopted in the 2000 Cartagena Protocol on Biosafety and the 2001 International Treaty on Plant genetic resources for Food and Agriculture (ITPGRFA), both stressing the idea that the relationship between the concerned treaty and other international agreements should be mutually supportive “with a view to achieving sustainable development”.60 Furthermore, mutual supportiveness is 58

Agenda 21: Programme of Action for Sustainable Development [14 June 1992] UN Doc A/CONF.151/26 vol.II, paras 2.9 2.10 2.19 2.21 14.11 21.6 and 33.6. 59 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade [adopted 10 September 1998, entered into force 24 February 2004] 2244 UNTS 337. 60 The Parties to the Cartagena Protocol recognised that “trade and environment agreements should be mutually supportive with a view to achieving sustainable

included in the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions as an operative clause regulating its relationship with other treaties.61 Specifically, based on the principle of good faith, the Parties to the 2005 Convention agreed in general terms that “they shall foster mutual supportiveness between this Convention and the other treaties”, “when interpreting and applying the other treaties…or entering into other international obligations”.62 Here, mutually supportiveness started to imply concrete responsibility of state parties as they fulfil their pledged promises not only within the 2005 Convention but also outside it. Similarly, as Article 4 of the Nagoya Protocol establishes the relationship between the Protocol and other international agreements and instruments, it provides in paragraph 3 that “(t)his Protocol shall be implemented in a mutually supportive manner with other international instruments relevant to this Protocol”.63 Thus, it has become clear that in newer treaties, mutual supportiveness has transformed from a general policy objective to a specific treaty obligation.64 Based on the development in international treaty law and relevant WTO case laws, Pavoni observed in 2010 that the legal implications of the principle of mutual supportiveness are characterised by two dimensions, namely, an development”, see Cartagena Protocol, pmbl. The Parties to the ITPGRFA recognised that “this Treaty and other international agreements relevant to this Treaty should be mutually supportive with a view to sustainable agriculture and food security”, see International Treaty on Plant Genetic Resources for Food and Agriculture [adopted 3 November 2001, entered into force 29 June 2004] 2400 UNTS 303, pmbl. 61 Convention on the Protection and Promotion of the Diversity of Cultural Expressions [adopted 20 October 2005, entered into force18 March 2007] 2440 UNTS 311, Article 20. 62 ibid. 63 Nagoya Protocol, Article 4. 64 See, inter alia, Pavoni (n 21) McDonald (n 57), MatzLück, ‘Harmonization, Systemic Integration and ‘Mutual Supportiveness’ as Conflict-Solution Techniques’ (n 18) and Elisa Morgera, ‘Ambition, Complexity and Legitimacy of Pursuing Mutual Supportiveness through the EU’s External Environmental Action’ in Bart et al. (eds) (2013).

2.3 The Principle of Mutual Supportiveness …

interpretative dimension and a law-making dimension.65 In scholarly discussion, the first dimension of mutual supportive is akin to the principle of systemic integration, as discussed above, in the sense that they both require international norms to be understood as reinforcing each other with a view to fostering harmonisation and complementarity.66 The second dimension of mutual supportiveness, as is the focus of the following section, is a law-making dimension which emphases on states’ duty to cooperate in good faith to facilitate law-making processes in a systematic manner.67

2.3.2 The Dimension of International Law-Making International negotiations and treaty-making processes with respect to ABS make a strong example of the principle of mutual supportiveness in law-making. While the CBD and its Nagoya Protocol provide an overarching ABS framework of genetic resources, plant genetic resources for food and agriculture are considered separately under the auspices of the FAO by the ITPGRFA. Similarly, marine genetic resources are addressed under the framework of the UNCLOS. Tracing the trajectory of developments under these important treaties would reveal the significant role played by the principle of mutual supportiveness, especially considering that being part and parcel of the international legal system, international environmental law is one of the most rapidly evolving areas that even triggered concerns about the coherence and consistency of and in itself.68 With respect to plant genetic resources, the precedent of the IPFRFA—the Undertaking on Plant Genetic Resources of 1983—has established a cosmopolitan model of “common 65

Pavoni (n 21) 655. ibid, Matz-Lück, ‘Harmonization, Systemic Integration and ‘Mutual Supportiveness’ as Conflict-Solution Techniques’ (n 18) 39 and McDonald (n 57) 530. 67 Pavoni (n 21) 655. 68 Bodansky (2011, 35). 66

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heritage”, suggesting that these resources are “freely available for use, for the benefit of present and future generations”.69 This free-access model apparently conflicts with the 1992 CBD principle that centralises states’ sovereign rights over their natural resources,70 while the continuous application of the former would have undermined the ABS requirements between the user and provider countries of genetic resources.71 Acknowledging this normative challenge, the FAO Conference requested a revision of the International Undertaking “in harmony with” the CBD,72 which eventually led to the adoption of a brand-new treaty after several years of difficult negotiation— the IPGRFA. Adopted in 2001 and entered into force in 2004, the IPGRFA aims at the conservation and sustainable use of plant genetic resources for food and agricultural and the fair and equitable sharing of the benefits arising out of their use—an objective almost identical with the CBD—but with a sharpened focus on sustainable agriculture and food security.73 The IPGRFA also responded to the outstanding issues concerning plant genetic resources left out by the CBD, including access to ex situ collections not addressed by the CBD and the question of farmers’ rights, and established a novel multilateral system to facilitate access to plant genetic resources for food and agriculture and their benefit-sharing.74 It is quite significant that the IPGRFA has taken a very different multilateral approach in terms of ABS comparing to the CBD’s mostly bilateral approach to genetic resources, yet this difference was rather carefully

69 FAO, ‘The International Undertaking on Plant Genetic Resources’ (November 1983) Resolution 8/83. 70 Including biological resources and more specifically genetic resources, Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, Article 2. 71 For instance, the CBD has set up procedural requirements such as prior informed consent and mutually agreed terms to guide its Parties’ implementation on access and benefit-sharing provisions of the CBD. ibid Article 15(1). 72 FAO resolution 7/93. 73 International Treaty on Plant Genetic Resources for Food and Agriculture, Article 1(1). 74 For a detailed discussion, see David (2002).

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designed so it does not undermine the principles and provisions of the CBD.75 In particular, Article 10 of the IPGRFA states that the multilateral ABS system is agreed by the contracting parties “in the exercise of their sovereign rights” and further suggests that the system is to realise the treaty’s objectives on a “complementary and mutually reinforcing basis”.76 In the following decade, informed and influenced by the negotiation of the Nagoya Protocol, a few FAO experts working groups have been established to advice on ways to ensure that norms developed under FAO are mutually supportive to those under the CBD.77 FAO Conference also announced a range of resolutions and guiding instruments to facilitate the implementation of ABS-related rules.78 This harmonisation approach of two different international legal frameworks is explicitly stated in both Article 1(1) of the ITPGRFA and the Preamble of the Nagoya Protocol.79 According to Article 4 of the Nagoya Protocol, the ITPGRFA may in fact be considered as a “specialized international access and benefit-sharing agreement” supportive of its own objectives. This 75 See detailed discussion in Halewood and others (2013, 73). 76 Cooper has argued that this demonstrates a particular way of IPGRFA to apply Article 15(2) of the CBD. David (n 74) 5. 77 For instance, the Ad Hoc Technical Working Group on Access and Benefit-sharing for genetic resources for Food and Agriculture as established in 2011, which later replaced by the Team of Technical and Legal Experts on Access and Benefit-Sharing. 78 For instance, Resolution 18/2009, the Elements to Facilitate Domestic Implementation of Access and Benefit-sharing for Different Subsectors of genetic resources for Food and Agriculture (ABS Elements) in 2013 and the explanatory notes to complement the ABS Elements in 2017. 79 Article 1(1) of the ITPGRFA states: “The objectives of this Treaty are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.” Preamble of the Nagoya Protocol states: “Recalling the Multilateral System of Access and Benefit-sharing established under the International Treaty on Plant genetic resources for Food and Agriculture developed in harmony with the Convention”. Emphasis added.

process of mutually supportive law-making is strongly upheld by the institutional awareness and executive capacity especially from within the FAO framework. The dialogic approach between the FAO and the CBD also underlines the mutually supportive development of international norms under both frameworks. Another outstanding example is the ongoing law-making process under the UNCLOS concerning the development of an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement).80 After two years of intense preparation and negotiation, a draft instrument was released on 17 May 201981 and a further revised version on 27 November 2019.82 The drafts contain four main elements: (A) marine genetic resources, including questions on access and benefit-sharing; (B) measures such as area-based management tools, including marine protected areas; (C) environmental impact assessments; and (D) capacity building and the transfer of marine technology. This wide coverage of topics create necessity for the BBNJ Agreement to consider its relationship with existing regimes that might have overlapping subjects, which is addressed in Article 4 in both drafts. Specifically, when clarifying the relationship between the BBNJ Agreement and other relevant legal instruments, frameworks and bodies, the May draft provided that the Agreement shall be interpreted and applied in a manner that “does UNGA Res 72/249, ‘International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’ (19 January 2018) UN Doc A/RES/72/249. 81 Intergovernmental Conference under the UNCLOS on the BBNJ, ‘Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (17 May 2019) UN Doc A/CONF.232/2019/6. 82 Intergovernmental Conference under the UNCLOS on the BBNJ, ‘Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (18 November 2019) UN Doc A/CONF.232/2020/3. 80

2.3 The Principle of Mutual Supportiveness …

not undermine [existing] relevant legal instruments and frameworks and relevant global, regional and sectoral bodies, and that promotes coherence and coordination with those instruments, frameworks and bodies, provided that they are supportive of and do not run counter to the objectives of the Convention and this Agreement”.83 However, the explicit focus to promote “coherence” and “coordination” among different frameworks and bodies went absent in the November revision, unsettling the subtle balance between “not undermining” other relevant laws and bodies and creating a mutually supportive and comprehensive legal system.84 Similarly, when specifying the relationship between the BBNJ Agreement and the environmental impact assessment processes under other relevant frameworks, an originally included paragraph to require the Agreement to be “mutually supportive” with other relevant instruments and frameworks, “in order to achieve a coherent environmental impact assessment framework for activities in areas beyond national jurisdiction”85 has also been deleted in the November draft.86 It is worth pondering what might be the reason for the BBNJ negotiators to eschew from the text options that have explicit reference to the principle of mutual supportiveness. It also creates uncertainty as to whether, and/or to what extent, the BBNJ negotiations would be continued in a mutually supportive manner with the development of international law regulating relevant issues. The final example in this section concerns the normative development of rights associated with genetic resources and traditional knowledge and the IPRs gained based on the utilisation of these resources. Previously, patents were granted to both genetic resources (including gene sequences

29

and plant varieties) and novel discoveries of genetic resources based on traditional knowledge (such as new identification of the functional biochemical component from a traditional medicinal herb for pharmaceutical commercialisation). As discussed in Chap. 1, these kinds of activities have been criticised as “biopiracy” and are no longer acceptable in most of the world’s patent law jurisdictions after the enter inro force of the CBD and especially the Nagoya Protocol.87 As a result, the ABS development in the international environmental law has become an increasing concern under the IPRs framework. Reforming the international and domestic IPRs systems, so that they do not counter and/or undermine the legal principles and procedural requirement articulated under MEAs, have since been an important topic for legal and political discourse. For instance, the ongoing discussion under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) about ensuring the rules of the TRIPS Agreement and the CBD framework are mutually supportive has resulted in a new Article 29bis to integrate into the TRIPs Agreement.88 Stressing the need for the TRIPS Agreement and the CBD to be mutually supportive, Article 29bis sets out detailed obligations with respect to the disclosure of origin of genetic resources and/or associated traditional knowledge, for the purposes of “establishing a mutually supportive relationship” between the TRIPS Agreement and the CBD and its Nagoya Protocol.89 Admittedly, the official integration of Article 29bis still face considerable difficulties as this amendment represents largely the demands and aspirations of developing countries. Developed countries including EU are in general reluctant about the mandatory nature of the disclosure obligation and the possible sanctions that

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BBNJ (n 81) Article 4(3). De Lucia observed the balance unsettling effect in https://www.ejiltalk.org/a-very-quick-look-at-the-reviseddraft-text-of-the-new-agreement-on-marine-biodiversityin-areas-beyond-national-jurisdiction/. And for a detailed discussion about the ambiguity about the requirement of “not undermining”, see Scanlon (2017, 405). 85 BBNJ (n 81) Artcicle 23(2). Emphasis added. 86 BBNJ (n 82) Artcicle 23. 84

87

Robinson (2010). WTO, ‘Draft Decision to Enhance Mutual Supportiveness between the TRIPS Agreement and the Convention on Biological Diversity’ (19 April 2011) TN/C/W/59. 89 ibid 2. 88

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might be triggered by non-compliance.90 However, there is still possibility for this amendment to alter the obligations of the WTO members via a mutually supportive law-making process. Another related example concerns the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore under the World Intellectual Property Organization (WIPO), which is currently mandated to submit a draft instrument for the effective protection of genetic resources and associated traditional knowledge.91 This effort might result in another international instrument relevant to the Nagoya Protocol, to which the CBD parties have also been recommended to pay due regards to their negotiation positions with a view to supporting the mutual supportiveness between the Nagoya Protocol and these international instruments.92 Thus, using ABS as an anchor point, we can find that the law-making dimension of mutual supportiveness has underlined the negotiation processes under several international legal frameworks. The increasing attention on genetic resources and associated traditional knowledge for distinct purposes, including food security, biodiversity conservation, scientific advancement, or commercialisation, is connecting the concerns and interests of international negotiators in these different yet highly related fields. The principle of mutual supportiveness serves both as a means and an end in this regard. It helps and guides international law-making process into a direction where legal norms are in complementary relationship with one another as they are drafted, meanwhile this effort is likely to result in a much hoped-for character of harmonisation and coherence of international law as it evolves.

2.3.3 The Dimension of Treaty Implementation It is through the process of implementation that many agreed international norms could take concrete effects in both multilateral and domestic contexts.93 When clarifying its relationship with other international agreements, Article 4(3) of the Nagoya Protocol requires that “(t)his Protocol shall be implemented in a mutually supportive manner with other international instruments relevant to this Protocol”, thus imposing an affirmative obligation upon its parties about the manner in which the obligations contained in this treaty shall be implemented. This is a novel provision rarely seen in MEAs. Even more unusual, Article 4(3) continues to state “(d)ue regard should be paid to useful and relevant ongoing work or practices under such international instruments and relevant international organizations, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol”.94 With ambiguous terms such as “due regards” and “useful and relevant”, this provision seems to imply a consensus that the parties to the Nagoya Protocol shall consider their international obligations in a coherent light, so that when they implement the Nagoya rules, they also comply with their international obligations committed under other international frameworks.95 Regardless its ambiguity, the Conference of Parties serving as the meeting of Parties (COP-MOP) to the Nagoya Protocol have called upon parties and other governments to implement the Nagoya Protocol and other related treaties, for instance, the ITPGRFA, in a mutually supportive

93

90

Correa (2010, 6). Information available at http://www.wipo.int/tk/en/igc/, accessed at 31/10/21. 92 CBD Subsidiary Body on Implementation, ‘Study into Critera to Identify a Specialized International Access and Benefit-Sharing Instrument, and a Possible Process for its Recognition’ (29 May 2018) UN Doc CBD/SBI/2/INF/17 para 20. 91

For instance, Doelle discussed the importance of domestic implementation in ensuring coherence between international climate change law and other branches of international environmental law, see Doelle (n 5) 75. 94 Nagoya Protocol, Artcicle 4(3). 95 The over-generalised terminology, for instance, “useful” and “work”, may cause difficulty in pursuance of a clear interpretation to determine the benchmark for assessing the usefulness of ongoing work and practices in order for them to be taken into consideration in developing future rules. See Morgera et al. (2014, 89), Nijar (2013, 263).

2.3 The Principle of Mutual Supportiveness …

manner via a number of its decisions based on this requirement.96 As have been exemplified in the previous sections, from Agenda 21 to the Cartagena Protocol on Biosafety, mutual supportiveness often takes the form as in preambular paragraphs with a rather strong policy orientation, or as a saving clause that states the current agreement does not change a party’s rights and obligations under those earlier agreements.97 Apparently, not many other treaties have taken a different approach. There are only the Nagoya Protocol, as well as the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which also requires its parties to “foster mutual supportiveness between this Convention and the other treaties” when applying the other treaties.98 As a result, the implementation dimension of mutual supportiveness has not received much attention from the current scholarly literature. However, as will be demonstrated, abundant evidence exists in multiple contexts, indicating an increasing role of mutual supportiveness in treaty implementation especially considering the interactions between the CBD framework and international climate change law, human rights law, and international health law. In as early as 2000, the COP of the CBD has made initial reference to climate change in relation to biodiversity and requested the CBD Subsidiary Body on Scientific, Technical, and Technological Advice (SBSTTA) to provide scientific advice on how biodiversity considerations could be integrated into the implementation of the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol.99 Since then, the synergy and various ways NP MOP 2 Decision NP-2/1, ‘Review of Progress towards Aichi Biodiversity Target 16 on the Nagoya Protocol’ (13 December 2016) UN Doc CBD/NP/MOP/ DEC/2/1 para 3. 97 Safrin (2002, 619). 98 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Artcicle 20. 99 CBD COP Decision V/4, ‘Progress Report on the Implementation of the Programme of Work for Forest Biological Diversity’ (May 2000) UN Doc UNEP/CBD/ COP/DEC/V/4 paras 11 and 16–20. 96

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of interaction between biodiversity conservation and climate change became a popular topic for inter-governmental discussions as well as scholarly discourse.100 An outstanding example is the tenth CBD COP meeting held in Nagoya, Japan, in 2010. As a matter of fact, the CBD COP 10 produced fruitful outcome, including a wide range of in-depth reports and decisions about how the integration of biodiversity and climate change may be facilitated and realised in various ecosystems.101 Insofar as inter-governmental discussion is concerned, the CBD COP 10 represents a “significant rapprochement”.102 However, Morgera also warned that whether these decisions actually contribute to a mutually reinforcing implementation of biodiversity law and climate change law has to be assessed against state practices at national and local levels.103 Nevertheless, this heightened focus on the intricate relationship between the CBD and the UNFCCC has continued to influence the subsequent COP meetings and the discussion on implementation. It has led to the 2012 SBSTTA proposals on various integrating measures, in which the importance to ensure “coherence in national implementation” of both the UNFCCC and the CBD were reiterated.104 The CBD parties also agreed that in order to realise the large potential for synergies between the CBD objectives and the climate change goals, the CBD parties, other governments, and relevant organisations shall fully implement the CBD and the UNFCCC “in a coherent and mutually supportive 100

Jacquemont and Caparró (2002, 169), Van Asselt et al. (2011, 86) and Maljean-Dubois and Wemaëre (2017, 296). 101 Including, inter alia, inland waters, marine and coastal areas, mountain, dry and sub-humid land and forest, see https://www.cbd.int/meetings/COP-10. 102 Morgera, ‘Far Away, So Close: A Legal Analysis of the Increasing Interactions between the Convention on Biological Diversity and Climate Change Law’ (n 100) 86. 103 ibid 114. 104 Technical and Technological Advice CBD Subsidiary Body on Scientific, ‘Recommendation Adopted by the Subsidiary Body on Scientific, Technical and Technological Advice at Its Sixteenth Meeting’ (21 June 2012) UN Doc UNEP/CBD/SBSTTA/REC/XVI/8 para 2.

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way”.105 This line of narratives was carried into the more recent COP meetings, concreted in the form of the promotion of the “ecosystem-based approaches to climate change adaption” in 2018 in COP 14.106 Notably, the necessity and feasibility to address biodiversity loss and climate change in a coherent and mutually reinforcing manner have also been discussed extensively in the scientific community—an ambition which the global society must adopt in order to transfer global targets to local realities.107 Other examples of a mutually supportive implementation vis-à-vis the CBD include international health law, laws regulating trade in endangered species and the ITPGRFA. For instance, the ongoing crisis of the COVID-19 pandemic has raised alarm for health policymakers around the globe to consider how human health should be safeguarded systematically with the health of animals, plants and the ecosystems they live in.108 This approach—named “One Health” approach—has generated significant momentum at the UN level in recognising and promoting the synergistic and intertwined relationship between the health of human and the health of biodiversity.109 With respect to the endangered species, the CBD parties have CBD COP Decision XI/19, ‘Biodiversity and Climate Change Related Issues: Advice on the Application of Relevant Safeguards for Biodiversity With Regard to Policy Approaches and Positive Incentives on Issues Relating to Reducing Emissions From Deforestation and Forest Degradation in Developing Countries; and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries’ (5 December 2012) UN Doc UNEP/CBD/ COP/DEC/XI/19 para 6. 106 CBD COP Decision 14/5, ‘Biodiversity and Climate Change’ (30 November 2018) UN Doc CBD/COP/DEC/ 14/5. 107 See, for instance, Sandra Díaz and others, ‘Set Ambitious Goals for Biodiversity and Sustainability’ (2020) 370 (6515) Science, 411 and Pörtner and others (2021). 108 Zheng (2021a, b, 435). 109 United Nations Environment Assembly, ‘Resolution 3/4. Environment and Health’ (30 January 2018), it is also evident in the works of the Food and Agriculture Organization, the World Health Organization, and the World Organization for Animal Health. See World Health Organization and Secretariat of the Convention on 105

recognised the importance to tackle the balance and difference among subsistence uses, illegal hunting, and domestic and international trade of specimens of wild species and products, “in a mutually supportive manner with the Convention on International Trade in Endangered Species of Wild Fauna and Flora and other international obligations”.110 Similar concerns can also be identified in connection with the ITPFRFA with respect to implementing fair and equitable benefit sharing provisions in a mutually supportive manner.111 With respect to human rights, which is the focus of this book, some general trends in mutually supportive implementation can also be observed. In the aftermath of the entering into force of the Nagoya Protocol, which requires recognition and protection of the ABS rights of Indigenous and local communities with respect to their genetic resources and traditional knowledge, the CBD parties decided to implement its work “in an integrated manner that is mutually supportive of the Nagoya Protocol” in order to “fully guarantee the rights of indigenous and local communities over their knowledge, innovations and practices” in the context of CBD.112 To this end, a number of voluntary guidelines have been developed with the aim to assist parties and governments in this regard, including the 2011 Tkarihwaié:ri Code of Ethical Conduct that focuses on the concept and the protection of

Biological Diversity (ed) (2015) and The WHO Secretariat (2020, 25). 110 CBD COP Decision XII/12, ‘Article 8(j) and related Provisions’ (13 October 2014) UN Doc UNEP/CBD/ COP/DEC/XII/12 para D.1. CBD COP Decision XII/18, ‘Sustainable Use of Biodiversity: Bushmeat and Sustainable Wildlife Management’ (17 October 2014) UN Doc UNEP/CBD/COP/DEC/XII/18 para 9. 111 CBD COP Decision XIII/3, ‘Strategic Actions to Enhance the Implementation of the Strategic Plan for Biodiversity 2011–2020 and the Achievement of the Aichi Biodiversity Targets, Including With Respect to Mainstreaming and the Integration of Biodiversity Within and Across Sectors’ (16 December 2016) UN Doc CBD/COP/DEC/XIII/3 para 41. 112 XII/12 (n 110) para D.1.

2.4 Envisaging the Complementarity …

traditional knowledge,113 and the Mo’otz Kuxtal Voluntary Guidelines that focuses on procedural elements of fair and equitable benefit-sharing with ILCs.114 Admittedly, the fact that these instruments are not legally binding among parties make them “soft law” in nature. However, unanimously adopted by some 180 countries, these soft instruments have “a clear and indisputable authority” and provide “welcome evidence of an international will to tackle difficult issues that require a balance and compromise on all sides for the common good”.115 These instruments also bear practical importance as they provide essential and detailed rules and standards on implementing the Nagoya Protocol and the ABS provisions in the CBD to states. In scholarly discussion, there is an increasing focus on the necessity of perceiving biodiversity law and human rights law in an integrated manner, as well as the different ways in which this manner may be implemented at the international and national levels with respect to IPLCs, who are

33

often regarded as the guardians of the earth’s fast degrading biodiversity.116 To conclude, the principle of mutual supportiveness also has implications on treaty implementation, as it increasingly guides the policies, agendas, and works of many connected international legal fields, including climate change, global health, biodiversity conservation and human rights protection. The devil is in the details of the implementation process of treaty norms,117 and so is the great potential to address the challenges in a systemic and coherent way. Consulting the National Reports submitted to the CBD, we can find that some countries have already reported their national progresses towards this goal.118 Overall, practical evidence is needed if we are to assess its efficiency. However, this third and emerging dimension of mutual supportiveness points to a hopeful direction of tackling with the pressing challenges of our times in a holistic manner.

2.4 The word “Tkarihwaié:ri” is a Mohawk term meaning “the proper way”. CBD COP Decison X/42, ‘The Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local Communities’ (29 October 2010) UN Doc UNEP/CBD/COP/DEC/X/42. 114 CBD COP Decision XIII/18, ‘Mo’otz Kuxtal Voluntary Guidelines for the Development of Mechanisms, Legislation or other Appropriate Initiatives to Ensure the “Prior and Informed Consent”, “Free, Prior and Informed Consent” or “Approval and Involvement”, depending on National Circumstances, of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits arising from the Use of their Knowledge, Innovations and Practices relevant for the Conservation and Sustainable use of Biological Diversity, and for Reporting and Preventing Unlawful Appropriation of Traditional Knowledge’ (17 December 2016) UN Doc CBD/COP/ DEC/XIII/18. 115 As suggested by Hamdallah Zedan, the former Executive Secretary of the CBD, see CBD COP Decision VII/16, ‘Akwé: Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities’ (13 April 2004) UN Doc UNEP/CBD/COP/DEC/VII/16 intro IV. 113

Envisaging the Complementarity Between the Nagoya Protocol and Human Rights

Based on the normative and practical interactions between the Nagoya Protocol and international human rights law, the complementarity thesis can be developed via the three inter-related dimensions of the principle of mutual supportiveness, i.e., treaty interpretation, international law116

See for instance, Savaresi (2013), Gilbert (2018) and Zheng (2021a, b, 61). 117 Halewood and others (n 75) 68. 118 For instance, in its 6th National Report of the CBD, the Swiss Government explicitly recognised that “to promote coherency and mutual supportiveness” among Switzerland’s international commitments is one of the fundamental rationales of its National Biodiversity Strategy. Mutual supportiveness has also been used as a key factor in assessing the progresses towards the implementation of Switzerland’s biodiversity targets, and in evaluating its implementation of the NBSAP, ‘Switzerland’s’ 6th National Report for the Convention on Biological Diversity’ (19 December 2018) The Clearing-House Mechanism of the Convention on Biological Diversity pages 14, 46 and 85.

34

2 Mutual Supportiveness and the Complementarity Thesis

making and implementation. Against this setting, the following questions will be asked and addressed in the subsequent chapters of this book in order to articulate the implications of international human rights laws on the Nagoya Protocol and vice versa, especially with respect to IPLCs (please note that these questions are not exhaustive and do not have priority over each other): 1. What are the strengths and limitations of the Nagoya Protocol in protecting and advancing the human rights of IPLCs? 2. What are the implications of the interrelationship between the Nagoya Protocol and human rights on states’ obligations vis-à-vis IPLCs? 3. Can the Nagoya Protocol and human rights be interpreted and implemented in a mutually supportive manner with a view to upholding the fundamental rights of IPLCs? If so, how, and to what extent? 4. What are the normative and practical implications of the principles of systemic integration and mutual supportiveness in understanding the interrelationship between the Nagoya Protocol and human rights? It shall be made clear that this book focuses on all of the “constitutive processes” of developing the international ABS framework and the international human rights law, including the procedures, participants and instruments employed in the process and the adjudicative documents if available,119 rather than theories of international law.120 Accordingly, the discussion focuses on treaties and non-binding legal instruments adopted under the UN bodies and other international organisations, customary international law and general principles, as well as jurisprudential

119

Cassese and Weiler (1988, 8) and Boyle and Chinkin (2007, 1). 120 For instance, the traditional discussion of the sources of international law or the New Haven policy science approach to international law. See in general, Crawford and Brownlie (2012, 20) and Michael Reisman (1992, 118).

interpretation by international courts and tribunals. The term jurisprudence is deployed in a liberal sense, as many of the human rights bodies are not courts per se. For instance, the “General Comments”, “Concluding Observations” on states’ periodic reports and the “views” expressed in individual communications provided by the UN human rights treaties bodies are not strictly binding in law. Nevertheless, they are generally regarded as highly authoritative interpretations of international human rights standards and states’ human rights obligations, both at a standardsetting level and in the resolution of particular disputes in individual cases.121 The book also examines the jurisprudential interpretation provided by regional human rights courts and tribunals, in which the rights of IPLCs have been most prominently elaborated, especially with respect to lands, resources and culture as well as procedural elements such as prior informed consent and benefit-sharing.122 It shall also be noted that the systems and mechanisms of international law vis-à-vis IPLCs have been historically established by mostly European jurists from a Western-centric perspective in the age of colonialism and European state formation,123 which continue to influence how IPLCs are addressed by international law and how they participate in international lawmaking nowadays. The arguments presented in this book are mainly construed within this context to ensuring the clarity and consistency of the scholarly discussion. The author does so without

HRC, ‘CCPR General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’ (5 November 2008) UN Doc CCPR/C/GC/33 para 11. See Saul (2016, 2) and O’Flaherty (2006, 32). 122 Detailed discussion of these cases will be provided in each following chapter with different focus on IPLCs’ rights in the contexts of access, benefit-sharing and compliance respectively. 123 For a chronology of the Euro-American Law of Nations and Indigenous Peoples see, Havemann (ed) (1999, 13). 121

References

the intention to undermine other approaches to international law, for instance, Third World and the feminist approaches to international law.124

References Abi-Saab G (1999) Fragmentation or unification: some concluding remarks. New York Univ J Int Law Polit 31(4) Bart VV, Steven B, Jan W (eds) The EU’s role in global governance: the legal dimension. Oxford University Press Bernasconi-Osterwalder N (2007) Interpreting WTO law and the relevance of multilateral environmental agreements in EC-biotech. Center for International Environmental Law (CIEL) Boyle AE, Chinkin C (2007) The making of international law. Oxford University Press Bodansky D (2011) The art and craft of international environmental law. Harvard University Press Brierly JE (1981) The law of nations: an introduction to the international law of peace, 6th edn. Oxford University Press Cassese A, Weiler J (eds) (1988) Change and stability in international law-making. Walter de Gruyter Crawford J, Brownlie I (2012) Brownlie’s principles of public international law, 8th edn. Oxford University Press Charlesworth H (1999) Feminist methods in international law. Am J Int Law 93(2) Charlesworth H, Chinkin C (2000) The boundaries of international law: a feminist analysis. Manchester University Press Correa CM (2010) Geographical indications and the obligation to disclose the origin of biological materials: is a compromise possible under TRIPs? ICTSD Programme on IPRs and sustainable Development David CH (2002) The international treaty on plant genetic resources for food and agriculture. Rev Eur Commun Int Environ Law 11(1):1–16 Doelle M (2004) Linking the Kyoto protocol and other multilateral environmental agreements: from fragmentation to integration? J Environ Law Pract 14 Dörr O, Schmalenbach K (eds) (2012) Vienna convention on the law of treaties: a commentary. Springer Dupuy P-M, Viñuales JE (2018) International environmental law, 2nd edn. Cambridge University Press Gardiner RK (2015) Treaty interpretation, 2nd edn. Oxford University Press

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In fact, the author thinks these other perspectives of international law are of high and ontological importance, which remain fundamentally relevant to this study but exceeds the scope of the current book. See Okafor (2005, 171), Charlesworth, ‘Feminist Methods in International Law’ (1999, 380) and Charlesworth and Chinkin (2000, 1).

35 Gilbert J (2018) Natural resources and human rights: an appraisal, 1st edn. Oxford University Press Havemann P (ed) (1999) Indigenous peoples’ rights in Australia, Canada & New Zealand. Oxford University Press Halewood M, others (2013) Implementing mutually supportive access and benefit sharing mechanisms under the plant treaty, convention on biological diversity, and nagoya protocol. Law, Environ Devel J 9(1) Higgins R (1994) Problems and process: international law and how we use it. Clarendon Press Jacquemont F, Caparró A (2002) The convention on biological diversity and the climate change convention 10 years after Rio: towards a synergy of the two regimes? Rev Eur Commun Int Environ Law 11(2) Kearney RD, Dalton RE (1970) The treaty on treaties. Am J Int Law 64(3) Koskenniemi M, Leino P (2002) Fragmentation of international law? postmodern anxieties. Leiden J Int Law 15(3) Matz-Lück N (2012) Norm interpretation across international regimes: competences and legitimacy. In: Young MA (ed) Regime interaction in international law facing fragmentation. Cambridge University Press Maljean-Dubois S, Wemaëre M (2017) Elgar encyclopedia of environmental law. In: Biodiversity and climate change. Edward Elgar Publishing Limited Matz-Lück N (2008) Harmonization, systemic integration and ‘mutual supportiveness’ as conflict-solution techniques. Finnish Yearbook Int Law McLachlan C (2005) The principle of systemic integration and Article 31(3)(c) of the Vienna Convention. Int Comp Law Q 54(2) McGrady B (2008) Fragmentation of international law or “systematic integration” of treaty regimes: EC-biotech products and the proper interpretation of Article 31(3) (c) of the Vienna convention on the law of treaties. J World Trade 42(4) McNair AD (1961) The law of treaties. Clarendon Press McDonald J (2007) Politics, process and principle: mutual supportiveness or irreconcilable differences in the trade-environment linkage. Univ New South Wales Law J 30(2) Michael Reisman W (1992) The view from the new haven school of international law. In: 86 Proceedings of the annual meeting. American Society of International Law Morgera E, Tsioumani E, Buck M (2014) Unraveling the nagoya protocol: a commentary on the nagoya protocol on access and benefit-sharing to the convention on biological diversity. Brill Morgera E (2011) Far away, so close: a legal analysis of the increasing interactions between the convention on biological diversity and climate change law. Clim Law 2(1) Nijar GS (2013) An Asian developing country’s view on the implementation challenges of the Nagoya protocol. In: Morgera E, Buck M, Tsioumani E(eds) The 2010 Nagoya protocol on access and benefit-sharing in

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perspective: implications for international law and implementation challenges. Brill Nijhoff O’Flaherty M (2006) The concluding observations of united nations human rights treaty bodies. Hum Rights Law Rev 6(1) Okafor OC (2005) Newness, imperialism, and international legal reform in our time: a twail perspective. Osgoode Hall Law J 43(1 2) Oberthür S, Pożarowska J (2013) Managing institutional complexity and fragmentation: the nagoya protocol and the global governance of genetic resources. Glob Environ Polit 13(3) Pavoni R (2010) Mutual supportiveness as a principle of interpretation and law-making: a watershed for the ‘WTO-and-Competing-Regimes’ debate?’. Eur J Int Law 21(3) Pauwelyn J (2003) Conflict of norms in public international law: how WTO law relates to other rules of international law. Cambridge University Press Panizzon M (2006) Good faith in the jurisprudence of the WTO: the protection of legitimate expectations, good faith interpretation and fair dispute settlement. Bloomsbury Publishing Pörtner H-O, others (2021) IPBES-IPCC co-sponsored workshop report on biodiversity and climate change. IPBES and IPCC Rachovitsa A (2017) The principle of systemic integration in human rights law. Int Compar Law Q 66(3) Robinson DF (2010) Confronting biopiracy: challenges, cases and international debates. Earthscan. Shelton D (2014) International law and relative normativity. In: Evans MD (ed) International law, 4th edn. Oxford University Press Scanlon Z (2017) The art of “not undermining: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES J Mar Sci 75(1) Safrin S (2002) Treaties in collision? the biosafety protocol and the world trade organization agreements. Am J Int Law 96(3)

Savaresi A (2013) The international human rights law implications of the Nagoya protocol. In: Morgera E, Buck M, Tsioumani E (eds) The 2010 Nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff Saul B (2016) Indigenous peoples and human rights: international and regional jurisprudence. Hart Publishing The WHO Secretariat (2020) Implementation of the Nagoya protocol and pathogen sharing: public health implications Tzevelekos V (2010) The use of Article 31(3) of the VCLT in the case law of the ECtHR: an effective antifragmentation tool or a selective loophole for the reinforcement of human rights teleology?—between evolution and systemic integration. Michigan J Int Law Van Asselt H, Sindico F, Mehling MA (2008) Global climate change and the fragmentation of international law. Law Policy 30(4) Viñuales JE (2012) Foreign investment and the environment in international law. Cambridge University Press World Health Organization and Secretariat of the Convention on Biological Diversity (ed) (2015) Connecting global priorities: biodiversity and human health: a state of knowledge review. WHO Press Young MA (2007) The WTO’s use of relevant rules of international law: an analysis of the biotech case. Int Comparat Law Q 56(4) Zheng X (2021a) Understanding the interrelationship between biodiversity and epidemics from the perspective of international environmental law. In Murase S, Zhou S (eds) Epidemics and international law. Brill Zheng X (2012b) Empowering indigenous peoples and local communities: a human rights‐based appraisal of the compliance mechanism of the Nagoya protocol. Rev Eur Comp Int Environ Law 30(1)

Part II The Three Pillars of the ABS Framework and Related Human Rights Implications

3

Access

This chapter focuses on access-related principles and procedures as enshrined in the Nagoya Protocol, as they constitute one of the three pillars of the international ABS framework.1 According to the CBD and the Nagoya Protocol, access to genetic resources is subject to domestic ABS legislation or regulatory requirements, in particular the PIC of the provider country of genetic resources.2 This is due to the fact that effective control over natural resources is paramount to states’ interests—a point that has been substantiated through the negotiation of the CBD and called by especially developing countries.3 As a result, the principle of state sovereignty underpins access-related provisions in the CBD and the Nagoya Protocol, which implies that states have the authority to determine how their genetic resources may be accessed and under what procedural requirements. In situations where genetic resources and associated traditional knowledge are held by IPLCs, the Nagoya Protocol requires its parties to ensure PIC or “approval and involvement” of IPLCs, and to respect their “customary laws, community protocols and procedures” during the access process.4 Whilst the In addition to “compliance” and “benefit-sharing” being the other two pillars, see Greiber et al. (2012). 2 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1, Article 6(1). 3 Glowka et al. (1994). 4 Nagoya Protocol, Articles 6(1)(2), 7 and 12. 1

exact meaning of the quoted terms remain ambiguous, the provisions clearly impose treaty obligations on party states to respect the rights of IPLCs who live within sovereign states (interstate obligations) and to protect and realise the rights of IPLCs who live within their own territories (intra-state obligations).5 In this connection, Indigenous Peoples’ right of selfdetermination, the emerging human rights principle of FPIC, and the existing human rights standards pertaining to IPLCs’ customary laws provide important ground to articulate the implications of the ABS principles and rules in light of the principle of mutual supportiveness. In this chapter, essential clarification of the key concepts, i.e., genetic resources and traditional knowledge, is first provided (Sect. 3.1), followed by a thorough examination of the access-related principles and procedural requirements of the ABS framework, including the principle of state sovereignty, the PIC mechanism, and the obligations of states to respect IPLCs’ customary rules and community protocols (Sect. 3.2). It then discusses the most relevant human rights principles and mechanisms based on the ILO Convention 169 and the UNDRIP, the jurisprudence of several UN human rights treaties bodies, as well as the case laws of regional human rights courts and tribunals (Sect. 3.3). Remarks on possible approaches to and challenges of a complementary 5

See Morgera et al. (2014) and Savaresi (2013).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_3

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40

3

interpretation and implementation of the Nagoya Protocol and human rights are presented at the end of each subsection in Sect. 3.3.

3.1

Key Concepts: Genetic Resources and Associated Traditional Knowledge

3.1.1 Genetic Resources Access-related provisions under the Nagoya Protocol refer to genetic resources and associated traditional knowledge.6 According to its Article 3, the Nagoya Protocol shall apply to “genetic resources within the scope of Article 15 of the Convention”, as well as “traditional knowledge associated with genetic resources within the scope of the Convention”.7 Thus, instead of defining its subject matter, the Nagoya Protocol refers to genetic resources and associated traditional knowledge as established under the CBD. As such, it is necessary to consult relevant provisions of the CBD to clarify the respective meaning and scope of the key term “genetic resources” and “associated traditional knowledge”. Under the CBD framework, genetic resources is explicitly defined as “genetic material of actual or potential value”, while “genetic material” means “any material of plant, animal, microbial or other origin containing functional units of heredity”.8 Genetic resources is also regarded as a subcategory of “biological resources”, in addition to “populations, or any other biotic component of ecosystems with actual or potential use or value for humanity”.9 Thus, not all biological materials are genetic resources because genetic resources must contain functional units of heredity, that is, genes that can pass on properties

6

Nagoya Protocol, Articles 6, 7 and 8. ibid Article 3. 8 Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, Article 2. 9 ibid Article 2. 7

Access

to the next generation.10 Meanwhile, fruits and vegetables traded and consumed as food are also not genetic resources as covered in the Nagoya Protocol even though they contain functional units of heredity. This is because the ABS rules only apply to the “utilization of genetic resources”, which as a term of art means to conduct research and development on the genetic and/or biochemical composition of genetic resources, whereas food commodities are not used for their genetic or biochemical properties.11 Arguably, the Nagoya Protocol goes beyond the CBD to also include “derivatives” of genetic resources— a naturally occurring biochemical compound resulting from the genetic expression or metabolism which do not contain functional units of heredity.12 As such, the CBD and the Nagoya Protocol provide a certain level of legal clarity for interpretative and implementing purposes but it still lacks precision and a universal consensus as to its exact scope and meaning.13 The general rule of treaty interpretation requires that the term genetic resources to be understood in the overarching context of the CBD as well as in accordance with its specific objectives, especially the third objective—fair and equitable benefit-sharing—to which genetic resources is mostly adopted for.14 This approach means that genetic resources shall be understood primarily and specifically for ABS-related interpretation and implementation.15 To this end, there have been two opposing stances held by developing and developed countries with respect 10

Glowka (1998). Koester (2012). 12 Nagoya Protocol Article 2(e). 13 Tvedt and Young (2007). In addition, the ongoing debate about whether the ABS framework shall include “digital sequence information” is a vivid example of the controversies underlining the understanding of genetic resources. See CBD Ad Hoc Technical Expert Group on DSI, ‘Digital Sequence Information on Genetic Resources: Concept, Scope and Current Use’ (29 January 2020) UN Doc CBD/DSI/AHTEG/2020/1/3. 14 Tvedt and Young (n 13) 56. CBD, Articles 15, 16 and 19(2). 15 CBD Working Group on ABS, ‘Study on the Functionality of an ABS Protocol’ (26 August 2010) UN Doc UNEP/CBD/WG-ABS/9/INF/20 15. 11

3.1 Key Concepts: Genetic Resources and Associated …

to the scope of genetic resources, explained in their submissions to the Ad Hoc Open-ended Working Group on Access and Benefit-sharing (WGABS).16 While developing countries advocated for a wider application of genetic resources,17 they in fact were aiming at the establishment a wider scope of ABS obligations regarding genetic resources, because most of the developing countries are the providers of such resources.18 Developed countries such as EU member states, on the other hand, promoted to limit the scope of genetic resources so that their utilisation of genetic resources could be regulated by a comparably narrow set of ABS obligations.19 A compromise approach manifests in the Nagoya Protocol as adopted in 2010. Without directly altering the meaning of genetic resources as established under the CBD, it includes derivatives of genetic resources that do not contain functional units of heredity into the ABS framework by covering “biotechnology” that works with not only genetic resources but also its derivatives.20 However, it shall be noted that the exact scope and definition of genetic resources are up to states’ national elaborations of the ABS rules, which tend to vary dramatically in different national and local contexts.21

41

knowledge, to establish a dynamic concept that refers to a body of knowledge fundamentally different from its Western scientific counterparts.22 It is generally agreed that traditional knowledge is fundamental for the survival and general well-being of IPLCs, as it often provides vital guidance on their traditional ways of life, such as traditional medicine, food, ecosystem management and spiritual practices.23 In the context of the CBD, traditional knowledge relates closely to biodiversity conservation. Article 8(j) of the CBD sketches a general scope of traditional knowledge, including not only the “knowledge” itself, but also “innovations and practices” of Indigenous and local communities, as long as they embody “traditional lifestyles relevant for the conservation and sustainable use of biological diversity”.24 The CBD Working Group on Article 8(j) later suggests that this definition of traditional knowledges can be understood via cultural, temporal and spatial dimensions.25 These dimensions imply that traditional knowledge as a means to reflect the culture of a community is usually passed on through generations, and its content is usually related to the territory, lands and waters, as well as natural resources that are traditionally occupied or used by the community. With respect to ABS, traditional knowledge has been recognised to be of significant value in discovering and

3.1.2 Traditional Knowledge 22

Traditional knowledge has no set definition in international law. The current literature adopts several interchangeable terms, such as Indigenous knowledge or traditional environmental CBD COP Decision VI/24, ‘Access and Benefitsharing as related to Genetic Resources’ (2002) UN Doc UNEP/CBD/COP/DEC/VI/24 1. 17 For instance, to also include derivatives generated from genetic resources, see CBD Working Group on ABS, ‘Report of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing on the Work of its Third Meeting’ (3 March 2005) UN Doc UNEP/CBD/WGABS/3/7 22. 18 Cariño et al. (2013). 19 ibid 34. 20 Nagoya Protocol, Article 2(e). 21 Medaglia et al. (2014). 16

Dutfield (2004) and Johnson (2014). Also see CBD Working Group on ABS, ‘Report of the Meeting of the Group of Technical And Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing’ (15 July 2009) UN Doc UNEP/CBD/ WG-ABS/8/2* para 33 and Dutfield (2017). 23 For instance, according to the WHO, up to 80% of the world’s population depends on traditional medicine for its primary health needs, see WHO Secretariat, ‘Traditional Medicine’ (13 December 2013) EB134/24 para 5. Also see UNCTAD Secretariat, 'Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices' (22 August 2000) UN Doc TD/B/COM.1/ EM.13/2 para 11 and Dutfield, Intellectual Property, Biogenetic Resources and Traditional Knowledge (n 22) 97. 24 CBD, Article 8(j). 25 CBD Working Group on Article 8(j), ‘Elements of Sui Generis Systems for the Protection of Traditional Knowledge, Innovations and Practices’ (9 September 2009) UN Doc UNEP/CBD/WG8J/6/5 para 31.

42

capturing the potential of genetic material—in many cases, traditional knowledge has raised scientific awareness to valuable genetic resources and provided preliminary guidance on its research and commercialisation.26 Based on this understanding, the Nagoya Protocol includes traditional knowledge into the ABS framework while narrowing down its scope by using the term “traditional knowledge associated with genetic resources”.27 Thus, the Nagoya Protocol excludes traditional knowledge that is not related to genetic resources, but might be to other subjects of IPLCs’ traditional lifestyle, such as literature, folklores and architecture.28 As a result, traditional knowledge that is subject to the ABS rules is a particular body of knowledge held by IPLCs under two criteria: (A) it should embody IPLC’s traditional lifestyles relevant for the conservation and sustainable use of biodiversity; (B) it should be associated with genetic resources. In practice, however, the question of to what extent a certain traditional knowledge could and/or needs to be proved as sufficiently and clearly associated with genetic resources remain difficult.29 This task of identifying traditional knowledge subject to ABS rules also connects to the identification the appropriate right-holders of traditional knowledge, who in most cases are the legitimate beneficiaries of the benefit-sharing arrangements.30

26 See CBD Working Group on ABS, ‘The Concept of “Genetic Resources” in the Convention on Biological Diversity and How It Relates to A Functional International Regime on Access and Benefit-Sharing’ (19 March 2010) UN Doc UNEP/CBD/WG-ABS/9/INF/1 and CBD COP, ‘Report of the Sixth Meeting of the Ad Hoc Open-ended Inter-Sessional Working Group on Article 8 (j) and related Provisions of the Convention on Biologogical Diversity’ (21 November 2009) UN Doc UNEP/CBD/COP/10/2 36. 27 Nagoya Protocol, Article 3. 28 Morgera et al. (2013). 29 Chennells (2013). 30 CBD Working Group on ABS, ‘Protecting Community Rights over Traditional Knowledge: Implications of Customary Laws and Practices’ (6 October 2009) UN Doc UNEP/CBD/WG-ABS/8/INF/4 2.

3

Access

3.1.3 Genetic Resources and Traditional Knowledge in International Law The international ABS framework as established by the CBD and its Nagoya Protocol is not the only multilateral forum where genetic resources and traditional knowledge are addressed with contested legal implications. While the CBD and its Nagoya Protocol focus on genetic resources for biodiversity conservation and sustainable use, plant genetic resources for food and agriculture are considered separately under the ITPGRFA and marine genetic resources under the UNCLOS.31 These MEAs have distinct yet often interrelated objectives, which require mutually supportive interpretation and implementation. For instance, the IPGRFA aims at the conservation and sustainable use of plant genetic resources and the fair and equitable benefit-sharing arising out of their use—an objective almost identical with the CBD—but with a sharpened focus on sustainable agriculture and food security.32 Issues concerning plant genetic resources left out by the CBD, including access to ex situ collections outside the CBD scope and the question of farmers’ rights are also included in the IPRGFA.33 In harmony with the CBD, the IPGRFA also puts into place an ABS system, which oversees the international transfer of a selection of 64 crops and forages explicitly listed in Annex 1 of the IPGRFA under a standard distribution model referred to as the Standard Material Transfer Agreement (SMTA).34 With respect to traditional knowledge, the discussion about its protection in the context of IPRs and international trade takes place simultaneously

31

As discussed in the previous Sect. 3.2.2. International Treaty on Plant Genetic Resources for Food and Agriculture [adopted 3 November 2001, entered into force 29 June 2004] 2400 UNTS 303, Article 1(1). 33 David (2002). 34 International Treaty on Plant Genetic Resources for Food and Agriculture, Article 12(4). The Governing Body of the IPGRFA adopted the SMTA in its Resolution 1/2006. 32

3.1 Key Concepts: Genetic Resources and Associated …

under the WTO,35 the WIPO,36 and the United Nations Conference on Trade and Development (UNCTAD).37 Furthermore, the contemporary development of international human rights also demonstrates a growing concern about the importance of a health and clean environment in general,38 as well as many specific rights associated with environmental components, such as the right to science in the context of the utilisation of genetic resources.39 Thus, a web of complex legal interactions underpinned by different legal approaches and perspectives can be observed as they provide interrelated rules concerning genetic resources and traditional knowledge. Furthermore, the rapidly developing biotechnology also has significant influence on the legal world, as it can alter the known methods of utilising genetic resources to an extent that might fundamentally change the way that genetic resources are understood.40 For instance, vanillin is a naturally occurring compound originally extracted from the pods of Vanilla planifolia orchid. It is the primary source for the longwelcomed vanilla flavour that is widely used in food and cosmetic industries nowadays. However, the majority of vanilla-flavoured products now consumed in the global market are not using naturally occurred vanillin but its synthesised alternative, mostly because the latter is much cheaper and can be mass produced. In fact, since the end of 35 The 2001 WTO Doha Declaration laid the foundation to include discussion about the protection of traditional knowledge and folklore in the Agreement on TradeRelated Aspects of Intellectual Property Rights [adopted 15 April 1994, entered into force 1 January 1995] WTO, see Gervais (2005). 36 Especially the work of Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), see Robinson et al. (2017). 37 UNCTAD (2014). 38 See Human Rights Council, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (24 January 2018) UN Doc A/HRC/37/59 and Boyle (2015). 39 Morgera (2015). 40 Alain and Claire (2012).

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the nineteenth century, scientists have worked out several pathways to synthesise vanillin, from chemical synthesis using petrochemicals such as eugenol or guaiacol, to wood-based vanillin using the by-product of the wood pulp industry, to the more recent biosynthesis methods relying on ferulic acid from vanilla plants.41 From an ABS perspective, vanillin, and Vanilla planifolia, a plant originally from Mexico, raise several concerns. Vanillin from natural plants used for food products cannot be considered by the ABS rules as established by the Nagoya Protocol, but what if it is used for therapeutic purposes?42 Synthesis vanillin surely cannot be considered as genetic resources, but the synthesis pathways are undoubtedly inspired by the natural vanillin and eventually the plant itself, does this connection trigger ABS oversight of any sort? Finally, as synthesis biologists are increasingly using digital sequence information (DSI) available via online databases instead of physical plant samples, does ABS framework also address fair and equitable benefit-sharing in the digital transactions?43 In this light, it is essential to approach the key subjects of the ABS framework in a flexible and dynamic manner.44 It is because the ongoing legal developments of international law in various fields, as well as the advancements in technology and their consequential influence on the behaviours of states and private entities, would all have a part in affecting and shaping the interpretation of what genetic resources and traditional knowledge are relevant for the purposes of the Nagoya Protocol. As a matter of scope, Wikipedia, ‘Vanillin’ https://en.wikipedia.org/wiki/ Vanillin#gobley1858 accessed 08/08/2022. Also see Gallage et al. (2014). 42 Arya et al. (2021). 43 DSI on genetic resources was firstly recognised as a cross-cutting issue under the CBD framework in 2016 and remains a controversial matter in the ongoing debates. Under the CBD, an Ad Hoc Technical Expert Group (AHTEG) was established in order to examine the potential implications of the use of DSI for interpreting and implementing the CBD and its Nagoya Protocol. See CBD COP Decison XIII/16, ‘Digital Sequence Information on Genetic Resources’ (16 December 2016) UN Doc CBD/COP/DEC/XIII/16 and DSI (n 13). 44 CBD Working Group on ABS (n 26) 2. 41

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this book discusses genetic resources and traditional knowledge as defined under the CBD and its Nagoya Protocol, while taking into account international human rights law at the interface with the Nagoya Protocol, especially with respect to IPLCs and their rights towards genetic resources and traditional knowledge.

3.2

Access-Related Principles and Procedural Requirements

The access-related provisions are grounded on a certain set of principles and procedural requirements in the Nagoya Protocol. This section first unpacks the underpinning principle of state sovereignty and its implications for the intra-state relationship between states and its IPLCs (Sect. 3.2.1). It then introduces the PIC mechanism—the key procedural requirement for accessing genetic resources and traditional knowledge based on a range of binding and nonbinding instruments adopted under the CBD framework (Sect. 3.2.2). Furthermore, based on Article 12 of the Nagoya Protocol on traditional knowledge associated with genetic resources,45 the role of the customary rules and community protocols adopted by IPLCs is also discussed, especially its legitimacy vis-à-vis domestic laws (Sect. 3.2.3). Finally, it summarises the content and characteristics of the obligations imposed upon state governments in the process of implementing their obligations under the Nagoya Protocol (Sect. 3.2.4).

3.2.1 The Principle of State Sovereignty and Its Relationship with the Rights of IPLCs State sovereignty over natural resources is the cornerstone of the architecture and functionality of the international ABS framework.46 This is, foremost, because natural resources are valuable 45 46

Nagoya Protocol Article 12(1). Glowka, Burhenne-Guilmin and Synge (n 3) 3.

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for economic, cultural, and social developments that are paramount to states’ interests. This point has been substantiated through the negotiation of the CBD and grounded on the calls of especially developing countries for national controls over their genetic resources.47 As a result, Article 15 of the CBD recognises that the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. In general, by proclaiming the sovereign rights of states over their biological resources,48 recognising the sovereign rights to exploit their own resources49 and recalling the sovereign rights of states over their natural resources as a basis for national authority to determine access to genetic resources,50 the principle of state sovereignty indeed underpins the access-related provisions of the CBD. However, it shall be noted that the CBD does not grant states a proprietary right over natural resources, nor does it clarify whether such sovereign rights extend to genetic resources and traditional knowledge held by IPLCs or not.51 As a measure of in situ conservation, Article 8(j) of the CBD requires each party, subject to national legislation, “to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles”.52 This provision has been seen as a recognition of the right of IPLCs to their knowledge, innovations and practices.53 More conservatively, Greiber and some others also suggested it does not establish a right per se, but at least could be reckoned as a recognition of the fact that traditional knowledge associated with genetic resources most often vests with the traditional lifestyles of IPLCs.54 No explicit line seems to be drawn between the sovereign rights 47

ibid 5. CBD, pmbl. 49 ibid Article 3. 50 ibid Article 15. 51 Instead, the issue of ownership is left to be determined by the respective national law of the Party States. Glowka, Burhenne-Guilmin and Synge (n 3) 76. 52 CBD, Article 8(j). 53 Louka (2006). 54 Greiber and others (n 1) 109. 48

3.2 Access-Related Principles and Procedural Requirements

of state and the rights of IPLCs under the CBD framework. The Nagoya Protocol articulates the accessrelated rules via Articles 6 and 7 in the following terms: 1. Article 6(1). In the exercise of sovereign rights over natural resources, and subject to domestic access and benefit-sharing legislation or regulatory requirements, access to genetic resources for their utilization shall be subject to the prior informed consent of the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention, unless otherwise determined by that Party. 2. Article 6(2). In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources. Article 7. In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established. It is apparent that the Nagoya Protocol inherits the principle of state sovereignty from the CBD, as it renders the obligation of parties to regulate access to genetic resources to the “exercise of sovereign rights over natural resources” and their respective domestic laws. However, it is also explicit that access to genetic resources and associated traditional knowledge held by IPLCs is subject to certain requirements. With respect to genetic resources held by IPLCs, parties are required to take measures, as appropriate, with the aim of ensuring that the PIC or “approval and involvement” of IPLCs is obtained for access to

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genetic resources where they have the established right to grant access to such resources.55 As for associated traditional knowledge, parties are obliged to ensure PIC or approval and involvement of the IPLCs and established MAT, without the qualification of IPLCs to have an “established right”. The language of sovereignty is absent in these provisions pertaining to IPLCs. Yet they are heavily qualified by terms like “as appropriate”, “with the aim of ensuring”, and “in accordance with domestic law”, which suggests a considerable margin of state parties’ discretion in exercising their sovereign rights. These provisions have been read in a rather optimistic light as the Nagoya Protocol imposes detailed obligations on its party states to regulate access to genetic resources and traditional knowledge with respect to IPLCs in an intra-state context.56 However, the difficult question of the relationship between the sovereign rights of states and the rights of IPLCs has been left unattended. From a practical perspective, it remains unclear how each party would interpret the qualifiers and implement them at the domestic level. For instance, the caveat of the “established right” might imply that formally adopted national laws, which explicitly establish the relevant rights of IPLCs are necessary, in order for the relevant rights of IPLCs to be recognised and protected under the Nagoya Protocol.57 But it is possible that the term may refer to the internationally established rights of IPLCs as recognised by the international human rights treaties and other UN documents as well. This open-endedness of the interpretation of the Nagoya Protocol creates both opportunity and challenge in bringing in human rights principles and standards to foster a mutually supportive understanding and implementation of the ABS framework and human rights. Overall, even though the principle of state sovereignty is recognised as a cornerstone of the international ABS framework by the CBD and its Nagoya Protocol, it does not mean that the CBD 55

Nagoya Protocol Article 6(2). Emphasis added. As perhaps the first international environmental treaty to do so, see Morgera, Tsioumani and Buck (n 5) 137. 57 Young (2013). 56

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and Nagoya parties may interpret and implement the ABS provisions in any manner at their convenience, since state sovereignty as a legal principle is neither unconditional nor absolute.58 The danger embedded in the trump card that is often played by states—“state A is sovereign therefore its conduct is unquestionable”—has long been warned by international lawyers and scholars.59 Generally, it has been widely agreed that state sovereignty is an evolutionary concept and the interpretation of which needs to reflect the ongoing development in the broader context of international law.60 It has also been clarified in numerous judicial interpretations, such as S.S. “Wimbledon” and Aegean Sea Continental Shelf, that states’ sovereignty, as a legal creation for addressing states’ international rights and duties, needs to be considered according to specific circumstances.61 In the ABS context, in light of the fundamental principle of the CBD that “the conservation of biological diversity is a common concern of humankind”, states’ sovereign rights over natural resources shall be understood and exercised in harmony with the common duty of states to conserve biological diversity and the exercise of such rights should not prevent biodiversity conservation from being treated as a question of common concern for all states.62

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Glowka, Burhenne-Guilmin and Synge (n 3) 3. This is especially the case with States’ “internal affairs”, see Jackson (2003). 60 See Crawford (2007), Henkin (1999), Weill (1983) and Crawford (2014). 61 For instance, the ruling of the former Permanent Court of International Justice in S.S. “Wimbledon” (United Kingdom, France, Italy & Japan v Germany) [17 August 1923] (PCIJ) Series A No. 1. Also the Aegean Sea Continental Shelf Case (Greece v Turkey) [19 September 1978] (ICJ) Rep 62 and Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [13 July 2009] (ICJ) ICGJ 421. 62 Note that the CBD is not the only treaty that highlights this point, for example, African Convention on the Conservation of Nature [adopted 15 September 1968, entered into force 16 June 1969] 1001 UNTS 4 and Convention Concerning the Protection of the World’s Cultural and Natural Heritage [adopted 16 November 1972, entered into force 17 December 1975] 1037 UNTS 151. See Birnie et al. (2009). 59

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According to the Nagoya Protocol, the exercise of states’ sovereign rights is also conditioned by certain procedural requirements, such as to implement PIC and to establish MAT. As will be demonstrated in the subsequent Sect. 3.3, international human rights law provides an important context in which the normative power of states’ sovereignty has been significantly questioned, challenged, and increasingly intertwined with states’ obligations to respect and fulfil IPLCs’ human rights.63

3.2.2 A Focus on Prior Informed Consent 3.2.2.1 Development of PIC in International Environmental Law PIC is not a novel invention by the Nagoya Protocol but has a relatively long history in international environmental law. The inclusion of PIC in the ABS framework creates an interesting opportunity to investigate the specificity of PIC in an ABS context, especially with respect to IPLCs. As discussed, the Nagoya Protocol renders IPLCs an important role in the access process when it concerns their genetic resources and associated traditional knowledge. Two main procedural requirements are in place: (A) PIC or “approval and involvement” of IPLCs; and (B) MAT on granted access.64 This section focuses on the requirement of PIC and “approval and involvement”, while MAT is discussed indepth in Chap. 4 as a means to realise fair and equitable benefit-sharing. As a procedural legal tool, PIC was originated from the medical law regime to address the potential risks of medical treatments received by patients in order to support their full autonomy.65 Consent has also been required in the context of medical and scientific experimentation to protect individuals from torture or cruel, inhuman or 63

See, for instance, Slaughter (2005) and Kingsbury (1998). 64 Nagoya Protocol, Article 6(2). 65 Faden and Beauchamp (1986).

3.2 Access-Related Principles and Procedural Requirements

degrading treatment under the ICCPR.66 In the early 1980s, PIC was raised as an international legal concern when the FAO promoted the International Code of Conduct on the Distribution and Use of Pesticides.67 Similar efforts aiming at enhancing international awareness over chemicals also resulted in the 1989 London Guidelines on Exchange of Information on Chemicals in International Trade, which included PIC as a procedural principle.68 These instruments provided a voluntary basis for international standards-setting in areas concerning pesticides and chemicals. In response to the Agenda 21 that called for a legally binding instrument on this issue, the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade finally pinned the concept in international law-making.69 This early history of international law vis-à-vis PIC demonstrates the primary role of PIC as a procedural safeguard to protect people, especially in developing countries, from hazardous pesticide formulations that can cause severe health and environmental problems. Meanwhile, upholding states’ sovereign rights, PIC also plays an important role in optimising international relations in trade and food security.70 In comparison, the function of PIC is tightly linked to the concerns of biopiracy in the ABS context as it aims to address not only the interests of states based on their sovereignty over natural resources, but 66

International Covenant on Civil and Political Rights [adopted 16 December 1966, entered into force 3 January 1976] 999 UNTS 171, Article 7. 67 PIC was not explicitly included in the 1985 version of the instrument. However, the term PIC was added to the provisions of the Code through its amendment in 1989. See FAO, ‘Interntional Code of Conduct on the Distribution and Use of Pesticides’ (adopted 1985, admended 1989 and 2002) FAO Council Resolution 1/123 1. 68 UNEP, ‘London Guidelines for the Exchange of Information on Chemicals in International Trade’ (25 May 1989) UNEP Governing Council Decision 15/30 para 7. 69 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade [adopted 10 September 1998, entered into force 24 February 2004] 2244 UNTS 337. 70 Ni (2009).

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also IPLCs because they are the holder and/or owner of some genetic resources and traditional knowledge.71 In other words, PIC as established under the ABS framework protects primarily the sovereign rights and the rights of IPLCs where they have a legitimate claim, instead of preventing hazards or potential risks as in previous medical and environmental cases. The text of Article 6 of the Nagoya Protocol suggests that although PIC is obligatory for access to genetic resources, it is subject to a range of caveats. For instance, it needs to be in accordance with domestic ABS laws and can be “otherwise determined”.72 That is to say, under the Nagoya Protocol, PIC as a precondition for access to states’ genetic resources can be abolished or modified as the provider state deems appropriate.73 In comparison, PIC that is issued by IPLCs cannot be “otherwise determined”, but subject to qualifiers including “as appropriate” and “in accordance with domestic law”. The most notable and concerning qualifier is that IPLCs that are entitled to issue PIC are those who have “the established right to grant access to such resources”.74 Nijar has pointed out that a restrictive interpretation of Article 6(2) would suggest that unless IPLCs’ right to grant access to genetic resources is explicitly established by domestic law, state parties do not have an obligation to ensure their PIC or involvement in the access processes.75 During the meetings of the Interregional Negotiating Group on ABS, many countries have raised concern that the restrictive approach contradicts the very objective of the CBD and the Nagoya Protocol, as well as the intention of parties as was expressed during the

71

See, for instance, Dutfield (2009) and Greiber and others (n 1) 95. 72 The provision includes a qualifier “unless otherwise determined by that Party”, see Nagoya Protocol, Article 6 (1). 73 See Glowka, Burhenne-Guilmin and Synge (n 3) 81 and Greiber and others (n 1) 96. 74 Nagoya Protocol, Article 6(2). Emphasis added. 75 See Nijar (2011) and Morgera, Tsioumani and Buck (n 5) 147.

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negotiation history of the Protocol.76 This interpretative controversy leads to a continuous discussion about PIC under the CBD framework and the result is a number of instruments adopted by the CBD parties that provide voluntary guidance on the implementation of the PIC in particular at the domestic level. These include, the 2002 Bonn Guidelines, the 2004 Akwé: Kon Guidelines, the 2011 Tkarihwaié:ri Code of Ethical Conduct and the 2016 Mo’otz Kuxtal Voluntary Guidelines. The PIC-related provisions of these instruments merit a closer look to further articulate the specificity of PIC mechanism and its implications on IPLCs in the ABS context.

3.2.2.2 Content and Specificity of PIC Under the ABS Framework Normative developments and relevant practices under the CBD framework, especially through a wide range of soft-law instruments and guidelines, have greatly enriched the content of the PIC mechanism under the ABS framework. Before delving into the voluntary guidelines and their specific provisions, it is necessary to clarify why they merit attention. The fact that these instruments are not legally binding among parties make them “soft law” in nature. However, unanimously adopted by some 190 countries, these soft instruments have “a clear and indisputable authority” and provide “welcome evidence of an international will to tackle difficult issues that require a balance and compromise on all sides for the common good”.77 In scholarly discussion, it is

See CBD Working Group on ABS, ‘Report of the Meeting of the Interregional Negotiating Group’ (21 September 2010) UN Doc UNEP/CBD/WG-ABS/ 9/ING/1 Article 5(2) and Greiber and others (n 1) 96. 77 As suggested by Hamdallah Zedan, the former Executive Secretary of the CBD, see CBD COP Decision VII/16, ‘Akwé: Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities’ (13 April 2004) UN Doc UNEP/CBD/COP/DEC/VII/16 intro IV. 76

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increasingly accepted that these soft instruments can generate a wide-ranging consensus on international definitions and legal standards, and therefore, contribute to the corpus of international law.78 In the context of the CBD, for instance, the Bonn Guidelines as adopted in 2002 has eventually led to the articulation and adoption of the Nagoya Protocol in 2010. Other voluntary instruments adopted after 2010 are also important as they provide essential and detailed rules and standards on implementing the Nagoya Protocol and the ABS provisions in the CBD. They may not yet have acquired binding characteristics or status as a subsequent agreement of parties. Nevertheless, the normative articulations of PIC enshrined in these soft instruments constitute a significant part of the ABS framework, which cannot be dismissed for a holistic and systemic understanding of the Nagoya Protocol. Furthermore, there exists the possibility for the normative standards of these soft instruments to be adopted by law-applying organs, such as judges, officials, or legislators, and therefore, become authentic interpretations that are of legally binding effects.79 With this understanding, relevant binding and non-binding instruments adopted under the CBD framework are discussed in a chronological order in the following paragraphs. The Bonn Guidelines is short for the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, an instrument aims to facilitate the operation and implementation of the ABS provisions in the CBD adopted in 2002.80 This voluntary instrument seeks to assist CBD parties, governments and other stakeholders in developing national access legislation as well as negotiating contractual benefit-sharing terms.81 As per PIC, the Bonn Guidelines stipulates the basic principles for a PIC system, including legal certainty and clarity, minimum cost, transparent 78

Fastenrath (1993) and Boyle (2014). Kelsen (1990), Boyle and Chinkin (2007). 80 CBD COP Decision VI/24, ‘Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization’ (27 May 2002) UN Doc UNEP/CBD/COP/6/20. 81 ibid intro. 79

3.2 Access-Related Principles and Procedural Requirements

restrictions, legal grounds, and consistency with CBD objectives. Overall, as Tully has argued, the PIC process articulated in the Bonn Guidelines does not only involve top-down efforts assigned to legislators and regulators, but also bottom-up inputs from communities and private entities.82 This two-tiered approach is underpinned by the fundamental concerns to promote public participation and social inclusiveness, which has significant relevance to IPLCs. Specifically, the Bonn Guidelines highlights the vital role of competent national authority to grant access permission and suggests that this system could be established at different domestic levels (national/provincial/local).83 The instrument provides that IPLCs’ competence to grant PIC shall also be considered as a basic principle of PIC system, as appropriate to the circumstances and subject to domestic law.84 In the same line, the Guidelines further addresses the need to respect the established legal rights of IPLCs vis-à-vis their genetic resources and traditional knowledge, and that PIC or “the approval and involvement of the holders of traditional knowledge, innovations and practices” should be obtained, in accordance with their traditional practices, national access policies and subject to domestic laws.85 With respect to what specific elements should PIC contain for practical purposes, the Bonn Guidelines provides a list as such: competent authority(ies); timing and deadlines; specification of use; procedures for obtaining PIC; mechanism for consultation of relevant stakeholders; and process.86 It further specifies that PIC needs to be obtained adequately in advance to be meaningful for both those seeking access and for those granting it.87 PIC should also be strictly linked to the purpose for which consent is granted to. The Guidelines suggests new PIC should be obtained,

when any change of use (including transfer to third parties) is of concern.88 Furthermore, the “participation of stakeholders” chapter of the Bonn Guidelines highlights the importance of and the possible ways to realise the involvement of relevant stakeholders in order to achieve adequate implementation of ABS measures.89 Specific guidance on developing and implementing consultative initiatives (e.g. national consultative committees),90 procedural requirements (e.g. that stakeholders’ views shall be taken into consideration in each step of the consultation process),91 and facilitative responsibilities (e.g. provide scientific and legal advice to IPLCs and support IPLCs for capacitybuilding in order to ensure effective participation and active engagement) are provided.92 The instrument also stresses that the diversity of stakeholders might require “appropriate involvement” to be determined on a case-by-case basis.93 These procedural standards could empower IPLCs to participate in ABS transactions and encourage participatory institutions that possess rights to control access to genetic resources and traditional knowledge, but it would very much depend on the national implementation and political willingness to substantiate the Guidelines at domestic and local levels. The Akwé: Kon Guidelines is short for the Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. “Akwé: Kon” is a Mohawk term meaning “everything in creation” and the instrument was adopted in the seventh session of the CBD COP in 2004.94 This instrument arises from the CBD commitment to 88

82 83 84 85 86 87

Tully (2003). VI/24 (n 80) paras 14, 15, 28 and 29. ibid para 26(d). ibid para 31. ibid para 27. ibid para 33. Emphasis added.

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89 90 91 92 93 94

ibid para 34. ibid para 17. ibid para 19. ibid para 18. ibid para 20. ibid para 17. Emphasis added. VII/16 (n 77) anx F.

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protect traditional knowledge and it includes several ways to incorporate IPLCs’ considerations into the new or existing impact assessment procedures.95 The importance of PIC is recognised in the Akwé: Kon Guidelines both as a general consideration and as a means to comply with national legal regimes that require PIC.96 Specifically, in the conduct of cultural impact assessment, PIC is a procedural requirement if the disclosure of secret or sacred knowledge is concerned to ensure proper protection.97 With respect to development proposals in which traditional knowledge is used, PIC is also envisaged as a means to safeguard IPLCs’ ownership and control over their traditional knowledge and respect IPLCs’ customary laws and intellectual property rights.98 Furthermore, the Akwé: Kon Guidelines puts forward detailed standards in which PIC shall be obtained as it corresponds to different phases of the impact assessment process, including, consider rights, knowledge, innovations and practices of IPLCs, the use of appropriate language and process, the allocation of sufficient time, and the provision of accurate, factual and legally correct information.99 Thus, this instrument does not only supports public participation of IPLCs who are likely to be affected by the proposed development activities in the decision-making process, but also connects the PIC mechanism with the impact assessment procedures within the context of the CBD.100 The Tkarihwaié:ri Code of Ethical Conduct refers to the Tkarihwaié:ri Code of Ethical cConduct on Respect for the Cultural and Intellectual Heritage of Indigenous and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity, an instrument adopted by the CBD COP in 2011 at its tenth meeting.101 The word “Tkarihwaié:ri” is, 95

ibid. ibid paras 52 and 53. 97 ibid para 29. 98 ibid para 60. 99 ibid para 53. 100 Fitzmaurice (2008). 101 CBD COP Decison X/42, ‘The Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and 96

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similarly, a Mohawk term meaning “the proper way” and the instrument has a sharpened focus on issues pertaining to traditional knowledge. The Tkarihwaié:ri Code of Ethical Conduct embraces a definition of traditional knowledge that is in line with CBD Article 8(j), meaning “knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity”.102 The interdependent relationship among traditional knowledge, IPLCs’ cultural heritage and their lands and waters is highlighted throughout the text of this instrument. Specifically, the instrument notes that the protection of traditional knowledge is fundamental for promoting full respect for IPLCs’ cultural and intellectual heritage, and in turn, IPLCs’ access to their lands and waters and the opportunity to practise traditional knowledge on those lands and waters, is paramount for the retention of traditional knowledge.103 Specifically, this Code of Ethical Conduct suggests ten general ethical principles that should underpin any interaction/ activity in relation to IPLCs, including PIC and/or approval and involvement.104 For traditional knowledge that is associated with conservation and sustainable use of biological diversity, the Tkarihwaié:ri Code of Ethical Conduct requires any activities/interactions that are occurring on or likely to impact on IPLCs’ lands and waters to be carried out with the PIC and/or approval and involvement of IPLCs.105 Notably, it integrates the human rights concept of FPIC into its PIC principle, by elaborating the element “free”

Intellectual Heritage of Indigenous and Local Communities’ (29 October 2010) UN Doc UNEP/CBD/COP/ DEC/X/42. 102 ibid anx. 103 ibid intro. 104 These general ethical principles are respect for existing settlements, intellectual property, nondiscrimination, transparency/full disclosure, prior informed consent and/or approval and involvement, inter-cultural respect, safeguarding collective or individual ownership, fair and equitable sharing of benefits, protection, and precautionary approach. See ibid Section 2 (A). 105 ibid.

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without enunciating it—“such consent or approval should not be coerced, forced or manipulated”.106 The Mo’otz Kuxtal Voluntary Guidelines was adopted in 2016 by the CBD COP at its thirteenth meeting, providing guidance for the development of mechanisms, legislation or other appropriate initiatives to ensure the PIC, FPIC or approval and involvement, depending on national circumstances, of IPLCs for accessing their knowledge, innovations and practices, for fair and equitable sharing of benefits arising from the use of their knowledge, innovations and practices relevant for the conservation and sustainable use of biological diversity, and for reporting and preventing unlawful appropriation of traditional knowledge.107 Notably, the Mo’otz Kuxtal Voluntary Guidelines makes parallel reference to PIC, FPIC and approval and involvement, and uses the non-conventional term IPLCs. Morgera has suggested that the presentation of a mixture of terminologies may be seen as a result of the lack of consensus of national delegations during the negotiation process.108 Admittedly, the very long name of the Guidelines and its seemingly all-encompassing scope create uncertainty in both interpretation and implementation, which perhaps is not helpful in advancing international standard-setting process with respect to traditional knowledge protection. However, by incorporating a variety of terms rather than 106

ibid para 11. CBD COP Decision XIII/18, ‘Mo’otz Kuxtal Voluntary Guidelines for the Development of Mechanisms, Legislation or other Appropriate Initiatives to Ensure the “Prior and Informed Consent”, “Free, Prior and Informed Consent” or “Approval and Involvement”, depending on National Circumstances, of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits arising from the Use of their Knowledge, Innovations and Practices relevant for the Conservation and Sustainable use of Biological Diversity, and for Reporting and Preventing Unlawful Appropriation of Traditional Knowledge’ (17 December 2016) UN Doc CBD/COP/DEC/ XcIII/18. 108 Elisa Morgera, ‘Reflections on 2016 UN Biodiversity Conference (Part II): Assessing the Mo’otz Kuxtal Guidelines on Benefit-sharing from the Use of Traditional Knowledge’ (Benelex, 2017) 26/08/2017. 107

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dispensing with the principle all together, it also represents an implicit agreement that measures, however termed, must be put into place to ensure Indigenous and local participation in the decision-making processes. Based on the key PIC elements identified by the Bonn Guidelines, the Mo’otz Kuxtal Voluntary Guidelines elaborates the term with particular attention to IPLCs’ special interests and circumstances. For instance, the instrument notes that, depending on national circumstances and the diverse internal organisation of various IPLCs, a PIC system may include competent authorities not only at the national or subnational level, but also at the community level for IPLCs.109 It elaborates the procedural elements of PIC, emphasising how the process could be best designated to involve IPLCs in the decisionmaking and consent-granting process to a full extent.110 Key suggestions of the Guidelines include that the manner and language used in the process should be the ones that are understood by IPLCs, and that the timing, implementation, and monitoring processes should be culturally appropriate for IPLCs.111 Furthermore, the Guidelines stresses that due consideration for customary laws, community protocols, practices and customary decision-making processes of IPLCs should be taken into account when develop national ABS laws and regulations.112 Thus, we may observe elements of a much tailored PIC system for IPLCs, as compared to the two-tiered structure elaborated by the Bonn Guidelines, especially in the sense that the IPLCs are rendered a more proactive role in the PIC process at the community level. The most recent instrument is the Rutzolijirisaxik Voluntary Guidelines for the Repatriation of Traditional Knowledge of Indigenous Peoples and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity. The predominant focus of the Rutzolijirisaxik Voluntary Guidelines is the 109 110 111 112

XIII/18 (n 107) para 17(b). ibid para 17. ibid para 17(c). ibid paras 10, 17 and 18.

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repatriation of traditional knowledge, under which PIC, FPIC, benefit-sharing and MAT are all considered relevant procedural requirements. It is worth noting that when articulating the requirements for repatriation agreements of traditional knowledge, the Rutzolijirisaxik Voluntary Guidelines adopts the explicit language of “rights” as it uses the right to PIC and FPIC as an example of any rights the original traditional knowledge holder may have, which shall be respected.113 In comparison, when it concerns publicly available traditional knowledge, the requirements of PIC and FPIC is only “encouraged” for ongoing users to do so.114 In general, the terms that are contained in this instrument is largely in accordance with the Mo’otz Kuxtal Voluntary Guidelines. Thus, significant articulation about the meaning and content of PIC with respect to IPLCs can be observed in the soft law-making process under the CBD framework over the past two decades, which indicates the increasing impacts of the rights-based approach to the CBD objectives. As a precondition for access to genetic resources and traditional knowledge, PIC is designated to safeguard the rights and interests of provider states as well as IPLCs where applicable. It is not a fixed process that can provide a one-size-fits-all solution but plays an important role in ensuring IPLCs’ participation in ABS transactions. While the CBD and its Nagoya Protocol subject the ways in which PIC should be implemented to domestic laws, a range of voluntary guidelines are in place, providing detailed standards for transposing PIC into domestic systems. Specifically, the importance of strengthening public participation and empowering democracy in the ABS transactions has been reiterated. The connection between the PIC mechanism and the protection of IPLCs’ rights to their culture, knowledge, and lands has also been emphasised in light of the CBD COP Decision 14/12, ‘Rutzolijirisaxik Voluntary Guidelines for the Repatriation of Traditional Knowledge of Indigenous Peoples and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity’ (30 November 2018) UN Doc CBD/COP/DEC/14/12 para 33. 114 ibid para 46. 113

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recognition of the interdependent relationship among traditional knowledge, cultural heritage and the lands and resources of IPLCs. Moreover, the necessity of considering specific national circumstances, customary laws, and cultural diversity have been elaborated in order to achieve an effective, meaningful, and inclusive PIC process. Nevertheless, it shall be noted that these instruments are adopted via COP decisions as voluntary instruments. Regardless the potential contribution they may have to the interpretation and implementation of the Nagoya Protocol in a mutually supportive manner with relevant human rights standards, they can only encourage and facilitate such process instead of imposing obligations on state parties to conduct the best practices.

3.2.3 IPLCs’ Customary Laws and Community Protocols Both the CBD and its Nagoya Protocol address issues about the customary laws and community protocol of IPLCs, although to different extents. The CBD does not refer to the customary laws or community protocols of IPLCs explicitly. Instead, concerns in this respect are integrated into its provisions on in situ conservation of biodiversity and sustainable use of its components.115 For instance, as a way to conserve biodiversity in situ, Article 8(j) requires parties to “respect, preserve and maintain knowledge, innovations and practices” of IPLCs, to “promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices”, and to encourage fair and equitable benefit-sharing.116 The standards in which Article 8(j) shall be interpreted and implemented, as discussed in the previous

“In situ conservation” means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties, see CBD, Article 2. 116 ibid Article 8(j). 115

3.2 Access-Related Principles and Procedural Requirements

section, have been elaborated by a range of voluntary guidelines adopted by the CBD COP, which often include reference to IPLCs’ customary laws and community protocols or sometimes traditional practices and customary decision-making process.117 In addition, Article 10(c) of the CBD requires parties to protect and encourage “customary use” of biological resources in accordance with “traditional cultural practices” to better conserve and sustainably use biological resources.118 By contrast, Article 12 of the Nagoya Protocol establishes an overarching clause explicitly obliging parties to “take into consideration” IPLCs’ customary laws, community protocols and procedures with respect to traditional knowledge associated with genetic resources while implementing all their obligations.119 Several “broadly framed” obligations for parties to facilitate understanding and fairness in ABS processes,120 support the development of community protocols,121 not restrict customary use,122 and raise awareness of IPLCs’ community protocols and procedures123 have also been provided.124 Arguably, these requirements shall also cover genetic resources held by IPLCs given the inextricable linkage between genetic resources and traditional knowledge.125 Strictly speaking, the Nagoya Protocol does not recognise the legitimacy of IPLCs’ customary laws as equivalent to national laws. Instead, the way in which and the extent to which customary laws shall be taken into consideration need be “in accordance with domestic law” and “as applicable”.126 Similar caveats also include the “established right” in Article 6(2) of the Nagoya 117

The Mo’otz Kuxtal Voluntary Guidelines makes an outstanding example in this regard. 118 CBD Article 10(c). 119 Nagoya Protocol, Article 12(1). 120 ibid Article 12(2). 121 ibid Article 12(3). 122 ibid Article 12(4). 123 ibid Article 21. 124 Morgera, Tsioumani and Buck (n 5) 217. 125 As discussed in the previous Sects. 3.1.2 and 3.3.1. 126 Nagoya Protocol, Article 12(1).

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Protocol, which requires IPLCs to have the established right to grant access to their genetic resources as a precondition of parties’ obligation to ensure their PIC or approval and involvement.127 These qualifiers pose significant uncertainty to interpretation and risk interpretations that could undermine the interests and rights of IPLCs as it implies that IPLCs’ customary laws and related rights may be subsidiary to domestic law.128 Thus, we could observe that while the Nagoya Protocol provide certain protection to IPLCs’ traditional knowledge and genetic resources according to IPLCs’ own worldviews and customary rules, it has done so in a very careful manner so that the states’ sovereign rights and domestic laws are duly respected. Nevertheless, the reference to IPLCs’ customary laws and community protocols is rare in multilateral environmental treaties and few scholarly attention have been paid to this character of the Nagoya Protocol.129 Although the provision on IPLCs’ customary laws and community protocols appear somewhat “tangential” vis-à-vis other core provisions on ABS,130 as it does not clarify the legal status of such laws or protocols, nor does it imposes any specific obligations on respecting them in domestic contexts,131 it still provides a valuable opportunity to consider the legal implication of IPLCs’ customary laws and community in the broader context of international (environmental) law. The CBD framework seems to uphold the importance of IPLCs’ customary laws as far as they are useful for biodiversity conservation and sustainable use of biological resources, but what is the legal weight in respecting IPLCs’ customary laws per se? Furthermore, what is the legal status of IPLCs’ customary laws vis-à-vis national laws as established by domestic authorities? These questions might exceed the scope of 127

ibid Article 6(2). Emphasis added. UNGA, ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples’ (13 August 2012) UN Doc A/67/301 para 60. 129 Vermeylen (2013) and Tobin (2009a). 130 Greiber and others (n 1) 138. 131 Tobin (n 129) 111. 128

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the given CBD framework, but they are inevitable if the ABS objective is to be achieved in a meaningful and holistic way. To this end, human rights law may offer insightful perspective and interpretative assistance to the understanding of the Nagoya Protocol (Sect. 3.3.3). Meanwhile, the discussion about legal pluralism also merits some attention.132 By acknowledging the coexistence of overlapping normative structures, legal pluralists essentially promote heterogeneous sources of legality and authority of law; therefore, acknowledge non-state actors as norm generating subjects as well.133 With respect to the Nagoya Protocol, Bavikatte and Robinson have suggested in a rather optimistic manner that Article 12 would see “increased community rights and control over national resources where they are appropriate ‘owners’ or resources-holders”.134 Furthermore, in a specific ABS context, it is possible that the customary laws and community protocols of IPLCs could communicate specific rules, needs and aspirations of the communities from the local level to domestic and even international levels through ABS procedures. For instance, PIC could incorporate the local decision-making process within the community and MAT could include terms that are deemed fair and equitable by IPLCs themselves. The obligation of parties to recognise and respect IPLCs’ customary laws may essentially, although indirectly, assign legal power to customary laws and community protocols to a certain level that supports the premises of legal pluralism. From a practical perspective, the CBD Working Group on ABS has investigated the implications of customary laws for traditional knowledge protection and ABS, based on several case studies including India, China, Peru and Kenya.135 The Working Group found that, customary laws, including specific rules, social values and principles, worldviews and beliefs, codes of conduct and established practices of

IPLCs, may be distinct from each other in terms of their content but often share common principles.136 For instance, they are usually enforced by community institutions, derived from the utilisation of natural resources, locally recognised, orally held, dynamic and underpinned by values like reciprocity and equilibrium.137 In the context of biodiversity conservation and sustainable development, the wisdom and practical guidance of IPLCs are increasingly sought as they may provide insights in terms of sustainably managing natural resources.138 In a community context, a community protocol could function as a guidebook for outsiders as well as a checklist for community members to discuss and settle ABS-related questions, including authorities and procedures for community PIC and terms of benefit-sharing.139 Furthermore, Morgera and others have suggested that a participatory process of developing community protocols could enhance the overall organisational capacity of the IPLCs, assure inter-community equity and participation and empower collective selfidentification.140 These processes may facilitate the elaboration of customary rules of IPLCs, which in turn could provide benchmarks for determining whether parties’ obligation are fulfilled “appropriately” or not. Practical challenges also persist. First, substantial gaps have been identified in the process of recognising the customary laws of IPLCs and ensuring their participation at domestic and local levels. In December 2016, the CBD COP noted the limited progress made in mainstreaming Article 8(j) into various efforts relating to capacity development and the participation of IPLCs, as well as the concerning fact that only a limited number of national biodiversity strategies and action plans have included reference to IPLCs and their customary use of genetic

136 132 133 134 135

Berman (2013). Macdonald and Kleinhans (1997). Bavikatte and Robinson (2011). CBD Working Group on ABS (n 30) 1.

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137 138 139 140

ibid 2. ibid. Ørebech et al. (2006). Morgera and Tsioumani (2010). Morgera, Tsioumani and Buck (n 5) 222.

3.2 Access-Related Principles and Procedural Requirements

resources.141 In 2017, parties to the Nagoya Protocol were requested to submit an Interim National Report on their implementation, which contained a question asking whether the country is taking into consideration IPLCs’ customary laws, community protocols and procedures as provided in Article 12(1). A total of 24 parties and 1 non-party state have affirmed that they have taken into consideration IPLCs’ customary laws with respect to traditional knowledge associated with genetic resources, while 24 parties and 1 non-party state reported to the contrary.142 A number of countries143 indicated that they were planning to address this issue while developing their ABS measures, including those countries that answered “no” to this question.144 The majority of the parties have not yet fully implemented Article 12, notwithstanding a few successful cases.145 Since there is no internationally established standards or procedures to guide the implementation of Article 12 of the Nagoya Protocol, it seems inevitable that its provisions have been approached in various ways at the national level.146 Second, it remains unclear as to how to ensure compliance with CBD COP Decision XIII/1, ‘Progress in the Implementation of the Convention and the Strategic Plan for Biodiversity 2011–2020 and towards the Achievement of the Aichi Biodiversity Targets’ (12 December 2016) UN Doc CBD/COP/DEC/XIII/1 paras 8 and 9. 142 CBD Subsidary Body on Implementation, ‘Global Multilateral Benefit-sharing Mechanism (Article 10) of the Nagoya Protocol’ (18 May 2018) UN Doc CBD/SBI/2/5 para 30. 143 Burkina Faso, Burundi, Democratic Republic of the Congo, Malawi, Mexico, Sweden, Uganda, see ibid para 31. 144 Botswana, Côte d’Ivoire, Guinea, Guinea-Bissau, Mauritania, Mongolia, Niger, Pakistan, Sudan, Uruguay, see ibid para 32. 145 It has been observed that many plural-cultural and multi-ethnic states have already enshrined recognition of customary laws in national legal systems, see Tobin (2009b). 146 For instance, Peru recognises customary rules of the IPLCs in the National Potato Park, CBD Working Group on ABS (n 30) 6. Also, Kenya’ Protection of Traditional Knowledge and Cultural Expressions Act (2016) established “moral rights” of traditional knowledge, which exist independently of IPLCs’ cultural rights and are inalienable or transferable and incapable of being waived. 141

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IPLCs’ customary laws.147 At the national level, the CBD Working Group on ABS has suggested two approaches to incorporate Indigenous customary laws into domestic legal system: one is to recognise the legitimacy of IPLCs’ customary laws embodying traditionally established rights; and another is to recognise the rights of ILCs over their traditional knowledge and genetic resources, in accordance with their customary laws.148 The first approach renders a part of states’ sovereign jurisdiction to authority of IPLCs’ customary laws, which echoes the premises of legal pluralism. In comparison, the second approach transfers certain standards embedded in the customary laws into domestic legal system and the rights would be integrated into the domestic law.149 Both approaches need time and practice to testify their respective feasibility and effectiveness under specific national circumstances. Nevertheless, the issue of protecting IPLCs’ rights pertaining to their customary laws remain relevant with either approach. Given the rights of especially Indigenous Peoples pertaining to customary law are increasingly discussed in the context of international human rights, I will continue the discussion about the legitimacy of IPLCs’ customary laws and states’ obligations to respect it in the subsequent Sect. 3.3.

3.2.4 Responsibilities of States Since the authority to regulate the exact manner and procedure of access rests with state governments, it is imperative to examine the role of state governments and their responsibilities in developing national ABS frameworks and The term “compliance” here shall be distinguished from the compliance discussed in chapter four, which concerns Parties’ inter-state obligations under the Protocol. 148 CBD Working Group on ABS, ‘Study on Compliance in Relation to the Customary Law of Indigenous and Local Communities, National Law, Across Jurisdictions, and International Law’ (6 March 2009) UN Doc UNEP/CBD/WG-ABS/7/INF/5 para 51. 149 ibid para 55. 147

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ensuring its functionality. Under the CBD, parties are obliged to “facilitate access to their genetic resources for environmentally sound uses” and not to “impose restrictions that run counter to the objectives of the CBD”.150 Under the Nagoya Protocol, such facilitative obligations are elaborated at two levels. At the domestic level, parties are required to establish various institutional arrangements to support access, including national focal points and competent national authorities.151 At the international level, parties are required to promote transboundary cooperation152 and share ABS-related information through the Access and Benefit-sharing Clearing-House mechanism.153 Furthermore, Article 8 of the Nagoya Protocol highlights certain situations in connection with noncommercial research,154 emergency cases related to human, animal, or plant health155 and the importance of genetic resources for food security,156 which are in nature outside the scope of the Protocol but merit parties’ special considerations. As a means to complement legislative and regulatory approach to regulate ABS, Article 20 also encourages parties to support the development and utilisation of voluntary norms, such as codes of conduct, guidelines and best practices and/or standards.157 This implies that concerted efforts are necessary for achieving the objectives of the Nagoya Protocol from not only governments, but also companies, scientific associations, non-governmental organisations and IPLCs that are involved in the ABS transactions. The role of state governments in this context is also of a facilitative nature, which includes a range of specific responsibilities such as, inter alia, awareness raising, capacity-building and promoting best practices.158 In particular, Article 150 151 152 153 154 155 156 157 158

CBD, Article 15(2). Nagoya Protocol, Article 13. ibid Article 11. ibid Article 17(1)(a)(iii). ibid Article 8(a). ibid Article 8(b). ibid Article 8(c). Greiber and others (n 1) 159. ibid 196.

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21 requires parties to take measure to raise awareness of community protocols and procedures of IPLCs,159 and Article 22 provides specific reference to the need to increase capacities of IPLCs (with a sharpened focus on women) in relation to ABS and particularly traditional knowledge associated with genetic resources.160 Thus, various responsibilities are envisaged by the Nagoya Protocol for state governments to facilitate access while considering relevant interests and rights of IPLCs to food, health, and customary laws, as well as the specific needs and interests of the vulnerable members of IPLCs, e.g., women and children. The implementation of the Nagoya Protocol also involves a multitude of relationships among a variety of stakeholders, including private entities, research institutes and NGOs, as well as IPLCs within and beyond states’ territorial boarders. These characteristics have important influence in understanding the relevant human rights law, as will be unpacked in the following section.

3.3

Human Rights Implications on Access-Related Provisions

This section focuses on the right of selfdetermination (Sect. 3.3.1), the right to FPIC (Sect. 3.3.2) and the cultural rights pertaining to IPLCs’ customary laws (Sect. 3.3.3), as they provide important normative and practical implications for a mutually supportive interpretation and implementation of the Nagoya Protocol. The connection between the ABS framework and the relevant human rights of IPLCs is established and critically examined via questions such as, to what extent may ABS and human rights assist one another in their systemic and mutually supportive realisation? And what are the implications with respect to state responsibilities concerning IPLCs imposed by international human rights standards?

159 160

Nagoya Protocol Article 21(i). ibid Article 22(5).

3.3 Human Rights Implications on Access-Related Provisions

3.3.1 Right of Self-determination The right of self-determination is prominently incorporated in the Charter of the United Nations as well as the two International Covenants on fundamental human rights. The ICCPR and the ICESCR establish the right of “all peoples” to self-determination as their key prerogative in Article 1 with identical provisions, asserting that “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”, as well as to “freely dispose of their natural wealth and resources” for their own ends.161 In the time when these instruments were adopted, the right of selfdetermination was mainly meant as a political and legal tool to achieve decolonisation, which is evident in the text of Article 1(3) of the ICCPR and the ICESCR162 and the relevant practice of the UN.163 For instance, the ICJ recognised the applicability of self-determination as a principle enshrined in the UN Charter to all peoples in colonial situations in its advisory opinion on the Namibia case in 1970.164 The ICJ has reiterated this position in the Western Sahara case in 1975,165 where it also formally acknowledged the existence of the Indigenous notion of land rights of Western Sahara.166 Although the original importance of self-determination is rendered to colonial peoples, this right and its implications 161

ICCPR and International Covenant on Economic, Social and Cultural Rights [adopted 16 December 1966, entered into force 3 January 1976], Article 1. 162 It reads, “State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination”. 163 CERD, ‘CERD General Recommendation No. 21: Right to Self-determination’ (1996) UN Doc A/51/18 para 4 and Western Sahara (Advisory Opinion) [16 October 1975] (ICJ) Rep 12 37. See also Simpson (1996). 164 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [21 June 1971] (ICJ) Rep 16 31. See McCorquodale (1994). 165 Western Sahara (Advisory Opinion) (n 163). The Court heard this case at the request of the UN General Assembly. 166 ibid 40.

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continue to be relevant and important in the postcolonial era.167 As confirmed by the Human Rights Committee (HRC), the principle of selfdetermination applies to all peoples regardless of their historical association with colonisation.168 More recently, the ICJ reaffirmed in the Israeli Wall case that “the right of peoples to selfdetermination is today a right erga omnes”, citing the UN Charter and the two Human Rights Covenants.169 In general, the right of selfdetermination has been regarded the foundation of many other human rights, including, inter alia, political and civil rights such as the right of political participation170 and minority rights,171 and economic, cultural and social rights such as the right to natural resources172 and the right to development.173 As articulated in the ICCPR General Comment No.12, the right of selfdetermination is “an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”.174 The right of self-determination is often considered as entailing two dimensions: external and internal. An external claim to self-determination

167

Smith (2018). HRC, ‘Comments of the Human Rights Committee on Azerbaijan’ (3 August 1994) UN Doc CCPR/C/79/ Add.38 para 6. 169 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [9 July 2004] (ICJ) Rep 136 paras 87 and 88. 170 ICCPR, Article 25. Also International Convention on the Elimination of All Forms of Racial Discrimination [adopted 21 December 1965, entered into force 4 January 1969], Article 5(c). 171 ICCPR, Article 27. The HRC has reiterated that the provisions of Article 1 may be relevant in interpretation of other rights protected under the ICCPR, see Smith (n 167) 307. 172 General Assembly adopted resolution 1803 (XVII) on the “Permanent Sovereignty over Natural Resources” on 14 December 1962. See Rehman (2010). 173 Declaration on the Right to Development [4 December 1986] UNGA Res A/RES/41/128, pmbl, Articles 1 and 5. Sengupta (2002). 174 HRC, ‘CCPR General Comment No. 12: Article 1 The Right to Self-determination of Peoples’ (13 March 1984) UN Doc HRI/GEN/1/Rev.9 (Vol. II) 1. 168

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usually concerns a territorial dispute and could be realised by secession aiming for an independent statehood.175 This dimension of self-determination is conspicuously intertwined with the notion of decolonisation during the 1950s and 1960s.176 Meanwhile, the realisation of external self-determination is also present in the post-Cold War era by non-colonial peoples from, for instance, the former Union of Soviet Socialist Republics (USSR), Czechoslovakia and Yugoslavia.177 Overall, external self-determination has not been widely accepted in a political sense as it poses potential threats to the territorial integrity of states.178 On the other hand, the internal dimension of self-determination includes the right of all peoples to pursue freely their economic, social and cultural development without outside interference.179 From a people’s perspective, it follows that the right shall be understood not only as the attainment of independent statehood, but also as the assertion of identity, language, tradition, self-management and autonomy within states’ territories.180 This dimension of self-determination has attracted much attention especially in an Indigenous context. For instance, the HRC has affirmed that the Indigenous Peoples in Finland and Chile are entitled to internal self-determination in the context of natural resources extraction.181 Since internal self-determination is less politically controversial (and thus more pragmatically accessible), it has been more widely used by legal scholars and Indigenous advocates when referring to various forms of Indigenous rights, including, self-government, autonomy,

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territorial integrity, lands and resources.182 Nevertheless, it is worth highlighting that some key questions about the internal dimension of selfdetermination remain unsettled, including, the nature of internal self-determination and the level of autonomy which can be demanded to satisfy that right.183 A major issue of the term is the lack of official definition of the right-holders—who are the “peoples”? Various characteristics of peoples have been put forward, such as common historical tradition, racial or ethnic identity, territorial connection, common economic life and a certain minimum number of population.184 However, there is no human rights instrument that explicitly defines the concept, nor does an universally accepted list of characteristics of “peoples” ever exist.185 Furthermore, as the HRC determines that self-determination is not a right cognisable under the Optional Protocol of the ICCPR,186 there is very limited jurisprudence on this matter offered by treaty monitoring bodies.187 With respect to IPLCs, the UNDRIP as adopted in 2007 is a milestone of the international recognition of Indigenous Peoples and their human rights.188 Affirming the right of Indigenous Peoples to self-determination (even though in a limited form), the UNDRIP provides a detailed list of rights that constitute the minimum standards for the survival, dignity and well-being of

182

Pereira and Gough (2014) and Engle (2010). Smith (n 167) 301. 184 McCorquodale (n 164) 866 and Dinstein (1976). 185 Koskenniemi (1994). 186 HRC, ‘CCPR General Comment No. 23: Article 27 (Rights of Minorities)’ (8 April 1994) UN Doc CCPR/C/21/Rev.1/Add.5 para 3.1. 187 The HRC has made clear that self-determination is a collective right, which cannot be claimed by individuals. See Lubicon Lake Band v Canada [26 March 1990] (HRC) UN Doc Supp. No. 40 (A/45/40) paras 13.3 and 32.1. John Wilson v Australia [1 April 2004] (HRC) UN Doc CCPR/C/80/D/1239/2004 (2004) para 4.3. 188 Allen and Xanthaki (2011). 183

175

CERD (n 163) para 4. Brilmayer (1991). Western Sahara (Advisory Opinion) (n 163) para 37; Kirgis (1994). 177 Joseph and Castan (2013). 178 ibid 159 and Iorns (1992). 179 CERD (n 163) para 4. 180 Anaya (2004). 181 HRC, ‘Concluding Observations of the Human Rights Committee on Finland’ (2 December 2004) UN Doc CCPR/CO/82/FIN para 17 and HRC, ‘Concluding Observations of the Human Rights Committee on Chile’ (18 May 2007) UN Doc CCPR/C/CHL/CO/5 para 19. 176

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Indigenous Peoples around the world.189 Reiterating the political, economic, social and cultural aspects of the right of self-determination, the UNDRIP highlights that Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to “their internal and local affairs”.190 James Anaya, when serving as the UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous Peoples, has suggested that the articulation of the right of self-determination in the UNDRIP may shed light on the understanding of “Indigenous Peoples” vis-à-vis their specific historical, cultural and social circumstances.191 His successors, Victoria Tauli Corpuz and Francisco Calí Tzay, have also emphasised the fundamental role of right to self-determination as an essential safeguard to Indigenous Peoples’ autonomy, selfgovernment, and social justice in various contexts.192 The progress marked by the UNDRIP in affirming and perhaps re-centring on selfdetermination is widely appraised and its aftermath continuous to influence the development of international human rights law today.193 Thus, it can be observed that the right of selfdetermination is a principal human right, based on which all peoples are entitled to determine their political status, freely pursue their economic, social, and cultural development, and dispose of

their natural wealth and resources. The exercise of state sovereignty over natural resources, as discussed previously, shall also respect people’s rights to self-determination in principle. In light of states’ responsibility to safeguard and fulfil the right of self-determination, it can be interpreted that state sovereignty also takes shape as a human right obligation to exercise sovereign rights for the purpose of promoting national development and ensuring the well-being of all its peoples.194 While the term “peoples” remains undefined, it is very difficult to conclude that this uncertainty would exclude all persons within a state, especially ethnic minorities and Indigenous Peoples, from benefiting from this fundamental right. As this book discusses IPLCs and their human rights in the ABS context, it focuses on the internal aspects of self-determination in connection with the rights of IPLCs to lands, resources, culture, development, and those pertaining to FPIC and customary laws, and their implications on states obligations to adopt national laws and policies to comply with international standards. I do not discuss the external aspects of self-determination that addresses issues of accession to independent statehood, although it might be relevant for IPLCs in cases where they make territorial claims.195

189

3.3.2.1 Definition of FPIC FPIC is being incorporated in many international fora with a growing attention on the rights of IPLCs, such as the CBD, the WIPO, the WTO, the World Bank, and the UN Educational,

United Nations Declaration on the Rights of Indigenous Peoples [13 December 2007] UNGA Res 61/295, Article 43. “Limited” in the sense that it does not recognise the “strong” forms of self-determination, including external self-determination and internal selfdetermination that provide for significant autonomy for Indigenous Peoples. See Engle (2011). 190 UNDRIP Article 4. For an analysis of its content, see Foster (2001). 191 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya’ (11 August 2008) UN Doc A/HRC/9/9 para 86. 192 UNGA, ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples’ (17 July 2019) UN Doc A/74/149 6–21 and HRC, ‘Regional Consultation on the Rights of Indigenous Peoples in Asia’ (4 September 2020) UN Doc A/HRC/45/34/Add.3* 16. 193 Smith (n 167) 304.

3.3.2 Right to Free, Prior and Informed Consent

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Jong (2015) and McCorquodale and Simons (2007). Scholars have generally noted that the self-determination rhetoric has been of limited utility to most non-colonial oppressed peoples and that it has not been of much help for such groups in their territorial claims. See Emerson (1971) and Castellino (2008). Scholars such as Schulte-Tenckhoff has also questioned that a limited form of self-determination, i.e., internal self-determination, is against the very essence of this right itself, see Schulte-Tenckhoff (2012).

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Scientific and Cultural Organization (UNESCO), covering issues from biodiversity conservation, development and resettlement policies, natural conservation, to the protection of Indigenous cultural heritage.196 These developments largely result from the ongoing advocacy by Indigenous Peoples to have their fundamental human rights recognised and respected, especially those pertaining to lands and natural resources, as well as knowledge and cultures.197 The most cited definition of FPIC is provided by the UNPFII—an advisory body to the UN Economic and Social Council that provides expert advice on Indigenous issues. In its 2005 Report on FPIC and Indigenous Peoples, the UNPFII elaborated several key elements of the term FPIC by addressing the questions of what FPIC is, when and how it should be obtained and from whom.198 According to this report, “free” should imply no coercion, intimidation, or manipulation. “Prior” should imply that consent must be sought sufficiently in advance of any authorisation or commencement of activities, and that the relevant agents should guarantee enough time for the Indigenous consultation/consensus processes to take place. “Informed” implies that Indigenous Peoples should receive satisfactory information in relation to certain key areas, including the nature, size, pace, reversibility and scope of the proposed project, the reasons for launching it, its duration, and a preliminary assessment of its economic, social, cultural, and environmental impact. Crucially, this information should be accurate and in a form that is accessible, meaning that Indigenous Peoples should fully understand the language used. Finally, “consent” should be intended as a process by which consultation and participation represent the central pillars.199 196

There is extensive literature on FPIC in these contexts, see, inter alia, Dalibard and Kono (2009) and other contributions in this book, Rudolff and Raymond (2013), Butzier and Stevenson (2014) and MacKay (2002). 197 Cariño (2005). 198 UNPFII, ‘Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples’ (17 February 2005) UN Doc. E/C.19/2005/3 paras 46–50. 199 Barelli (2012).

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Under the CBD, FPIC has also been defined in the Mo’otz Kuxtal Guidelines in the context of access to IPLCs’ traditional knowledge in the following terms: Free implies that Indigenous Peoples and local communities are not pressured, intimidated, manipulated or unduly influenced and that their consent is given, without coercion; Prior implies seeking consent or approval sufficiently in advance of any authorization to access traditional knowledge respecting the customary decision-making processes in accordance with national legislation and time requirements of Indigenous Peoples and local communities; Informed implies that information is provided that covers relevant aspects, such as: the intended purpose of the access; its duration and scope; a preliminary assessment of the likely economic, social, cultural and environmental impacts, including potential risks; personnel likely to be involved in the execution of the access; procedures the access may entail and benefit-sharing arrangements; Consent or approval is the agreement of the Indigenous Peoples and local communities who are holders of traditional knowledge or the competent authorities of those Indigenous Peoples and local communities, as appropriate, to grant access to their traditional knowledge to a potential user and includes the right not to grant consent or approval; Involvement refers to the full and effective participation of Indigenous Peoples and local communities, in decision-making processes related to access to their traditional knowledge. Consultation and full and effective participation of Indigenous Peoples and local communities are crucial components of a consent or approval process.200 This definition adopted under the CBD, in particular the shared interpretation of the elements of “free”, “prior”, “informed” and “consent” with the ones adopted by the UNPFII, lends support to the scholarly observation that the 200

XIII/18 (n 107) para 7.

3.3 Human Rights Implications on Access-Related Provisions

concept of PIC in the ABS framework overlaps with the concept of FPIC in the international human rights law.201 Admittedly, the ABS terms also includes other elements such as “approval and involvement”, which could be seen as a result of the reluctance by some CBD parties to fully endorse the right to community FPIC as developed in the international human rights law.202 Nevertheless, it can be observed that the core of the concepts as adopted in the ABS and human rights contexts is almost indistinguishable. This normative overlap provides a crucial ground for the mutually supportive interpretation of PIC/FPIC-related rules. With respect to implementation, the challenge for applying the principle of mutual supportiveness is two-fold. First, state parties of the Nagoya Protocol are not obliged to incorporate human rights standards of FPIC into their ABS obligations when it concerns IPLCs. Second, even if they intend to do so based on good faith or any other reason, the extent to which they might take the human rights standards into consideration depends largely on to their discretion. Another risk of interpreting and implementing PIC/FPIC in accordance with mutual supportiveness is embedded in the relatively ambiguous legal status of “local communities” in international law.203 Standards of FPIC that have been established for Indigenous Peoples via instruments such as the UNDRIP, especially those based on the assertation of the right of self-determination, do not directly apply in cases where local communities are concerned. However, as discussed below, the international human rights standards of FPIC have been articulated in a broad context, which includes a variety of fundamental human rights that also apply to Indigenous and local communities who are not recognised as Peoples per se.

3.3.2.2 International Human Rights Standards of FPIC via Law-Making FPIC aims at ensuring IPLCs’ engagement and participation in the decision-making process of projects that might affect their rights in general. These could include development projects conducted by extractive industries such as logging and mining.204 Legal scholars often rely on two main international legal instruments to demonstrate the evolving content of FPIC and its role in safeguarding IPLCs’ fundamental human rights, that is, the ILO Convention 169 and the UNDRIP, as these two instruments provide the most significant evidence of the international human rights to FPIC through international lawmaking.205 The more recent UNDROP also provide important reference to the standards of ensuring the participation of local communities, who might be identified as “peasants and other people working in rural areas”, in the decisionmaking processes that might affect them.206 In addition, implicit reference in international human rights law have also contributed to the standard-setting processes of FPIC. The following paragraphs discuss them in turn. Some human rights instruments speak broadly of a minority’s right to participate in the development process without using the term FPIC explicitly. For instance, the ICCPR General Comment No. 23 on the rights of minorities notes that the enjoyment of cultural rights under Article 27 of the ICCPR “may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”.207 The CERD General Recommendation No. 23 on the rights of Indigenous Peoples also call upon states parties to “ensure that members 204

Spears and Laplante (2008). The ILO Convention 169 is the major binding international convention concerning Indigenous Peoples before the UNDRIP. For scholarly discussions see Doyle (2014) and Barelli (n 199) 2. 206 United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas [28 September 2018] HRC A/HRC/RES/39/12, Articles 2(3) and 10. 207 HRC (n 186) para 7. 205

201 202 203

Savaresi (n 5) 53. Morgera, Tsioumani and Buck (n 5) 152. As discussed in Sect. 3.1.3.

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of Indigenous Peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent”.208 Similarly, the ILO Convention 169 requires state governments to conduct consultation and to facilitate Indigenous and tribal peoples to “freely participate in all levels of decision-making”, “with the objective of achieving agreement or consent”.209 With respect to local communities, the UNDROP states that states shall “consult and cooperate in good faith with peasants and other people working in rural areas through their own representative institutions” and “ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decisionmaking processes”.210 Thus, even though the term of FPIC is absent in these instruments, it could be observed that the essential elements of FPIC are in fact incorporated. A mutually supportive and systemic interpretation of these provisions also require them to be read in the overall context of the given instrument. For instance, as Barelli has suggested, the requirements of consultation and participation in the ILO Convention 169 should be read in conjunction with other provisions in the treaty, especially those establish the rights of Indigenous Peoples pertaining to their lands, resources and culture, which include a strong demand for ensuring effective participation in the use, management and conservation of these resources.211 A systemic reading of the CERD, ‘CERD General Recommendation No. 23: Indigenous Peoples’ (1997) UN Doc A/52/18 para 4(b). 209 Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries [adopted 27 June 1989, entered into force 5 September 1991] ILO C169, Article 6. As discussed in Sect. 1.3.3, this treaty does not have a large number of state parties but has proved to be influential in elaborating indigenous and tribal rights in both international law-making process and in scholarly discussions, see Anaya (n 180) 58. 210 UNDROP, Articles 2(3). Emphasis added. 211 ILO Convention 169, Articles 13 and 15. Barelli (n 199) 6. This point can also be supported by the decision of the ILO Governing Body, see, for instance, ILO Governing Body, ‘Report of the Committee Set Up to Examine the Representation Alleging Non-observance by Ecuador of the Indigenous and Tribal Peoples 208

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FPIC-related provisions in international human rights law is essential to perceive interconnectedness of the various human rights entitled to IPLCs. In comparison, FPIC is rendered a proactive role of protecting Indigenous Peoples’ human rights in the UNDRIP. Unlike the ILO Convention 169, the UNDRIP is not a binding instrument. However, as already discussed, soft law is an integral and important part of the corpus of international law.212 Furthermore, there are legal scholars, including Anaya and Wiessner, hold strongly that the UNDRIP is binding to the extent that the content of the Declaration is supported by the factual state practice (even of the counties that voted against) and the general opinio juris.213 In addition, Wiessner suggests that the key provisions of the UNDRIP, or at least the principles embedded in it, reflect pre-existing customary international law and, to some extent, generate new customary international rules.214 On the contrary, scholars such as Xanthaki and Davis, suggest that the above arguments are rather premature as it is not possible to established a norm of customary international only through opinion juris, and that to perceive the adoption of the UNDRIP as establishing a uniform state practice in recognising Indigenous rights might be over-ambitious.215 Although the normative status of the UNDRIP remains controversial in scholarly discussions, the UNDRIP and its provisions on FPIC have greatly influenced the judicial practices of the several human rights treaty bodies and regional human rights courts, especially with respect to the interpretation of Indigenous Peoples’ rights to lands, resources, and culture. To this end, the UNDRIP and its provisions are able to shed light on the international standards that guide the

Convention, 1989 (No. 169), Made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL)’ (2001) GB. 282/14/2 para 39. 212 See Sect. 3.2.2. 213 Anaya and Wiessner (2007). 214 Wiessner (2011). 215 Xanthaki (2009) and Davis (2012).

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interpretation and implementation of Indigenous rights at both international and national levels.216 Focusing on the specific provisions of the UNDRIP, FPIC functions as an important procedural safeguard to Indigenous Peoples in the contexts of land use, relocation, resources exploitation, environmental protection and the development of national laws and policies that might affect Indigenous Peoples’ rights. In relation to Indigenous rights of land and territories, Article 10 of the UNDRIP stresses that Indigenous Peoples shall not be relocated without their FPIC.217 Article 32 further requires states to consult and cooperate in good faith with Indigenous Peoples through their own representative institutions in order to obtain FPIC prior to the approval of any project affecting their lands or territories and other resources.218 Pertinent to environmental protection, states are required to take effective measures to prevent storage or disposal of hazardous materials from taking place in the lands or territories of Indigenous Peoples without their FPIC.219 The UNDRIP also highlights the states’ obligation to consult with Indigenous Peoples in order to obtain their FPIC before adopting and implementing any domestic legislative or administrative measures that may affect them.220 Furthermore, the UNDRIP imposes obligations on states to ensure restitution or compensation for the lands and resources which are traditionally owned or used by Indigenous Peoples, if such lands or resources were occupied or used without Indigenous Peoples’ FPIC.221 Finally, by recognising Indigenous Peoples’ right to practise and revitalise their cultural traditions and customs, Article 11 calls upon states to provide redress with respect to their cultural, intellectual, religious and spiritual property taken without FPIC or in violation of their laws, traditions and customs.222 216 217 218 219 220 221 222

Thus, the tie between FPIC as a procedural right and various substantive human rights of Indigenous Peoples, especially the property rights to lands and resources has been established in human rights law. A rights-consistent perspective would also suggest that this connection manifests a normative framework of Indigenous rights based on self-determination, or at least its internal aspects.223 The right to FPIC as elaborated in the UNDRIP also connects with the “historical injustices” suffered by Indigenous Peoples, to which FPIC provides a procedural benchmark of establishing state’s obligations to provide redress and compensation for lands, resources, cultural and intellectual property of Indigenous Peoples that have been taken without their participation or consent.224 While FPIC may have been established as a widely accepted right of IPLCs, it remains unclear that whether, and/or, to what extent, this right renders IPLCs a veto power to development projects or other activities that might affect their rights.225 Great uncertainty also persists as to the applicability of the current FPIC mechanism and standards in a community context or in situations where the Indigenous community has not been recognised as peoples.226

3.3.2.3 FPIC in Human Rights Jurisprudence The jurisprudence of regional human rights courts and several UN human rights treaty bodies provides an important source in understanding the evolving interpretation of FPIC as a human right of IPLCs. The articulation of states’ responsibility to seek FPIC, or sometimes more assertively as to “obtain” FPIC, indicates how the development in international human rights law may shed light on the judicial understanding of states’ responsibilities vis-à-vis IPLCs. Based on a number of landmark cases including the 223

Xanthaki (n 215) 37. UNDRIP Article 10. ibid Article 32(2). ibid Article 29(2). ibid Article 19. ibid Article 28. ibid Article 11.

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Anaya (2009) and Doyle (n 205) 101. The Preamble of the UNDRIP expresses concerns “that Indigenous Peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories, and resources”. UNDRIP, pmbl. Also see Anaya (n 223) 196. 225 Barelli (n 199) 16. 226 Magraw and Baker (2007). 224

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Saramaka People v Suriname,227 the Endorois case,228 the Länsman et al. v Finland229 and the Poma Poma v Peru,230 this section investigates the judicial practices of the HRC, the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD),231 and regional human rights courts. Human Rights Committee. The HRC monitors the implementation of the ICCPR through examining national reports submitted by its state parties, as well as inter-state and individual complaints about human rights violations.232 FPIC has been addressed by the HRC primarily in relation to the minority’s right to culture as enshrined in Article 27 of the ICCPR. Specifically, Article 27 requires that persons belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.233 In its General Comment No. 23, the HRC articulates that it is an individual right conferred to members of minorities by Article 27, which nevertheless needs to be understood in a community context because the realisation of these cultural rights depends on the ability of communities to maintain their distinct culture and identity.234 Confirming the principle of state sovereignty and 227

Case of the Saramaka People v Suriname [28 November 2007] (Inter-American Court of Human Rights) IACHR Series C no 172. 228 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya [2010] (African Commission on Human and Peoples’ Rights) 276/2003. 229 Länsman et al. v Finland [26 October 1994] (HRC) UN Doc CCPR/C/52/D/511/1992 (1994). 230 Poma Poma v Peru [24 April 2009] (HRC) UN Doc CCPR/C/95/D/1457/2006. 231 They monitor the implementation of the ICCPR, the ICESCR and the ICERD respectively. 232 As provided in ICCPR, Articles 28 and 41. Individual complaints procedures are provided by the Optional Protocol to the International Covenant on Civil and Political Rights [adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171. 233 ICCPR, Article 27. 234 HRC (n 186) paras 1 and 6.2.

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territorial integrity, the HRC also observes that as “culture manifests itself in many forms”, the exercise of the cultural rights of Indigenous communities and Indigenous Peoples may intimately associate with territory and natural resources.235 To this end, the HRC suggests that Article 27 implies several positive duties of state, including, to ensure the individual cultural rights are not violated by states itself or by any other persons within the state, to protect the identity of the minority so that the individual rights could be enjoyed, and most notably, to “ensure the effective participation of members of minority communities in decisions which affect them”.236 This interpretation can also be observed in two cases concerning the Sami people—an Indigenous minority who lives in northern Scandinavia (including countries such as Norway, Sweden, and Finland)—i.e., Länsman et al. v Finland (1992) and Jouni E. Länsman et al. v Finland (1995).237 The authors of both communications are members of Sami ethic origin, and they have submitted complaints about similar issues concerning resource extraction activities in areas where they practice their traditional livelihood—reindeer herding. They claimed that the activities, including stone quarrying, logging, and road construction, threatened their traditional way of life and amounted to a violation of their rights to culture as enshrined in Article 27 of ICCPR. Thus, a central question facing the HRC in both cases is to determine whether the concerned activities indeed deny the rights of the authors to enjoy the traditional culture.238 Recalling the General Comment No. 23 and especially its requirement that measures must be taken to “ensure the effective participation of members of minority communities in decisions which affect them”, the Committee in both cases admitted that it was not possible to conclude the activities carried out or approved by the Finish 235

ibid paras 3.2 and 7. ibid paras 6.1, 6.2 and 7. 237 Länsman et al. v Finland (n 229) and Jouni E. Länsman et al. v Finland [30 October 1996] (HRC) UN Doc CCPR/C/58/D/671/1995 (1996). 238 Länsman et al. v Finland (n 229) para 9.5 and Jouni E. Länsman et al. v Finland (n 237) para 10.4. 236

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Government constitute a denial of the authors’ cultural rights.239 It was predominantly because of the fact that the authorities did go through the process of consultation, even though there were significant disagreements about whether the consultation process was satisfactory, genuine, or effective or not.240 Furthermore, as the Committee examined the factual extent of the damage caused by the concerned activities on the Sami way of life, it found that the impacts on reindeer herding was not so substantial but rather “limited”; therefore, could not be reckoned as a denial of the right under Article 27.241 At the end, the Committee cautioned that if substantial expansion in the scale of the concerned activities were to be conducted in the future, states need to bear in mind that these changes may lead to the violation of the rights under Article 27.242 These two cases demonstrate an important approach in interpreting Article 27, especially with respect to states’ obligations to ensure “effective participation”.243 By carefully weighting the state sovereign rights to approve development and economic activities against minorities’ cultural rights to maintain their traditional way of life, the HRC has taken a middle ground on the issue. On the one hand, it denied the theory of a margin of appreciation in justifying states’ freedom to develop economy within its territory but

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Länsman et al. v Finland (n 229) para 9.6 and Jouni E. Länsman et al. v Finland (n 237) para 10.5. 240 For instance, the authors challenged the authority’s affirmation that there was “effective participation” by asserting that there was no “negotiation process” and no “real consultation” of the local Sami. See Jouni E. Länsman et al. v Finland (n 237) paras 7.8, 7.9 and 9.3. 241 Länsman et al. v Finland (n 229) para 9.4 and Jouni E. Länsman et al. v Finland (n 237) para 10.3. 242 Länsman et al. v Finland (n 229) para 9.8 and Jouni E. Länsman et al. v Finland (n 237) para 10.7. 243 They are not the first instance where the HRC needs to consider the scope and application of Article 27. Earlier landmark cases include, inter alia, Lubicon Lake Band in which the HRC relied extensively on establishing “historical inequity” suffered by minorities to consider a violation of Article 27, see Lubicon Lake Band v Canada (n 187). Also see Ivan Kitok v Sweden [25 March 1987] (HRC) UN Doc CCPR/C/33/D/197/1985 (1988).

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suggested that the scope of this freedom is to be assessed by reference to “the obligations it has undertaken in Article 27”.244 On the other hand, it implicitly endorsed the state’s position that Article 27 cannot be interpreted so widely as to render Sami reindeer herders a veto right as to reject any activities that are likely to interfere with their traditional practices.245 As the HRC considering Finland’s duty to ensure Sami’s “effective participation” fulfilled by conducting consultation with them, it implies that as far as the impact of the concerned activities on Indigenous cultural practices is not disastrous, no right under Article 27 would be considered violated.246 Arguably, this might be the repercussion of the fact that the ownership of the land concerned remain unsettled.247 As pointed out by Anaya, a substantive recognition of the Sami’s rights to land as a property, rather than mere cultural interests, could provide a much stronger normative ground as to impose procedural obligations on states including consultation, FPIC and even benefit-sharing.248 This interpretation about Article 27 and effective participation has been fundamentally 244

Länsman et al. v Finland (n 229) para 9.4. Jouni E. Länsman et al. v Finland (n 237) paras 6.10–6.12. 246 Barelli (n 199) 8. Similar position of HRC can also be found in its concluding observations, for instance, under the observation of the hydroelectric and other development project that might affect the traditional way of life of the Mapuche and other Indigenous communities in Chile, the HRC stresses that, “when planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the Indigenous culture and way of life and to the participation of members of Indigenous communities in decisions that affect them, see HRC, ‘Concluding Observations of the Human Rights Committee on Chile’ (24 March 1999) UN Doc CCPR/C/79/Add.104 (1999) para 22. Also regarding disputes between Indigenous Peoples and development project that are related to land, the HRC required Chile to “consult indigenous communities before granting licences for the economic exploitation of disputed lands and guarantee that in no case will exploitation violate the rights recognized in the Covenant”, see HRC (n 181) para 19(c). 247 Jouni E. Länsman et al. v Finland (n 237) para 2.2. 248 Anaya (2005). Further discussion on this point is provided in Chap. 4. 245

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transformed since the adoption of the UNDRIP in 2007, especially in incorporating the term FPIC. In several concluding observations issued in 2008, the HRC expressed concern regarding the absence of a consultation process to secure FPIC to the exploitation of natural resources on Indigenous communities’ lands.249 In 2009, the HRC published its decision on the Poma Poma v Peru, in which the water diversion project authorised by the Peruvian Government has been found in violation of the right to enjoy cultural life of members of the Aymara community, because it destroys the natural surroundings for the community to continue their traditional economic activity—raising llamas.250 In this case, the HRC stressed that a minority or Indigenous community must be afforded the opportunity to participate in the decision-making process in relation to projects affecting their culturally significant economic activities, which must be effective in the sense that it requires “not mere consultation but the free, prior and informed consent of the members of the community”.251 As such, the standards of effective participation have been significantly lifted, in line with the spirit and provisions of the UNDRIP. In the following years, this right under Article 27 and its corelated states’ responsibility have been continuously elaborated by the HRC. For instance, the HRC has stated that states bear a duty to adopt national legislation regarding prior consultations “with a view to guaranteeing” the FPIC of community members252 and Indigenous Peoples need to be consulted properly in the

249 HRC, ‘Concluding Observations of the Human Rights Committee on Panama’ (17 April 2008) UN Doc CCPR/C/PAN/CO/3 para 21. With slight change of wording, see HRC, ‘Concluding Observationsof the Human Rights Committee on Nicaragua’ (12 December 2008) UN Doc CCPR/C/NIC/CO/3 para 21. 250 Poma Poma v Peru (n 230). 251 ibid para 7.6. Emphasis added. 252 HRC, ‘Concluding Observations on the Sixth Periodic Report of Ecuador’ (11 August 2016) UN Doc CCPR/ C/ECU/CO/6 para 36(a)(b). See also HRC, ‘Concluding Observations on the Seventh Periodic Report of Colombia’ (17 November 2016) UN Doc CCPR/C/COL/CO/7 para 43(b).

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process of adoption of law on consultation.253 The HRC also specified that this obligation needs to be fulfilled “before any measure is adopted or implemented that could have a substantial impact on their way of life and culture”254 and provided detailed guidance on how to implement consultation and FPIC, including establishing representative institutions255 and councils of Indigenous Peoples.256 Thus, we can observe that the state’ duty to respect rights under Article 27 and to ensure “effective participation” has been significantly and continuously articulated. It is clear now that procedural elements such as to adopt legislation on FPIC, seek FPIC, and carry out prior consultation with a view of obtaining FPIC in a culturally appropriate manner, are all part and parcel of the states’ obligation under Article 27. However, it shall be noted that several normative and practical uncertainty persist. For example, what is considered a “consent” is not defined, and there is no procedural clarity as to what constitute a “proper” consultation in the decision-making process with the IPLCs. Furthermore, it is not clear whether states’ duties to seek FPIC contains a consequential aspect to eventually obtain it, nor does it specify whether the concerned IPLCs has a veto power on the concerned project or not if a consent cannot be reached at the end.257 Committee on Economic, Social and Cultural Rights. The CESCR is the monitoring body of the implementation of the ICESCR by its state parties. As it interprets the provisions of the ICESCR and assesses its implementation and enforcement, the CESCR has also incorporated FPIC as an integral part of states’ duty to protect HRC, ‘Concluding Observations of the Human Rights Committee on Colombia’ (4 August 2010) UN Doc CCPR/C/COL/CO/6 25. 254 HRC, ‘Concluding Observations on the Sixth Periodic Report of Costa Rica’ (21 April 2016) UN Doc CCPR/C/CRI/CO/6 para 42(b). 255 HRC, ‘Concluding Observations on the Third Periodic Report of the Plurinational State of Bolivia’ (6 December 2013) UN Doc CCPR/C/BOL/CO/3 para 25. 256 HRC, ‘Concluding Observations on the Sixth Periodic Report of Chile’ (13 August 2014) UN Doc CCPR/ C/CHL/CO/6 para 10(b). 257 Barelli (n 199) 8. 253

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the human rights to culture, especially as enshrined in Article 15(1) of the ICESCR. Specifically, the CESCR adopted the General Comment No. 21 on the right of everyone to take part in cultural life in 2009, which includes explicit references to Indigenous Peoples and international instruments that addresses issues about their cultural rights, such as the ILO Convention 169 and the UNDRIP.258 Recognising Indigenous Peoples as a subject requiring special protection, the CESCR highlights the intimate relationship between Indigenous Peoples’ cultural life and their rights to “own, develop, control and use” the lands, territories and resources, and requires that state parties should respect the principle of FPIC of Indigenous Peoples “in all matters covered by their specific rights”.259 Furthermore, recognising the “communal dimension” of Indigenous Peoples’ cultural life that is indispensable to their existence, well-being and full development, the CESCR has demanded state parties to take steps to return lands and territories, where they have been otherwise inhabited or used without Indigenous Peoples’ FPIC.260 In other words, the absence of FPIC is capable of triggering state’s responsibility to take measures to ensure redress and restitution, even though the FPIC might not be required at the time when the lands were used. Thus, under the normative framework of ICESCR, the principle of FPIC does not only invoke a positive duty of state to secure FPIC, but can also, arguably, function as retroactive means to justify remedial claims and vindicate the past violations of Indigenous rights.261 It remains important to be observed that whether and/or to what extent the standards articulated by the CESCR are fully respected and implemented at national and local levels.

CESCR, ‘CESCR General Comment No. 21: Right of Everyone to Take Part in Cultural Life’ (21 December 2009) UN Doc E/C.12/GC/21 paras 3, 7, 16, 27 etc. 259 ibid paras 36–37. 260 ibid para 36. 261 This remedial function of FPIC is also discussed in the previous section on the international human rights instruments. 258

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FPIC in general is established as a “core obligation” of state parties in accordance with the ICESCR and other relevant international instruments in order to ensure every person and community, including minority and Indigenous Peoples, to enjoy their cultural life.262 The language adopted in the Comment appears rather strong as it provides that “states parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk”.263 Articulating the specific legal obligations imposed upon state parties in relation to the right to culture, the CESCR explains that there are three levels of obligations—the obligations to respect, to protect and to fulfil.264 In light of the third level of obligation to fulfil, the CESCR has noted repeatedly in its concluding observations that state parties bear a duty to adopt legislation pertinent to consultation and FPIC in order to facilitate the participation of Indigenous Peoples.265 It has also elaborated that FPIC should be systematically sought with effective consultation, based on intercultural dialogues that reflect the cultural difference of each people.266 In addition, it also has stressed that effective

262

CESCR (n 258) para 55(e). ibid para 55(e). Emphasis added. 264 ibid para 48. 265 See CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Colombia’ (7 June 2010) UN Doc E/C.12/COL/CO/5 para 9, CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Argentina’ (14 December 2011) UN Doc E/C.12/ARG/ CO/3 para 9 and CESCR, ‘Concluding Observations on the Fourth Periodic Report of Chile’ (7 July 2015) UN Doc E/C.12/CHL/CO/4 para 8(b). 266 See, for instance, CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Peru’ (30 May 2012) UN Doc E/C.12/ PER/CO/2-4 para 23. CESCR, ‘Concluding Observations of the Committee on the Third Periodic Report of Ecuador as Approved by the Committee at its Forty-ninth Session (14–30 November 2012)’ (13 December 2012) UN Doc E/C.12/ECU/CO/3 para 9. CESCR, ‘Concluding Observations on the Sixth Periodic Report of Colombia’ (19 October 2017) UN Doc E/C.12/COL/CO/6 para 18(b). 263

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FPIC mechanism should aim to enable meaningful participation of Indigenous Peoples in decision-making processes in relation to development projects on or near their lands or territories.267 The CESCR thus has taken a proactive and explicit approach in affirming state parties’ obligations regarding FPIC in the context of protecting the human rights to culture, especially when Indigenous Peoples and minority groups are included.268 Committee on the Elimination of Racial Discrimination. The CERD monitors the implementation of the ICERD, and it aims at eliminating all forms of racial discrimination. By examining its state parties’ national reports, the CERD has noted that discrimination against Indigenous Peoples is a matter of close concern, which falls under the scope of the ICERD.269 In its General Recommendation No. 23 on Indigenous Peoples issued in 1997, state parties have been called upon to ensure effective participation of Indigenous Peoples in public life and that “no decisions directly relating to their rights and interests are taken without their informed consent”.270 In its numerous concluding CESCR, ‘Concluding Observations on the Sixth Periodic Report of Canada’ (23 March 2016) UN Doc E/C.12/CAN/CO/6 para 14. Emphasis added. 268 However, it is quite similar as compared to the HRC, that the CESCR provides no explicit affirmation on state’s duty to obtain FPIC in its concluding observations issued pre-UNDRIP. See CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Colombia’ (6 December 2001) UN Doc E/C.12/1/Add.74 para 33, CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Brazil’ (26 June 2003) UN Doc E/C.12/1/Add.87 para 58, CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Ecuador’ (7 June 2004) UN Doc E/C.12/1/Add.100 para 35, CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Canada’ (22 May 2006) UN Doc E/C.12/CAN/CO/4 para 38 and CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of Mexico’ (9 June 2006) UN Doc E/C.12/MEX/CO/4 E. 269 CERD (n 208). 270 ibid para 4(d) and CERD, ‘Report of the Committee on the Elimination of Racial Discrimination’ (2002) UN Doc A/57/18 paras 76 and 304. 267

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observations, the CERD has elaborated on the states’ duty to conduct consultation with Indigenous Peoples in situations where their interests and rights are relevant, for instance, resource exploration programmes that are conducted on Indigenous land, and developing and implementing domestic legislation and policy that concern Indigenous Peoples.271 The CERD has also stressed the importance of securing Indigenous Peoples’ agreement in order to ensure their participation272 and in one case required a state to seek FPIC as well as ensure equitable benefit-sharing.273 Notably, in line with the CESCR, the CERD calls upon state to take steps to return Indigenous lands, if they have been inhabited or used without Indigenous Peoples’ FPIC.274 MacKay and Gilbert have demonstrated that the emphasis of CERD on Indigenous Peoples’ right to informed consent and consultation has informed the drafting process of the UNDRIP and is reflected in Article 32(2) of the UNDRIP.275 The explicit language of “FPIC” as a procedural requirement for safeguarding Indigenous Peoples’ human rights is also enunciated in the practice of the CERD especially after the adoption of the UNDRIP. In a number CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Colombia’ (12 April 2001) UN Doc CERD/C/304/Add.76 para 16. CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Canada’ (25 May 2007) UN Doc CERD/C/CAN/CO/18 para 25. For land tenure and education policies see CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Argentina’ (10 December 2004) UN Doc CERD/C/65/CO/1 paras 16 and 19. Regarding constitutional reform in Mexico, see CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Mexico’ (4 April 2006) UN Doc CERD/C/MEX/CO/15 para 13. 272 CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Argentina’ (27 April 2001) UN Doc CERD/C/304/Add.112 para 10. 273 CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Ecuador’ (2 June 2003) UN Doc CERD/C/62/CO/2 para 16. 274 CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Bolivia’ (10 December 2003) UN Doc CERD/C/63/CO/2 para 13. 275 Gilbert (2017) and MacKay (2010). 271

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of occasions, the CERD adopted affirmative language when addressing state’s duty to obtain FPIC and urged state parties to “consult the Indigenous population concerned at each stage of the process and obtain their consent in advance of the implementation of projects for the extraction of natural resources”.276 The CERD also explained that the purpose of an effective consultation mechanism is for obtaining Indigenous FPIC277 and elaborated that such mechanism should be “carried out systematically and in good faith”.278 The correlated duty for state parties sometimes appear mild as they are required to establish appropriate regulations and mechanisms to ensure that prior consultations are conducted “with a view to securing” FPIC,279 while sometimes more affirmative as they are required to obtain “meaningful” FPIC of Indigenous Peoples.280 This oscillation manifests the fact that although FPIC unquestionably constitutes a human right of Indigenous Peoples, the extent to which it shall be secured has not yet been established clearly by the CERD. Nevertheless, the CERD have put in place explicit standards for states to seek FPIC from See CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Ecuador’ (22 September 2008) UN Doc CERD/C/ECU/ CO/19 para 16 and CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Peru’ (3 September 2009) UN Doc CERD/C/PER/ CO/14-17 para 14. 277 CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Argentina’ (29 March 2010) UN Doc CERD/C/ARG/CO/19-20 para 26. 278 See CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Bolivia’ (8 April 2011) UN Doc CERD/C/BOL/CO/17-20 para 20 and CERD, ‘Concluding Observations on the Combined Nineteenth to Twenty-first Periodic Reports of Chile’ (23 September 2013) UN Doc CERD/C/CHL/ CO/19-21 para 13(c). 279 CERD, ‘Concluding Observations on the Combined Twenty-first to Twenty-third Periodic Reports of Argentina’ (11 January 2017) UN Doc CERD/C/ARG/CO/2123 para 19. 280 CERD, ‘Concluding Observations on the Combined Twenty-first to Twenty-third Periodic Reports of Canada’ (13 September 2017) UN Doc CERD/C/CAN/CO/21-23 para 20(c). 276

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Indigenous Peoples and these norms have witnessed an evolving history against the general development of international law.281 Regional Human Rights Courts and Commissions. Decisions of regional human rights judicial bodies constitute an important part of the human rights jurisprudence with respect to IPLCs’ right to FPIC. Relevant bodies include the Inter-American Commission on Human Rights (Inter-American Commission), the InterAmerican Court on Human Right (InterAmerican Court), the African Commission on Human and Peoples’ Rights (African Commission) and the African Court on Human and Peoples’ Rights (African Court). Back in 1998, the Inter-American Commission approved the Merits Report No. 27/98, in which it concluded that the state of Nicaragua had been actively responsible for violations of the right to property by granting concession to the logging and construction work on the Awas Tingni lands without their consent.282 The Commission then brought the case before the Inter-American Court and the result was the wellknown ruling of the Inter-American Court on the Awas Tingni case.283 In this case, the InterAmerican Court held that the alleged property land rights had indeed been violated but it did not address the issue of FPIC.284 In the 2006 Case of the Sawhoyamaxa Indigenous Community v Paraguay, the Inter-American Court found that the state of Paraguay had violated the property rights of the Sawhoyamaxa community by depriving their possession of land and their ability to participate in their culture, and by failing to provide effective remedies to allow them to regain access to these lands.285 As the 281

Keane and Waughray (2017). Report No. 27/98 [3 March 1998] (Inter-American Commission on Human Rights) OEA/Ser/L/V/II.98 Doc. 35 para 142. 283 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua [31 August 2001] (Inter-American Court of Human Rights) IACHR Series C no 79. 284 ibid para 153. 285 Case of the Sawhoyamaxa Indigenous Community v Paraguay [29 March 2006] (Inter-American Court of Human Rights) IACHR Series C No 146 paras 116–144. 282

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Court specified the forms and measures of reparation, it held that the state shall “secure participation and informed consent by the victims, which must be expressed by their representatives and leaders”.286 One year later, the InterAmerican Court established in another landmark case—the Saramaka People v Suriname— in which it articulated three procedural safeguards that states must abide in order to fulfil their obligation to ensure the right to property of Indigenous Peoples, including effective participation, prior environmental and social impact assessments, and benefit-sharing.287 This case concerned the issuance of logging and mining concessions by the Suriname Government toward resources found within Saramaka territory. Recognising Saramaka’s right to property and self-determination, the Court has cited explicitly the ILO Convention 169, the UNDRIP, as well as the jurisprudence of the UN human rights treaty bodies as discussed above.288 With respect to the Indigenous right to consultation and the situation where it may contain “a duty to obtain consent”, the Court articulated that the states always have a duty “to actively consult with the community according to their customs and traditions”.289 When the concerned development or investment projects are large-scaled and would have a major impact within Saramaka territory, the states also have a duty, to obtain their FPIC.290 Against this background, the Court did not find it difficult to conclude that the state had failed to ensure the effective participation of the Kaliña and Lokono peoples before undertaking or authorizing the exploitation of the bauxite mine within their traditional territory in the 2015 case of Kaliña and Lokono Peoples v

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Suriname.291 One important reasoning that lead to this decision is the lack of any consultation processes aimed at obtaining the FPIC of the Kaliña and Lokono peoples.292 In the African context, the African Commission established in the Endorois case that “failure to observe the obligations to consult and to seek consent…ultimately results in a violation of the right to property”.293 This case concerns the displacement of the Indigenous Endorois community from their ancestral lands in Kenya.294 The African Commission cited the ruling of the Saramaka case and decided that the absence of the procedural elements—impact assessment, FPIC and benefit-sharing is tantamount to a violation of the right to property and that “the failure to guarantee effective participation… also extends to a violation of the right to development”.295 In line with the Saramaka decision, the African Commission held that “any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions”.296 Based on this observation, the African Commission established that the consultation conducted by the Kenyan Government was not sufficient because it did not obtain the FPIC of all the Endorois before designating their land as a game reserve and the consequential eviction.297 Another relevant case is the 2017 Ogiek case, which concerns the eviction of the Indigenous Ogiek community and other settlers of the Mau Forest by the Kenya Forestry Service

291 286

ibid para 233. Emphasis added. Case of the Saramaka People v Suriname (n 227) para 129. 288 ibid paras 45–98 and 129–137. 289 ibid paras 129 and 133. 290 The Court, however, reckoned that “the difference between ‘consultation’ and ‘consent’ in this context requires further analysis.” See ibid para 134. Emphasis added. 287

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Case of Kaliña and Lokono Peoples v Suriname [25 November 2015] (Inter-American Court of Human Rights) IACHR Series C no 309 para 212. 292 ibid paras 1 and 204–212. 293 Endorois Case (n 228) para 226. 294 ibid para 1. 295 ibid paras 227 and 228. The procedural element “benefit-sharing” is articulated in Chap. 4. 296 ibid para 291. 297 ibid para 290.

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in October 2009.298 In this case, although the applicant has alleged consistently that, due to the absence of a FPIC from the Ogiek community, the Kenyan Government has violated the Ogieks people’ rights to freely dispose of their wealth and natural resources,299 right to property,300 and the human right to development,301 the Court did not fully adopt the language of FPIC in its decision. Nevertheless, the Court found that these mentioned rights in relation to the property right to land were indeed violated “by expelling the Ogieks from their ancestral lands against their will, without prior consultation… the Respondent violated their rights to land”.302 The African Court in this case also has cited the UNDRIP and suggested that the Indigenous right to lands shall be read in accordance with the UNDRIP.303 What is common in the above decisions is that FPIC has been reckoned as an important means to ensuring effective participation of IPLCs in decision-making process that might affect them. The right to FPIC is generally linked with other fundamental human rights pertaining to lands, freely disposing of natural resources, culture, and development. In the 2007 Saramaka case and the 2010 Endorios case, it can also be observed that FPIC is considered as an extra procedural safeguard in addition to consultation, applicable in large-scale projects that might profoundly influence IPLCs. Nevertheless, the ways to identify condition in which FPIC is required in addition to consultation are not clear.

3.3.2.4 Implications The above analysis indicates that FPIC, as an emerging human rights principle, is designated to ensure effective and meaningful participation of Indigenous Peoples, minority groups and local communities in decision-making processes in 298

African Commission on Human and Peoples’ Rights v Republic of Kenya [26 May 2017] (African Court on Human and Peoples’ Rights) App No 006/2012. 299 ibid para 191. 300 ibid para 114. 301 ibid para 202. 302 ibid para 131. 303 ibid para 128.

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matters that might affect their rights. The trend of establishing the connection between participatory rights such as consultation and FPIC with substantive rights such as the rights to culture, lands and resources has been substantiated in the human rights law-making as well as international and regional jurisprudence. Detailed standards of FPIC have also been provided in this context to indicate that FPIC should be effective, meaningful, timely and conducted in a culturally appropriate manner. This is especially conspicuous after the adoption of the UNDRIP, which supports the argument made before that although the UNDRIP is not a binding instrument, it nevertheless generates significant normative and practical impacts with respect to Indigenous Peoples. The connection between substantive and procedural human rights is of particular importance to IPLCs, as the effective control over their lands and natural resources means they could maintain their traditional way of life and cultural practices.304 Under the jurisprudence of the CESCR, the CERD and in the context of the UNDRIP, the absence of FPIC could also trigger obligations of states to provide redress and fair compensation for the past violation of Indigenous Peoples’ lands, resources, cultural and intellectual properties. Furthermore, the duty of states to conduct consultation, adopt legislation on FPIC, and to seek FPIC has been enunciated, but the extent to which FPIC must be secured is not always clear. What can be observed so far is that the right to FPIC does not seem to include a veto power to IPLCs on the concern projects. This is evident not only in the text of the UNDRIP and the ILO Convention 169, but also in the judicial interpretation in the relevant case laws as discussed. Indeed, to frame the right of FPIC too broadly may not be beneficial in empowering IPLCs as it may not contribute to a just and healthy relationship between Indigenous Peoples and their residual states against unjust and discriminatory

304

For more examples see Martʹinez-Alier (2002).

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situations.305 Finally, the jurisprudential articulation of IPLCs’ right to FPIC is one thing, while the realisation in specific political, social, and economic contexts could be quite another. There is limitation of forming a perspective of human rights law and its national implementation replying on the reports submitted by states,306 and the human rights courts and tribunals can only cover a fraction of human rights violations towards IPLCs around the globe.307 As PIC is a principal mechanism established in the ABS framework, can the human rights standards of FPIC be complementary to the interpretation and implementation of the Nagoya Protocol? There are two perspectives to approach the possibility and necessity of the application of the principle of mutual supportiveness in this connection. First, the human rights standards on FPIC may provide normative ground for clarifying the interpretation of the ABS provisions, especially recalling the interpretative ambiguity of PIC-related provisions in the Nagoya Protocol as discussed in Sect. 3.2.2.308 Specifically, the human rights standards on IPLCs’ right to FPIC would suggest that the narrow reading of Article 6 of the Nagoya Protocol, which implies that parties do not have to ensure the PIC of the relevant IPLCs unless their rights to grant access to genetic resources is explicitly established, is unsound.309 This is because, even though there might be no explicit assertion of a “right” of IPLCs to grant access in an ABS context, there exit established human rights duties imposed upon states to ensure FPIC when it concerns IPLCs’ genetic resources and traditional knowledge. There are also foreseeable legal 305

See Doyle (2019). Also see Human Rights Council, ‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Rights to Development’ (15 July 2009) UN Doc A/HRC/12/34 para 49. 306 For a detailed discussion about the UN human rights periodic review mechanism and its limitations, see Abebe (2009) and O’Flaherty (2006). 307 Cavallaro and Brewer (2008). 308 The approach has also been suggested by Morgera, Tsioumani and Buck (n 5) 147 and Savaresi (n 5) 60. 309 See the discussion in the previous Sect. 3.2.2.

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consequences if the FPIC is absent in certain circumstances. In other words, states’ duty to ensure FPIC exists as a human rights requirement regardless of whether IPLCs’ right to “grant access” has been explicitly established by domestic laws or not. Furthermore, the connection between IPLCs’ right to FPIC and other fundamental human rights implies their entitlement to grant access is not just an extrinsic normative creation by states, but an intrinsic right derived from the distinct identity of such peoples and communities. This means that the right of IPLCs to grant access regarding their genetic resources and traditional knowledge is established by the minimum standards of human rights and has intrinsically taken root in their fundamental human rights of property, culture, and self-determination. This also means that states parties’ discretion to interpret and implement the ABS provisions in the Nagoya Protocol need to be assessed in accordance with their human rights obligations to recognise, establish, and protect IPLCs’ rights to FPIC. Admittedly, the ground for Indigenous Peoples to make human rights-based claims of FPIC is much stronger than that for local communities. It might be easier for Indigenous Peoples to request a more robust protection of the right of FPIC in a domestic context. In turn, the ongoing process of interpreting and implementing the Nagoya Protocol could contribute to the understanding of human rights standards with respect to IPLCs. As examined, the international ABS framework provides a specific context where the principles and measures of a PIC/FPIC system are being elaborated. These include not only examples of procedural requirements and facilitative responsibilities of state governments, but also domestic consultative initiatives and good practices of private sectors.310 These legal advancements and institutional developments could provide practical guidance and evidence on how to transpose the abstract yet fundamental human right standards, that FPIC should be, inter alia, effective, meaningful and culturally appropriate, into a feasible 310

See previous discussion in Sect. 3.2.2.

3.3 Human Rights Implications on Access-Related Provisions

agenda for state governments and private entities. The impacts might be limited as the ABS rules of the Nagoya Protocol only concern genetic resources and associated traditional knowledge, but the lessons can be learnt for other areas as well. Furthermore, as the traditional FPIC mechanisms focus on the coercion and infringement of states vis-à-vis IPLCs, PIC mechanism in the Nagoya Protocol could help to address the emerging concern of impacts on IPLCs’ rights carried out by private entities and their role in promoting human rights.311 This is especially the case with multinational corporations that are involved in bioprospecting and utilising genetic resources and traditional knowledge accessed from IPLCs around the globe.312 Finally, in situations where states retain ownership of genetic resources and traditional knowledge, and/or IPLCs’ human rights to genetic resources and traditional knowledge are not recognised, the ABS rules of the Nagoya Protocol could ensure their status at least as beneficiaries, if not owners of genetic resources and traditional knowledge.313 It could strengthen the normative endeavours in human rights law that aim to improve IPLCs’ participation in the economic development and benefit from the technological advancements vis-à-vis genetic resources and traditional knowledge. However, as demonstrated, there persist several uncertainties and challenges for the mutually supportive interpretation of the Nagoya Protocol and relevant human rights law, such as the scope of FPIC and its role in the decision-making process of major economic projects. Underlying these uncertainties is the political reluctance of relating IPLCs’ participatory rights such as consultation and FPIC to more substantive human rights to property and self-determination. This disjuncture between participatory rights and substantive rights is also evident in the CBD and 311

There is an increasing body of literature discussing the human rights obligations of companies, see for instance, Arnold (2016), Morgera (2009), Deva and Bilchitz (2013). 312 For a glimpse of how multinational corporation control marine genetic resources, see Blasiak et al. (2018). 313 Nijar (2010).

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the Nagoya Protocol, as these environmental law instruments only incorporate the procedural elements such as PIC but abstain from referring to IPLCs’ human rights explicitly. This might be explained from a rather state-centric perspective, suggested by Bluemel, that the practical pursuit of a functional, effective and workable ABS framework determines the level of discretion accorded to state governments on matters relating to IPLCs and their rights.314 However, the protection of IPLCs’ human rights should not be restricted by states’ political agendas. It is in this regard, a mutually supportive understanding of these two branches of international law may level the normative ground of ABS towards better accommodating IPLCs’ needs and aspirations instead of states governments’ conveniences and priorities.

3.3.3 Human Rights Pertaining to IPLCs’ Customary Laws There is no consensus on the terminology to describe laws and customs developed by IPLCs in the international human rights law.315 A variety of terms such as, customs, traditions, institutions, laws, values, and customary laws, can be found in the provisions of the ILO Convention 169 and the UNDRIP referring to the traditional norms and practices of IPLCs. The general social-legal understanding is that however termed, the notion of IPLCs’ customary law is closely related to and embedded in their culture and traditional ways of life.316 The following analysis provides a closer examination of the ILO Convention 169 and the UNDRIP, as well as the judicial and legislative practices at regional and national levels pertaining to the recognition of IPLCs’ rights of their customary laws. It concludes with remarks on how the ABS procedures and normative recognition of IPLCs’ customary laws and community protocols may contribute to their realisation, as well as how 314 315 316

Bluemel (2005). Tobin (2014). Coombe (2001), Williams and Hardison (2014).

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human rights pertaining to customary law may help to set the benchmark on how and to what extent the IPLCs’ customary rules shall be respected. The only binding international instrument that explicitly addresses Indigenous Peoples’ human right to customary law is the ILO Convention 169. Noting that the “laws, values, customs and perspectives” of Indigenous and tribal peoples have often been eroded, the ILO Convention 169 obliges its parties to respect Indigenous and tribal peoples’ customs, traditions and institutions as a means to guarantee respect for their integrity.317 Specifically, Article 8 requires parties, in applying national laws and regulations to the peoples concerned, to pay due regard to their customs or customary laws.318 The extent to which Indigenous Peoples are entitled to retain their own customs and institutions, however, is conditioned by the requirements that they are “not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights”.319 The apparent limitation of the normative power of these provisions under the ILO Convention 169 is that only 24 states have ratified it since its entry into force in 1991. The customary laws of Indigenous Peoples are also recognised explicitly in various contexts under the UNDRIP. For instance, custom and traditions are established as a baseline for Indigenous Peoples’ right to self-identification.320 They shall also be given due consideration when Indigenous Peoples exercise their right of access to justice.321 In addition, the right to practise and revitalise Indigenous cultural traditions and customs imposes an obligation for states to provide redress when Indigenous Peoples’ cultural and intellectual property are taken “in violation of their laws, traditions and customs”.322 Most importantly, when state authorities recognise and

adjudicate the rights of Indigenous Peoples pertaining to their lands, territories and resources, the UNDRIP requires due recognition given to “Indigenous Peoples’ laws, traditions, customs and land tenure systems”.323 Furthermore, Article 34 recognises the right of Indigenous Peoples to “promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards”.324 Thus, it can be observed that both the UNDRIP and the ILO Convention 169 recognise the importance of IPLCs’ rights to customary laws, not only as a way to preserve their distinct identity and community, but also as a safeguard in protecting property rights of lands, resources, and IPRs. Notably, IPLCs’ customary laws are bestowed with an almost equivalent authority vis-à-vis domestic laws in affairs that might concern both systems. A crucial question is, in case of conflicts between customary law and domestic law, how and to what standards, a judge may decide which legal system shall prevail. The Inter-American Court has issued decisions that may shed light on this question.325 For instance, in the Aloeboetoe v Suriname, as there are different opinions about identifying the rightful successors of the victims (who are meanwhile members of the Saramaka tribe), the Court decided to apply primarily the Saramaka customs, instead of Suriname’s civil law.326 As a result, as polygamy was accepted in Saramaka customary law, the Court accepted two spouses as successors in cases in which the victim had two wives.327 However, the Court rejected the gender distinction in the customary law, which only recognises male ascendants, because the Court reckoned that this practice contradicts the 323

ibid Article 27. ibid Article 34. 325 Cases cited in Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (n 189) 162. 326 Aloeboetoe v Suriname [10 September 1993] (InterAmerican Court of Human Rights) IACHR Series C no 15 paras 55 and 62. 327 ibid para 59. 324

317 318 319 320 321 322

ILO Convention 169, pmbl and Article 2. ibid Article 8(1). ibid Article 8(2). UNDRIP, Articles 9 and 33. ibid Article 40. ibid Article 11.

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3.3 Human Rights Implications on Access-Related Provisions

non-discrimination principle of the American Convention on Human Rights (ACHR). To this end, the Court determined that both male and female ascendants shall be recognised as successor, even if that might be contrary to the Saramaka custom.328 This decision demonstrates an interesting interpretation of the scope of IPLCs’ right to their customary laws and the unclear relationship between IPLCs’ customary law and domestic law. The Court has made clear that the Saramaka custom of polygamy shall be upheld even if that is not in compliance with domestic law, but the customary gender distinction of male and female successors needs to be overruled because it undermines the fundamental human rights principle of gender equality and non-discrimination. Fundamental human rights apparently have served as a gatekeeper in rejecting gender distinction in this case, but it remains unclear why it has allowed polygamy, since this practice can be seen as discriminate against women as well. In fact, customary rules and practices can often be incompatible with domestic laws and/or the predominant social practices generally accepted by the majority. When and in what circumstances a court should invoke human rights standards against or to uphold these rules and practices seem to be a very difficult and controversial matter.329 Judges would indeed find themselves between “a rock and a hard place”, if they were called to balance the goals to protect the vulnerable members of the communities against unfair treatments that might otherwise be justified by customary laws on the one hand, and to respect IPLCs’ own legal regimes, customs and institutions, which are also integral parts of their human rights, on the other.330 At the national level, Indigenous Peoples, minority groups, local communities, and their rights to autonomy, customary legal systems, traditional authorities, customary lands, resources, and/or cultures are recognised to varying 328

ibid para 62. See in general, Ndulo (2011) and Short (2014). 330 Tobin, Indigenous Peoples, Customary Law and Human Rights—Why Living Law Matters (n 315) 1. 329

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degrees in many national constitutions or judicial and administrative practices.331 In India, for example, measures to prevent interference with the land rights and customary laws of “scheduled tribes” (a term favoured by the Indian Government to refer to their IPLCs) are given constitutional protection.332 In China, 55 officially recognised ethnic minorities enjoy a distinct set of rights and freedoms established by the Chinese Constitution and the national law on regional autonomy, which includes the collective rights to territorial autonomy, manage their own cultural affairs and have national laws and regulations adjusted in accordance to their local customary rules.333 In Malaysia, legal pluralism is an important feature of the national legal system with the parallel recognition of statutory law, common law and customary law by its constitution.334 In areas where Indigenous population makes up the majority of the society, for instance, in Sabah and Sarawak, customary law is recognised as a basis for granting land rights.335 Indeed, autonomous governance often plays an imperative role for IPLCs in gaining control over the development of their distinctive cultures, management, and utilisation of land and resources in their traditional ways against undue interference by powerful economic interests or state governments.336 National recognition of IPLCs’ customary laws is also seen as a positive way to uphold the fundamental right of Indigenous peoples to self-determination through self-government which is truly autonomous.337 However, the actual impact of this legal

331

See generally Cuskelly (2011). Roy (2005). 333 Constitution of the People’s Republic of China [2018] (CH), Article 4 and Law of the People’s Republic of China on Regional National Autonomy [2001] (CH), ch 3. See also Zheng (2019). 334 UNGA (n 192) para 56. 335 ibid. 336 Pereira and Gough (n 182) 158. 337 UNGA (n 192) 6–21. 332

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recognition in specific political and economic contexts needs to be evaluated on a case-by-case basis.338 Thus, legislative, administrative, and judicial establishments that recognise IPLCs’ customary laws may be found in many regional and domestic contexts. The baseline for IPLCs’ to exercise their customary laws is that they should be compatible with fundamental human rights principles. To this end, recalling the provisions and mechanisms enshrined in the Nagoya Protocol, several reflections on the implications of the principle of mutual supportiveness can be drawn. In the context of accessing IPLCs’ genetic resources and traditional knowledge for commercial or scientific utilisation, the Nagoya Protocol recognises IPLCs’ customary laws and community protocols and imposes obligations for users to obtain PIC and/or ensure approval and involvement of IPLCs in the ABS processes considering such laws and protocols. The explicit recognition of IPLCs’ customary rules, thus, could contribute to integrating the customary norms of IPLCs into international and national ABS standards-setting and practices. As a result, respecting the customary laws of IPLCs could facilitate adequate and culturally appropriate realisation of fair and equitable benefit-sharing with IPLCs. The values, worldviews, and traditional approaches of IPLCs reflecting their needs and aspirations could then be communicated through each ABS negotiation from local and Indigenous contexts to broader domestic and international contexts. In practice, it is often the domestic legislation, especially contract laws, that oversees the negotiation and compliance with ABS measures, such as MAT that contains negotiated benefit-sharing terms between user and provider. In this connection, it is also possible to rely on private law and its compliance mechanism to safeguard IPLCs’ rights pertaining to their customary laws, especially when MAT 338

For scholarly discussion on the interplay between principle and effectiveness, law and policy in both environmental and human rights contexts, see Louka (n 53) 59, McQuigg (2011). For a quantitative analysis of the effectiveness of human rights treaties and its critics, see Hathaway (2002) and Goodman and Jinks (2003).

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contains explicit reference to IPLCs’ customary rules.339 Furthermore, recognising IPLCs’ customary laws and ensuring compliance with their customary rules in the ABS context may prove essential for states in demonstrating compliance with their human rights obligations. These procedural requirements may include, to establish culturally appropriate procedures to include IPLCs in the decision-making processes and to identify the legitimate representatives of IPLCs to issue PIC. The above discussion has demonstrated that as the procedural obligations established under the Nagoya Protocol and human rights law with respect to IPLCs share core elements, states may systematically bridge their international commitments under the CBD framework and human rights to foster a more intercultural and inclusive environment at domestic and local levels. Render more robust legal recognition to the customary laws of IPLCs in national legal systems may also provide legal certainty throughout the ABS processes and to raise awareness of the legal status of IPLCs’ customary law in the broader social and cultural contexts. Ideally, this process may facilitate the establishment of sound national and international legal practices and governance of genetic resources and traditional knowledge held by IPLCs. An essential approach to this objective is a rights-based system that explicitly and effectively provides safeguards to the customary laws and practices of IPLCs in the ABS context. Finally, the human rights requirements that the customary law shall not be incompatible with fundamental human rights could be used to guide the implementation of the Nagoya Protocol and to prevent unfair terms and treatments within IPLCs. Specific benchmark could be envisaged for the vulnerable members of IPLCs as to ensuring their rights to PIC and fair and equitable benefit-sharing. This is important especially when traditional practices of IPLCs contradict the principles such as gender equality and nondiscrimination.

339

CBD Working Group on ABS (n 148) para 9.

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77 Boyle AE (2015) Human rights and the environment: where next? In Boer B (ed) Environmental law dimensions of human rights. Oxford University Press, p 203 Brilmayer L (1991) Secession and self-determination: a territorial interpretation. Yale J Int Law 16(1):178 Butzier SR, Stevenson SM (2014) Indigenous peoples’ rights to sacred sites and traditional cultural properties and the role of consultation and free, prior and informed consent. J Energy Nat Resour Law 32 (3):297 Cariño J et al (2013) Nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization: background and analysis. The Berne Declaration, Bread for the World, Ecoropa, Tebtebba and Third World Network, p 33 Cariño J (2005) Indigenous peoples’ right to free, prior, informed consent: reflections on concepts and practice. Arizona J Int Compar Law 22(1):20 Castellino J (2008) Territorial integrity and the right to self-determination: an examination of the conceptual tools. Brooklyn J Int Law 33(2):556 Cavallaro J, Brewer SE (2008) Reevaluating regional human rights litigation in the twenty-first century: the case of the inter-american court. Am J Int Law 102 (4):770 Chennells R (2013) Traditional knowledge and benefit sharing after the Nagoya protocol: three cases from South Africa. Law Environ Dev J 9(2):181 Coombe RJ (2001) The recognition of indigenous peoples’ and community traditional knowledge in international law. St Thomas Law Rev 14(2):284 Crawford J (2007) The creation of states in international law, 2nd edn. Oxford University Press, p 32 Crawford J (2014) Chance, order, change: the course of international law, general course on public international law. Brill, p 92 Cuskelly K (2011) Customs and constitutions: state recognition of customary law around the world. IUCN Dalibard J-D, Kono T (2009) Prior informed consent: empowering the bearers of cultural traditions. In Kono T (ed) Intangible cultural heritage and intellectual property: communities, cultural diversity and sustainable development. Intersentia David CH (2002) The international treaty on plant genetic resources for food and agriculture. Rev Eur Commun Int Environ Law 11(1):1–16 Davis M (2012) To bind or not to bind: the United Nations declaration on the rights of indigenous peoples five years on. Aust Int Law J 19 Deva S, Bilchitz D (eds) (2013) Human rights obligations of business: beyond the corporate responsibility to respect? Cambridge University Press Dinstein Y (1976) Collective human rights of peoples and minorities. Int Compar Law Q 25(1):104 Doyle CM (2014) Indigenous peoples, title to territory, rights and resources: the transformative role of free prior and informed consent. Routledge, p 71

78 Doyle CM (2019) The evolving duty to consult and obtain free prior and informed consent of indigenous peoples for extractive projects in the United States and Canada. In Feichtner I, Krajewski M, Roesch R (eds) Human rights in the extractive industries: transparency, participation, resistance. Springer International Publishing, p 211 Dutfield G (2004) Intellectual property, biogenetic resources and traditional knowledge. Earthscan, p 91 Dutfield G (2009) Prior informed consent and traditional knowledge in a multicutural world. In Kono T (ed) Intangible cultural heritage and intellectual property: communities, cultural diversity and sustainable. Intersentia, p 266 Dutfield G (2017) TK unlimited: the emerging but incoherent international law of traditional knowledge protection. J World Intellect Prop 20(5–6):145 Emerson R (1971) Self-determination. Am J Int Law 65:465 Engle K (2010) The elusive promise of indigenous development: rights, culture, strategy. Duke University Press, p 67 Engle K (2011) On fragile architecture: the UN declaration on the rights of indigenous peoples in the context of human rights. Eur J Int Law 22(1):142 Faden RR, Beauchamp TL (1986) A history and theory of informed consent. Oxford University Press, pp 3, 132 Fastenrath U (1993) Relative normativity in international law. Eur J Int Law 4(3):314 Fitzmaurice M (2008) The dilemma of traditional knowledge: indigenous peoples and traditional knowledge. Int Commun Law Rev 10(3):263 Foster CE (2001) Articulating self-determination in the draft declaration on the rights of indigenous peoples. Eur J Int Law 12(1):148 Gallage NJ et al (2014) Vanillin formation from ferulic acid in vanilla planifolia is catalysed by a single enzyme. Nat Commun 5(1):4037 Gervais DJ (2005) Traditional knowledge & intellectual property: a TRIPS-compatible approach. Michigan State Law Rev 138 Gilbert J (2017) CERD’s contribution to the development of the rights of indigenous peoples under international law. In Keane D, Waughray A (eds) Fifty years of the international convention on the elimination of all forms of racial discrimination: a living instrument. Manchester University Press, p 91 Glowka L, Burhenne-Guilmin F, Synge H (1994) A guide to the convention on biological diversity. IUCN, p 5 Glowka L (1998) A guide to designing legal frameworks to determine access to genetic resources. IUCN, p 31 Goodman R, Jinks D (2003) Measuring the effects of human rights treaties. Eur J Int Law 14(1):172 Greiber T et al (2012) An explanatory guide to the Nagoya protocol on access and benefit-sharing. IUCN, p 12 Hathaway OA (2002) Do human rights treaties make a difference? Yale Law J 111(8):2020

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Henkin L (1999) That “S” word: sovereignty, and globalization, and human rights, et cetera. Fordham Law Rev 68(1):2 Iorns CJ (1992) Indigenous peoples and selfdetermination: challenging state sovereignty. Case Western Reserve J Int Law 24(2):252 Jackson J (2003) Sovereignty-modern: a new approach to an outdated concept. Am J Int Law 97(4):782 Johnson M (2014) Research on traditional environmental knowledge: its development and its role. In Johnson M (ed) Lore: capturing traditional environmental knowledge. IDRC/CRDI, p 7 Jong DD (2015) International law and governance of natural resources in conflict and post-conflict situations. Cambridge University Press, p 58 Joseph S, Castan M (2013) The international covenant on civil and political rights: cases, materials, and commentary, 3rd edn. Oxford University Press, p 159 Keane D, Waughray A (2017) Fifty years of the international convention on the elimination of all forms of racial discrimination: a living instrument. Manchester University Press, p 2 Kelsen H (1990) On the theory of interpretation. Legal Stud 10(2):127 Kingsbury B (1998) Sovereignty and inequality. Eur J Int Law 9(4):602 Kirgis FL (1994) The degrees of self-determination in the United Nations era. Am J Int Law 88(2):305 Koester V (2012) The Nagoya protocol on ABS: ratification by the EU and its member states and implementation challenges. Institute for Sustainable Development and International Relations, p 4 Koskenniemi M (1994) National self-determination today: problems of legal theory and practice. Int Compar Law Q 43(2):261 Louka E (2006) International environmental law: fairness, effectiveness and world order. Cambridge University Press, p 301 Macdonald R, Kleinhans M-M (1997) What is a critical legal pluralism? Canadian J Law Soc 12(2):34 MacKay F (2002) Universal rights or a universe unto itself—indigenous peoples. Human rights and the world bank’s draft operational policy 4.10 on indigenous peoples. Am Univ Int Law Rev 17(3):533 MacKay F (2010) Indigenous peoples’ rights and the committee on the elimination of racial discrimination. In Dersso SA (ed) Perspectives on the rights of minorities and indigenous peoples in Africa. Pretoria University Law Press, p 199 Magraw DB, Baker L (2007) Globalization, communities and human rights: community-based property rights and prior informed consent. Denver J Int Law Policy 35:419 Martinez-Alier J (2002) The environmentalism of the poor: a study of ecological conflicts and valuation. Edward Elgar, p 100 McCorquodale R, Simons P (2007) Responsibility beyond borders: state responsibility for extraterritorial

References violations by corporations of international human rights law. Mod Law Rev 70(4):599 McCorquodale R (1994) Self-determination: a human rights approach. Int Compar Law Q 43:858 McQuigg RJA (2011) International human rights law and domestic violence: the effectiveness of international human rights law. Routledge, p 1 Medaglia JC, Perron-Welch F, Phillips F-K (2014) Overview of national and regional measures on access to genetic resources and benefit-sharing: challenges and opportunities in implementing the Nagoya protocol, 3rd edn. CISDL, p 15 Morgera E, Tsioumani E (2010) The evolution of benefit sharing: linking biodiversity and community livelihoods. Rev Eur Commun Int Environ Law 19(2):157 Morgera E, Buck M, Tsioumani E (eds) (2013) The 2010 Nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff, p 507 Morgera E, Tsioumani E, Buck M (2014) Unraveling the Nagoya protocol: a commentary on the Nagoya protocol on access and benefit-sharing to the convention on biological diversity. Brill, p 137 Morgera E (2009) Corporate accountability in international environmental law. Oxford University Press Morgera E (2015) Fair and equitable benefit-sharing at the cross-roads of the human right to science and international biodiversity law. Laws 4(4):804 Ndulo M (2011) African customary law, customs, and women’s rights. Indiana J Glob Legal Stud 18(1):89 Ni K-J (2009) Legal aspects of prior informed consent on access to genetic resources: an analysis of global lawmaking and local implementation toward an optimal normative construction. Vanderbilt J Transnatl Law 42(1):235 Nijar GS (2010) Incorporating traditional knowledge in an international regime on access to genetic resources and benefit sharing: problems and prospects. Eur J Int Law 21(2):465 Nijar GS (2011) The Nagoya protocol on access and benefit sharing of genetic resources: analysis and implementation options for developing countries O’Flaherty (2006) The concluding observations of United Nations human rights treaty bodies. Human Rights Law Rev 6(1):37 Ørebech P et al (eds) The role of customary law in sustainable development. p 12 Pereira R, Gough O (2014) Permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law. Melbourne J Int Law 14(2):156 Rehman J (2010) International human rights law, 2nd edn. Longman, p 147 Robinson DF, Abdel-Latif A, Roffe P (eds) (2017) Protecting traditional knowledge: the WIPO

79 intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore. Routledge, p 3 Roy RD (2005) Traditional customary laws and indigenous peoples in Asia. Minority Rights Group International, p 7 Rudolff B, Raymond S (2013) A community convention? An analysis of free, prior and informed consent given under the 2003 convention. Int J Intang Herit 8:153 Savaresi A (2013) The international human rights law implications of the Nagoya protocol. In Morgera E, Buck M, Tsioumani E (eds) The 2010 Nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff, p 53 Schulte-Tenckhoff I (2012) Treaties, peoplehood, and self-determination: understanding the language of indigenous rights. In Pulitano E (ed) Indigenous Rights in the Age of the UN Declaration. Cambridge University Press, p 81 Sengupta AK (2002) On the theory and practice of the right to development. Human Rights Q 24(4):862 Short L (2014) Tradition versus power: when indigenous customs and state laws conflict. Chicago J Int Law 15 (1):403 Simpson G (1996) The diffusion of sovereignty: selfdetermination in the post-colonial age. Stanford J Int Law 32(2):265 Slaughter A-M (2005) Security, solidarity, and sovereignty: the grand themes of UN reform. Am J Int Law 99(3):620 Smith RKM (2018) International human rights law, 8th edn. Oxford University Press, p 296 Spears SA, Laplante LJ (2008) Out of the conflict zone: the case for community consent processes in the extractive sector. Yale Human Rights Dev Law J 11:70 Tobin B (2009a) Setting protection of TK to rights: placing human rights and customary law at the heart of TK governance. In Kamar EC, Winter G (eds) Genetic resources, traditional knowledge and the law: solutions for access and benefit sharing. Routledge, p 111 Tobin B (2009b) The role of customary law and practice in the protection of traditional knowledge related to biological diversity. In Antons C (ed) Traditional knowledge, traditional cultural expressions, and intellectual property law in the Asia-Pacific region. Aspen Publishers, p 15 Tobin B (2014) Indigenous peoples, customary law and human rights—why living law matters. Routledge, p 9 Tully S (2003) The bonn guidelines on access to genetic resources and benefit sharing. Rev Eur Compar Int Environ Law 12(1):93 Tvedt MW, Young TR (2007) Beyond access: exploring implementation of the fair and equitable sharing commitment in the CBD. IUCN, p 53

80 UNCTAD (2014) The convention on biological diversity and the Nagoya protocol: intellectual property implications—a handbook on the interface between global access and benefit sharing rules and intellectual property. UNCTAD, p 30 Vermeylen S (2013) The nagoya protocol and customary law: the paradox of narratives in the law. Law Environ Dev J 9(2):187 Weill P (1983) Towards relative normativity in international law? Am J Int Law 77(3):418 Wiessner S (2011) The cultural rights of indigenous peoples: achievements and continuing challenges. Eur J Int Law 22(1):130 Williams T, Hardison P (2014) Culture, law, risk and governance: contexts of traditional knowledge in climate change adaptation. In Maldonado JP,

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Colombi B, Pandya R (eds) Climate change and indigenous peoples in the United States: impacts, experiences and actions. Springer International Publishing, p 534 Xanthaki A (2009) Indigenous rights in international law over the last 10 years and future developments. Melbourne J Int Law 10(1):36 Young TR (2013) An international cooperation perspective on the implementation of the Nagoya protocol. In Morgera E, Buck M, Tsioumani E (eds) The 2010 Nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff, p 461 Zheng X (2019) Key legal challenges and opportunities in the implementation of the Nagoya protocol: the case of China. Rev Eur Compar Int Environ Law 28(2):177

4

Benefit-Sharing

The fair and equitable sharing of the benefits arising out of the utilisation of genetic resources is the third objective of the CBD that constitutes the core of the Nagoya Protocol. Often cited as the “grand bargain”,1 benefit-sharing was established by the CBD in 1992 in order to provide biodiversity-rich countries and communities with the incentives and financial support for biodiversity conservation and sustainable use of its components.2 It is also the logical consequence of the recognition of the rights of provider countries and IPLCs. According to the CBD and the Nagoya Protocol, benefit-sharing should be “fair and equitable”, a standard underlined by the principle of equity that demands benefits to be fairly distributed among those who have created, managed, and developed the concerned genetic resources and associated traditional knowledge.3 Built upon the CBD, the Nagoya Protocol elaborates the rights and obligations related to benefitsharing and provides detailed guidance on a range of key issues of implementing benefit-sharing.4 It addresses questions of what it is to be shared and how to share them through provisions relating to, inter alia, monetary and non-monetary benefits, measures for capacity-building and negotiations

1

Gollin (1993). See Greiber et al. (2012) and Kate and Laird (2002). 3 Greiber and others (n 2) 83. 4 See Buck and Hamilton (2011), Tsioumani (2010) and discussions in Morgera et al. (2013). 2

of MAT.5 Benefit-sharing at both inter-state and intra-state levels—that is, between provider and user countries as well as between states and IPLCs—are envisaged and the normative standards of fairness and equity have also been articulated to guide the implementation of benefitsharing obligations.6 In the broader context of international law, benefit-sharing is an emerging legal principle in the standard-setting processes and scholarly discussions of issues relating to, inter alia, health, the use of marine biological resources, and IPLCs’ human rights pertaining to lands and natural resources, non-discrimination and development.7 This fourth chapter investigates the provisions in the CBD and the Nagoya Protocol with respect to benefit-sharing and examines the applications of relevant international human rights in four sections. It first clarifies the benefits and beneficiaries as defined by the ABS framework

5

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1, anx 1, Article 22(5)(j) and 6(3)(g). 6 The standards and implications of fair and equitable have been debated from different perspectives, see Morgera (2016), Suiseeya (2014) and Koutouki and Bieberstein (2012). 7 For a discussion about benefit-sharing see essays in Kamau and Winter (2013). More specific discussion about marine genetic resources and IPLCs’ human rights, see Fedder (2013) and Gilbert (2016).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_4

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(Sect. 4.1), and then discusses the correlated states’ obligations to ensure fair and equitable benefit-sharing especially when IPLCs are concerned (Sect. 4.2). The third section examines the human rights to property, equality and nondiscrimination, and development respectively, because they provide the most significant normative ground for theorising the concept, standards and procedures of fair and equitable benefitsharing with respect to IPLCs (Sect. 4.3). The discussion aims to demonstrate a mutually supportive interpretation and implementation of the Nagoya Protocol in light of human rights law, via critically analysing the normative elements of benefit-sharing such as its nature, form, procedures and standards of fairness and equity. It also addresses the normative and practical gaps and overlaps between the Nagoya Protocol and relevant human rights of IPLCs.

4.1

Benefits and Beneficiaries in the ABS Context

4.1.1 Realisation of Monetary and Non-monetary Benefits Fair and equitable benefit-sharing is the objective of the CBD and the Nagoya Protocol, which is expected to be achieved through access to genetic resources, the transfer of relevant technologies and funding.8 In the broader context provided by the CBD, the nature of the benefits is construed as both a means to provide biodiversity-rich countries and communities with the incentives and financial support for biodiversity conservation and sustainable use of its components, as well as an end to redress past injustices and contribute to fairer and more equitable enjoyment of the international economic and scientific development dependent on the utilisation of biological resources.9 Based on the CBD, the Nagoya Protocol articulates the content of the benefits with a 8

Nagoya Protocol, Article 1. See Greiber and others (n 2) 83, Morgera (n 6) 367 and Kate and Laird (n 2) 75. 9

detailed and non-exhaustive list. Specifically, Article 5 of the Nagoya Protocol states that the benefits can be monetary and non-monetary, including but not limited to those listed in its Annex, such as access fees, payment of royalties, licence fees, research funding, joint ventures, and ownership of IPRs (monetary), as well as sharing of research and development results, collaboration in scientific research and development cprogrammes, education and training for capacitydevelopment and technology transfer (nonmonetary).10 In addition, several voluntary guidelines have been adopted via the CBD COP decisions to elaborate the normative standards and procedural requirements when benefit-sharing takes place at an intra-state level that involves IPLCs.11 Thus, benefit-sharing is underlined by the overarching objectives of CBD, as Article 9 of the Nagoya Protocol explicitly obliges its parties to encourage users and providers to direct benefits towards the conservation of biological diversity and the sustainable use of its components. More importantly, benefits in benefitsharing appear as a broad and flexible concept that can be realised in different forms. If understood as a specific result of ABS, on the one hand, state parties and/or MAT negotiators may decide what benefit, or a combination of benefits are the most desirable for individual ABS transaction on a case-by-case basis.12 On the other hand, different stakeholders may hold divergent opinions about the value hierarchy of potential benefits on the negotiating table. For instance, what IPLCs may wish to obtain in benefitsharing may vary from what a state government reckons as a priority in negotiating MAT.13 These two aspects of benefits have been reflected in the national implementation of the Nagoya

10

Nagoya Protocol, anx 1. In particular the 2016 Mo’otz Kuxtal Voluntary Guidelines. 12 Greiber and others (n 2) 28. 13 There is rich literature on benefit-sharing cases in specific contexts, see, inter alia, essays in Wynberg and Hauck (2014); Chennells et al. (2009). 11

4.1 Benefits and Beneficiaries in the ABS Context

Protocol, as both parties and non-party states start to regulate about the competent national authority and publish model clauses of MAT.14 These characteristics of benefits have also become a topic in scholarly discourse regarding Indigenous rights, natural resource management, social justice, and empowerment, which will be discussed further in the following sections.

4.1.2 Provider Countries as Beneficiaries The Nagoya Protocol addresses the question of who shall benefit from the utilisation of genetic resources and associated traditional knowledge via three paragraphs in Article 5 in following terms: 1. In accordance with Article 15, paragraphs 3 and 7 of the Convention, benefits arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms. 2. Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by Indigenous and local communities, in accordance with domestic legislation regarding the established rights of these Indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms.

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3. Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of traditional knowledge associated with genetic resources are shared in a fair and equitable way with Indigenous and local communities holding such knowledge. Such sharing shall be upon mutually agreed terms.15 Two types of beneficiaries are envisaged. The first is the provider country of the concerned genetic resources, which shall be either the country of origin of such resources, or a party that has acquired the resources in accordance with the CBD. The second is IPLCs in situations where they have established rights over genetic resources, or the case concerns their traditional knowledge. As will be discussed, both types of ABS beneficiaries face interpretative and implementation dilemmas. This section focuses on provider countries of genetic resources and the next section discusses the issue about IPLCs. According to the Nagoya Protocol, the provider country includes the country of origin of the concerned genetic resources or a party that has acquired the resources in accordance with the CBD.16 As provided by the CBD, the country of origin means the country that possesses genetic resources under in situ conditions, i.e., where genetic resources exist within ecosystems and natural habitats and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.17 This distinction between the country of origin and any country that might provide the same genetic resources was insisted by numerous developing countries during the negotiation

14

Especially in some of the biodiversity-rich countries, for instance, Brazil and India have adopted national laws and regulations providing detailed guidance on the nature and form of the desired benefits. See Bavikatte and Tvedt (2015); Thame (2022) and in general country information provided at the Access and Benefit-Sharing ClearingHouse, CBD, ‘Access and Benefit‐Sharing ClearingHouse’ (CBD). https://absch.cbd.int/ accessed 10/07/2022.

15

Nagoya Protocol, Article 5. Emphasis added. In particular its ABS-related requirements provided in Article 15, Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, Article 15(3)(7). 17 ibid Article 2. 16

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process of the Nagoya Protocol.18 It is in line with overarching theme of respecting states’ sovereignty over biological resources as established under the CBD framework. However, there are several facts about genetic resources that might result in practical difficulties in identifying the country of origin as defined by the CBD. First, plants, animals and microorganism that contain genetic resources are subject to natural reproduction, which could, and often do, span across territorial boundaries.19 Anthropogenic interventions, such as crossbreeding and trading, may also introduce species across countries and result in “new” species through cultivation.20 As species become extinct and/or new species discovered or cultivated, the country of origin of a certain species may not always be consistent, as an initial country of origin could also be replaced by another country that provides more hosting habitats due to various factors, for instance, climate change. Thus, the term country of origin is not a static concept, which may complicate the process of identifying legitimate provider country as beneficiaries for the ABS purposes. Furthermore, as it becomes popular to seek genetic resources from gene banks and ex situ collections, users of genetic resources may favour provider countries with minimum ABS requirements. Essentially, these facts pose challenge to the identification of the country of origin and raise concerns about how to ensure fair and equitable benefit-sharing with the legitimate country beneficiaries. These two concerns are equally valid in a community context, in which the same genetic resources and associated traditional knowledge might be held simultaneously by several IPLCs.

18

For instance, India, Indonesia, Mexico, Brazil, etc. See CBD Working Group on ABS, ‘Report of the First Part of the Ninth Meeting of the Ad Hoc Open Ended Working Group on Access and Benefit-Sharing’ (26 April 2010) UN Doc UNEP/CBD/WG-ABS/9/3 paras 31, 43, 44 and 127. 19 See essays in Luoma-aho et al. (2004). 20 For scientific evidence see Raffa et al. (2008).

4 Benefit-Sharing

4.1.3 ILCs or IPLCs? A Sleight of Hand Under the CBD Framework Another important ABS beneficiary is the IPLCs when the ABS transaction concerns their genetic resources and traditional knowledge.21 As discussed, albeit the term “indigenous and local communities” is the authoritative term adopted in the provisions of the Nagoya Protocol and the CBD, the CBD parties have agreed in 2014 that the term IPLCs would be used in the future decisions under the CBD framework instead of ILCs, because the former can more accurately reflect the connotation of the concept as it contains essentially two groups—“Indigenous Peoples” and “local communities embodying traditional lifestyles”.22 The parties to the Nagoya Protocol have also decided to apply, mutatis mutandis, the CBD’s decision on the use of the terminology IPLCs in 2016.23 In the more recently adopted COP decisions and voluntary guidelines, for instance, the 2016 Mo’otz Kuxtal Voluntary Guidelines and the 2018 Rutzolijirisaxik Voluntary Guidelines, the term IPLCs has replaced ILCs altogether. This terminological change was understood as a political compromise between state governments and Indigenous rights advocates. It was also underlined by the developments in the international human rights law with respect to Indigenous Peoples in the past two decades, especially the adoption of the UNDRIP in 2007. More positively, it may even be seen as a small victory of the Indigenous rights movements that 21

I would like to acknowledge that this section and its main arguments have been updated to a legal analysis which will be published by the Journal of Environmental Law under the title ‘From “ILCs” to “IPLCs”: a victory for Indigenous Peoples’ rights advocacy under the Convention on Biological Diversity?’ (https://doi.org/10. 1093/jel/eqad009). 22 CBD COP Decision XII/12, ‘Article 8(j) and related Provisions’ (13 October 2014) UN Doc UNEP/CBD/ COP/DEC/XII/12 section F. Also see discussion in the previous Sect. 1.3 in this book. 23 NP MOP 2 Decision NP-2/7, ‘Use of the Term “Indigenous Peoples and Local Communities”’ (10 December 2016) UN Doc CBD/NP/MOP/DEC/2/7 1.

4.1 Benefits and Beneficiaries in the ABS Context

are currently ongoing at many international platforms, for the explicit recognition of Indigenous Peoples would provide a more robust basis for legal arguments and claims in favour of their interests in the context of biodiversity conservation and ABS. It would also contribute to shaping the environment, if not to create a new one, in which the interpretation of states’ obligations visà-vis IPLCs under the CBD and the Nagoya Protocol may take fuller account of international human rights law. However, a closer look at the event would reveal several problems that still demand clarification. The CBD COP noted the recommendation of the UNPFII in this eleventh meeting in 2012, in which the UNPFII submitted that “affirmation of the status of indigenous peoples as ‘peoples’ is important in fully respecting and protecting their human rights” and called upon the CBD parties, and “especially including the Nagoya Protocol”, to adopt the terminology IPLCs as “an accurate reflection of the distinct identities developed by those entities since the adoption of the Convention almost 20 years ago”.24 This recommendation has received broad support from not only other NGOs and intergovernmental organisations, but also some state parties of the CBD such as Finland, Brazil, Australia, and Bolivia.25 It shall be noted that among the CBD state parties, only Finland has explicitly expressed its standing on the possible alteration of the CBD and the Nagoya Protocol by submitting that “Finland accepts proposals for using the wording ‘indigenous peoples and local communities’ in future decisions, but believes that these proposals do not lay out a sufficient foundation for amending the Convention and the Nagoya and Cartagena Protocols. Finland is not willing to open the

CBD Working Group on Article 8(j), ‘Compilation of Views Received on Use of the Term “Indigenous Peoples and Local Communities”’ (17 September 2013) UN Doc UNEP/CBD/WG8J/8/INF/10/Add.1 31. 25 CBD Working Group on Article 8(j), ‘Recommendations Arising From the Eleventh and Twelfth Sessions1 of the United Nations Permanent Forum on Indigenous Issues to the Convention on Biological Diversity’ (20 August 2013) UN Doc UNEP/CBD/WG8J/8/8 paras 12–32. 24

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Convention or the Protocols for renegotiations.”26 Based on an analysis of the received views and comments regarding this issue, the Ad Hoc Open-ended Inter-Sessional Working Group on Article 8(j) and Related Provisions (CBD Working Group on Article 8(j)) facilitated deliberations on the identification of minimum standards, best practices, gaps and implications of the adoption of the terminology IPLCs. It concluded that there is “no intention to reopen or change” the text of the CBD or its Protocols and meanwhile, noted that many parties had expressed a willingness to use the term IPLCs in future decisions and documents under the CBD.27 Thus, the terminological change from ILCs to IPLCs became an important item on the agenda of the twelfth CBD COP meeting and its legal implications has receive special attention. Specifically, the CBD Working Group on Article 8(j) has requested the CBD Executive Secretary to obtain legal advice from the UN Office of Legal Affairs, on the legal implications of the use of the term IPLCs. The Executive Secretary formulated three questions to the Office of Legal Affairs for its legal advice. First, it asked that whether this terminological change would alter the scope of the CBD, and whether it would amount to an amendment to Article 8(j) or other related provisions in the CBD and its Protocols. Second, it inquired about whether this terminological change would constitute a subsequent agreement on interpretation or applications according to Article 31(3) of the VCLT with legally binding effect. Now, the first two questions are about the nature of the proposed terminological change as the CBD Executive Secretary compared it with treaty amendment and a norm of particular importance for treaty interpretation, i.e., “subsequent agreement” as envisaged in Article 31(3)(a) of the VCLT, which are sound and legitimate questions in the given context. CBD COP, ‘Compilation of Views on Use of The Term “Indigenous Peoples and Local Communities”’’ (26 June 2014) UN Doc UNEP/CBD/COP/12/INF/1 para 4. 27 CBD COP, ‘’Analysis on the Implication of the Use of the Term “Indigenous peoples and local communities” for the Convention and its Protocols’ (25 June 2014) UN Doc UNEP/CBD/COP/12/5/Add.1 para 3. 26

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In response, the Office of Legal Affairs clarified that since there is an explicit amendment procedure set out in Article 29 of the CBD, the CBD COP decisions that use a different term IPLCs would not automatically constitute an amendment, unless the amendment procedures were followed, or it is by the “unanimous agreement” of the parties.28 In response to the question number two, the Office of Legal Affairs referred to the first report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by the Special Rapporteur of the ILC.29 Based on the definition and legal implications of subsequent agreements and subsequent practices provided in this report, the Office of Legal Affairs concluded that “…a change of terminology in decisions of the Conference of the Parties that represent one or more single common acts of the Parties, could constitute a subsequent agreement regarding the interpretation of the Convention or the application of its provisions within the meaning of Article 31(3)(a)”.30 However, since the chapeau of Article 31(3) of the VCLT only requires that subsequent agreements to “be taken into account” in treaty interpretation, the Office of Legal Affairs endorsed the position of the ILC that subsequent agreements, regardless being “authentic means of interpretation”, do not necessarily possess a conclusive or legally binding effect.31 This addressed the second element of the question number two, that the CBD COP decisions “would not have legally binding effect unless it was clear that the Parties wished to reach a binding agreement on the interpretation of a treaty”.32 The problem is with question number three, which reads: Is it possible, in decisions and documents under the Convention, to adopt a terminology that is different to the terminology used in the Convention 28

ibid anx. International Law Commission, ‘First Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties by Mr. Georg Nolte Special Rapporteur’ (19 March 2013) UN Doc A/CN.4/660 60–66. 30 COP (n 26) anx. 31 International Law Commission (n 28) para 68. 32 COP (n 26) anx. 29

text (e.g. Article 8(j), in this case) without this being a subsequent agreement on interpretation or application within the context of Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties? If the answer to this question is ‘yes’, how could this be achieved?

This question clearly embodies an inclination for the terminological change to have as little legal impacts in interpretating the CBD as possible. But since no CBD state party had explicitly made that request or expressed such preference, it is a perplexing position of the CBD Executive Secretary with respect to the issue.33 As confirmed by the CBD COP analysis itself, what had been clearly stated was only that there was no intention to reopen or change the text of the CBD, i.e., an amendment of the treaty. Providing a rather obscure explanation, the CBD COP analysis cited the ILC’s report on subsequent agreement, which states that by such an agreement, the parties must purport to clarify the meaning of a treaty or to indicate how the treaty is to be applied.34 It then concluded that since there was no explicit affirmation of the intention of all parties to the CBD to make the terminological change a “subsequent agreement”, it should not be done as such.35 However, this is a very peculiar understanding of the issue. First, as provided by the Office of Legal Affairs in its answer to question number two, a CBD COP decision naturally amounts to a subsequent agreement which manifests their common understanding regarding the interpretation of the treaty or the application of its provisions. There is no need for a COP decision to explicitly affirm itself as a subsequent agreement among parties because it is an obvious outcome of the COP’s nature and mandate. In this case, the terminological change is clearly a common act by parties instead of an ad hoc document circulated for informative purpose; therefore, it is impossible to conclude that the explicit inclusion of Indigenous Peoples in the 33

Finland has submitted that it is not willing to renegotiate the CBD and its Protocols, which refers to the amendment procedure rather than treaty interpretation. COP (n 25) para 4. 34 International Law Commission (n 28) para 76. 35 COP (n 26) para 15.

4.1 Benefits and Beneficiaries in the ABS Context

CBD framework in the form of a COP decision does not serve the purpose or match the characteristic of a subsequent agreement.36 Second, this reasoning follows the question number three— which gave out a palpable preference for the proposed CBD COP decision not to constitute a subsequent agreement—a fact inevitably raise concerns about its objectivity. Having said that, the CBD COP decision regarding the terminological change has already been made and its content follows the advice of the Office of Legal Affairs on the third question. Specifically, the CBD parties decided to use the term IPLCs in their future decisions and secondary documents as appropriate but stressed that this usage is only on an exceptional basis, which according to the UN Office of Legal Affairs, would not be construed as a “subsequent agreement” and should not be taken into account for purposes of interpreting or applying the CBD.37 The CBD parties have also decided that the term IPLCs: (A) shall not affect in any way the legal meaning of Article 8(j) and related provisions of the Convention; (B) may not be interpreted as implying for any party a change in rights or obligations under the Convention; and (C) shall not constitute a context for the purpose of interpretation of the CBD as provided for in Article 31(2) of the VCLT or a subsequent agreement or subsequent practice among parties to the CBD as provided for in Article 31(3)(a)(b) or special meaning as provided for in Article 31 (4) of the VCLT.38 The COP further articulated that any change to the legal meaning of the original term “ILCs” should be done via the amendment procedure set out in Article 29 of the

36

In its response to question number three, the Office of Legal Affairs noted the distinction between decisions adopted by the CBD COP as common acts by the parties, on the one hand, and, on the other hand, Convention documents such as reports and proposals by the Secretariat or individual parties that may be circulated amongst the parties. The former may constitute a subsequent agreement whilst the latter may not. See ibid anx. 37 XII/12 (n 21) sec F. 38 Vienna Convention on the Law of Treaties [adopted 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331 and XII/12 (n 21) 16.

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CBD.39 Thus, although the term IPLCs has made its way into the CBD framework, its legal implications are greatly limited, if not completed rejected, by the parties via the very same COP decision. Overall, the event seems more like a sleight of hand in terms of legal techniques in applying complex rules on treaty interpretation under the CBD framework. While the CBD parties welcomed the politically correct term Indigenous Peoples in their future decisions, almost every possible way for it to make a substantive implication was blocked by the legal restrictions on treaty interpretation. It is an issue that has not been addressed by the current literature but merits scholarly attention, especially from the perspective of mutual supportiveness in treaty interpretation. How should a treaty that was negotiated several decades ago response to the recent developments in international law and international challenges? What is the role of intergovernmental organisations, including its functional parts such as working groups and executive secretaries, in facilitating this process? These questions beg further research. Within the scope of this book, it is relevant to note that regardless of the very restrictive recognition of IPLCs as the subject under the CBD framework, the outlook for a mutually supportive interpretation based on Article 31(3)(c) of the VCLT remains positive. It is also important to highlight the broad willingness expressed by the CBD parties during the deliberation to recognise the changing normative environment of international law with respect to the human rights of IPLCs. It might be possible to manipulate the legal interpretation of a specific term for once, but it would not be a sustainable practice for an influential MEAs (the CBD in this case) in the long run, as it disregards the broad context of international law against which the treaty norms should be interpreted in an evolving and systemic manner.40

39 40

XII/12 (n 21) 16. See discussions in Chap. 2 of this book.

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4.2

4 Benefit-Sharing

Benefit-Sharing Obligations of State Parties

The CBD and the Nagoya Protocol impose obligations on their state parties to implement benefitsharing at both inter-state and intra-state levels, that is, between states and between states and IPLCs.41 With respect to inter-state benefitsharing, Article 5 of the Nagoya Protocol obliges its parties to take legislative, administrative or policy measures, as appropriate, to ensure that benefits arising from the utilisation of genetic resources as well as subsequent applications and commercialisation are shared in a fair and equitable way with the provider party.42 In this context, the benefits that shall be shared are the ones arising from the utilisation of genetic resources as well as subsequent applications and commercialisation. Based on the benefit-sharing obligations established under the CBD about commercial and other utilisation of genetic resources, the Nagoya Protocol defines the term utilisation of genetic resources as to conduct research and development (R&D) on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology.43 It further clarifies that “biotechnology” means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.44 In comparison, the term subsequent applications and commercialisation remains undefined in the Nagoya Protocol. Nevertheless, it reflects the understanding achieved in the negotiation process, that benefit-sharing needs to cover the whole

value chain, which often contains different stages of R&D and can lead to various commercial products.45 The intra-state level benefit-sharing concerns mainly IPLCs as beneficiaries. According to Article 5 of the Nagoya Protocol, parties are obliged to take legislative, administrative or policy measures, with the aim of ensuring, that the benefits arising from the utilisation of genetic resources held by IPLCs are shared with the concerned IPLCs, in accordance with domestic legislation regarding their established rights over genetic resources; and as appropriate, in order that benefits arising from the utilisation of traditional knowledge associated with genetic resources are shared in a fair and equitable way with IPLCs holding such knowledge.46 The Nagoya Protocol does not define what exactly the utilisation of traditional knowledge means. However, when addressing benefit-sharing regarding IPLCs’ traditional knowledge, the Nagoya Protocol uses far fewer caveats and does not at all refer to domestic legislation, compared to the provisions on genetic resources that are conditioned by several qualifies such as “with the aim of ensuring”, “established rights” and “in accordance with domestic legislation”.47 This is noteworthy because it appears the only occasion where the reference to domestic law is absent when articulating parties’ ABS obligations.48 This could be read in light of the international legal developments of recognising and protecting IPLCs’ rights over traditional knowledge in other fields, especially human rights and IPRs-related discourses under the WTO and the WIPO.49 A preliminary observation is that the protection of traditional knowledge and IPLCs’ rights over traditional knowledge is a matter of international law, especially a human rights obligation that requires states to take into account international

41

45

4.2.1 Obligations of Benefit-Sharing at Inter-state and Intra-state Levels

The Nagoya Protocol imposes assertive benefit-sharing obligations with respect to IPLCs, compared to the CBD that only “encourages” parties to ensure benefit-sharing subject to their national legislation. Morgera et al. (2014). 42 Nagoya Protocol, Article 5(3). 43 ibid Article 2(c). 44 ibid Article 2(d).

Greiber and others (n 2) 85. Nagoya Protocol Article 5(5). 47 ibid Article 5(5). 48 See the discussion in Chap. 3 about the legal implications of the references to “domestic law” in the accessrelated provisions in the Nagoya Protocol. 49 See in general, Heins (2008) and Yu (2007). 46

4.2 Benefit-Sharing Obligations of State Parties

standards when formulating domestic laws and policies, rather than subjecting the protection of traditional knowledge to their respective domestic legal frameworks.50 When considering the intra-state obligations of state parties vis-a-vis IPLCs, it is necessary to distinguish specific situations in which the content of such obligations may vary. These situations include (A) states share benefits with IPLCs who live within their territories, (B) non-state actors negotiate MAT and share benefits with IPLCs under the supervision and/or facilitation of state governments, (C) benefit-sharing among IPLCs and within their respective communities. Each situation illuminates a distinctive dimension of the relationship involved in intra-state benefit-sharing among states, IPLCs, and other non-state actors. It demonstrates the fact that not only state parties, but also non-state actors and IPLCs themselves may bear duties in terms of ensuring fair and equitable benefit-sharing. Consequentially, the obligations of state parties may not only contain regulating the benefitsharing process between governments and IPLCs, but also ensuring the fair and equitable benefit-sharing in B and C situations via appropriate facilitation and administrative measures. Closely interrelated with benefit-sharing obligations are the provisions provided by the CBD and the Nagoya Protocol on technology transfer, technical and scientific cooperation, capacity building and finance. There is increasing awareness among the CBD parties about the need to address these issues in a more integrated and coherent approach in supporting the implementation of the CBD and its Protocols.51 With 50

Sub-Commission on the Promotion and Protection of Human Rights, ‘Intellectual Property Rights and Human Rights’ (2000) UN Doc E/CN.4/Sub.2/RES/2000/7 paras 3–6 and Greiber and others (n 2) 89. A detailed discussion on this point continues in the following Sect. 4.4 in this chapter. 51 See CBD COP Decision 14/24, ‘Capacity-building and Technical and Scientific Cooperation’ (30 November 2018) UN Doc CBD/COP/DEC/14/24 and CBD COP Decision XIII/23, ‘Capacity-building, Technical and Scientific Cooperation, Technology Transfer and the Clearing-house Mechanism’ (16 December 2016) UN Doc CBD/COP/DEC/XIII/23 15.

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respect to cross-cutting issues such as synthetic biology and digital sequence information, the importance of capacity-building, knowledgesharing and technology transfer has been recognised for the purpose of the CBD and its Protocols, taking into account the needs of not only state parties, but also IPLCs.52 The underlining message is to promote scientific solidarity among stakeholders against a background where scientific uncertainty and rapid development require continuous evaluation about its potential impacts on the CBD objectives. With respect to benefitsharing, this evaluation cannot be valid without the inputs of IPLCs and the state parties with least technology, scientific or financial capacities. In practice, several international and regional programmes and initiatives have been put into place to enhance technical and scientific cooperation and technology transfer, for instance, the Bio-Bridge Initiative53 and the clearing-house mechanisms established for the Nagoya Protocol and the Cartagena Protocol respectively.54 Financial supports and mobilisation have also been provided by, for instance, the Global Environment Facility, to facilitate state parties in their capacity-building and national implementation, as well as the inclusion and participation of IPLCs.55 To this end, the obligations of state parties enshrined in the relevant provisions of the CBD and the Nagoya Protocol deserve a closer 52 See CBD COP Decision 14/19, ‘Synthetic Biology’ (30 November 2018) UN Doc CBD/COP/DEC/14/19 paras 6 and 17, and CBD COP Decison 14/20, ‘Digital Sequence Information on Genetic Resources’ (30 November 2018) UN Doc CBD/COP/DEC/14/20 paras 3 and 10. 53 An international programme founded in 2014, aiming at catalysing and facilitating technical and scientific cooperation, available at CBD, ‘Bio-Bridge Initiative’ (CBD, 2014) https://www.cbd.int/biobridge/ accessed 02/09/2022. 54 There is also work organised by the Informal Advisory Committee to the Clearing-House Mechanism to support national clearing-house mechanisms, see CBD Informal Advisory Committee to the Clearing-House Mechanism, ‘Report on the Meeting of the Informal Advisory Committee to the Clearing- House Mechanism of the Convention on Biological Diversity’ (23 July 2020) UN Doc CBD/CHM/IAC/2020/1/3. 55 CBD COP Decision 14/23, ‘Financial Mechanism’ (30 November 2018) UN Doc CBD/COP/DEC/14/23 1–3.

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look in order to better appreciate their crosslinkages with benefit-sharing, especially with respect to IPLCs. Technology transfer is an important, yet understudied obligation related to benefit-sharing at both inter-state and intra-state levels.56 In the ABS context, technology transfer is a versatile concept, as it is regarded not only as a subject of benefit-sharing, an essential means for the realisation of the overall objectives of the Nagoya Protocol, but also as a standalone obligation for parties in relation to collaboration and cooperation.57 This indicates the multi-faceted role attributed to technology transfer by the ABS framework. According to the CBD, effective participation of the provider countries in biotechnological research activities is required not only as a potential way to realise fair and equitable benefitsharing, but also as a principle guiding the handling of biotechnology and the distribution of its benefits.58 The CBD also provides that other international legal regimes that might have an oversight on the related technologies, for instance, the IPRs, shall be respected but parties are obliged to cooperate in this regard in order to ensure that such rights are supportive of and do not run counter to the CBD objectives.59 Furthermore, parties are obliged to facilitate technology transfer and to take legislative, administrative or policy measures, to ensure provider parties of genetic resources are provided access to and transfer of technology under fair and most favourable terms.60 Finally, the CBD requires parties to ensure that the private sector plays a supportive role in technology transfer “for the benefit of both governmental institutions and the private sector of developing countries”.61 Thus, the CBD has laid a comprehensive ground for the articulation of technology transfer-related obligations, covering issues about its standards, nature, stakeholders and the relationship with other international legal

rules. In comparison, Article 23 of the Nagoya Protocol subtracts its content from the CBD provisions, while merging the obligation of technology transfer with the obligation to cooperate in scientific research. It first states that “parties shall collaborate and cooperate in technical and scientific research and development programmes” and then provides that “parties undertake to promote and encourage access to technology by, and transfer of technology to, developing country parties”.62 It has been pointed out that the Nagoya Protocol envisages a “softer” responsibility by using a best-endeavours clause on technology transfer—“to undertake”—which implies a general commitment, instead of a concrete obligation as it is established for collaboration and cooperation.63 It also abstains from addressing the role of the private sector and articulating the standards of technology transfer or cooperation.64 This difference has been criticised by Nijar because it creates “a fundamental imbalance” in the Nagoya Protocol, as “its access provisions build upon and advance those in the CBD, while, in stark contrast, the technology transfer provisions detract from the CBD provisions”.65 Whether this imbalance would bring about adverse impacts on benefitsharing remains an important question to be evaluated. With respect to capacity-building, Article 22 of the Nagoya Protocol obliges its parties to “cooperate in the capacity-building, capacity development and strengthening of human resources and institutional capacities to effectively implement this Protocol in developing country parties, in particular the least developed countries and small island developing states among them, and parties with economies in transition” and requires parties to “facilitate the involvement” of IPLCs and relevant stakeholders, including non-governmental

62

56 57 58 59 60 61

Nagoya Protocol Article 23. Emphasis added. Greiber and others (n 2) 216. 64 That is, according to the CBD, under most favourable terms, including on concessional and preferential terms. 65 Gurdial Singh Nijar, ‘The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and Implementation Options for Developing Countries’ [2011], 30. 63

Morgera (n 6) 369. CBD, Article 16(1) and Nagoya Protocol, Article 23. CBD, Articles 15(7) and 19. ibid Articles 16(2)(3)(5). ibid Articles 16(2)(3). ibid Article 16(4).

4.2 Benefit-Sharing Obligations of State Parties

organisations and the private sector.66 Emphasising on the need of the developing country parties, the Nagoya Protocol further requires them to identify their national capacity needs and priorities through “national capacity self-assessment”, while supporting “the capacity needs and priorities” of IPLCs and relevant stakeholders as identified by themselves.67 An indicative and nonexhaustive list of possible measures for capacitybuilding is also provided, including, training, technology transfer and special measures to increase the capacity of IPLCs with emphasis on enhancing the capacity of women within those communities.68 The concern of capacity-building of IPLCs thus is embedded in parties’ obligations with a particular focus on the inclusion of women within IPLCs.69 Thus, the integrated nature of issues relating to technology transfer, scientific cooperation and capacity-building in the ABS context is reflected in the corelated legal obligations of state parties to the CBD and the Nagoya Protocol. As an essential means to facilitate “a flow of goods and knowledge”,70 technology transfer and scientific cooperation can provide important opportunities for learning and capacity-building in developing countries and for IPLCs, which eventually may facilitate the implementation of the CBD and the Nagoya Protocol.71 These issues are part and parcel in fulfilling state parties’ obligations of benefit-sharing, as technology transfer and

66

Nagoya Protocol, Article 22(1). ibid Article 22(3). 68 ibid Article 22(5). 69 This is also supported by the recent assessment of the effectiveness of the Nagoya Protocol, in which parties have identified the need to support the capacity-building of IPLCs with respect to ABS issues, for instance, minimum requirements for MAT, see NP MOP 3 Draft Decision, ‘Assessment and Review of the Effectiveness of the Protocol’ (21 November 2018) UN Doc CBD/NPMOP/3/L.2 anx 10. 70 Greiber and others (n 2) 216. 71 As identified in the 2018 report on the effectiveness of the Nagoya Protocol, about half of parties claim that they had collaborated and cooperated in technical and scientific research and development programmes as a means to achieve the objective of the Protocol, see Decision (n 68) 14. 67

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participation in scientific research are being increasing required as non-monetary benefits, and the importance of biotechnology transfer and capacity-building in ensuring the fair and equitable standards of benefit-sharing broadly recognised.

4.2.2 MAT as a Procedural Safeguard Mutually agrees terms have been established as a key procedural safeguard for ensuring fair and equitable benefit-sharing. In accordance with Article 5 of the Nagoya Protocol, benefit-sharing at both inter-state and intra-state levels shall be upon MAT.72 MAT as a procedural requirement is also included in several CBD provisions with respect to access to genetic resources and benefitsharing, access to and transfer of technology and handling of biotechnology and distribution of its benefits.73 Often established in a form of a private-law contract, MAT implies a negotiation between the party granting access to genetic resources and any entity aiming to utilise those resources, such as individuals, companies, or research institutions.74 Ideally, it could envisage an “effective and easily enforceable way” to ensure the realisation of benefit-sharing obligations through compliance with international and domestic private laws.75 However, there are divergent opinions and experiences about its effectiveness.76 The following paragraphs first examine the relevant provisions and then discuss the challenges facing its implementation. A list of minimum requirements on the content of MAT is provided in the Nagoya Protocol in relation to parties’ obligations to regulate PIC for accessing genetic resources, including, dispute settlement clauses, terms on benefit-sharing, subsequent third-party use and changes of

72

Nagoya Protocol Articles 5(2)(5). ibid Articles 15, 16 and 19. 74 Greiber and others (n 2) 9. 75 Nagoya Protocol, Article 18. Morgera, Tsioumani and Buck (n 40) 131. 76 See Tobin (2010) and Young and Tvedt (2017). 73

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intent.77 Detailed model contractual terms for MAT have also been proposed by legal scholars, taking a rather neutral position vis-à-vis the interests of both the providers and users.78 With a sharpened focus on IPLCs, the Nagoya Protocol obliges parties to support IPLCs to develop minimum requirements for MAT and model contractual clauses for benefit-sharing with respect traditional knowledge associated with genetic resources.79 To support the implementation of MAT, Articles 19 and 20 of the Nagoya Protocol impose obligations on parties to encourage “the development, update, and use of sectoral and cross-sectoral model contractual clauses”, as well as “voluntary codes of conduct, guidelines, and best practices and/or standards”.80 The COP MOP is also mandated to take stock of the use of these model and voluntary standards periodically.81 To this end, information and tools developed by state parties, governments, international organisations and IPLCs under Articles 19 and 20 of the Nagoya Protocol are encouraged to be shared openly on the Access and Benefit-sharing ClearingHouse.82 These includes legal tools that have been developed prior to the Nagoya Protocol, as well as IPLCs’ customary laws, community protocols and procedures.83 If fully implemented, these provisions could create a facilitative environment for successful negotiations and efficient executions of fair and equitable benefit-sharing agreements, while supporting the development and respecting IPLCs’ customary rules in the

4 Benefit-Sharing

process of negotiating and implementing benefitsharing terms.84 While MAT serves as a procedural safeguard for realising the objective of ABS, its implementation faces several challenges. First, as MAT is usually negotiated at the point of access, it does not necessarily promise a fair and equitable outcome of benefit-sharing as the utilisation takes place.85 Second, envisaging a contractual relationship between the providers and the users, MAT relies on domestic private law, especially contract law, for its establishment and enforcement.86 Scholarly discussion has revealed the multifaceted problems embedded in this construction, including, inter alia, unequal bargaining power between providers and users in negotiating contractual clauses for MAT, varying legal, social and economic capacities of the companies, institutions and IPLCs to negotiate a fair and equitable arrangement, and different conditions and approaches in different jurisdictions to ensure equity and fairness of MAT.87 To this end, the CBD Working Group on ABS has suggested that contract law alone cannot guarantee the fairness and equity standards for ABS purposes and “a domestic legislative and international instrument-based counter balance” is needed.88 This implies that MAT as a procedural safeguard to benefit-sharing needs to be understood and assessed against a broader legal context in addition to contractual legal norms. It is not only for an effective and functional ABS system between provider and user countries, but also a system in which the concerns of IPLCs could be sufficiently accommodated.89

77

Nagoya Protocol, Article 6(3)(g). Gerd and Chege (2016) and Young and Tvedt (n 75) 22. 79 However, this obligation does not refer to genetic resources held by ILCs. See Nagoya Protocol, Articles 12 (3)(b)(c). 80 ibid Articles 19(1) and 20(1). 81 ibid Articles 19(2) and 20(2). 82 NP MOP 1 Decision NP-1/5, ‘Model Contractual Clauses, Voluntary Codes of Conduct, Guidelines and Best Practices and/or Standards (Articles 19 and 20)’ (20 October 2014) UN Doc UNEP/CBD/NP/COP-MOP/ DEC/1/5. 83 ibid paras 2 and 3. 78

CBD Working Group on ABS, ‘Study on Compliance in Relation to the Customary Law of Indigenous and Local Communities, National Law, Across Jurisdictions, and International Law’ (6 March 2009) UN Doc UNEP/CBD/WG-ABS/7/INF/5 4. 85 Nijar (2010). Also, see the ABS related laws of Afghanistan, Australia, Bhutan, Bulgaria, Guyana, India, Malawi, Pakistan, Philippines, and South Africa. 86 Bhatti et al. (2009). 87 See, in general, Vermeylen (2007), essays in Kamau and Winter (2009) and Greiber and others (n 2) 211. 88 CBD Working Group on ABS (n 83) 4. 89 Tvedt (2013) and Morgera, Tsioumani and Buck (n 40) 15. 84

4.3 Fair and Equitable Standards of Benefit-Sharing

4.3

Fair and Equitable Standards of Benefit-Sharing

Fair and equitable are the core normative standards for benefit-sharing as established under the international ABS framework. Without an explicit definition, they are reiterated throughout the text of the CBD and the Nagoya Protocol in several different contexts. First, as the treaty objective, fair and equitable sharing of the benefits is established in Article 1 of the CBD and the Nagoya Protocol. Second, elaborating the obligations of parties to benefit-sharing, Article 15(7) of the CBD requires that each contracting party to take measures, with the aim of sharing in a fair and equitable way the results of R&D and the benefits arising from the commercial and other utilisation of genetic resources. This phrase is inherited in Article 5 of the Nagoya Protocol, which articulates that parties are obliged to ensure that benefits are shared in a fair and equitable way with the provider parties and/or IPLCs. Moreover, in accordance with Article 19 of the CBD, parties are required to “take all practicable measures to promote and advance priority access on a fair and equitable basis” to especially developing countries with respect to the results and benefits arising from biotechnologies based on genetic resources.90 Furthermore, recalling the fair and equitable benefitsharing objective, the Preamble of the Nagoya Protocol highlights the importance of promoting equity and fairness in the negotiation of MAT between providers and users. In the same line, the Nagoya Protocol explicitly includes “promotion of equity and fairness in negotiations” as a measure of capacity-development, which may include, for instance, provide training to developing countries and/or IPLCs regarding MAT negotiation.91 Finally, Article 10 of the Nagoya Protocol, which envisages a procedural obligation for parties to “consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable benefit-sharing in transboundary situations or for 90 91

CBD, Article 19. Nagoya Protocol, Article 22(5)(b).

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which it is not possible to grant or obtain PIC”, may provide a legal basis for considering the standards of benefit-sharing in a way that could contribute to the overall objectives of the CBD beyond its current bilateral user-provider paradigm.92 These deliberations imply that the standards of fair and equitable benefit-sharing do not only underline the expected ABS outcome, but also envisage certain procedural requirements on how it should be achieved, i.e., the methods and means involved in the ABS processes.93 The CBD pays particular attention to the inclusion of non-monetary benefits, such as results and benefits arising from biotechnologies and R&D, whilst the Nagoya Protocol specifies the role of MAT and capacity-building in achieving the objective of fair and equitable benefitsharing. The implication of these standards in the Indigenous and local context is that, on the one hand, the need and request of IPLCs of benefit-sharing according to their customary laws and community protocols should be taken into account (the form of benefits); and on the other hand, the fact that many IPLCs are not familiar with the contractual terms in a MAT and generally lack the capacity to MAT negotiations (capacity building for benefit-sharing).94 For instance, based on a case study on the San Hoodia benefit-sharing agreement, Vermeylen has showed that the understanding of the fair and equitable standards are different among IPLCs, companies and other stakeholders, which is determined by the fundamental difference in their cultural perspectives and value systems.95 She pointed out that a wider legal and social empowerment of IPLCs, for instance, legal recognition of their rights to land and natural 92 ibid Article 10. For a discussion of the potential ways where bilateral approach and multilateral approach to benefit-sharing might be mutually supportive, see Halewood et al. (2013). 93 In other words, fairness and equity include both a procedural dimension as well as a substantive dimension of justice in the ABS context, see Morgera (n 6) 381. 94 See Mulligan (1999); Artuso (2002) and Vermeylen (n 86) 424. 95 Vermeylen (n 86) 427–433.

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resources, is essential in ensuring and achieving the objective of fair and equitable benefitsharing, because only then the participants of a benefit-sharing agreement could negotiate the deal on an equal standing.96 Admittedly, power asymmetry is a persisting challenge, perhaps even an determining factor, to the realisation of fair and equitable benefit-sharing.97 From a legal perspective, important questions arise as to the rights and obligations of states and IPLCs with respect to specific issues, including, inter alia, access to information, participation in decisionmaking, as well as access to justice.98 The fair and equitable benefit-sharing in the Indigenous and local context is also an issue recently elaborated through the CBD COP decisions, in particular the 2016 Mo’otz Kuxtal Voluntary Guidelines.99 In general, this Guidelines provides that the benefits received by IPLCs should be fair and equitable based on MAT.100 Specifically, the Guidelines highlights that 96

ibid 433. Wynberg and Hauck (2014). 98 Admittedly, the standards of fair and equitable can be studied from many perspectives in connection to various topics. While this book focuses on the human rights perspective, there is rich literature exploring the role of fair and equitable benefit-sharing in promoting social justice and ecosystem service, just to name a few. See Martin et al. (2013) and Wynberg and Hauck (n 96) 27. 99 The role of MAT for securing fair and equitable and the importance of developing community protocols are also evident in earlier COP decisions, see CBD COP Decision XI/1, ‘Status of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization and related developments’ (5 December 2012) UN Doc UNEP/CBD/COP/DEC/XI/1 anx II. 100 CBD COP Decision XIII/18, ‘Mo’otz Kuxtal Voluntary Guidelines for the Development of Mechanisms, Legislation or other Appropriate Initiatives to Ensure the “Prior and Informed Consent”, “Free, Prior and Informed Consent” or “Approval and Involvement”, depending on National Circumstances, of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits arising from the Use of their Knowledge, Innovations and Practices relevant for the Conservation and Sustainable use of Biological Diversity, and for Reporting and Preventing Unlawful Appropriation of Traditional Knowledge‚ (17 December 2016) UN Doc CBD/COP/DEC/ XIII/18 para 12. 97

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benefit-sharing should be fair and equitable at both inter-community and intra-community levels, “taking into account relevant community level procedures and as appropriate gender and age/intergenerational considerations”.101 Focusing on the capacity of IPLCs, the Guidelines also stresses that anyone seeking access to traditional knowledge should ensure that “the holders of that traditional knowledge can negotiate on a fair and equitable basis” when developing MAT.102 Furthermore, the importance of community protocols of IPLCs is emphasised because they “may provide guidance from the community perspective on the fair and equitable sharing of benefits”.103 Thus, the recent normative developments under the ABS framework lend support to the scholarly view that fair and equitable benefitsharing with IPLCs strongly demands respect to IPLCs’ customary laws and community protocols, which may enshrine their perspectives and notions of fairness and equity. Notably, the intracommunity dimension of fair and equitable benefit-sharing further requires special attention paid to the vulnerable members within the IPLCs, such as women and children, to improve their capacity in negotiation and decision-making processes and better accommodate their needs and interests. This path of normative development under the CBD framework indicates that the standards of fair and equitable are not only part and parcel of the ABS object and purpose, but also fundamentally embedded in the procedural requirements of ABS, including capacity-building, MAT negotiation and the development of IPLCs’ customary laws and community protocols.104 It is clear that these standards can be read in many different contexts with diverse implications. For instance, inter-state fair and equitable benefitsharing may refer to the international law 101

ibid paras 12–14. ibid para 23(d). 103 ibid para 23(b). 104 CBD Subsidiary Body on Implementation, ‘Study into Critera to Identify a Specialized International Access and Benefit-Sharing Instrument, and a Possible Process for its Recognition’ (29 May 2018) UN Doc CBD/SBI/2/INF/17 para 23. 102

4.4 Human Rights Implication on Benefit-Sharing …

principle of sovereign equality, or it could lead to discussions about the possible reconciliation and/or conflict between advancements in biotechnology and biodiversity conservation.105 It may even be understood outside the legal context as an autonomous source of principles that are assumed to inspire contractual arrangements and practices under good faith.106 With a sharpened focus on IPLCs (hence intra-state benefit-sharing), fair and equitable benefitsharing is predominately overseen by the relationship between state’s sovereign rights over natural resources and its international obligations with respect to IPLCs. To this end, as argued by Morgera, international human rights law notions such as procedural fairness, non-discrimination, and proportionality provide important source and ground for interpreting and implementing fair and equitable standards as a way of realising the cross-fertilisation between these two bodies of international law.107 As a matter of scope, this book focuses on the intra-state level of fair and equitable benefit-sharing and discusses relevant huma rights law norms in the following section.

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non-discrimination (Sect. 4.4.2), as well as the emerging human right to development (Sect. 4.4.3) in order to shed light on the complementary interaction between the Nagoya Protocol and the relevant human rights law.

4.4.1 Property Rights to Land, Natural Resources and Traditional Knowledge

Widely recognised as the stewards of biodiversity and holders of traditional knowledge, IPLCs have intrinsic rights and claims over their genetic resources and traditional knowledge, which requires a perspective that looks beyond the environmental framework of the CBD and the Nagoya Protocol to also consider IPLCs’ human rights in the context of benefit-sharing.108 To this end, this section investigates the property rights of IPLCs with respect to their land, resources and culture (Sect. 4.4.1), the right to equality and

4.4.1.1 Property and Related Human Rights The notion of property is an ancient and fundamental aspect of human life. When understood generally, property refers to a set of rules that govern people’s access to and control of resources such as land, natural resources, and other goods, as well as intangible resources such as knowledge and inventions.109 At the core of this system is the relationship between individuals, communities, and states, which determines the boundary of property rights and corelated duties.110 Today, to recognise and protect property rights is widely accepted as a fundamental means for economic development and the protection of human dignity.111 To various extents and in different models, property rights are addressed in virtually every national system in the world. On the one hand, the establishment and specification of property rights through laws and policies provide essential ground to the realisation of many other fundamental economic and social rights.112 On the other hand, this process does not always address the customary traditions and concerns of the poorest and most marginalised populations and communities around the world, even though property rights are equally fundamental for their development too.113 For instance, the UN Special Rapporteur

105

109

4.4

Human Rights Implication on Benefit-Sharing Related Provisions

See essays in Francioni and Scovazzi (2006). 106 Francioni (2006) and Morgera, Tsioumani and Buck (n 40) 132. 107 Morgera (n 6) 382. 108 Morgera, Tsioumani and Buck (n 40) 374 and Wiessner (2011).

Waldron (2020). See essays in Alexander and Peñalver (2009). 111 See in general, van Banning (2002); Sprankling (2011) and Alvarez (2019). 112 See essays in Queralt and van der Vossen (2019). 113 Malloy (1986) and Norton (1998). 110

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on the right to food has reported that the communal systems of land and resources management are often at odds with state-established and individual-centred property titles, even though common fishing grounds, gazing ground and water points are vital for fisherfolk, herders and pastoralists to maintain their traditional ways of life.114 In cases where communal property rights is recognised by law, IPLCs’ property claims are often at disadvantage against land-intensive development projects, such as hydroelectric dams or mines. Thus, an investigation on a human right to property provide a prerequisite understanding about existing proprietary titles on both tangible resources and intangible knowledge. The following paragraphs aim to establish this general understanding about property rights with respect to land, natural resources, and knowledge of IPLCs. It is intriguing that regardless the global consensus on the importance of property rights, the core human rights covenants—ICCPR and ICESCR—have not included an explicit reference to a right to property.115 Even though the recognition of a right to property is explicit in Article 17 of the Universal Declaration of Human Rights, which provides that “everyone has the right to own property alone as well as in association with others” and “no one shall be arbitrarily deprived of his property”,116 this establishment has not been successfully converted to the ICCPR or ICESCR. There are several explanations about this disparity. For instance, Sprankling attributed the omission of a right to property in the two 114 Olivier De Schutter, ‘Report of the Special Rapporteur on the Right to Food’ (11 August 2010) UN Doc A/65/281 paras 14–24. 115 There is no direct reference to a right of property in the ICCPR or ICESCR. However, there are nondiscrimination provisions prohibiting the discrimination based on property (Article 2 in both instruments). There is also the recognition of a right to “enjoy the benefits of scientific progress and its applications” and to “benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author” as established in Article 15 of the ICESCR. 116 Universal Declaration of Human Rights [10 December 1948] UNGA Res 217 A (III), Article 17.

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covenants to the political tensions during the Cold War, especially the ideological division about property between the Soviet bloc and the West.117 It has also been argued that many developing countries were reluctant to recognise an international human right to property because their concerns about compensation for expropriation of foreign property in the context of decolonisation following the Second World War.118 Overall, disagreement about many elements of a right to property has led to the absence of a direct reference to this right in the two Covenants. However, the non-discrimination provisions in both Covenants prohibit discrimination based on property.119 Article 15 of the ICESCR also recognises a right to “benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”—in other words, a right to intellectual property.120 These indirect references to property provides the human rights ground for further elaboration of non-discrimination right and IPRs with respect to property in other contexts. As a result, the treaty bodies monitoring the implementation of the ICCPR and the ICESCR omit the right to property per se but have discussed this right in relation to other issues, such as minority rights and right to non-discrimination.121

117

Sprankling (2014). Van Banning (n 110) 34–47. 119 Article 2 in both instruments provide that “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 120 International Covenant on Economic, Social and Cultural Rights [adopted 16 December 1966, entered into force 3 January 1976], Article 15(1)(c). 121 However, as we have seen, the HRC has addressed the property rights indirectly when examining complaints related to violations of other rights, such as the minority rights as provided in Article 27 of the ICCPR, see discussions in previous Sect. 3.3.2, including Lubicon Lake Band v Canada [26 March 1990] (HRC) UN Doc Supp. No. 40 (A/45/40) Länsman et al. v Finland [26 October 1994] (HRC) UN Doc CCPR/C/52/D/511/1992 (1994), and Jouni E. Länsman et al. v Finland [30 October 1996] (HRC) UN Doc CCPR/C/58/D/671/1995 (1996). 118

4.4 Human Rights Implication on Benefit-Sharing …

In comparison, all three major regional human rights instruments—the European Convention on Human Rights(ECHR), the American Convention on Human Rights(ACHR) and the African Charter on Human and Peoples’ Rights (ACHPR) —have provisions on property rights. Specifically, Article 1 of the Protocol 1 to the ECHR provides that “every natural or legal person is entitled to the peaceful enjoyment of his possessions” and that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.122 Article 21 of the ACHR provides that “everyone has the right to the use and enjoyment of his property…no one shall be deprived of his property except upon payment of just compensation”.123 Similarly, Article 14 of the ACHRP provides that “the right to property shall be guaranteed” and “it may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”.124 The fact that more than two thirds of the states over the world has accepted the jurisdiction of a regional human rights court makes claims of property right a rather powerful one.125 Over the years, the regional courts and tribunals overseeing the implementation of the human rights treaties have 122

Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms [adopted 20 March 1952, entered into force 3 September 1952] 213 UNTS 262, Article 1. Article 17 of the EU Charter of Fundamental Rights further articulates that “everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest” and that “intellectual property shall be protected”. 123 American Convention on Human Rights, “Pact of San Jose”, Costa Rica [adopted 22 November 1969, entered into force 18 July 1978] 1144 UNTS 123, Article 21. 124 African Charter on Human and Peoples’ Rights [adopted 27 June 1981, entered into force 21 October 1986] 1520 UNTS 217, Article 14. 125 Alvarez (n 110) 17.

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established an extensive body of case law, gradually clarifying the contours of a human right to property.126 Against this background, even though whether the right to property could be regarded as a fundamental human right remains a controversial issue,127 the significance of property rights for the realisation of other fundamental rights, including the right to food, housing and dignity, as well as to the advancement of social justice and equality has been elaborated amidst a growing body of scholarly literature.128 With respect to Indigenous Peoples, the idea of securing rights of a proprietary nature is underlined by the fundamental right of selfdetermination, which requires that all peoples to “freely dispose of their natural wealth and resources” and that “in no case may a people be deprived of its own means of subsistence”.129 This connection is based on the recognition of the interdependence between Indigenous Peoples and their lands and natural resources, in the sense that they typically rely on their communal stewardship over land and natural resources to ensure their economic, social and cultural viability and development.130 This view is reflected

126

Although it has been observed that the protection provided by these regional instruments is highly uneven and its enforcement being particularly weak in poor countries. Arguably, the ECHR offers the strongest protection of property rights, see van Banning (n 110) 59 and Queralt and van der Vossen (n 111) 4. 127 For instance, Lillich has argued that property rights cannot fit into the category of fundamental human rights because they may be adopted in domestic contexts in various forms whereas fundamental human rights do not foresee the same level of state discretion—fundamental human rights norms that prohibit genocide, torture, and slavery, for instance, are non-negotiable. See, Lillich (1984) and D’Amato (1995). 128 Howard-Hassmann (2013); Randolph and Hertel (2010), and Gilbert (2013). 129 International Covenant on Civil and Political Rights [adopted 16 December 1966, entered into force 3 January 1976] 999 UNTS 171, Article 1(2) and ICESCR, Article 1(2). 130 See Sub-Commission on the Promotion and Protection of Human Rights, ‘Indigenous Peoples and their Relationship to Land–Final working paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes’ (11 June 2001) UN Doc E/CN.4/Sub.2/2001/21 7, Anaya (2004) and Gilbert (2018).

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in the UNDRIP, which states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” and further elaborates that this right refers to “own, use, develop and control the lands, territories and resources”.131 States are required to “give legal recognition and protection to these lands, territories and resources” and more specifically, to “establish and implement a fair, independent, impartial, open and transparent process…to recognize and adjudicate” these rights pertaining to Indigenous Peoples’ lands and resources with due respect to their “customs, traditions and land tenure systems”.132 Furthermore, Article 28 of the UNDRIP recognises Indigenous Peoples’ right to redress for lands and resources that have been “confiscated, taken, occupied, used or damaged without their free, prior and informed consent”, which include “restitution” and “just, fair and equitable compensation”.133 As development projects often inflict conflicts between governments, corporation and IPLCs, Article 32 provides that “Indigenous Peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources”. To this end, states are required to “consult and cooperate in good faith” with the concerned Indigenous Peoples to “obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources” and to provide “just and fair redress” in these cases.134 Thus, Indigenous Peoples’ rights pertaining to their lands, territories and resources do not only entitle Indigenous Peoples to dispose their land and resources freely, but also impose affirmative obligations on state governments to provide proper institution and process concerning approval of development projects, adjudication and redress in case of violations. 131

United Nations Declaration on the Rights of Indigenous Peoples [13 December 2007] UNGA Res 61/295, Article 26. 132 ibid Article 27. 133 ibid Article 28. 134 ibid Article 32.

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The ILO Convention 169 has also facilitated important standard-setting about the protection of common land rights of Indigenous and tribal peoples.135 A broad understanding of “land” is adopted, including “the concept of territories” and “the total environment of the areas which the peoples concerned occupy or otherwise use”.136 In particular, Article 13 of the ILO Convention 169 requires state governments to respect “the cultures and spiritual values” of the Indigenous Peoples in relationship with their lands or territories, “in particular the collective aspects of this relationship”.137 Article 14 states that “the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised” and the right to use lands that are not exclusively owned or possessed shall also be appropriately safeguarded.138 In this connection, state governments are obliged to identify these lands, guarantee effective protection to their property rights and provide procedures for dispute settlement.139 Furthermore, the ILO Convention 169 addresses the rights of Indigenous Peoples to the natural resources pertaining to their lands, including the right to “participate in the use, management and conservation of these resources”.140 In cases where states retain the ownership of resources pertaining to lands, the Convention 169 mandates states to consult with the concerned Indigenous Peoples about any exploration or exploitation program and ensure that they participate in the benefits of such activities and receive fair compensation from any potential damages.141 With respect to intangible resources and related IPRs, Article 31 of the UNDRIP states that Indigenous Peoples have the right “to maintain, 135

Swepston (1990). Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries [adopted 27 June 1989, entered into force 5 September 1991] ILO C169, Article 13(2). 137 ibid Article 13(1). 138 Particular attention was called for nomadic peoples and shifting cultivators, ibid Article 14(1). 139 ibid Articles 14(2)(3). 140 ibid Article 15(1). 141 ibid Article 15(2). 136

4.4 Human Rights Implication on Benefit-Sharing …

control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts”. This provision continues to state that “they also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions”.142 According to the UNDRIP, genetic resources are “manifestations” of Indigenous Peoples’ “science, knowledges and cultures”, to which (and in addition to traditional knowledge which apparently is a broader concept in this context) Indigenous Peoples have the intrinsic rights to maintain, control, protect and develop. Indigenous Peoples may also choose to establish intellectual property titles over these intangible resources, but these titles are not necessary conditions for recognising Indigenous Peoples’ rights over their intangible resources. As suggested by Stoll, Article 31 of the UNDRIP may contribute to “generalising” rights of Indigenous Peoples pertaining to traditional knowledge, which include but are not limited to the exclusive IPRs.143 To this end, states are obliged to take effective measures to recognise and protect the exercise of these rights “in conjunction with Indigenous Peoples”.144 The significant inclusion of genetic resources by the stipulation of intangible resources in Article 31 of the UNDRIP could be attributed to the development in international environmental law, especially the CBD and its provisions on traditional knowledge and genetic resources.145 It is also noteworthy that the UNDRIP in turn has an impact on the Nagoya Protocol, as the latter

142 143 144 145

UNDRIP Article 31(1). Stoll (2018). UNDRIP Article 31(2). Ni (2011).

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further articulates the ABS provisions in the CBD with respect to IPLCs.146 However, admittedly, neither the Nagoya Protocol or the CBD has explicitly based the benefit-sharing claims on a property right over genetic resources or traditional knowledge. In comparison, the ongoing discussion about the protection of traditional knowledge from a property and commercial perspective under the WIPO and WTO-TRIPS frameworks focuses on the possibility to specify a proprietary right of traditional knowledge in a multilateral treaty in the future.147 Intellectual property protection may offer a robust ground for IPLCs to claim compensation in cases of misappropriation and increase the general accountability in the global economy with respect to the protection of traditional knowledge.148 Nevertheless, human rights scholars are concerned that property right approach to protect IPLCs’ traditional knowledge is probably “wrong-headed” since it relies on state-centric legal frameworks instead of the customary law of IPLCs.149 Furthermore, the concept of IPRs per se, often perceived as “Western” and exploitative by IPLCs, may fall short of reconciling the sovereign and Indigenous perspectives on the value and meaning of culture, knowledge and essentially, identity.150 Overall, the current practice and discourse about IPLCs’ intangible resources and related IPRs reflect the dynamicity and the crosscutting nature of traditional knowledge-related issues.151 IPRs is increasingly recognised as a human right in and of itself, implying that the continuous making and the interpretation of IPRs rules are fundamentally intertwined with human rights standards.152 146

Morgera, Tsioumani and Buck (n 40) 119. See Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore WIPO, ‘The Protection of Traditional Knowledge: Draft Articles’ (2 June 2014) WIPO Doc WIPO/GRTKF/IC/28/5 and Cottier and Panizzon (2004). 148 See Downes (2000) and Gubarev (2012). 149 Daes (2001). 150 Coombe (1998) and Coombe (2005). 151 Drahos (2007) and Ni (n 144) 114. 152 Ostergard (1999); Helfer (2004); Cottier (2018) and Chapman (2002). 147

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Thus, we may observe that the current international law, especially human rights law, have affirmed Indigenous land and resources rights with strong property precepts. In this establishment, human rights norms including selfdetermination, cultural integrity, and access to justice, have been integrated with increasing reference to specific standards such as FPIC, consultation, fair and equitable compensation.153 These rights impose positive obligations on state to take effective measures to assist IPLCs in controlling and protecting their land and resources, which may include establishing national legislation to recognise the customary rules and community protocols of IPLCs with respect to the use and development of their own resources. Property rights over land, resources, and knowledge also create corporate due diligence obligations when the proposed commercial activities might influence the exercise of IPLCs’ basic rights.154

4.4.1.2 Property Rights and BenefitSharing in Human Rights Jurisprudence The jurisprudential interpretation of the IPLCs’ property rights relating to land and natural resources, especially by regional human rights tribunals, has played a central role in integrating the notion of benefit-sharing.155 Landmark cases include, inter alia, the Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua,156 the Case of the Saramaka People v Suriname,157 the Case of Kali’a and Lokono Peoples

153

See Morgera (2019) and Desmet (2011). Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People’ (19 July 2010) UN Doc A/HRC/15/37 paras 46–80. 155 See Gilbert (n 129) 75 and Morgera (n 152) 8. 156 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua [31 August 2001] (Inter-American Court of Human Rights) IACHR Series C no 79. 157 Case of the Saramaka People v Suriname [28 November 2007] (Inter-American Court of Human Rights) IACHR Series C no 172. 154

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v’Suriname,158 the Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina,159 and the Endorois case.160 Numerous concluding observations provided by the HRC, the CESCR and the CERD also lend support to this development. The following paragraphs investigate the progressive integration of benefit-sharing in the property rights of IPLCs with respect to land and natural resources. In the Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, decided in 2001, the Inter-American Court has confirmed the property rights of the Indigenous Awas Tingni community to their communal lands161 and concluded that Nicaragua had violated this right by granting permission to logging activities on the communities’ traditional lands and not adequately recognising and providing protection to the community’s traditional land tenure.162 The Inter-American Court also issued monetary compensation for the benefit of the Awas Tingni Community based on mutual agreement.163 There was, nevertheless, no explicit recognition of benefit-sharing vis-à-vis the right to property pertaining to land or resources. Similarly, in the Case of the Yakye Axa Indigenous Community v Paraguay164 and the Case of the Indigenous Community Sawhoyamaxa v Paraguay,165

158

Case of Kali’a and Lokono Peoples v Suriname [25 November 2015] (Inter-American Court of Human Rights) IACHR Series C no 309. 159 Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina [24 November 2020] (IACHR Series C no 420. 160 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya [2010] (African Commission on Human and Peoples’ Rights) 276/2003. 161 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua (n 155) para 153. 162 ibid para 173. 163 ibid para 167. 164 Case of the Yakye Axa Indigenous Community v Paraguay [17 June 2005] (Inter-American Court of Human Rights) IACHR Series C no 125. 165 Case of the Sawhoyamaxa Indigenous Community v Paraguay [29 March 2006] (Inter-American Court of Human Rights) IACHR Series C No 146.

4.4 Human Rights Implication on Benefit-Sharing …

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decided in 2005 and 2006 respectively, the InterAmerican Court has established that the cultural ties of the Indigenous communities with their land and resources shall be protected under property rights.166 And the property rights shall cover both the private property of individuals and communal property of the members of the Indigenous communities.167 In 2007, the InterAmerican Court decided the milestone Case of the Saramaka People v Suriname,168 in which Indigenous Peoples’ property rights pertaining to their land and resources have been reaffirmed with an explicit reference to benefit-sharing. The case concerned the issuance of logging and mining concessions for the exploration and extraction of certain natural resources found within Saramaka territory. Recognising the special relationship of the Saramaka people as a distinct social, cultural and economic group with their ancestral territory,169 the Inter-American Court established that their right to enjoy property in accordance with their communal tradition is underlined by the fundamental right of selfdetermination.170 In deciding the extent to which a state may restrict such property right by granting concessions for exploration and extraction activities, the Inter-American Court stressed that the state may only do so when such a restriction does not deny their survival as a tribal people.171 In this connection, the Inter-American Court further articulated three procedural safeguards that the state must abide in order to fulfil their obligation to ensure the right to property of Indigenous Peoples, including effective participation, prior environmental and social impact assessments and benefit-sharing.172 Significantly, based on Article 32 of the UNDRIP and Article 15(2) of the ILO Convention No 169, the Court

considered benefit-sharing as an inherent element of the right to property.173 Thus, based on the fact that the state failed to carry out the three obligatory procedural safeguards, the InterAmerican Court considered that the logging concessions issued by the state government has violated the Saramaka people’s communal property rights.174 This reasoning has been adopted by the African Commission in the 2010 Endorios case, where the African Commission similarly noted that, because benefit-sharing serves as an important indicator of compliance for property rights, failure to duly compensate would result in a violation of the right to property.175 It has also been reiterated in the more recent Case of Kaliña and Lokono Peoples v Suriname in 2015, in which the Inter-American Court has concluded that because the state of Suriname failed to ensure the three identified safeguards when granting mining concessions, it had violated the right to property pertaining to the lands and natural resources of the Kaliña and Lokono peoples and its members.176 In this case, the Inter-American Court has cited expansively the principles and provisions of the instruments under the CBD, including the CBD and its Nagoya Protocol, to address state’s obligations with respect to Indigenous Peoples.177 In particular, recognising the state as a party to the CBD therefore abide by its commitments under the CBD framework,178 the Inter-American Court highlighted the obligations of parties towards IPLCs in accordance with Article 8(j) of the CBD179 and to share benefits with concerned IPLCs in accordance with the Nagoya Protocol.180

166

173

ibid para 118 and Case of the Yakye Axa Indigenous Community v Paraguay (n 163) para 137. 167 Case of the Sawhoyamaxa Indigenous Community v Paraguay (n 164) para 118. 168 Case of the Saramaka People v Suriname (n 156). 169 ibid 23. 170 ibid 28. 171 ibid 37. 172 ibid para 129.

ibid para 138. ibid para 154. 175 Endorois Case (n 159) 294. 176 Case of Kaliña and Lokono Peoples v Suriname (n 157) para 230. 177 See ibid paras 173 176 178 and 183. 178 ibid para 176. 179 ibid para 178. 180 ibid para 181. 174

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In the most recent Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina, the Inter-American Court further articulated the legal implications about “communal property” held by Indigenous Peoples, especially the correlated obligations of state.181 The case was submitted to the Court in 2018 by the Inter-American Commission, concerning the alleged violation of the right to property over the ancestral territory of the Indigenous Lhaka Honhat communities by Argentina. Specifically, according to the Commission, Argentina failed to provide effective protection to the ancestral territory of the Lhaka Honhat communities, did not “adopt effective actions to control the illegal deforestation”, and had granted concessions for exploration projects without complying with the requirements of social and environmental impact assessments or PFIC.182 The Court dealt with the dispute in three aspects, including (A) the right to Indigenous communal property, (B) the right to movement and residence, the right to a healthy environment, to adequate food, to water and to take part in cultural life, and (C) the right to judicial guarantees and protection from states. As the first ever human rights case to render a right to healthy environment—as part and parcel of the economic, social and cultural rights enshrined in Article 26 of the ACHR183—justiciable under the InterAmerican Court, the judgement has received much attention in terms of its advancement in protecting Indigenous Peoples’ rights and expanding the autonomous rights to a healthy

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environment.184 With respect to communal property, citing all the cases under the InterAmerica jurisdiction as discussed above, the Court affirmed that the right to Indigenous communal property include the protection of lands, territories and natural resources, as well as the cultural dimensions and intangible elements contained within.185 States’ responsibility to ensure the effective ownership of the Indigenous peoples thus include specific actions to: (A) delimit Indigenous lands from others and grant collective titles, (B) refrain from actions that may result in adverse impacts on the existence, value, use and enjoyment of Indigenous territory, and (C) guarantee the right of the Indigenous Peoples to truly control and use their territory and natural resources against any type of external interference from third parties.186 In addition, affirming the judicial personality of Indigenous and tribal peoples as collective subject of international law and citing the UNDRIP and the ILO Convention 169, the Court provided that “the adequate guarantee of communal property does not entail merely its nominal recognition, but includes observance and respect for the autonomy and self-determination of the indigenous communities over their territory”.187 Based on these understandings, the Court noted that Argentina has not provided adequate title to Indigenous land with legal certainty, although its domestic law recognises the communal ownership of the land claimed.188 And that due to the absence of FPIC and adequate participation of the concerned Indigenous Peoples in the construction project, Argentina failed to respect and to ensure the right of the Lhaka Honhat communities to their

181

Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina (n 158) paras 92–185. 182 ibid para 1. 183 Article 26 of the ACHR is tilted “Progressive Development”, providing that “[t]he States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires”.

184

Tigre (2021). Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina (n 158) paras 92–98. 186 ibid paras 98. 187 ibid paras 153–154. 188 ibid para 167. 185

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communal property.189 Even though this case did not include an explicit reference to benefitsharing, it has significantly enriched the content and scope of the right to Indigenous communal property, especial in adopting an allencompassing understanding of the Indigenous territory that also include cultural elements and in specifying states’ obligations to respect this right.190 In the works of human rights treaty bodies, the connection among the fundamental right of selfdetermination, the right of IPLCs over their lands and natural resources and the procedural safeguards including benefit-sharing is also evident. For instance, based on the right of selfdetermination that requires “in no case may a people be deprived of its own means of subsistence”, the HRC has commented in 1999 that Canada should reform its laws and internal policies in order to guarantee that Indigenous Peoples can fully enjoy their rights over lands and natural resources.191 The CESCR has also suggested that Congo should ensure the protection of Indigenous Peoples’ rights to their ancestral lands and natural resources, and their benefits over natural resources exploitation when issuing logging concessions.192 Furthermore, the CERD has issued numerous concluding observations to urge state parties to recognise and protect the rights of Indigenous Peoples to own, develop, control and use their communal lands, territories and resources,193 in which the 189

The Court read the right to communal property in relation to prior consultation, political rights, and the principle of non-discrimination, among others as it applied Articles 21 and 23(1) of the ACHR in relation to Article 1(1) in this case. See ibid para 184. 190 Tigre (n 183) 707. 191 HRC, ‘Concluding Observations of the Human Rights Committee on Canada’ (7 April 1999) UN Doc CCPR/C/79/Add.105 para 8. 192 CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights Democratic Republic of the Congo’ (16 December 2009) UN Doc E/C.12/COD/CO/4 para 14. 193 See CERD, ‘CERD General Recommendation No. 23: Indigenous Peoples’ (1997) UN Doc A/52/18 para 5, CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Cambodia’ (30 March 1998) UN Doc CERD/C/

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procedural requirements of FPIC, reparation and compensation, equitable sharing of benefits and access to justice are explicitly integrated.194 While there is very limited human rights jurisprudence on the property rights of IPLCs pertaining to traditional knowledge, the CERD has provided an important concluding observation in 2017 regarding the periodic reports of New Zealand and the intellectual and cultural property rights of the Māori people. Specifically, the CERD is concerned about the lack of progress in the national implementation regarding Māori intellectual and cultural property rights and Māori treasured possessions as required by a national tribunal—the Waitangi Tribunal— through its Wai 262 decision.195 To this end, the CERD has recommended that New Zealand shall take measures to effectively implement the Wai 262 decision and address non-compliance with the Treaty of Waitangi as well as the 304/Add.54 para 13, CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Norway’ (10 December 2003) UN Doc CERD/C/63/CO/8 para 18, CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Bolivia’ (10 December 2003) UN Doc CERD/C/63/CO/2 para 13; CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Argentina’ (10 December 2004) UN Doc CERD/C/65/CO/1 para 16, CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Brazil’ (28 April 2004) UN Doc CERD/C/64/CO/2 para 15 and CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Suriname’ (28 April 2004) UN Doc CERD/C/64/CO/9 para 12. 194 CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Australia’ (14 April 2005) UN Doc CERD/C/AUS/CO/14 para 17, CERD, ‘Report of the Committee on the Elimination of Racial Discrimination’ (2002) UN Doc A/57/18 para 330 and CERD, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination of Ecuador’ (2 June 2003) UN Doc CERD/C/62/CO/2 para 16. 195 The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975, addressing the intellectual property rights and treasured elements of Māori culture. The Wai 262 decision is a report released in 2011 with respect to the Wai 262 Claim. See Tribunal (2010) and CERD, ‘Concluding Observations on the Combined Twenty-first and Twentysecond Periodic Reports of New Zealand’ (22 September 2017) UN Doc CERD/C/NZL/CO/21–22 para 16.

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UNDRIP.196 In this context, we may observe that even in countries where IPLCs have been officially recognised and their notions of property rights over traditional knowledge explicitly established, risks of a general lack of effective national implementation still persist. Scholars have also warned about the potential negative influence of benefit-sharing on IPLCs, as the monetary implication may downplay the social and cultural value of traditional knowledge for holders and their communities.197

4.4.1.3 Implications To recognise and protect property rights is essential for economic development and the realisation of many other fundamental human rights. As an important means of subsistence of many IPLCs, the property right to lands, territories and natural resources is inextricably linked with the right of self-determination and the cultural rights of Indigenous Peoples and minority groups. In particular, the rights of Indigenous Peoples to their land and resources are recognised in the ILO Convention 169 and the UNDRIP, in connection with notions of cultural integrity and procedural requirements such as FPIC and benefit-sharing. The analysis of the jurisprudential interpretations provided under the Inter-American and the African systems demonstrates that benefit-sharing has been gradually substantiated as an inseparable element of IPLCs’ right to property with respect to their lands and tangible resources—regarded as a “procedural safeguard” as well as an “important indicator” of states’ compliance with their human rights obligations. This recognition imposes a range of responsibilities upon states, including, inter alia, to guarantee effective protection to Indigenous Peoples’ property rights, ensure their participation in decision-making processes and provide fair compensation in cases of violation. To this end, property rights may contribute to a particular way of understanding monetary and

196 197

CERD (n 194) para 17. Dutfield (2017).

non-monetary benefits as properties of IPLCs and provide more robust ground for fair and equitable benefit-sharing, especially if benefitsharing is perceived as a “compensation” for the taking and using of genetic resources and/or associated traditional knowledge. However, this connection has its downsides. For instance, it may undermine the scope of fair and equitable benefit-sharing, especially in situations where IPLCs have not secured a proprietary title to their genetic resources or traditional knowledge. Furthermore, the general emphasis on property rights may strengthen claims proposed by companies, especially over IPRs, and undermine the interests of IPLCs, which have not been taken into account sufficiently in the formulation of the property rights and its many specificities we are familiar with today. Benefit-sharing is a recent add-on composition to the construction of the property rights to land and resources, especially of Indigenous Peoples. Some have argued that benefit-sharing is an inherent element of the right to property, i.e., the right to property naturally involves an aspect to require fair and equitable share of benefits and/or compensation. This could be true, but as we have seen in the regional human rights jurisprudence, the revelation of this aspect owes its clarity to the normative development under the CBD framework. Notably, the Nagoya Protocol extends beyond the predominant “compensatory” relationship between benefits and property rights as established in the human rights law and enriches the connection between human rights to property and economic well-beings of IPLCs. This format of intertwined progression in international legal development, again, demonstrates the value and ability of the principle of mutual supportiveness. Admittedly, the human rights law has taken the benefit-sharing element into its construction more affirmatively, whereas the CBD and the Nagoya Protocol adopt a much more cautious approach in asserting any types of legal entitlement to genetic resources and traditional knowledge. As have demonstrated, the ABS framework leaves this thorny question to states to decide whether IPLCs indeed have “entitlements” over genetic resources.

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Against this background, three human rights implications can be drawn in relation to the benefit-sharing provisions in the Nagoya Protocol. First, the recognition of benefit-sharing as an essential element of human rights may strengthen the normative and procedural significance of benefit-sharing established by the Nagoya Protocol. As states bear human rights obligations to protect IPLCs’ property rights pertaining to lands, natural resources and traditional knowledge, they shall not only refrain from intervening in the practices of IPLCs, but also take positive measures to ensure compliance by non-state actors and provide adequate means to address noncompliance. This obligation is in particular relevant to the distinctive aspect of intra-state benefitsharing when MAT is negotiated between nonstate actors and IPLCs. In the ABS context, such obligation means that the states need to recognise the customary laws and community procedures of IPLCs in controlling and using their natural resources and traditional knowledge and to support capacity-building of IPLCs. It also links to the realisation of fair and equitable standards, as discussed in the previous Sect. 4.3, which demands respect for IPLCs’ perception of fairness and equity in accordance with their priorities and traditions. Fundamentally, the strengthened procedural requirements of ABS, including capacitybuilding, benefit-sharing and the development of IPLCs’ community protocols could in turn contribute to safeguarding the human right to property of IPLCs. Second, the emerging human rights recognition of a property right to traditional knowledge envisages a wider scope of traditional knowledge protection and its subsequent interpretation and implementation may offer more robust protection to traditional knowledge in favour of the IPLCs. As the Nagoya Protocol only covers traditional knowledge that is associated with genetic resources, it falls short of address issues relating to other types of traditional knowledge held by IPLCs. Meanwhile, interdisciplinary efforts to initiate cross-regime dialogue and cooperation among the Nagoya Protocol, the human rights and the WIPO framework with respect to traditional knowledge protection are ongoing, where procedural requirements such as

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PIC and benefit-sharing have been increasingly incorporated.198 In the previous Sect. 4.2, I highlighted the outstanding feature of the provisions of the Nagoya Protocol on parties’ obligations vis-à-vis traditional knowledge that they contained much fewer caveats and no reference to domestic legislation. In light of the human rights development in articulating Indigenous Peoples’ rights pertaining to traditional knowledge, it could be argued that issues pertaining to traditional knowledge protection cannot be subject to domestic laws but need to be considered against the broader context of international law. This indicates that traditional knowledge, albeit in many domestic circumstances remains publicly accessible, must be obtained, and used under certain procedural safeguards like FPIC and benefit-sharing. Finally, through the increasing reference to the MEAs in human rights case laws, such as the explicit citation to the CBD and the Nagoya Protocol in the Case of Kaliña and Lokono Peoples v Suriname, we may observe the value added of a mutually supportive interpretation in the sense that the international biodiversity law could assist in the jurisprudential interpretations of international and regional human rights tribunals and complement certain shortcomings in international human rights law. The areas where human rights law may benefit from this complementary approach, as Morgera has suggested, includes conceptual clarity concerning benefitsharing, detailed modalities for its application and a specific context for interpretation of human rights treaties.199 This mutual supportive approach is essential in developing and reinforcing the internationally recognised values and principles that are relevant to the protection of IPLCs’ rights.200

198 199 200

See Gupta (2004) and Oguamanam (2006). Morgera (n 152) 12. Anaya (2005).

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4.4.2 Right to Equality and NonDiscrimination 4.4.2.1 Indigenous Peoples and Minorities The principle of equality and non-discrimination lies at the core of international human rights law. The Universal Declaration of Human Rights opens with the statement that “all human beings are born free and equal in dignity and right”, and its Article 2 proclaims that all human beings are entitled to the rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”201 Equality and non-discrimination provisions can be found in virtually every human rights instrument thereafter, constituting a basis for the protection of other fundamental human rights.202 This principle prohibits any distinction, exclusion, restriction or preference that is based on any ground such as race, colour, sex, language, religion and so forth, or has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons of all rights and freedoms.203 In light of this general principle, various human rights instruments have been adopted to address specific forms of discrimination in relation to particular individuals or groups, including children, older people, people with disabilities, minorities and Indigenous Peoples.204 The following paragraphs focus on the right to equality and non-discrimination of IPLCs and women in these communities in order to examine the implications of IPLCs’ right to equality and non-discrimination on the interpretation and implementation of the Nagoya Protocol.

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Article 2 in both the ICCPR and the ICESCR establish that the enjoyment of rights as provided in the covenant should apply to every individual without discrimination. Article 26 of the ICCPR further provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”.205 Specifically, the ICCPR addresses the rights of persons belonging to minorities to enjoy their own culture, to profess and practice their own religion, or to use their own language.206 Aiming at protecting a group from discrimination on grounds of race, the CERD has made it clear that discrimination against Indigenous Peoples falls under the scope of the ICERD and that “all appropriate means must be taken to combat and eliminate such discrimination”.207 Furthermore, two human rights declarations focusing on discrimination regarding religion and belief and members of minorities—the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief208 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities209–also provide protection to persons of IPLCs against discrimination when they are identified as members of any kind of minorities or holding a specific type of religion or belief. Notably, affirming the principle of equality and non-discrimination, the UNDRIP has established the right of Indigenous Peoples and individuals to be free of any kind of discrimination in the exercise of a wide range of rights, including education, labour, and practice of traditional medicines.210 Admittedly, the human rights instruments are with varying degrees of binding force and recognition among states. The ICERD, for instance, has 182 member 205

201

UDHR Articles 1 and 2. 202 Smith (2018) and HRC, ‘CCPR General Comment No.18: Non-discrimination’ (10 November 1989) UN Doc HRI/GEN/1/Rev.9 (Vol. I) para 1. 203 HRC (n 201) para 7. 204 For an overview of the legal system addressing human rights of equality and non-discrimination under the UN framework, see, Vandenhole (2005). See also essays in Farrior (2017).

ICCPR, Article 26. ibid Article 27. 207 CERD (n 192) para 1. 208 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief [25 November 1981] UNGA Res 36/55. 209 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities [18 December 1992] UNGA Res 47/135. 210 UNDRIP, Articles 2, 17 and 24. 206

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states with the CERD monitoring its implementation, whereas the two Declarations are only general agreements as UN resolutions.211 However, the principle of non-discrimination and equality is beyond any doubt a fundamental principle of international law, or at least, racial non-discrimination being among the least controversial examples of jus cogens.212 The non-discrimination standards articulated by human rights law thus are universal in principle but with specific focuses on various subjects in its normative design. These subjects include Indigenous Peoples, minorities and persons who belong to minorities. As discussed in Chapter one, these different identities have acquired different level of international legal recognition and their claims trigger distinct states’ responsibilities and international oversights. For instance, there is important difference between indigenous rights and rights stipulated for persons who belong to minorities. This includes, but not limited to, the normative difference between “Indigenous Peoples” as a collective whole associated with special legal stance in international law and individual human rights accorded to individual members of minorities.213 There is also practical difference between the policy priorities articulated at the UN level with respect to minorities and Indigenous Peoples, in the sense that the former focuses at “ensuring a space for pluralism in togetherness” and the latter upholds a higher degree of “autonomous development”.214 The application of the human rights standards of non-discrimination and equality thus involves complex perspectives on many controversial issues, which is further complicated by the fact that not all Indigenous communities have acquired the status of Indigenous Peoples and the identity of “indignity” has often been mixed with a minority of some kind. 211

UNTC (1966). Lerner (2003) 29. 213 Schulte-Tenckhoff (2012). 214 Erica-Irene A. Daes and Asbjørn Eide, ‘Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples’ (19 July 2000) UN Doc E/CN.4/ Sub.2/2000/10. 212

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The complex cultural context of IPLCs is an important perspective in understanding the rights and obligations related to equality and nondiscrimination. As pointed out by the HRC, even though the cultural rights enshrined in Article 27 are individual rights, their realisation depends on the ability of a minority group to maintain its culture, language or religion. This connection requires state parties to take positive measures to protect not only the individuals’ rights within the minorities, but also the identity of minority groups as a whole.215 To this end, the HRC has highlighted that “such positive measures must respect the provisions of Articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons who belong to them and the remaining part of the population”.216 Thus, the HRC has made clear that the minority cultural rights are intertwined with the right to equality and non-discrimination at multiple levels. State parties’ responsibility to ensure equality and nondiscrimination is relevant not only between societal minorities and the majorities, but also among IPLCs themselves as minority groups and within IPLCs among individual members of the group. In practice, however, the Paadar v Finland case has showed that it is rather difficult to demonstrate a violation of minority’s cultural rights in connection with the principle of nondiscrimination and equality, especially when the alleged discriminatory effects are a result of “equal” treatment de jure. This case concerns two different reindeer herding groups—the Nellim and the Ivalo, both belong to the indigenous Sami people. They are also members of a public law entity named the Cooperative, which oversees the management of the reindeer herds, especially by establishing slaughter plans when the number of live reindeer exceeds a maximum number decided by the state authorities under the Reindeer Husbandry Act of 1990. The two HRC, ‘CCPR General Comment No. 23: Article 27 (Rights of Minorities)’ (8 April 1994) UN Doc CCPR/C/21/Rev.1/Add.5 para 6(2). 216 ibid para 6.2. 215

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groups practise very different herding methods: while the Ivalo group introduces extra feeding to the animals, the Nellim group relies entirely on free grazing on natural pastures, which made their herds more vulnerable against wild predators and therefore suffers a higher rate of calve loss. The slaughter plan settled by the Cooperative, nevertheless, treats all herding groups the same way regardless their methods of herding.217 Against this background, several reindeer herders from the Nellim group claimed that the slaughter plan introduced by the Cooperative and its forced implementation has led to different and unequal treatment of these two groups because the different circumstances of the two groups have not been taken into account. They suggested that “(t) he decision…to slaughter the authors’ reindeer is discriminatory both in its purpose and its effects, in violation of Article 26 of the Covenant” and that they are targeted for disproportionate slaughtering of their reindeer because of “their Sami way of herding, their Sami ethnicity and their fight against further logging…on their traditional lands”.218 In its consideration of the merits, the HRC affirmed that the authors in the case are undisputedly members of a minority and therefore entitled to the right to enjoy their own culture, which is reindeer husbandry, according to Article 27 of the Convention. It also stated that non-discrimination principle as enshrined in the Articles 2(1) and 26 of the ICCPR indeed applies to the treatment between members of the same minority group and that state parties must take positive measures to protect the identity of a minority and the rights of its members to enjoy and develop their culture.219 However, as the authors failed to provide concrete evidence as to the exact losses of its calves in comparison to the Ivalo group and the progression of impacts due to the slaughter plan upon different groups, the HRC was not convinced of a breach of Articles 26 or 27 of the Covenant.220 Several Committee

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members of the HRC questioned the majority decision on this case in a dissenting opinion. They argued that in cases of an apparent conflict between legislation in protecting a minority group as a whole and its individuals, the restrictions upon the right of individual members of a minority must be shown “not only to have a reasonable and objective justification in the particular circumstances of the case but also to be necessary for the continued viability and welfare of the minority as a whole”.221 Most importantly, it is the state party who bear the responsibility to demonstrate that: (A) the strict implementation of the slaughtering plan to the Nellim group’s herd was necessary; (B) the overall control of reindeer numbers for sustainable development purposes could not have been achieved otherwise but slaughtering all their herds; and (C) attaining this objective justifies the decision to slaughter all of the authors’ reindeer despite its substantial impact on the right of the authors to enjoy their culture.222 Thus, it may be observed that it is very difficult for IPLCs to establish the case of discrimination in relation to cultural rights when the burden of providing evidence on discriminatory intention and/or effect is on IPLCs. In the Paadar v Finland, the Nellim group apparently lacked resources or capacity to gather and record accurate information of a traditional practice which involves hundreds of animals, unpredicted behaviours of wild predators and complex geological data, let alone the same information about other groups in order to demonstrate a difference that amount to a denial of cultural rights. The dissenting opinion, on the other hand, shed light on the possibility of shifting the burden of proof to the state parties in light of its responsibility not only to refrain from violating minorities’ cultural rights but also to take positive measures of protection “against the acts of other persons”.223 Essentially, inter-community discrimination may take diverse forms and in complex contexts, underlined by IPLCs’ intimate relationship with

217

Paadar v Finland [5 June 2014] (HRC) UN Doc CCPR/C/110/D/2102/2011 paras 2.10–2.15. 218 ibid para 3.3. 219 ibid paras 7.5–7.6. 220 ibid paras 7.3 and 7.7.

221 222 223

ibid appx. ibid. HRC (n 214) para 6.1.

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their lands, natural resources, and culture.224 Delicate balance often needs to be determined between de jure and de facto non-discrimination and equal treatment at various levels. As observed by the HRC itself, state parties tend to report legislative and administrative measures which relate to protection against discrimination, but very often omit “information which would reveal discrimination in fact”.225 While constitutional, legal, and administrative protection against discrimination are essential, de facto problems of discrimination may still be practised either by public authorities, by the community, or by private persons or bodies.226 With a sharpened focus on benefit-sharing, the right to equality and non-discrimination has been significantly constructed as a legal basis for asserting states’ obligations to ensure benefitsharing with IPLCs especially under the jurisprudence of the CESCR and the CERD.227 For example, in light of the right to nondiscrimination and the right to culture,228 the CESCR observed that New Zealand had not given sufficient protection of the inalienable rights of Indigenous Māori people to their lands, territories, waters and maritime areas; therefore, urged the state party to ensure that Māori receive proper compensation and enjoy tangible benefits from the exploitation of their resources.229 With respect to the exploitation of the subsoil resources of the traditional lands of Indigenous communities in Ecuador, the CERD stressed that mere consultation with the communities prior to the exploitation is not in compliance with the requirements set forth in its General Recommendation No. 23 on the rights of Indigenous Peoples; and therefore, recommended that Ecuador should ensure PIC of these communities and the “equitable sharing of benefits to be derived

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from such exploitation” and to further report “detailed information on land titles of indigenous communities, as well as on remedies available to indigenous people claiming compensation for the environmental depletion of their traditional lands” in the next national report.230 Admittedly, the benefit-sharing obligation as referred to by the human rights committees does not share the exactly same normative ground as the one envisaged by the CBD and the Nagoya Protocol. Neither does the right to non-discrimination and equality alone provide a sufficient ground for benefit-sharing claims if there were no other established rights of IPLCs relating to lands, territories, natural resources and/or culture. However, a closer look at this fundamental human rights reveals that it offers an important nondiscriminatory perspective of understanding the purpose, procedures, and standards of fair and equitable benefit-sharing especially at community levels.

4.4.2.2 Women and Gender Equality Gender equality is emphasised in both the ICCPR and the ICESCR. Asserting the general principle of equality, the ICCPR obliges state parties to ensure the equal rights of men and women to the enjoyment of all civil and political rights.231 The ICESCR addresses the equal rights of men and women to the enjoyment of all economic, social and cultural rights.232 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is adopted in 1979 to address in particular discrimination against women, monitored by the Committee on the Elimination of Discrimination against Women ( CEDAW Committee).233 Article 1 of the CEDAW describes “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the

224

De Schutter (2010) and Lenzerini (2014). HRC (n 201) para 9. 226 ibid. 227 Gilbert (n 129) 77. 228 ICESCR, Articles 1(2) and 15. 229 CESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights of New Zealand’ (31 May 2012) UN Doc E/C.12/NZL/CO/3 para 11. 225

230

CERD (n 193) para 16. ICCPR, Articles 2(2) and 3. 232 ICESCR, Article 3. 233 Convention on the Elimination of All Forms of Discrimination against Women [adopted 18 December 1979, entered into force 3 September 1981] 1249 UNTS 13. 231

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effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.234 It is worth noting that the CEDAW explicitly addresses conduct attributable not only to state, but also to non-state actors.235 To date, the CEDAW has almost universal recognition with 189 state parties by ratification.236 The CEDAW Committee has rendered strong emphasis on the obligations of state parties to take positive measures to fulfil and facilitate the realisation of equality regarding women in its general recommendations and concluding observations.237 Three points are of specific relevance to inform benefit-sharing related obligations at the intra-state level. First, recognising that de jure equality is a prerequisite for achieving de facto equality of women, the CEDAW Committee has stressed the importance of the elimination of discriminatory legislation.238 With respect to domestic legal frameworks, the CEDAW Committee has noted that state parties are obliged to make legislative efforts to establish and strengthen the principle of equality of all persons before the law in their domestic constitutions and legal systems.239 As 234

ibid Article 1. Alston and Goodman (2013) 191. 236 The United States and Palau have signed, but not ratified the treaty. The Holy See, Iran, Somalia, Sudan, and Tonga are not signatories to CEDAW. See OHCHR, ‘Status of Ratification’ http://indicators.ohchr.org/ accessed 11/06/2022. 237 Alston and Goodman (n 234) 271. 238 For a detailed analysis about the recommendations addressing discriminatory legislation issued by the CEDAW Committee, see Vandenhole (n 203) 240. 239 See CEDAW, ‘CEDAW General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention’ (16 December 2010) UN Doc CEDAW/C/GC/28, CEDAW, ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women of Guatemala’ (12 February 2009) UN Doc CEDAW/C/GUA/CO/7 para 12 and CEDAW, ‘Concluding Observations on the Fifth Periodic Report of Singapore’ (21 November 2017) UN Doc CEDAW/C/ SGP/CO/5 para 10. 235

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recommended by the CEDAW Committee, these may include: (A) to adopt a comprehensive definition of discrimination against women and girls and to ensure that that legislation covers all prohibited grounds of discrimination; (B) to review its legislation, and if needed, to repeal any provisions that discriminate against women in order to ensure domestic legal compliance with the CEDAW; (C) to raise public awareness about women’s rights.240 Second, in the context of economic and social benefits and economic empowerment of women, the CEDAW Committee has addressed the issues about, inter alia, the inadequate management of development processes, the lack of a coherent policy on social protection and compensation programmes for women, and the barriers that women face in accessing financial services.241 It recommends that state parties to “take measures to improve the economic empowerment of women, in particular among Indigenous women…and establish adequate mechanisms for monitoring, evaluation and impact analysis of social development programmes directed at women and ensure the participation of women”.242 In relation to the 2030 Agenda for Sustainable Development, the CEDAW Committee calls for the realisation of “substantive gender equality”, in accordance with the provisions of the Convention.243 The scholarly discussion about women’s rights vis-à-vis group rights also merits attention, in particular at the intra-community level where the concern of gender equality might clash with the one of community’s cultural tradition.244 In the scholarly discussion about multiculturalism, CEDAW, ‘Concluding Observations on the Combined Eighth and Ninth Periodic Reports of Guatemala*’ (22 November 2017) UN Doc CEDAW/C/GTM/CO/8–9 para 11. 241 ibid para 38. 242 ibid para 39. 243 CEDAW, ‘Concluding Observations on the Eighth Periodic Report of Kenya’ (22 November 2017) UN Doc CEDAW/C/KEN/CO/8 para 54 and CEDAW (n 239) para 51. 244 Examples of cultural practices that violate women’s rights include, inter alia, female genital mutilation, family violence again women, forced marriages, restriction of access to the public sphere, see CEDAW, ‘CEDAW 240

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for instance, Kymlicka clarified that the liberal idea of multiculturalism does not tolerate “internal restrictions” on members of minority groups —as these violate the autonomy of individuals and create injustice within the group—and further recognised the right to gender equality as a limiting condition of minority rights.245 Okin has highlighted the tension between cultural diversity and the protection of women, pointing out that “defenders of cultural and groups rights for minority culture have failed to notice that there are considerable differences of power within those cultures, and that those differences are gendered, with men having power over women”.246 Based on this observation, Okin has suggested that gender equality must be reckoned as a non-negotiable condition for any policies of multiculturalism and any recognition of minority rights247 and that “when liberal arguments are being made for the rights of groups, special care must be taken to look at intra-community inequalities”.248 This body of discourse provides a glimpse of the conflict and compromise between gender equality and group cultural rights, especially in particular circumstances where certain traditional cultural practices might undermine women’ rights. The power asymmetry between women and man in many communities has much in common with the one that underlines the relationship between different groups belonging to the same minority, as demonstrated in the previous section through the Paadar v Finland case. This inequality remains an important factor in developing legislations and policies at both state and community levels. Measures such as open political dialogue and a more gender-sensitive process that aims for the

General Recommendation No. 19: Violence against Women’ (1992) UN Doc A/47/38 paras 11 and 20. 245 Kymlicka (1995). 246 Okin (1998, 1999). 247 Okin (n 245) 664. 248 She also pointed out that it is especially important to look at inequalities between the sexes, since they are likely to be in many respects less public; therefore, less immediately apparent and harder to discern than others, see ibid 683.

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empowerment of women has been suggested to address this imbalance.249 The role of women, especially the female members of IPLCs, has been repeatedly highlighted in the Nagoya Protocol. The Preamble of the Nagoya Protocol recognises the “vital role” that women play in the ABS processes and affirms the need for the “full participation of women at all levels of policy-making and implementation for biodiversity conservation”.250 With respect to traditional knowledge associated with genetic resources, the Nagoya Protocol requires parties to support IPLCs, “including women within these communities” to develop community protocols, minimum requirements for MAT and model contractual clauses for benefit-sharing. Furthermore, in the context of capacity-building,251 parties are required to support the capacity needs and priorities of IPLCs and relevant stakeholders, while “emphasizing the capacity needs and priorities of women”.252 The Nagoya Protocol also provides possible measures for capacity-building that may include special measures to increase the capacity of IPLCs with “emphasis on enhancing the capacity of women within those communities”.253 At the inter-state level, the COP MOP of the Nagoya Protocol is obliged to take into account the capacity needs and priorities of IPLCs, including women within these communities, when providing guidance with respect to the financial mechanism.254 These provisions demonstrate the ways in which the Nagoya Protocol sets to address the issue of gender equality are primarily through improved participation, inclusiveness and capacity-building. It is an important reference of gender equality in an environmental treaty but falls short of providing concrete standards to guide the implementation of the ABS process in a way that is in line with the international human rights standards on women’s rights. No substantive or procedural safeguards 249 250 251 252 253 254

See Shachar (2001) and Parekh (2006). Nagoya Protocol, pmbl. See discussion in the previous Sect. 1.3.1. Nagoya Protocol Article 22(3). ibid Article 22(5)(j). ibid Article 25(3).

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are in place for protecting women within IPLCs in the process of ABS negotiations and implementations in the current ABS framework.

4.4.2.3 Implications The right to equality and non-discrimination underlines the international human rights framework. All human rights conventions against discrimination examined above boasted high numbers of ratifications and bear “strong moral force of virtually universality”.255 It provides an important perspective of understanding the purpose, procedures, and standards of fair and equitable benefit-sharing especially at community levels. Generally, the human right to equality and non-discrimination may serve to clarify the rights and obligations related to the intra-state dimension of fair and equitable benefitsharing, including at inter-community and intracommunity levels. This clarification includes the contextualisation of the fairness and equity standards of the ABS, especially in connection with the cultural practices, traditions, and the dynamic power relationship among members of the IPLCs. As discussed in the previous Sects. 4.1–4.3, the broad margin of appreciation of state parties to legislate on ABS is further complicated by the fact that there are no explicit standards on fairness and equity agreed at the international level. This leaves the potential that ABS transactions may indeed be carried out, but its procedures or content may include legal restrictions or infringement on IPLCs’ rights that are protected under international human rights law. Such provisions are vulnerable to being applied in a discriminatory manner against individuals or communities therefore must be understood in compliance with relevant human rights law. Three more specific human rights implications can be concluded. First, the ABS concept of fairness and equity are akin to equality and nondiscrimination in human rights law,256 in the UN Secretary-General, ‘Report of the SecretaryGeneral on the implementation of the Programme of Action for the Second Decade to Combat Racism and Racial Discrimination’ (16 September 1987) UN Doc A/42/493 10. 256 Tomasevski (2000). 255

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sense that every individual and IPLCs shall be accorded with equal rights, equal opportunities, and procedural safeguards to enjoy the optimal benefits from the ABS transactions in principle. Moreover, according to Article 26 of the ICCPR, all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any grounds.257 The HRC has made it clear that this concerns with the obligations imposed on states parties “in regard to their legislation and the application thereof”.258 In other words, when any new legislation is adopted by a state party, it must comply with the requirement of Article 26 that its content should not be discriminatory regardless of whether those legislation concern rights within the scope of the ICCPR or not. This requires state parties of the Nagoya Protocol to eliminate discriminatory measures of any kind and take positive actions to address factual inequality when developing domestic legislative, administrative or policy measures on ABS. This could include providing extra training and funding to support IPLCs’ capacity in participating in the ABS processes to level the playing field for all stakeholders based on the principle of equality and non-discrimination. Second, as observed in the previous Sect. 4.2, the obligations of state parties with respect to benefit-sharing exist at both inter-state and intrastate levels. At the intra-state level, all stakeholders including state parties, non-state actors and IPLCs themselves bear duties to ensure fair and equitable benefit-sharing. This observation can be supported by the human rights concern related to equality and non-discrimination, which also exists at several levels—between minority and majority groups, among IPLCs as Indigenous and minority groups and within IPLCs among individual members of the group. In this connection, the human rights obligations of state parties to address equality and non-discrimination at these inter-community and intra-community 257 258

ICCPR, Article 26. HRC (n 201) para 12.

4.4 Human Rights Implication on Benefit-Sharing …

levels may shed light on the normative gap in the ABS framework, where the duties of state parties to ensure intra-state fair and equitable benefitsharing remain implicit.259 That is, state parties of the Nagoya Protocol need to take into account factors that might affect intra-community and inter-community equality when sharing benefits with its IPLCs or facilitating the benefit-sharing process negotiated between private entities and IPLCs. In practice, states’ obligations include not only to refrain from violating IPLCs’ relevant rights but also to take positive measures of protection “against the acts of other persons”.260 Finally, a sharpened focus on women unravels the rights and obligations relevant to intracommunity benefit-sharing and its fair and equitable standards. To look at the provisions about women in the Nagoya Protocol through the lens of international human rights, it becomes clear that state parties’ obligation to take legislative, administrative and policy measures to implement ABS must be underlined by their human rights obligations to incorporate the principle of equality of all persons, especially women’s right to equality and non-discrimination. This means that when developing domestic ABS legal frameworks, state parties shall endeavour to ensure de jure equality and prevent any policy of IPLC’s rights that might have adverse impacts on women’s rights. It also calls for special attention on women’s full participation in the process of developing community protocols, MAT, and contractual clauses, which should reflect the needs and priorities of women themselves. Perceiving women’ rights to non-discrimination and equality as part and parcel of the IPLCs’ ABS rights may offer an opportunity to redress gender inequality within IPLCs and empower women in the local economic processes with respect to genetic resources and traditional knowledge. This would be in particular meaningful in situations where gender inequality is embodied in traditional practices or customs of some IPLCs and

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where women are in a more vulnerable position in the community.261 Overall, theses three grounds for a mutually supportive interpretation and implementation between the Nagoya Protocol and human rights law may offer helpful references for states to report their efforts in achieving non-discrimination in specific ABS context, and to address practical challenges in order to facilitate a more comprehensive understanding of the protection of related human rights. However, as explained, the right to nondiscrimination and equality has its limitations. The right alone cannot provide a sufficient ground for benefit-sharing claims unless in connection with other established rights of IPLCs relating to lands, territories, natural resources and/or culture. It is also a principle deeply influenced by the cultural complexities embodied in the traditional ways of life and the diverse identities of IPLCs around the world. Under the HRC jurisprudence, the Paadar v Finland case has showed that it is rather difficult to prove the discriminatory intention or effects, especially when resulting from a seemingly equal application of law. This risk may easily duplicate itself in an ABS context as genetic resources and associate traditional knowledge may be shared by multiple groups in a state or even across the state boundaries. There is yet a clear legal standard or commonly agreed procedure to proceed with the ABS requirements in such circumstances and the genetic resources/traditional knowledge-holders who are at the disadvantaged side of the power disparity may encounter discriminatory treatment de facto if not de jure.

4.4.3 Right to Development The human right to development has emerged from a call for structural approach to human rights during the late 1970s.262 Article 1 of the 261

259 260

Morgera (n 6) 355. HRC (n 214) para 6.1.

For example, Sandra Lovelace v Canada [30 July 1981] (HRC) UN Doc. CCPR/C/13/D/24/1977 166. 262 For an analysis of the history of the right to development at the UN level, see Barsh (1991) and Marks (2004).

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UN Declaration on the Right to Development states that: “[t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”.263 This statement is followed by an explicit affirmation of peoples’ right to self-determination and “the exercise of their inalienable right to full sovereignty over all their natural wealth and resources”.264 Thus, the right to development has been established as a rather broad norm, encompassing many essential human rights asserted in the two human rights Covenants, for instance, the right to food and water, decent standards of living, participatory rights and basic civil and political freedoms. This ambitious and all-encompassing establishment has made the right to development a very controversial yet significant topic in both the political negotiations at the UN level and the scholarly debate. The concept has been strongly welcomed by the developing countries with their call for a more equal and fairer global economic order.265 Meanwhile, many Western states have been suspicious about a right to development, underlined by the concern about the potential risks of certain developing countries to use the right to development as an excuse in promoting states’ power to economic development and undermine individual’s human rights in this process.266 In the extensive scholarly literature on the subject, opponents have questioned the normative grounds, nature, content and the usefulness of having a human right to development.267 On the other hand, without eschewing the many deficiencies of the right, proponents have advocated for attention and efforts to enable the notion in a way that could influence the behaviour of states

263

Declaration on the Right to Development [4 December 1986] UNGA Res A/RES/41/128, Article 1. 264 ibid. 265 Cheru (2017). 266 Schrijver (2020) and Yash (2001). 267 See Donnelly (1985) and Vandenbogaerde (2013).

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to respect fundamental human rights268 and to endorse a rights-based approach to development,269 if not to recognise the right to development per se as a legally binding norm.270 The divergence reflects the lack of agreement on the basic normative compositions of the right to development and the institutional arrangement on its implementation. It also demonstrates the essential and persisting North–South divide of the countries in terms of their capacities in sharing equally in the decision-making privileges as well as the distribution of the benefits generated from economic development and globalisation.271 Overall, the core components of the right to development, its relationship with other human rights and implications have been gradually elaborated through the work completed through the UN mechanisms, the regional human rights instruments and the relevant case laws.272 These worksprovide valuable resources and perspective for constructing a complementarity thesis between the right to development and the ABS framework. At the UN level, a Special Rapporteur on the right to development was appointed in September 2016.273 In his report, Saad Alfarargi noted that “inequality threatens long-term social and economic development and has an impact on the ability of individuals and communities to participate in, contribute to and enjoy economic, social, cultural and political development” and suggested “inclusive and meaningful participation of relevant stakeholders at all levels of decision-making” in order to enable and ensure

268

Alston (1988). Marks (2005). 270 Sengupta has pointed out that a right-based process of development is not the same as the right to development, see Sengupta (2004). For argument supporting the binding nature of the right, see Villaroman (2010). 271 Sengupta (2013). 272 The jurisprudence on the right to development is evident in the African system and the Inter-American system, relevant cases are discussed in the following paragraphs. 273 Human Rights Council, ‘The Right to Development’ (27 September 2016) UN Doc A/HRC/33/L.29 para 14. 269

4.4 Human Rights Implication on Benefit-Sharing …

“the equal sharing of benefits”.274 In 2018, the UN Human Rights Council voted by majority in its Resolution 39/9 to elaborate “a draft legally binding instrument on the right to development”.275 In 2020, the Working Group published a draft Convention on the Right to Development with detailed commentaries, which represents an important milestone towards the codification of a right to development.276 According to its introduction, no concepts, norms, rights or obligations as included in the draft have been created de novo and the instrument is rather carefully based on existing international legal norms as established by human rights treaties and relevant declarations and resolutions adopted by states.277 Nevertheless, the draft convention has significantly improved the original text of the 1986 Declaration with extensive commentary to each article, supported by timely reference to the relevant development in international law since 1986.278 Specifically, the right to development is affirmed as an inalienable right of both individuals and groups, by virtue of which they have the right to “active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom”.279 Human rights obligations to respect, protect and fulfil the right to development without discrimination are envisaged for not only state parties but also international organisations.280 The concept of “development” is not defined but broadly described as a “comprehensive economic, social, cultural, civil and political process that aims at Human Rights Council, ‘Report of the Special Rapporteur on the Right to Development’ (20 July 2018) UN Doc A/HRC/39/51 paras 20 and 66. 275 Human Rights Council, ‘Resolution 39/9 The Right to Development’ (5 October 2018) UN Doc A/HRC/RES/ 39/9 paras 17 and 18. 276 Human Rights Council, ‘Draft Convention on the Right to Development, with Commentaries*’ (20 January 2020) UN Doc A/HRC/WG.2/21/2/Add.1. 277 ibid para 2. 278 In Schrijver’s words, “(t)he 82-page report is certainly an impressive achievement and a laudable effort to seek to capture the right to development in an international legal instrument”. See Schrijver (n 265) 89. 279 Human Rights Council (n 275) 29. 280 ibid 40–50. 274

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the constant improvement of the well-being of the entire population and of all individuals”, indicating that the fulfilment of this right should not only be measured by its outcome but also the manner in which it is achieved.281 The focus on “the active, free and meaningful participation in development” and “the fair distribution of benefits resulting therefrom” of all individuals and peoples also indicates a human and peoplecentred approach to development, which has much in common with a human rights-based approach to fair and equitable benefit-sharing under the ABS framework. Two characteristics of this draft convention are of particular relevance to the investigation between human rights and ABS. The first noteworthy aspect is that the draft convention pays particular focus on IPLCs by including an article on Indigenous and tribal peoples, which provides that “Indigenous and tribal peoples have the right to freely pursue their economic, social and cultural development”.282 It further clarifies that this means state parties’ obligation to consultation and cooperation in good faith with the representative institutions of Indigenous and tribal peoples in order to obtain their FPIC before adopting and implementing legislative or administrative measures that may affect them.283 According to its commentary, this provision is based on the principles enshrined in the UNDRIP284 as well as the jurisprudential interpretations of the right to development of Indigenous Peoples established especially under the African and the Inter-American human rights systems.285 The second interesting characteristic is a provision titled “harmonious interpretation”, 281

ibid 8. ibid Article 17(1). 283 ibid Article 17(2). 284 Specifically, the UNDRIP addresses the historic injustices suffered by Indigenous Peoples that prevented them from exercising “their right to development in accordance with their own needs and interests” in its Preamble. Article 23 of the UNDRIP further provides that “Indigenous Peoples have the right to determine and develop priorities and strategies for exercising their right to development”. UNDRIP, Article 23. 285 Human Rights Council (n 275) 63. 282

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noting that the present Convention shall be interpreted as to promoting the right to development in compliance with the relevant international norms and practices and that it “shall not affect the rights and obligations of any State Party deriving from any existing international agreements”.286 According to the commentary, the intention of this provision is to strengthen the principle of harmonious interpretation, to prevent any hierarchy and to uphold the right to development in the context of the interaction between this draft convention and other international instruments.287 Thus, we may observe that the aim and the content of this provision are very similar to Article 4 of the Nagoya Protocol. Indeed, as explained in the commentary, this provision reflects “some of the best practices that can be identified to foster harmonious interpretation in treaty-making at the international level” and “takes inspiration from Article 4(1) of the 2010 Nagoya Protocol”.288 It demonstrates the influence of the principle of mutual supportiveness between different branches of international law has transcended the sphere of MEAs but also bear implications on the ongoing law-making process in the field of human rights law.289 More generally, the right to development has been incorporated in the 1992 Rio Declaration as one of its 27 principles to “equitably meet developmental and environmental needs of present and future generations”.290 The role of the right to development in achieving over-arching global goals, for instance, sustainable development, are also increasingly addressed by various UN mechanisms. For instance, in its 2018 report on the right to development, the Office of the

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United Nations High Commissioner for Human Rights (OHCHR) stressed that, in implementing the 2030 Development Agenda and the Sustainable Development Goals, states should promote fair and equitable distribution of the benefits resulting from development, globalisation and global commons.291 The regional human rights instruments and case laws also recognise and reaffirm the right to development. These including the African Charter on Human and Peoples’ Rights of 1981,292 the Arab Charter on Human Rights of 2004,293 and the Human Rights Declaration of the Association of Southeast Asian Nations of 2012.294 With a sharpened focus on IPLCs, the jurisprudence of the African system on violations of the right to development in two cases provides an important understanding of the states’ responsibility in ensuring the right to development of Indigenous Peoples. The Endorois case was ruled by the African Commission on Human and People’s Rights (Commission) in 2010, concerning the displacement of the Endorois communities from their ancestral lands by the Kenyan government in the 1970s and the subsequent disruption of the community’s pastoralist ways of life.295 The complainants argued that the Kenyan Government had violated a number of human rights of the Endorois people, including the right to religious practice, to property, to culture, to free disposition of natural resources, and to development by forceful eviction without proper prior consultations and adequate compensation.296 With respect to the right to

Human Rights Council, ‘Report of the SecretaryGeneral and the United Nations High Commissioner for Human Right: Right to development’ (10 July 2018) UN Doc A/HRC/39/18 para 63(n). 292 African Charter on Human and Peoples’ Rights, Article 22. 293 Arab Charter on Human Rights [adopted 22 May 2004, entered into force 2008] The Council of the League of Arab States, Article 37. 294 ASEAN Human Rights Declaration [18 November 2012] The Association of Southeast Asian Nations (ASEAN), Articles 35–37. 295 Endorois Case (n 159) paras 1–21. 296 ibid para 2. 291

286

ibid Article 23. ibid 71. 288 ibid. 289 The commentary cited the study on the fragmentation of international law by the International Law Commission. See ibid 70 and also the analysis about the principles of mutual supportiveness and systemic integration in the Chap. 2 of this book. 290 Rio Declaration on Environment and Development [12 August 1992] UN Doc A/CONF.151/26 (Vol. I), Principle 3. 287

4.4 Human Rights Implication on Benefit-Sharing …

development, the complainants cited Article 22 of the African Charter, which provides “(a)ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind”. They argued that the Endorois’ right to development has been violated as the Kenya Government had not adequately involved the Endorois in the development process as there has been no effective consultation or FPIC procedures, and that they have had no choice but to leave their ancestral lands.297 They also complained that the coercive and intimidating activities conducted by the state and the fact that the Endorois community has been excluded from sharing in the benefits of development also amount to a violation of their right to development as accorded by the African Charter.298 In the judgement, the Commission stated that the right to development is a “two-pronged test”, in the sense that a violation of either the procedural or substantive element constitutes a violation of the right to development and the fulfilment of only one of the two prongs will not satisfy the right to development.299 To this end, the Commission articulated five main criteria of fulfilling the right to development, including equity, non-discrimination, participation, accountability and transparency. Significantly, the Commission cited the Saramaka case under the Inter-American human rights jurisdiction, in which benefit-sharing has been considered vital both in relation to the right to development and by extension to the right to own property.300 In the view of the Commission, benefit-sharing is key to the development process and that states bear obligations to “ensure mutually acceptable benefit sharing”.301 Further stressing states’ obligation to “ensure that the Endorois are not left out of the development process or benefits”, the Commission concludes

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that the Endorois community had suffered a violation of their right to development as enshrined in Article 22 of the African Charter on Human and Peoples' Rights. Another relevant case is the 2017 Ogiek case under the African Court on Human and Peoples’ Rights, which concerns the eviction of the indigenous Ogiek community and other settlers of the Mau Forest by the Kenya Forestry Service in October 2009.302 In this case, the applicant contended that the Kenyan Government has violated the Ogieks’ right to development by evicting them from their ancestral land in the Mau Forest and by failing to consult with and/or seek the consent of the Ogiek community in relation to the development of their shared cultural, economic and social life within the Mau Forest.303 The Court in this case did not provide a legal reasoning with respect to the right to development as articulated as the African Commission in the Edorios case. However, it explicitly cited the UNDRIP on the right to development of Indigenous Peoples and considered that Article 22 of the African Charter should be read in light of the UNDRIP.304 The Court also applied similar test, including both substantive and procedural dimensions, in order to determine whether the concerned state has fulfilled its relevant obligations or not. Due to the lack of effective consultation or active participation of the Ogiek community in the eviction process and the fact that they have been adversely impacted about their economic, social and cultural development, the Court held that the Kenyan Government has violated the Ogieks’ right to development.305 Both cases demonstrate that states should abide by their human rights obligations in the domestic development process, which include providing for an adequate, inclusive, equitable

302 297 298 299 300 301

ibid ibid ibid ibid ibid

paras paras paras paras paras

125–133. 134–135. 277. 294–298. 295 and 296.

African Commission on Human and Peoples’ Rights v Republic of Kenya [26 May 2017] (African Court on Human and Peoples' Rights) App No 006/2012. 303 ibid para 202. 304 ibid para 209. 305 ibid paras 210–211.

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and mutually agreed process of benefit-sharing. They are also outstanding as there is a binding treaty (the African Charter) in place to provide normative ground for the Commission and the Court to elaborate the linkage between right to traditional land, development and procedural elements including active and meaningful participation and benefit-sharing. The limit is that in areas where there is no such legal ground as provided in the African Charter, it would not be possible to build up a legal argument for IPLCs who otherwise might be facing very similar challenges, such as the IPLCs in Asia. In addition, both cases demonstrate the implications of the right to development when the development process concern lands, natural resources and such that can be claimed by IPLCs as either a property or an essential means for traditional and cultural practice. It falls short to address the situation which is with the vast number of local communities and Indigenous communities whose identity is not backed up by strong legal ground of land rights or cultural rights. Generally, the right to development remarkably shares the rhetorical background with the ABS framework about the stark inequality in the world and historical injustices suffered by Indigenous Peoples and other marginalised groups, from where an admirably objective of sharing the benefits of development equitably and fairly has emerged. They both concern individuals and peoples and requires international recognition, cooperation, and implementation in a holistic and interconnected manner. From the above investigation about the content of the right to development both in treaty development and in human rights case law, we may observe that fair and equitable benefitsharing has been established as an embedded objective of development. Specifically, benefitsharing is reckoned by regional human rights tribunals and UN mechanisms as a procedural element of the right to development as well as a functional approach to more equitable development of all peoples and communities. This articulation plays an important role in advancing the right of IPLCs to participate in as well as to benefit from exploitation projects concerning

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their lands and natural resources.306 It also sheds light on the realisation of many other interconnected human rights notably the social, cultural and economic human rights and the rights of Indigenous Peoples.307 The implications of the right to development on the interpretation and implementation of the Nagoya Protocols thus can be perceived from the following standpoints. First, the right to development provides an important avenue for IPLCs to claim their right to participate in and share benefits from the development processes that are based on their genetic resources and traditional knowledge. This requires states to provide for an adequate, inclusive, equitable and mutually agreed process of benefit-sharing in the domestic development process. This obligation should inform domestic legislators and all stakeholders of ABS of what a fair and equitable benefitsharing process should entail if it is to be carried out in line with international human rights standards. Furthermore, the global characteristic of the right to development may be linked to state parties’ obligation to international cooperation in order to ensure fair and equitable benefit-sharing and to promote capacity-building of the developing countries and IPLCs under the Nagoya Protocol.308 Second, as provided in the previous Sect. 4.3, the absence of a normative standard for “fair and equitable” may hinder the interpretation of the Nagoya Protocol in favour of the IPLCs. From a development perspective, this absence may well be understood as reflecting the 306

See Vandenbogaerde (n 266) 187 and Gilbert (n 129)

64. Human Rights Council, ‘Agenda and Annotations’ (3 August 2018) UN Doc A/HRC/39/1 and Human Rights Council, ‘Report of the United Nations High Commissioner for Human Rights on the Rights of Indigenous Peoples’ (6 July 2018) UN Doc A/HRC/39/37. 308 This characteristic is sometimes referred to as the external aspect of the right to development in scholarly discussion. While the internal aspect relates to the obligation of state to ensure the domestic realisation of the right to development, for instance, the rights of IPLCs who live within states’ territories, the external aspect implies the obligation of all states to cooperate in order to ensure the right to development of all individuals and peoples around the globe. See Feyter (2008) and Salomon (2008). 307

References

evolving nature of the conservation and sustainable use of genetic resources and traditional knowledge in the process of economic and social development. Equity and fairness sometimes are relative concepts that result from the interaction between persons and groups with difference perspectives and capacities. As demonstrated in the previous section through the Paadar v Finland case, what is perceived as fair and nondiscriminatory by the public authority may not always prove itself the same way with IPLCs. This applies in the decision-making processes of development priorities and approaches as well, especially as the concerns and aspirations about fair and equitable benefit-sharing might differ among IPLCs. Finally, the complementary interaction between the right to development and the Nagoya Protocol can be understood the other way around. The detailed list of both monetary and non-monetary benefits as well as the procedural requirements including MAT and PIC, as provided in the Nagoya Protocol, can complement the realisation of the human rights to development by providing a toolkit for negotiating and implementing benefit-sharing terms. The value of the Nagoya approach also lies at its normative potential to extend the current compensatory rational that underlines the benefitsharing requirement of the right to development. In other words, fair and equitable benefit sharing is not only about adequate compensation, but also about capacity building and empowerment of the IPLCs in terms of realising the right to development by themselves in compliance with their own cultures, traditions, and other fundamental human rights.

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120 Desmet E (2011) Indigenous rights entwined with nature conservation. Intersentia, p 88 Donnelly J (1985) In search of the unicorn: the jurisprudence and politics of the right to development. Calif Western Int Law J 15(3):478 Downes DR (2000) How intellectual property could be a tool to protect traditional knowledge. Columbia J Environ Law 25(2):274 Drahos P (2007) A networked responsive regulatory approach to protecting traditional knowledge. In: Gervais D (ed) Intellectual property, trade and development: strategies to optimize economic development in a TRIPS plus era. Oxford University Press, p 414 Dutfield G (2017) TK unlimited: the emerging but incoherent international law of traditional knowledge protection. J World Intellect Property 20(5–6):148 Farrior S (ed) (2017) Equality and non-discrimination under international law. Routledge, p 3 Fedder B (2013) Marine genetic resources, access and benefit sharing: legal and biological perspectives. Routledge, p 18 Feyter KD (2008) Towards a multi-stakeholder agreement on the right to development. In: Marks SP (ed) Implementing the right to development: the role of international law. Friedrich-Ebert-Stiftung, p 98 Francioni F, Scovazzi T (eds) (2006) Biotechnology and international law. Hart Francioni F (2006) International law for biotechnology: basic principles. In: Francioni F, Scovazzi T (eds) Biotechnology and international law. Hart, p 24 Gerd W, Chege KE (2016) Model clauses for mutually agreed terms on access to genetic resources and benefit sharing. Law Environ Develop J 12(1):20 Gilbert J (2018) Natural resources and human rights: an appraisal, 1st edn. Oxford University Press, p 34 Gilbert J (2013) Land rights as human rights: the case for a specific right to land. Int J Human Rights 10(18):117 Gilbert J (2016) Indigenous peoples’ land rights under international law: from victims to actors, 2nd edn. Brill Nijhoff, p 267 Gollin MA (1993) An intellectual property rights framework for biodiversity prospecting. In: Reid WV et al. (eds) Biodiversity prospecting: using genetic resources for sustainable development. World Resources Institute, p 191 Greiber T et al. (2012) An explanatory guide to the Nagoya protocol on access and benefit-sharing. IUCN, p 83 Gubarev MV (2012) Misappropriation and patenting of traditional ethnobotanical knowledge and genetic resources. J Food Law Policy 8(1):90 Gupta AK (2004) WIPO-UNEP study on the role of intellectual property rights in the sharing of benefits arising from the use of biological resources and associated traditional knowledge. WIPO UNEP, p 11 Halewood M et al. (2013) Implementing mutually supportive access and benefit sharing mechanisms under

4 Benefit-Sharing the plant treaty, convention on biological diversity, and nagoya protocol. Law, Environ Develop J 9(1):74 Heins V (2008) Human rights, intellectual property, and struggles for recognition. Human Rights Rev 9:217 Helfer LR (2004) Human rights and intellectual property: conflict or co-existence? Netherlands Quart Human Rights 22(2):167 Howard-Hassmann RE (2013) Reconsidering the right to own property. J Human Rights 12(2):180 Kamau EC, Winter G (eds) (2009) Genetic resources, traditional knowledge and the law: solutions for access and benefit sharing, vol 19. Routledge, p 309 Kamau EC, Winter G (eds) (2013) Common pools of genetic resources: equity and innovation in international biodiversity law. Routledge Kate KT, Laird SA (2002) The commercial use of biodiversity: access to genetic resources and benefitsharing. Earthscan, p 75 Koutouki K, Bieberstein KR (2012) The nagoya protocol: sustainable access and benefits-sharing for indigenous and local communities. Vermont J Environ Law 13 (3):516 Kymlicka W (1995) Multicultural citizenship: a liberal theory of minority rights. Clarendon, p 35 Lenzerini F (2014) The culturalization of human rights law. Oxford University Press, p 166 Lerner N (2003) Group rights and discrimination in international law, 2nd edn. Nijhoff, p 29 Lillich RB (1984) Civil rights. In: Meron T (ed) Human rights in international law: legal and policy issues. Clarendon, p 157 Luoma-aho T et al. (eds) (2004) Forest genetic resources conservation and management. International Plant Genetic Resources Institute Malloy R (1986) Equating human rights and property rights—the need for moral judgment in an economic analysis of law and social policy. Ohio State Law J 47 (1):163 Marks S (2004) The human right to development: between rhetoric and reality. Harvard Human Rights J 17:138 Marks SP (2005) The human rights framework for development: seven approaches. In: Sengupta A, Negi A, Basu M (eds) Reflections on the right to development. SAGE, p 27 Martin A, Akol A, Phillips J (2013) Just conservation? On the fairness of sharing benefits. In: Sikor T (ed) He justices and injustices of ecosystems services. Routledge, p 69 Morgera E, Buck M, Tsioumani E (eds) The 2010 nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff, p 9 Morgera E, Tsioumani E, Buck M (2014) Unraveling the nagoya protocol: a commentary on the nagoya protocol on access and benefit-sharing to the convention on biological diversity. Brill, p 114

References Morgera E (2016) The need for an international legal concept of fair and equitable benefit sharing. Eur J Int Law 27(2):362 Morgera E (2019) Under the radar: fair and equitable benefit-sharing and the human rights of indigenous peoples and local communities related to natural resources. Int J Human Rights 23(7):9 Mulligan SP (1998) For whose benefit? Limits to sharing in the bioprospecting ‘regime’. Environ Polit 8(4):35 Ni K-J (2011) Traditional knowledge and global lawmaking. Northwestern J Int Human Rights 10(2):112 Nijar GS (2010) Incorporating traditional knowledge in an international regime on access to genetic resources and benefit sharing: problems and prospects. Eur J Int Law 21(2):463 Norton S (1998) Poverty, property rights, and human well-being: a cross-national study. Cato J 18(2):233 Oguamanam C (2006) International law and indigenous knowledge: intellectual property, plant diodiversity, and traditional medicine. University of Toronto Press, p 191 Okin SM (1998) Feminism and multiculturalism: some tensions. Ethics 108(4):664 Okin SM (1999) Is multiculturalism bad for women? Princeton University Press, p 27 Ostergard Jr RL (1999) Intellectual property: a universal human right? Human Rights Quart 21(1):157 Parekh BC (2006) Rethinking multiculturalism: cultural diversity and political theory, 2nd edn. Palgrave Macmillan, p 193 Queralt J, van der Vossen B (eds) (2019) Economic liberties and human rights. Taylor & Francis Raffa KF et al (2008) Cross-scale drivers of natural disturbances prone to anthropogenic amplification: the dynamics of bark beetle eruptions. BioScience 58(6):501 Randolph S, Hertel S (2010) The right to food: a global perspective. In: Minkler L (ed) (2010) The state of economic and social human rights: a global overview. Cambridge University Press, p 21 Salomon ME (2008) Legal cosmopolitanism and the normative contribution of the right to development. LSE Law, Society and Economy Working Papers 16/2008, p 11 Schrijver N (2020) A new convention on the human right to development: putting the cart before the horse? Netherlands Quart Human Rights 38(2):85 Schulte-Tenckhoff I (2012) Treaties, peoplehood, and self-determination: understanding the language of indigenous rights. In: Pulitano E (ed) Indigenous rights in the age of the UN declaration. Cambridge University Press, p 71 Sengupta AK (2004) The human right to development. Oxford Develop Stud 32(2):181 Sengupta AK (2013) Conceptualizing the right to development for the twenty-first century. In: Realizing the right to development. UN Publication, p 69 Shachar A (2001) Multicultural jurisdictions: cultural differences and women’s rights. Cambridge University Press, p 118

121 Smith RKM (2018) International human rights law, 8th edn. Oxford University Press, p 195 Sprankling JG (2011) The emergence of international property law. North Carolina Law Rev 90:461 Sprankling JG (2014) The international law of property. Oxford University Press, pp 7–10 Stoll P-T (2018) Intellectual property and technologies Article 31. In: Hohmann J, Weller M (eds) The UN declaration on the rights of indigenous peoples: a commentary, 1st edn. Oxford University Press, p 315 Suiseeya KRM (2014) Negotiating the nagoya protocol: indigenous demands for justice. Global Environ Polit 14(3):104 Swepston L (1990) A new step in the international law on indigenous and tribal peoples: ILO convention no. 169 of 1989. Oklahoma City Univ Law Rev 15 (3):696–710 Thame D (2022) Bioeconomy and the nagoya protocol. Brazil J Int Law 19(1):226 Tigre MA (2021) Indigenous communities of the lhaka honhat (our land) association v. Argentina. Am J Int Law 115(4):706 Tobin B (2010) Biodiverstiy prospecting contracts: the search for equitable agreements. In: Laird SA (ed) Biodiversity and traditional knowledge: equitable partnerships in practice. Earthscan, p 291 Tomasevski K (2000) Women’s rights. In: Symonides J (ed) Human rights: concept and standard. Ashgate, p 242 Tribunal W (2010) Ko Aotearoa Tēnei: a report into claims concerning New Zealand law and policy affecting Māori culture and identity. Te Taumata Tuatahi. Waitangi Tribunal, p 2 Tsioumani E (2010) Access and benefit sharing: the nagoya protocol. Environ Policy Law 40(6):288 Tvedt MW (2013) Beyond nagoya: towards a legally functional system of access and benefit sharing. In: Oberthür S, Kristin Rosendal G (eds) Global governance of genetic resources access and benefit sharing after the nagoya protocol. Routledge, p 161 UNTC (1966) International convention on the elimination of all forms of racial discrimination. UN Treaty Collection. https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-2&chapter= 4&lang=en. Accessed 11 May 2022 van Banning TRG (2002) The human right to property. Intersentia, p 33 Vandenbogaerde A (2013) The right to development in international human rights law: a call for its dissolution. Netherlands Quart Human Rights 31(2):188 Vandenhole W (2005) Non-discrimination and equality in the view of the UN human rights treaty bodies. Intersentia, p 5 Vermeylen S (2007) Contextualizing ‘Fair’ and ‘Equitable’: the san’s reflections on the hoodia benefitsharing agreement. Local Environ 12(4):427 Villaroman NG (2010) The right to development: exploring the legal basis of a supernorm. Florida J Int Law 22(2):299

122 Waldron J (2020) Property and ownership. In: Zalta EN (ed) The stanford encyclopedia of philosophy. Stanford University, p 1 Wiessner S (2011) The cultural rights of indigenous peoples: achievements and continuing challenges. Eur J Int Law 22(1):140 Wynberg R, Hauck M (2014) People, power and the coast: a conceptual framework for understanding and implementing benefit sharing. Ecol Soc 19:27 Wynberg R, Hauck M (eds) (2014) Sharing benefits from the coast: rights, resources and livelihoods. UCT Press

4 Benefit-Sharing Yash G (2001) Human rights and social development: toward democratization and social justice. United Nations Research Institute for Social Development, pp 12–17 Young TR, Tvedt MW (2017) Drafting successful access and benefit-sharing contracts. Brill, p 2 Yu PK (2007) Reconceptualizing intellectual property interests in a human rights framework. UC Davis Law Rev 40(3):1149

5

Compliance

“Compliance” is a highly contested concept in international legal discourse, of which the meaning might differ significantly if perceived from different theoretical lenses.1 In general, international legal scholars tend to agree that most states—at least try to—respect most of the international norms most of the time,2 although their opinions vary as to whether it is because it suits states’ interests just right,3 or because that international legal norms are reflections of the common understanding of states hence are legitimate in both normative and institutional terms.4 To look at these different theories is helpful to understand the different reasons as to why states do or do not comply with their international obligations. Nevertheless, compliance also concerns the salient issue about the overall effectiveness of international obligations, especially those articulated in multilateral treaties about environmental issues, human rights and/or labour standards.5 The key question to this end about compliance is how to ensure and promote state parties’ implementation of and compliance with their treaty-based obligations through

various institutional and normative establishments.6 These include measures and mechanisms not only to monitor and evaluate state parties’ behaviours at an inter-state level but also their implementation of multilateral obligations at their respective domestic contexts at an intrastate level.7 The proliferation of MEAs on a wide range of environmental issues since 1992 provides ample legislative and practical evidence on how the issue of compliance has been dealt with as virtually every MEAs has a provision/ provisions about compliance.8 The scholarly discussion about compliance in this regard focuses on the distinction between the design of either “soft” and facilitative procedures, or “hard” and enforcement-oriented measures, as well as the combined use of both in the MEAs.9 This chapter focuses on the issue of compliance of the Nagoya Protocol by unravelling the relevant mechanisms and measures in place. It reflects the theoretical discourse about compliance when relevant but endorse a largely 6

Weiss and Jacobson (2000). Handl (1997). 8 This includes provisions on dispute settlement, monitoring and identification, reporting, and more broadly on financial mechanism and capacity-building clauses. Different mechanisms reflect the various opinions about whether compliance is best promoted through managerial or enforcement-oriented approaches, see Brunnée (2006). 9 For the managerial school, see Chayes and Chayes (1998) and Burgstaller (n 1) 141. For the enforcement school, see Downs (1998). 7

1 Kingsbury (1998); Guzman (2002) and Burgstaller (2005). 2 Henkin (1979). 3 The realist and rationalist theories of compliance have regarded international law as a “epiphenomenon” of states’ interests, see Byers (1999) and Guzman (2008). 4 Brunnée and Toope (2010). 5 Koskenniemi (1993).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_5

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practical perspective. It will show that the hard procedures—e.g., dispute settlement—are possible but rarely used. In comparison, the nonadversarial procedures—the compliance mechanisms and measures—play an increasing role in facilitating state parties’ implementation of the Nagoya Protocol at both international and domestic levels. Importantly, the latter aspect of compliance under the Nagoya Protocol demonstrates some unprecedented features with respect to the empowerment of IPLCs.10 Thus, the possibility and the normative ground for inter-state dispute settlement is firstly discussed in the context of a general trend in the MEAs to emphasis on the facilitative instead of the enforcement-oriented measures (Sect. 5.1). Then, two aspects of compliance established under the Nagoya Protocol are discussed in turn. These include, on the one hand, cooperative procedures, and institutional mechanism to promote international compliance as envisaged by Article 30, which are hereinafter referred to as the “international compliance mechanism” or “compliance mechanism” (Sect. 5.2). On the other hand, in order to enhance the “inter-operability” of the ABS rules,11 parties are required to ensure that the utilisation of genetic resources within their jurisdiction complies with the other parties’ ABS legislation or regulatory requirements.12 This aspect of compliance refers to provider countries’ domestic ABS rules as well as negotiated clauses in MAT. Articles 15–18 of the Nagoya Protocol set out specific requirements for this domestic aspect of compliance, which is hereinafter referred to as the “domestic compliance measures” or “compliance measures” (Sect. 5.3). The specific role of IPLCs under both international 10 I would like to acknowledge that this argument has been published in the RECIEL as an article in 2021. The content in the following sections on this subject are mainly from there with slight revisions. See Zheng (2021). 11 Young (2013). 12 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] CBD Decision 10/1, Articles 15– 18. See Morgera et al. (2014).

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mechanism and domestic measures of the Nagoya Protocol is addressed (Sect. 5.4) and the human rights implications of this development is analysed from the perspective of the right of access to justice (Sect. 5.5.1). An inter-state perspective is also adopted to investigate the human rights implications on states’ responsibilities (Sect. 5.5.2).

5.1

Inter-state Dispute Settlement: Possibility and Normative Ground

5.1.1 To Enforce or to Facilitate? The Nagoya Protocol does not contain a provision on dispute settlement. Instead, as Article 30 of the Nagoya Protocol setting out the procedures and mechanisms to promote compliance, it explicitly provides that such procedures “shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms under Article 27 of the Convention”. Reading this provision together with the CBD, we may conclude that the dispute settlement procedures provided by the CBD Article 27 is also applicable in the context of the Nagoya Protocol because the latter does not provide a procedure otherwise.13 According to Article 27, in the event of a dispute between parties concerning the interpretation or application of the CBD, the parties shall seek solution by negotiation.14 When an agreement cannot be reached by negotiation, the parties may jointly seek the good offices of, or request mediation by, a third party.15 If these two means do not solve the dispute, parties may also declare the acceptance of arbitration or the jurisdiction of the ICJ.16 The CBD Article 27(5) reads: “the provisions of this Article shall apply with respect to any protocol except as otherwise provided in the protocol concerned.” Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79, Article 27(1). 14 ibid. 15 ibid Article 27(2). 16 ibid Article 27(3). 13

5.1 Inter-state Dispute Settlement: Possibility …

Finally, when the parties to the dispute have not accepted the same or any procedure, the dispute shall be submitted to conciliation as provided in the Annex II of the CBD.17 Thus, “classical” means of conflict resolution including binding and non-binding procedures are provided under the CBD and the Nagoya Protocol, with a clear priority for non-binding procedures.18 This means that, judicial and arbitrational means are made available for parties to deal with their conflicts or disagreements with respect to the interpretation of the CBD and its Nagoya Protocol at an inter-state level. However, it is important to note that the arbitrational or judicial procedures provided in Article 27 of the CBD have not, in practice, been used since the CBD came into force in 1993, which supports the observation that judicial and arbitrational means for dispute settlement are rarely used under MEAs in general.19 The Chayeses and Mitchell have termed this characteristic as “managerial”, in the sense that effective management and organisation to facilitate the compliance of treaty obligations is more important than penalising parties for failing to comply.20 The Chayeses have also explained that noncompliance with multilateral legal norms often stemming from the ambiguity of treaty language, limitations on parties’ capacity to fulfil their obligations and the time lags between a state’s commitment and performance.21 Comparing to a usually lengthy and expensive judicial process, facilitative mechanism is obviously more costeffective.22 This “managerial” approach underlines the design and the purpose of the compliance mechanism in the Nagoya Protocol, which focuses on processes such as reporting, monitoring,23 and assessing,24 aiming at gathering adequate 17

ibid Article 27(4). Greiber et al. (2012). 19 Brunnée (n 8) 387. 20 Chayes et al. (2000). 21 Chayes and Chayes (n 9) 15 and Chayes and Chayes (1993). 22 Birnie et al. (2009). 23 Nagoya Protocol, Article 29. 24 ibid Article 31. 18

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information in a multilateral and communicative manner instead of enforcing the established rules via punitive approaches. From a normative perspective, international legal scholars have suggested that the institutional arrangements under the MEAs, for instance, the COP under the CBD and the COP-MOP under the Nagoya Protocol, can enable in situ regime agreements therefore to promote “endogenous enforcement” via nonadversarial and non-confrontational means.25 Having said that, the possibility of an inter-state dispute settlement under the CBD and the Nagoya Protocol stays important and its normative ground and implications merit careful investigation.

5.1.2 Nature of the States’ Obligations The discussion about the normative ground of the inter-state dispute settlement under the Nagoya Protocol needs to be based on a discussion of the nature of parties’ obligations, especially the distinction of bilateral obligations and collective obligations that are binding erga omnes partes.26 Indeed, different types of obligations exist under general international law, as they could be either unilateral or multilateral, reciprocal or nonreciprocal, temporal or eternal, conditional or unconditional, relative or absolute, or a mixture of some of these characteristics.27 However, the clarification about bilateral obligations and erga omnes partes obligations is in particular relevant in the current discussion because these different types of obligations imply different legal consequences.28 For instance, any contracting state is entitled to bring legal proceedings against breach of collective obligations owed to a group of states but only an injured state has standing against breach of bilateral obligations. To clarify the nature of the obligations owed by parties of

25 26 27 28

Cardesa-Salzmann (2012). Brunnée (2012) and Pauwelyn (2003). Brunnée (n 26) 565 and Mégret (2018). Mégret (n 27) 90.

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the Nagoya Protocol is thus a prerequisite to the discussion about their compliance through either confrontational or non-confrontational means. As a matter of scope, the broader debate about the creation of peremptory rules29 and erga omnes obligations30 in the context of international environmental law is not considered. The distinction between bilateral obligations (or multilateral obligations that can be reduced to “a bundle of bilateral obligations”) and collective obligations that are binding erga omnes partes therefore cannot be deconstructed into bilateral components, has been central for scholarly debates in international law.31 One of the initial recognitions of collective obligation is made by the ICJ in its advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.32 By contrasting bilateral approach that speaks of “individual advantages or disadvantages to States” and “the maintenance of a perfect contractual balance between rights and duties”, with the underlying objects of the Genocide Convention, the ICJ concluded that, “in such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention.”33 Based on this recognition, the late Special Rapporteur Sir Gerald Fitzmaurice has suggested two sets of obligations under multilateral treaties: (A) reciprocal obligations that provide for “a mutual interchange of benefits between Parties, and (B) integral obligations whose force is “self-existent, absolute and inherent”, which must be applied integrally.34 The former can be compared to obligations 29

Uhlmann (1998). Biermann (1996) and Birnie, Boyle and Redgwell (n 22) 190. 31 These includes research in the WTO context, MEAs and human rights. See Pauwelyn (n 26) 907. CardesaSalzmann (n 25) 103. Mégret (n 27) 91. 32 Pauwelyn (n 26) 909. 33 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [28 May 1951] (ICJ) Rep 15 31. 34 International Law Commission (1958). 30

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constructed under a contract and the latter, because that they are concluded for collective interests, are binding erga omnes partes.35 The recognition of the collective nature of treaty obligations are most evident with respect to human rights law. For instance, the ICJ in the Barcelona Traction case further articulates that some human rights obligations are owned “towards the international community as a whole” and “by their nature, are the concern of all States”.36 One example, according to the ICJ in the East Timor case in 1995, is the right to selfdetermination.37 In the Nagoya Protocol, the realisation of the treaty objectives relies greatly on the reciprocal relationship between the provider and user parties, incentivised by MAT on transferring genetic resources for agreed monetary or non-monetary benefits.38 However, in parallel to such economic instruments and bilateral approaches, there are collective interests of parties—the raison d'être of biodiversity conservation that provides normative grounds for the ABS framework.39 Specifically, biodiversity conservation is established by the CBD as a “common concern of humankind”; therefore, the CBD is endowed with obligations that are binding erga omnes partes vis-à-vis biodiversity conservation. Because the Nagoya Protocol is to implement the third objective of the CBD—fair and equitable sharing of the benefit arising from the utilisation of genetic resources—and thereby contributing to the conservation of biodiversity and sustainable use of its components, it is also inherently linked to the goal of biodiversity conservation that is the “common concern of humankind”. This 35 In some cases, they can be binding erga omnes but that aspect is not considered in this chapter. See Pauwelyn (n 26) 908. 36 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [5 February 1970] (ICJ) Rep 6 para 33. 37 However, it was observed as an erga omnes rights, instead of erga omens obligations, see Case Concerning East Timor (Portugal v Australia) [30 June 1995] (ICJ) Rep 90 para 29. 38 For an analysis of economic incentive in environmental law, see Bodansky (2011) and Stewart (2000). 39 Cardesa-Salzmann (n 25) 109.

5.1 Inter-state Dispute Settlement: Possibility …

collective characteristic of obligations under the Nagoya Protocol could be supported by its triggering construction of the compliance mechanism, as discussed in the following section, in which any party may initiate the procedures with respect to another party and the Secretariat may submit information for a committee-trigger in defence of the common interest. Thus, a broader interest in the treaty compliance can be observed under the international ABS framework rather than just bilateral obligations owed individually as either provider or user parties. In addition, as demonstrated in the previous chapters, parties of the Nagoya Protocol also bear intra-state obligations to ensure the PIC and fair and equitable benefit-sharing of IPLCs, which bear human rights implications that transcended the mere domestic scope. Thus, arguably, the Nagoya Protocol entails erga omnes partes obligations in the sense that they are established for the collective interests of the international community, which may involve an intra-state dimension when IPLCs is concerned. Specifically, they include obligations that relate directly to conserving biodiversity, for instance, obligations to “create conditions to promote and encourage research which the conservation and sustainable use of biological diversity”,40 to “encourage users and providers to direct benefits…towards the conservations of biological diversity…”,41 and to consider a global multilateral benefit-sharing mechanism.42 They may also include obligations to regulate access to and benefit-sharing of genetic resources and associated traditional knowledge held by IPLCs,43 whose essential role to contribute to biodiversity conservation is explicitly recognised in the Preamble of the Nagoya Protocol. Furthermore, it may also include parties’ obligation to ensure fair and equitable benefit-sharing of IPLCs who live within their territories, on the basis that FPIC and benefit-sharing are part and parcel of IPLCs’

40 41 42 43

Nagoya Protocol, Article 8(a). ibid Article 9. ibid Article 10. ibid Article s 5 6 and 7.

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fundamental human rights pertaining to their land, natural resources, and culture.44 The traditional legal consequence follows such a distinction of bilateral and erga omnes partes obligations relates to the right to invoke state responsibility—how a state could be held responsible for a breach of its international obligation. It is an important implication of the distinctive nature of states’ responsibility, even though judicial remedies are rarely sought in MEAs in practice.45 The theory of state responsibility was attributed in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) by ILC in August 2001.46 For erga omnes partes obligations, the ILC Draft Articles provide that any state (injured or not) is entitled to invoke the responsibility of another state if the obligation breached is owed to a group of states including that state and established for the protection of a collective interest of the group.47 This approach also manifests in the ICJ Statute establishing the procedures, which asserts, “whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states” and “every state party so notified has the right to intervene in the proceedings”.48 For instance, the current ICJ case Ukraine v Russian Federation have received as many as 26 declaration of intervention from states.49 According to

44 For a detailed discussion on the linkages between ABS requirements and fundamental human rights of IPLCs, see previous Sect. 2.3 of chapter two and Sect. 3.2 of chapter three. 45 Birnie, Boyle and Redgwell (n 22) 238. 46 UNGA Res 56/83, ‘Responsibility of States for Internationally Wrongful Acts’ (28 January 2002) UN Doc A/RES/56/83. 47 ibid Articles 42 and 48. 48 Statute of the International Court of Justice [18 April 1946] 33 UNTS 993, Article 63. 49 ‘Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation)-Intervention’ (ICJ, 2022) https://www.icj-cij.org/en/case/182/intervention accessed 10/12/2022.

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Crawford’s commentary to the Draft Articles, the standard example of such collective obligations is those concerning the environment or security of a region.50 Thus, if certain obligations under the international ABS framework could be established as erga omnes partes obligations, any state may invoke the responsibility of another state according to the Draft Articles and the CBD Article 27. This possibility to solve dispute between parties of MEAs via ICJ or inter-state arbitration remains untested but remain relevant, considering that the CBD has 196 parties, and the Nagoya Protocol has 138 parties.51 Having said that, it is necessary to note that the traditional approach to deal with breach of multilateral environmental obligations faces many challenges, such as that the establishment of jurisdiction depends on states’ consent and the difficulty and ambiguity to demonstrate a wrongful act.52 For instance, it is difficult to identify states’ wrongful acts under the CBD framework because damage to biodiversity in many cases is “a product of normal development of lawful activities” and the responsible state may at meanwhile be the victim state in the context of biodiversity loss.53 However, special features of the environmental issues may have resulted in a preferred form of facilitating compliance instead of law enforcement,54 but this does not mean in any way that environmental law is separate from the general principles of international law.55 States should still be held accountable in light of state responsibility if its conduct breaches collective obligations under the MEAs.

50

UNGA (2001). Only two member States of the United Nations are not Parties to the CBD: United States of America and the Holy See, information available at CBD, ‘List of Parties’ (CBD, 1992) https://www.cbd.int/information/parties. shtml accessed 03/07/2022. 52 Klabbers (2008). 53 Nègre (2010). 54 ibid 809. 55 Fitzmaurice (1994). 51

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5.2

Compliance

International Compliance Mechanism

Article 30 of the Nagoya Protocol mandates the COP-MOP to develop cooperative procedures and institutional mechanisms to promote compliance and to address cases of noncompliance in its first meeting.56 As a result, the compliance mechanism under the Nagoya Protocol is elaborated and established in 2014 by the COP-MOP Decision NP-1/4.57 This mechanism aims at offering advice and coordinating assistance to parties in order to encourage compliance, underlined by its non-binding, nonconfrontational and cooperative nature, similar to compliance mechanism adopted in many other MEAs.58 The Compliance Committee of the Nagoya Protocol (the Committee) consists of 15 members nominated by parties and two representatives of IPLCs to serve as observers nominated by IPLCs.59 In principle, nominees of the members may also include representatives of IPLCs.60 However, the current Committee does not have representatives of IPLCs to serve as members.61 The main difference between the function assigned to the members of the Committee and that to the observers is with the level of participation in the decision-making processes of the 56

Nagoya Protocol, Article 30. NP MOP 1 Decision NP-1/4, ‘Cooperative Procedures and Institutional Mechanisms to Promote Compliance with the Nagoya Protocol and to Address Cases of Noncompliance’ (20 October 2014) UN Doc UNEP/CBD/ NP/COP-MOP/DEC/1/4 2. 58 For instance, the Montreal Protocol on Substances that Deplete the Ozone Layer [adopted 16 September 1987, entered into force 1 January 1989] 1522 UNTS 3, Kyoto Protocol to the United Nations Framework Convention on Climate Change [adopted 11 December 1997, entered into force 16 February 2005] 2303 UNTS 162 and Cartagena Protocol on Biosafety [adopted 29 January 2000, entered into force 11 September 2003] CBD EXCOP 1 Decision EM-I/3. See Handl (n 7) 29 and Cardesa-Salzmann (n 25) 104. See Brunnée (n 8) 387. 59 NP Compliance Committee, ‘Annotations to the Provisional Agenda’ (10 February 2016) UN Doc UNEP/CBD/ABS/CC/1/1/Add.1 para 2. 60 NP-1/4 (n 57) anx sec B para 2. 61 NP Compliance Committee (n 59) para 2. 57

5.2 International Compliance Mechanism

Committee. The observers are entitled to participate fully in the deliberations of the Committee, but not to take decisions. Furthermore, when the case concerned does not involve IPLCs or relate to the interests of IPLCs, parties can choose to exclude the observers from the deliberation.62 As such, IPLCs’ representatives are able to share opinions and participate in the process of monitoring, examining, reviewing, and elaborating of issues of non-compliance that are submitted to the Committee. However, this participation is limited by the power of parties to exclude IPLCs observers from cases that are deemed irrelevant. The risk is that it is not clear how the relevance of the case vis-à-vis IPLCs is determined and who has the authority to make that decision. As a result, the impact of this setup needs to be assessed in the coming years as the specific function and working methods of the IPLCs observers and members are elaborated under the Nagoya Protocol. Both members of the Committee and the observers need to possess competence in terms of technical, legal, or scientific expertise in relation to the scope of the Protocol.63 With a view to achieving consensus, the Committee can take decisions by a three-quarters majority of the presenting members or eight members, whichever is greater.64 Three options for referral of a compliance problem to the Committee are made available under the Nagoya Protocol, including a party-self trigger, a party-to-party trigger and a COP-MOP trigger.65 The overall triggering mechanism of the 62 However, the COP-MOP does not articulate the standards or the authority to determine whether the case relate to the interests of IPLCs or not. 63 NP-1/4 (n 57) anx sec B para 4. 64 ibid anx sec B para 11. 65 According to the COP-MOP decision that elaborates the procedures of the international compliance mechanism, the Committee shall receive any submissions relating to issues of compliance and non-compliance from: (a) Any Party with respect to itself; (b) Any Party with respect to another Party; (c) The Conference of the Parties serving as the meeting of the Parties to the Nagoya Protocol. These three sources of submission may lead directly to the commence of the compliance procedures; therefore, are identified as three direct triggers. See ibid anx sec D para 1.

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Protocol meets modestly the scholarly and public expectations even though it does not include, for example, a public trigger (stakeholders/NGOs) as has been adopted under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).66 Nevertheless, the Committee is assigned with a novel function to proactively examine: (A) systemic issues of general non-compliance, (B) situations where a party fails to submit its national report as requested by Article 29 of the Protocol, and (C) situations where information indicates that the party concerned faces difficulties to comply with its obligations under the Protocol.67 Based on the results of the examination, the Committee may decide whether to proceed with the standard compliance procedures or not. Thus, it could be argued that the Committee also has a power of triggering the compliance procedures in addition to the three explicitly established triggers. Based on this observation, it is important to note that one legitimate source of “information” for examination is the directly affected IPLCs.68 By enabling IPLCs to submit information about non-compliance to the Committee, the compliance mechanism of the Nagoya Protocol facilitates IPLCs’ participation and, arguably, provides them with a power to indirectly trigger the compliance procedures through the Committee. By enabling IPLCs to submit information about non-compliance to the Committee and envisaging an “indirect trigger” of the compliance procedures through the Committee, the compliance mechanism of the Nagoya Protocol facilitates IPLCs’ participation in the international compliance mechanism. This pioneering characteristic of engaging IPLCs in the international compliance mechanism is unprecedented in

66 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [adopted 25 June 1998, entered into force 30 October 2001]. See Morgera, Tsioumani and Buck (n 12) 350 and IUCN (2011). 67 NP-1/4 (n 57) anx sec D para 9. Emphasis added. 68 ibid anx sec D para 9(b)(iii).

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the context of multilateral environmental agreements at the time of writing. It has great potential to empower IPLCs at the international level to defend their ABS rights and related interests against multinational corporations as well as state parties. However, as will be discussed in the Sect. 5.3, there are also considerable legal and practical challenges that might undermine its positive impacts. Furthermore, because the information-based examination is linked with the triggering procedures, the Committee’s function also expands from, traditionally, only addressing non-compliance between parties, to monitor and address parties’ compliance with their obligations towards IPLCs.69 The measures established for the Committee to promote compliance and address non-compliance are mostly of a facilitative nature. The Committee may offer advice or facilitate assistance to the party concerned, invite them to submit progress reports or request specific implementation plans with appropriate steps, agreed timeframe and assessment indicators.70 The COP-MOP may also take these measures upon recommendations of the Committee and facilitate more complicated measures on capacity-building, such as access to financial and technical assistance, technology transfer and training. Importantly, the COP-MOP reserves the discretion to decide on stronger and more serious measures in cases of grave or repeated non-compliance.71 Overall, it has only been less a decade since the Nagoya Protocol entered into force. Consequently, there is a limited amount of experience with respect to the implementation of the Protocol and the operational performance of the Committee. Indeed, the compliance mechanism is still “in the process of establishing its procedures and ways of working”.72 However, the role

5

of the Compliance Committee under the Nagoya Protocol will increase with time as its experience with implementation cumulates.73

5.3

Morgera, Tsioumani and Buck (n 12) 356. 70 NP-1/4 (n 57) anx sec F para 2. 71 ibid anx sec F para 3. 72 NP Compliance Committee, ‘Synthesis of Views on the Need for and Modalities of Support to Address Challenges Related to Compliance With The Provisions of the Nagoya Protocol, with A View to Making Effective Use Of the Compliance Mechanism’ (22 February 2016) UN Doc UNEP/CBD/ABS/CC/1/3 para 11.

Domestic Compliance Measures

Articles 15–18 of the Nagoya Protocol establish the compliance measures with respect to provider parties’ domestic ABS legislation as well as bilateral contractual clauses agreed by MAT. In other words, to ensure that ABS rules are respected internationally, the Nagoya Protocol obliges user parties to ensure that the utilisation of genetic resources and associated traditional knowledge within their jurisdictions complies with provider parties’ domestic ABS requirements and private law contractual agreements.74 These provisions were regarded as the cornerstone of the international ABS framework by many developing countries during the negotiation of the Protocol as they are usually at the “provider” end of ABS transactions.75 Specifically, Articles 15 and 16 oblige parties to “take appropriate, effective and proportionate legislative, administrative or policy measures” to ensure domestic compliance with requirements of PIC and MAT, address non-compliance, and cooperate in cases of alleged violations.76 Article 17 elaborates the ways in which domestic compliance can be supported in a non-exhaustive manner.77 These include a range of monitoring tools that aim to enhance transparency and legal certainty, for instance, the designation of checkpoint(s), ABS permits or its equivalents issued by domestic authority that constitute “an internationally recognized certificate of compliance” (IRCC), and the usage of the Clearing-House NP Compliance Committee, ‘Future Work of the Compliance Committee for 2017–2018’ (29 February 2016) UN Doc UNEP/CBD/ABS/CC/1/4 para 17. 74 Morgera, Tsioumani and Buck (n 12) 251. 75 Nijar (2011). 76 The obligation to cooperate, however, is qualified by the caveat “as far as possible and as appropriate”. See Nagoya Protocol, Article 15(3). Also Greiber and others (n 18) 159. 77 Nagoya Protocol, Article 17. 73

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5.3 Domestic Compliance Measures

mechanism for monitoring and informationsharing.78 Article 18 addresses compliance with contractual terms, imposing obligations on parties to ensure the availability of judicial remedies and the right of access to justice.79 The importance and limitations of this aspect of compliance have been discussed extensively in literature. Young has pointed out that these domestic compliance measures contribute to “a coherent and functioning” international ABS framework.80 This argument is supported by many other scholars including Glowka and Normand, who added that this domestic aspect of compliance is imperative because it ensures the inter-operability of respective domestic ABS frameworks, especially considering that ABS requirements often vary in national contexts.81 While incorporating standard measures like PIC and MAT into domestic ABS frameworks may indeed secure a certain level of inter-operability, Morgera has warned that it is not without some conceptual difficulties.82 Specifically, while PIC is usually presented as an administrative permit issued by domestic authorities, MAT is subject to private contractual law, even if it is concluded between the public authority and private entities.83 In situations where more than one jurisdiction is involved, MAT and the resolutions of potential disputes may also concern private international law, which governs issues like applicable jurisdiction, applicable laws within that jurisdiction, and enforcement of foreign judgments and arbitral awards.84 To this end, the applicability of the Nagoya Protocol may be questionable because it is a public international law instrument that is normally reckoned to tackle relationships between states.85 78

The ABS Clearing-House is an online platform for exchanging ABS related information. 79 Although Article 18 does not explicitly use the language of “right” per se, see Greiber and others (n 18) 183. 80 Young (n 11) 491. 81 Glowka and Normand (2013). 82 Morgera, Tsioumani and Buck (n 12) 252. 83 Greiber and others (n 18) 184. 84 Chiarolla (2012). 85 Greiber and others (n 18) 184.

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In practice, the implementation of domestic compliance measures has accelerated since the Nagoya Protocol came into force in 2014. For instance, the European Union has enacted EU Regulation No 511/2014 and EU Commission Implementing Regulation 2015/1866 to implement the “compliance measures for users”, which put in place strict obligations for EU companies and research institutes to “exercise due diligence” to ascertain that genetic resources and associated traditional knowledge have been accessed in accordance with applicable ABS legislation or regulatory requirements, and that benefits are fairly and equitably shared upon MAT.86 EU member states are then expected to incorporate these obligations into their national legal systems. Germany and France, for example, have introduced detailed obligations with respect to the declaration of due diligence, including its scope, timelines, competent authority, format and administrative procedures via various general national decrees.87 Some countries have made the violation of ABS obligations enforceable under their criminal law with sanctions ranging from withdrawing the ABS permit, to economic penalties and imprisonment.88 Furthermore, the practice of incorporating disclosure measures into national legal systems to facilitate ABS 86 Regulation (EU) No 511/2014 of the European Parliament and of the Council of 16 April 2014 on Compliance Measures for Users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union [2014] OJ L 150/59, Article 4(1). It shall be noted that the core obligation of due diligence in the EU context also faces great uncertainty in relation to its specific scope, content and implementation, see Pateiro (2020). 87 See Décret n° 2017–848 du 9 mai 2017 Relatif à L'accès aux Ressources Génétiques et aux Connaissances Traditionnelles associées et au Partage des Avantages Découlant de leur Utilisation [2017] (FR) and Gesetz zur Umsetzung der Verpflichtungen nach dem NagoyaProtokoll, zur Durchführung der Verordnung (EU) Nr. 511/2014 und zur Änderung des Patentgesetzes sowie zur Änderung des Umweltauditgesetzes [2015] (DE). 88 For instance, France and the Netherlands, information obtained from the Interim National Reports on the Implementation of the Nagoya Protocol submitted by Parties, available at CBD, ‘Access and Benefit-Sharing Clearing-House’ (CBD) https://absch.cbd.int/ accessed 10/07/2022.

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objectives is gaining momentum over the past several years.89 According to a 2022 survey conducted by the WIPO, there are at least 34 countries and regions that have somehow included a specific disclosure requirement in their national laws or regulations, mainly with respect to patent applications that are based on genetic resources and/or traditional knowledge.90 This legal tool could help to promote mutual recognition among different legal systems and enhance the transparency of information.91 However, scholars are in general sceptical about its overall usefulness and practicality in achieving ABS objectives.92 After all, as the ABS law pursues biodiversity conservation, sustainable use and fair and equitable benefit-sharing, it diverts fundamentally from the objectives and the set of rules of patent law.93 Practical complexity in their respective legal and institutional design further adds to the uncertainty of how exactly their normative and practical components could be woven into each other in a systemic way.94 A UN study of the relationship between the CBD and the IPRs regime has suggested that disclosure requirements must be woven into not only existing IPRs laws, but also general commercialisation rules and the CBD obligations, in order to be fully functional.95 In this regard, the EU’s implementation of the Nagoya Protocol sets a regional example of how disclosure 89

UNCTAD (2014). These include Belgium, Bolivia, Brazil, China, Colombia, Costa Rica, Denmark, Ecuador, Egypt, France, India, Peru, the Philippines and South Africa. Notably, some of these countries are not yet parties to the Nagoya Protocol, see WIPO, ‘Disclosure Requirements Table’ (WIPO, 1 July 2022) https://www.wipo.int/export/sites/www/tk/en/docs/ genetic_resources_disclosure.pdf accessed 29/11/2022. 91 See in general, Fung et al. (2007) and Girsberger (2004). 92 For a discussion of the limits of disclosure requirements, see Tvedt and Young (2007). See also Guneratne (2012). 93 The efforts of reconciling the intellectual property rights regime and the environmental regime in achieving goals such as sustainable development and biodiversity conservation do exist. See, e.g., essays in Melendez-Ortiz et al. (2009) and Phillips (2016). 94 UNCTAD (n 89) 52. 95 ibid. 90

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requirements can be incorporated into ABS legislation as part and parcel of due diligence obligations. Nevertheless, the EU approach is also criticised for its limitations. For instance, as it centralises the “illegal use” of genetic resources and traditional knowledge in user countries, the EU legislation does not sufficiently facilitate legitimate claims of the providers of genetic resources and traditional knowledge in the procedures of accessing, storing, analysing, developing and commercialising these resources and that the “due diligence obligations” might be reduced to mere documentation duties of the users.96 The EU Regulation also lacks adequate protection of traditional knowledge as it narrowly defines traditional knowledge as the knowledge “that is associated with genetic resources as described in benefit sharing agreements”.97 This definition, as pointed out by Tobin, could effectively exclude all traditional knowledge that is accessed without a well-defined benefit-sharing agreement or that is not subject to an agreement of any sort.98 Not all member states of the EU have fully supported the implementation of the EU Regulation or the Protocol itself: there is considerable leeway as well as deliberate ambiguity embedded in the Nagoya Protocol and the EU Regulation, which have left much space for the discretion of its parties.99 Another perspective that is relevant to consider in the context of domestic compliance is the role of private entities. It has been feared that the Nagoya Protocol and its domestic implementation would have a “chilling effect” on biodiversityrelated research conducted in both private and public sectors.100 Overestimated commercial value of genetic resources for benefit-sharing and administrative burdens of PIC and MAT might also create hurdles for research, especially conducted for non-commercial purposes.101 Nevertheless, private entities, including companies and 96

Godt (2015). EU Regulation No 511/2014, rec 20 and Article 3(7). 98 Tobin (2014). 99 Rabitz (2015). 100 Oliva (2011). 101 See Kursar (2011) and Neumann et al. (2018). 97

5.4 The Role of IPLCs and Challenges Ahead

research institutes, play important role in ensuring domestic compliance. They are often the key actors who initiate and manage transnational transactions of genetic resources, obtain PIC and negotiate MAT directly or indirectly with competent authorities and IPLCs.102 Powerful multinational corporations especially possess “a keen interest in maintaining a level playing field by ensuring that competitors abide by the agreement”, as well as “the resources to monitor compliance, albeit quietly”.103 As a result, the private entities play an important role in fulfilling the ABS objectives of the CBD and the Nagoya Protocol because their behaviour and willingness to comply greatly determine the effectiveness of the ABS rules.104 Incentive measures, such as voluntary codes of conducts, guidelines, standard-setting schemes and best practices, also support and facilitate domestic compliance by private entities.105 An example of an internationally practised ABS standard is the one prepared by the Union for Ethical BioTrade (UEBT) that promotes the “Sourcing with Respect” of ingredients from biodiversity.106 UEBT has set a positive business tone, indicating that, by providing a clearer and more level playing field, the Protocol could open up opportunities for companies already working towards ethical practices in their sourcing and research and development activities.

5.4

The Role of IPLCs and Challenges Ahead

5.4.1 Under the International Compliance Mechanism As demonstrated, the compliance mechanism of the Nagoya Protocol renders an unprecedented level of participation of IPLCs by envisaging an 102

See Buck and Hamilton (2011). Weiss and Jacobson (n 6) 545. 104 See Morgera (2015) and McBarnet (2007). 105 As envisaged in Article 20(1) of the Nagoya Protocol, see also Barber et al. (2003). 106 See UEBT (2012). 103

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indirect trigger of the compliance procedures through the Compliance Committee. Directly affected IPLCs could submit information of parties’ non-compliance to the Committee for its further investigation, which then could lead to the triggering of the compliance procedures.107 This implies that the Committee is capable of monitoring and addressing parties’ compliance with their obligations towards IPLCs at the intrastate level.108 According to the Nagoya Protocol, state parties are obliged to, inter alia, take legislative and policy measure to ensure IPLCs’ PIC is obtained, benefits are shared fairly and equitably and that their customary laws and community protocols are respected in the ABS transactions. This prospect enables a normative counterbalance vis-à-vis the fundamental principle of states’ sovereign rights over their natural resources as recognised in the CBD, which often upholds the authority of states to determine how their genetic resources may be accessed, what benefit should be shared and under what condition. In other words, the specific characteristic of the compliance mechanism of the Nagoya Protocol implies that to develop domestic ABS rules and establish national legal recognition of the ABS rights of IPLCs is not merely a sovereign issue but could be addressed by the international compliance mechanism. Nevertheless, the text and procedures under the Nagoya Protocol articulating this indirect trigger are problematic. According to the Nagoya Protocol COP-MOP Decision 1/4, the information may be considered by the Committee of situations of non-compliance include, “other information related to compliance with Article 12 (1) of the Protocol; provided by a directly affected Indigenous or local community, related to provisions of the Protocol”.109 The confusing use of the semicolon in the provision is the first obvious obstacle for interpretation. As a result, it is not clear whether such information needs to relate to Article 12(1) in particular or its general relevance with the Nagoya Protocol would 107 108 109

NP-1/4 (n 57) anx sec E. Morgera, Tsioumani and Buck (n 12) 356. NP-1/4 (n 57) anx sec D para 9(b).

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suffice.110 Second, there is no guidance on how to define the extent to which an IPLC is affected and who has authority to determine whether any IPLCs is directly affected or not.111 Third, not all the issues submitted by the IPLCs will be transmitted to the Committee by the Secretariat. The issue will be viewed against the information from the party concerned and solutions between the party and the IPLCs might be encouraged before submitting the issue to the compliance procedures.112 Such interpretive obscurity and procedural complexity create uncertainty for IPLCs to participate in the compliance process of the Nagoya Protocol. In any event, the task of clarifying relevant texts and procedures falls upon the COP-MOP in its future meetings.

5.4.2 Under the Domestic Compliance Measures In the context of domestic compliance measures, the Nagoya Protocol explicitly imposes obligations on parties to regulate user compliance with domestic ABS rules pertaining to IPLCs’ ABS rights, such as PIC and MAT. Specifically, Article 16(1) requires parties to take measures to provide that traditional knowledge utilised within their jurisdiction has been accessed in accordance with PIC or approval and involvement of IPLCs, and that MAT has been established, as required by the domestic ABS rules of the other party where such IPLCs are located.113 It thus explicitly imposes obligations on parties to regulate

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user compliance and by doing so, promote users to act in accordance with domestic ABS legislation or regulatory rules.114 Nevertheless, the caveat included in Articles 15 and 16—“as required by the domestic ABS rules”—poses a risk when the provider country falls short of legislating on ABS. Interpreted narrowly, it may suggest that the Nagoya Protocol does not provide for compliance measures with respect to genetic resources and traditional knowledge held by IPLCs, who live in countries where there are no applicable ABS rules. This interpretative limit is unfair especially considering many IPLCs have no power of influencing domestic legislative processes. In addition, the caveat also undermines the customary rules of the IPLCs when they are not explicitly recognised and incorporated in the domestic ABS legislation or regulatory requirements of the party concerned.115 This limitation is reflected in the current EU Regulation with respect to the scope of traditional knowledge that the Regulation only covers traditional knowledge if it is explicitly defined and included in the MAT.116 To rely solely on domestic authority to address genetic resources and traditional knowledge held by IPLCs raises various concerns. It allows too much discretion for state parties and aggravates persisting power asymmetries between IPLCs and state authorities in a domestic context. In practice, it would hinder the active and meaningful participation of IPLCs in the ABS process to negotiate MAT and claim benefit-sharing based on fair and equitable terms regarded by themselves. Fundamentally, it might result in national ABS rules that subvert the social, economic, and

110

Article 12(1) is about traditional knowledge that is associated with genetic resources, which reads: “[i]n implementing their obligations under this Protocol, Parties shall in accordance with domestic law take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources”. 111 Indeed, assessing the level of interference of environmental harm with human rights has always proven to be a complicated task. See Hall (2013). 112 NP-1/4 (n 57) anx sec D para 9(b). 113 Nagoya Protocol, Article 16.

114

Greiber and others (n 18) 30. ibid, 169. 116 EU Regulation No 511/2014 Article 3(7) states that ‘traditional knowledge associated with genetic resources’ means traditional knowledge held by an indigenous or local community that is relevant for the utilisation of genetic resources and that is as such described in the mutually agreed terms applying to the utilisation of genetic resources. Emphasis added. 115

5.5 Human Rights Implications on Compliance …

cultural rights of IPLCs pertaining to their genetic resources and traditional knowledge.117 Finally, encouraging both providers and users to include dispute resolution terms in MAT,118 Article 18 further requires parties to ensure that “an opportunity to seek recourse is available under their legal systems” and specifies that the effective measures shall consider “access to justice” as well as “the utilization of mechanisms regarding mutual recognition and enforcement of foreign judgments and arbitral awards”.119 The term “access to justice” is not defined in the Nagoya Protocol, nor is it self-explanatory. Consulting the travaux préparatoires of the Protocol, the term “access to justice” has been interpreted differently by different stakeholders. For instance, Norway has submitted that access to justice is determined by national rules on civil procedure; whereas the EU held that it could be interpreted rather broadly to include not only procedural matters, but also concerns about social equity.120 In practice, the challenge often lies with the lack of capacity of IPLCs in both legal and financial terms in realizing their right of access to justice because of the high cost of litigation or other alternatives.121

5.5

Human Rights Implications on Compliance-Related Provisions

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levels.122 It is also the most relevant human right for accessing the compliance mechanism of the Nagoya Protocol. The expansive jurisprudential interpretation provided by international and regional human rights courts and tribunals on IPLCs’ human rights in cases concerning utilisation and benefit-sharing of natural resources provides the normative ground to consider the practicality of using human rights mechanism to protect IPLCs’ ABS rights. To this end, the right of access of justice is examined in the first part of this section with respect to its relevance, the international human rights standards, and its application in both international and domestic contexts (Sect. 5.4.1). An inter-state perspective through the lens of state parties’ obligation is then provided (Sect. 5.4.2). The possibilities of ensuring states’ compliance via inter-state litigation and multilateral accountability under the compliance mechanisms remain at large theoretical because we have not seen inter-state litigations for the purpose of biodiversity conservation or ABS. However, such a possibility and its legal implications are important, especially in comparation with the state practice regarding compliance in international human rights law, as it sheds light on the different ways in which states are obliged to fulfil their responsibilities under the MEAs and why they do so.

5.5.1 The Right of Access to Justice The right of access to justice is essential for substantiating and enforcing IPLCs’ human rights at both international and domestic

117 CBD Expert Group on Compliance of ABS, ‘Compilation of Submissions by Parties, Governments, International Organizations, Indigenous and Local Communities and Relevant Stakeholders’ (19 December 2008) UN Doc UNEP/CBD/ABS/GTLE/2/2 19 and 35. 118 Nagoya Protocol, Article 18(1). 119 ibid Articles 18(2)(3). 120 CBD Working Group on ABS (n 117) 19 and 35. 121 CBD Working Group on ABS, ‘Report of the Meeting of the Group of Legal and Technical Experts on Compliance in the Context of the International Regime on Access and Benefit-Sharing’ (10 February 2009) UN Doc UNEP/CBD/WG-ABS/7/3 para 39.

5.5.1.1 Why a Right of Access to Justice? The most relevant human right for accessing the compliance mechanism of the Nagoya Protocol is the right of access to justice. Providing the possibility to bring a claim before a court and have a court adjudicate it in accordance with substantive standards of justice and fairness, access to justice enables effective judicial remedies for victims and guarantees the respect and protection of human rights.123 In a broader sense, access to justice also includes the necessary legal aid provided for 122 123

Francioni (2007). ibid.

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persons who otherwise cannot afford the oftenprohibitive cost of lawyers and administrative fees of legal proceedings.124 Specifically, it is providing significant ground for seeking remedies against environmental harms and enhancing the participation in the decision-making process of projects that might have negative environmental impacts.125 Given the substantive connection between IPLCs’ ABS rights and their human rights pertaining to lands, natural resources and culture, it is important to consider how the ABS mechanism is strengthening and/or limiting their right of access to justice through a broader human rights perspective. However, it must be noted that the scholarly discourse has not yet settled a common agreement with respect to the many essential elements about the right to access to justice. Specifically, Francioni pointed out that access to justice has been construed as “a procedural guarantee dependant on other substantive rights” rather than a human right in itself, although it equally merits legal protection.126 Hughes warned that a narrow view would suggest that access to justice only entails access the procedures before a court.127 In the same line, McBride questioned the scope of the right and argued that it is not clear whether states’ obligations to ensure effective access to justice would imply only that the domestic courts and tribunals shall be open to all individuals, or it would also imply that a fair process and a just outcome shall also be somewhat secured.128 To push this argument further, scholars including Trindade, Cappelletti and Garth have asked whether access to justice may also include effective enforcement of the granted remedies.129 Thus, although a general acceptance of access to justice as human rights concept is evident in the scholarly literature, the scope and

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connotation of the right remain controversial.130 Specifically, it is not clear, whether access to justice, as a right or as a procedural guarantee, entails procedural and substantive requirements for states and other stakeholders to facilitate the process and realise the granted remedies, and if so, to what extent they are obliged to do so.131 In practice, how IPLCs’ right of access to justice is exercised at the national level is similar in the ABS and human rights contexts, in the sense that both approaches rely on domestic implementation of treaty norms and remedies through national courts. However, the practice of access to justice at the international level varies fundamentally in these two contexts. While the compliance mechanism of the Nagoya Protocol creates an “indirect trigger” for IPLCs in the compliance procedures, the procedure per se remain non-confrontational and facilitative in nature. We have also seen the possibility for IPLCs representatives to serve as members of the Compliance Committee, but the fact that the majority of the Committee consists of nominees of state parties makes it susceptible to particular political interests. In comparison, the practice of various international human rights treaty bodies that deploy individual complaint mechanism have produced a substantial body of human rights case law over the past few decades.132 One may debate that these are not judicial institutions, but it is unquestionable that the normative findings of these treaty bodies bear significant legal weight, as demonstrated by their influence in a wide range of international and domestic judicial decisions.133 This relates to the fact that the human rights treaty monitoring bodies consists of independent experts who sit the committee as individuals but not government representatives.134 Furthermore, at the regional level, regional human rights courts and tribunals deliver

124

For instance, the legal aid mechanisms employed by the United Nations Development Programme (UNDP) as a human right-based approach to advance access to justice, see UNDP (2016). 125 See Redgwell (2007) and generally Harding (2007). 126 Francioni (n 122) 32. 127 Hughes (2008). 128 McBride (2009) para 9. 129 Trindade (2015) and Cappelletti and Garth (1978).

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Flynn (2015). European Union Agency for Fundamental Rights and Council of Europe (2016). 132 See Keller and Ulfstein (2012). 133 Buergenthal (2006). 134 Joseph (2006). 131

5.5 Human Rights Implications on Compliance …

adjudicative decisions that are, with little doubt, legalistic in nature. The rationale behind this differentiation concerns the different theories for inducing compliance with international norms.135 For multilateral environmental agreements, the debate about compliance focuses on whether to establish enforcement-oriented approaches or managerial and non-confrontational approaches.136 The managerial approach is founded on the argument that effective management and organisation to facilitate the compliance of treaty obligations is more effective than penalising parties for failing to comply.137 Indeed, there are certain advantages of this approach in dealing with environmental issues. For instance, it is more flexible and costeffective than traditional judicial processes,138 and states are more likely to agree upon environmental treaties that do not have binding enforcement measures so that global actions would be taken more quickly in response to environmental urgencies.139 Admittedly, international environmental law has been criticised as weak for lacking enforcement measures.140 But this does not mean that international environmental law would be more robust if only its compliance measures were formally binding.141 With respect to international human rights law, the primary departure point is to protect individuals against states142; therefore, the compliance theory of human rights focuses on the factors and measures that could shape and restrain states’ practice and ensure effectives remedies in cases of

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Brunnée and Toope (2004). Brunnée has also suggested a constructivist framework for analysing compliance see Brunnée (n 8) 390. In general, see Bodansky (n 38) 226, and Cardesa-Salzmann (n 25)103. 137 Chayes and Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (n 9) 15 and Chayes and Chayes, ‘On Compliance’ (n 21) 175. 138 Birnie, Boyle and Redgwell (n 22) 239. CardesaSalzmann (n 25) 112. 139 See essays in Victor (1998) 1. 140 Barrett (2005). 141 See Fitzmaurice and Redgwell (2000). 142 Trindade (2011). 136

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violation, although from various lenses.143 To dwell on the details of the theoretical discourse exceeds the scope and the aim of this chapter. The importance of understanding the distinct features of the compliance mechanism of the Nagoya Protocol and that of international human rights law rests with their different implications in empowering IPLCs. The following sections provide a closer examination of how the right of access to justice of IPLCs is normalised and practised in human rights law.

5.5.1.2 The Standards-Setting of Access to Justice in International Law The right of access to justice has been established by a wide range of international and regional instruments, containing both substantive and procedural standards. To name a few, the UDHR, the ECHR and the ACHR all refer to “the right to an effective remedy” by the competent national tribunals”.144 The ICCPR also recognises “effective remedy”,145 but it goes further to establish that the affected rights shall be determined by “competent judicial, administrative or legislative authorities”146 and granted remedies that shall be enforced.147 The ICCPR also provides that all persons shall be “equal before the courts and tribunals” and “entitled to a fair and public 143

The compliance theory of human rights law consists of two major schools: the rational choice approach and the constructivist approach. For the former approach see Goldsmith and Posner (2005), and Guzman (n 3). For the latter approach see Goodman and Jinks (2013) and Brunnée and Toope, Legitimacy and Legality in International Law: An Interactional Account (n 4). 144 Universal Declaration of Human Rights [10 December 1948] UNGA Res 217 A (III), Article 8. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 [adopted 4 November 1950, entered into force 3 September 1953] ETS 5, Article 13. American Convention on Human Rights, “Pact of San Jose”, Costa Rica [adopted 22 November 1969, entered into force 18 July 1978] 1144 UNTS 123, Article 25. 145 International Covenant on Civil and Political Rights [adopted 16 December 1966, entered into force 3 January 1976] 999 UNTS 171, Article 2 para 3(a). 146 ibid Article 2 para 3(b). 147 ibid Article 2 para 3(c).

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hearing by a competent, independent and impartial tribunal”.148 The Optional Protocol to the ICCPR elaborates that “who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration”.149 Making the first explicit reference, the Hague Convention on International Access to Justice requires the contracting parties to “facilitate international access to justice”.150 Such standard-setting is evident in many other international instruments relating to environmental issues too, including, inter alia, the Rio Declaration on Environment and Development,151 the Aarhus Convention152 and the UNEP Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters.153 These legal instruments elaborate the human rights standards of access to justice that it in general shall be effective. Some instruments envisage specific procedural standards, for instance, the Optional Protocol that specifies the condition for individuals’ access to international remedies is that domestic means shall be exhausted first and they

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ibid Article 14. Optional Protocol to the International Covenant on Civil and Political Rights [adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171, Article 2. 150 Convention on International Access to Justice [adopted 25 October 1980, entered into force 1 May 1988] HCCH Publications 29. 151 It highlights the importance of “effective access to judicial and administrative proceedings, including redress and remedy”, see Rio Declaration on Environment and Development [12 August 1992] UN Doc A/CONF.151/26 (Vol. I), Principle 10. 152 Detailed standards for ‘access to justice in environmental matters’ are set out throughout the text. See Aarhus Convention, Articles 3(9) and 9. 153 It advocates for “broad interpretation of standing in proceedings … with a view to achieving effective access to justice” and suggests that “States should ensure that proceedings are fair, open, transparent and equitable”. See UNEP, ‘Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters’ (26 February 2010) Decision SS.XI/5 Guidelines 18 and 19. 149

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must present a written communication.154 Some instruments incorporate both procedural and substantive requirements, for instance, the ICCPR requires not only that all persons shall be equal before the tribunals and the tribunals shall be competent, independent and impartial, but also that the granted remedies shall be enforced.155 Standard setting in both procedural and substantive terms can also be found in the Aarhus Convention and the UNEP Guidelines. With respect to Indigenous Peoples, the ILO Convention 169 requires its parties to safeguard Indigenous rights and that Indigenous Peoples “shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights”.156 The UNDRIP also provides that “states shall take effective measures to ensure that…Indigenous Peoples can understand and be understood in political, legal and administrative proceedings”.157 In comparison to the general human rights standards, the provisions of the ILO Convention 169 and the UNDRIP appear conservative, in the sense that the former only envisages procedural aspect of access to justice and the latter merely requires Indigenous Peoples to “understand or be understood” in the proceedings.158 Such participation is not qualified in the language of right, nor has its procedures specified in any substantive terms. This striking feature might owe to the fact that “Indigenous Peoples” have been established as a distinctive legal subject with a collective connotation in human rights law,159 whereas the general right of

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Optional Protocol to the ICCPR, art 2. It is also the case with the Hague Convention as it stipulates the means and obligations for Parties with respect to facilitating access to justice. 155 ICCPR, art 2. Emphasis added. 156 Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries [adopted 27 June 1989, entered into force 5 September 1991] ILO C169, Article 12. 157 United Nations Declaration on the Rights of Indigenous Peoples [13 December 2007] UNGA Res 61/295, Article 13(2). 158 Hughes (n 127) 778. 159 See Sect. 1.3 in Chapter one.

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access to justice is traditionally and mainly attributed to individuals.160 In fact, this dominant individualistic approach has been criticised of being “ill-suited” to address the environmental problems that affect the society as a whole.161 It clearly does not fit in with an ABS context well, given that genetic resources and traditional knowledge are often collectively owned by IPLCs as communal assets.

5.5.1.3 Access to Justice in Practice: Regional Human Rights Courts and UN Treaty Bodies In practice, individuals of IPLCs have exercised their right of access to justice through the international complaint mechanism of various international human rights treaties bodies and before regional human rights courts and tribunals. Generally, these international means encourage and facilitate legal empowerment of IPLCs as they enable the individuals of IPLCs to participate in legal or administrative proceedings beyond national contexts.162 The European Court of Human Rights, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights exemplify regional efforts for establishing adversarial systems for ensuring access to justice.163 Over the past few decades, these tribunals have received an increasing number of petitions. The European Court, for instance, has decided on 39,190 applications in 2020 and 36,092 applications in 2021, of which over five thousand are by judgements.164 The Inter-American Court, in comparison, has received 40 petitions in 2021

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and delivered a total of 27 judgments.165 The African Court, heard its first contentious case in 2008, has now received 330 applications and finalised 172 cases.166 Compared to the statistics of a decade ago, the number of petitions dealt with by these courts has undergone a booming growth. It indicates the increasing influence of the jurisdictions of the regional human rights tribunals. However, some scholars have also warned that supranational litigation still only affords access to a tiny fraction of victims, which makes its benefits more like a “lottery” to the handful of petitioners whose cases reach a court, as opposed to the vast number of similarly situated victims.167 The particular popularity of the European Court also poses a severe administrative challenge to its own capacity—the massive number of applications has created a docket crisis and a “backlog” that is rapidly growing every year.168 Scholars remain sceptical about the actual level to which the judgements and decisions issued by the human courts could be complied with.169 In order for the European human rights system to provide more robust and effective remedies, Gerards and Glas have advocated for “a more substantive and general conception of access to justice”.170 Cavallaro and Brewer have proposed that the supranational human rights courts, while remaining impartial, shall adjudicate cases in ways that reflect the reality of a broader social, political and cultural climate prevailing in the domestic contexts, and eventually, to increase the relevance of domestic courts.171 As discussed in the previous chapters (Chaps. 3 and 4), there is an expansive jurisprudential interpretation of the human right to lands, natural resources, and development of IPLCs in

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The only exception is the collective complaints system provided in the Additional Protocol to the European Social Charter, which allows several certain types of international organizations to bring complaints against a State that has ratified the Additional Protocol. See Churchill and Khaliq (2004). 161 Francioni (2010). 162 Harrington (2012). 163 Jayawickrama (2017) and Cavallaro and Brewer (2008). 164 Council of Europe (2021, 2022).

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IACHR (2022). Statistic available at African Court on Human and Peoples' Rights, ‘Contentious Matters’ (ACHPR, 2022) https://www.african-court.org/cpmt/ accessed 22/11/2022. 167 Cavallaro and Brewer (n 163) 770. 168 Helfer (2008). 169 See for instance, Hawkins and Jacoby (2010) and Hafnerburton and Tsutsui (2005). 170 Gerards and Glas (2017). 171 Cavallaro and Brewer (n 163) 770. 166

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the rulings of regional human rights courts that explicitly mentioned FPIC and benefit-sharing. In particular, the 2007 Case of the Saramaka People v Suriname ruled by the Inter-American Court establishes that the right of self-determination, the right to lands and natural resources of the Saramaka people demands procedural safeguards, which states must abide to fulfil their obligations, including effective participation, prior environmental and social impact assessments and benefitsharing.172 This reasoning is also evident in the 2010 Endorios case ruled by the African Commission as the Commission held that as benefitsharing serves as an important indicator of compliance for property rights and failure to duly compensate resulted in a violation of the right to property.173 In 2015, the Inter-American Court reiterated in the case of Kaliña and Lokono Peoples v Suriname that because the State of Suriname failed to ensure the three identified safeguards when granting mining concessions, it had violated the property right to lands and natural resources of the Kaliña and Lokono peoples.174 In this case, the Court also held that the State of Suriname had failed to comply with its obligation under the CBD and the Nagoya Protocol with respect to IPLCs since Suriname is a party to the CBD.175 In 2017, the Inter-American Court delivered the first judgment in its history that recognises the direct enforceability of economic, social and cultural rights under Article 26 of the ACHR via upholding the claim against Peru for violating the rights to work, to freedom of expression, and to a fair trial of the

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applicant.176 In 2020, the Inter-American Court extended this recognition to a right to healthy environment in the landmarking Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina, significantly advancing the protection of the Indigenous Peoples’ rights under the Inter-American system.177 In addition to the adversarial means to defend human rights, international human rights treaty bodies provide treaty-based complaints procedures, not only for inter-state communications but also for individuals. It is an important means to monitor and ensure compliance of states parties with their treaty obligations and to provide international remedies to individuals in cases of violation.178 Overall, individual complaints procedures in the human rights law equip individuals with a unique opportunity to seek quasijudicial remedies at the international level.179 Individual cases are also often supported by NGOs and human rights lawyers based on various organisational strategic objectives.180 Under the jurisprudence of UN human rights treaty bodies, the trend of establishing FPIC as a procedural human rights requirement of IPLCs in connection with their substantive human rights to lands, natural resources and culture is also present in cases including Länsman et al. v Finland,181 Jouni E. Länsman et al. v Finland182 and Poma Poma v Peru.183 From a normative perspective, when the communication contains ABS-related rights and obligations, for instance, states’ obligations to consult and obtain FPIC, 176

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Case of the Saramaka People v Suriname [28 November 2007] (Inter-American Court of Human Rights) IACHR Series C no 172 para 129. 173 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya [2010] (African Commission on Human and Peoples’ Rights) 276/2003 294. 174 Case of Kaliña and Lokono Peoples v Suriname [25 November 2015] (Inter-American Court of Human Rights) IACHR Series C no 309 34. 175 ibid paras 171–181.

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Case of Lagos del Campo v Peru [31 August 2017] (Inter-American Court of Human Rights) IACHR Series C no 340. 177 Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina [24 November 2020] (IACHR Series C no 420) and Tigre (2021). 178 Bantekas (2013). 179 Schmidt (1992) and Joseph (n 134) 39. 180 Bantekas (n 178) 273. For a case study see Roa and Klugman (2014). 181 Länsman et al. v Finland [26 October 1994] (HRC) UN Doc CCPR/C/52/D/511/1992 (1994). 182 Jouni E. Länsman et al. v Finland [30 October 1996] (HRC) UN Doc CCPR/C/58/D/671/1995 (1996). 183 Poma Poma v Peru [24 April 2009] (HRC) UN Doc CCPR/C/95/D/1457/2006.

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the enforcement of human rights obligations could meanwhile enhance states’ compliance with their obligations as envisaged under the ABS framework. However, human rights treaties bodies are not of automatic competence over individual communications—they can only consider cases where relevant states parties have made the means effective via a declaration or ratifying an optional protocol.184 By 4 December 2022, there are nine human rights treaty bodies which may, under certain conditions, receive and consider complaints or communications from individual.185 In so far as the rights of IPLCs are concerned, there are three most relevant human rights treaty bodies to receive individual communications. These are, the Human Rights Committee (HRC, its Optional Protocol entered into force in 1976 and now has 117 parties),186 which monitors implementation of the ICCPR; the Committee on Economic, Social and Cultural Rights (CESCR, its Optional Protocol entered into force in 2013 and has 26 parties),187 which monitors implementation of the ICESCR; and the Committee on the Elimination of Racial Discrimination (CERD), which may consider individual petitions alleging violations of the Convention by states parties who have made the necessary declaration under Article 14 of the Convention. In reality, it is not always easy for IPLCs to have their cases heard by human rights treaty bodies, which is an issue often vests with standing and admissibility.188 This manifests in the fact that the HRC only allows individuals to claim violations but does not recognise

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standing of a group alleging violation of its collective rights, for instance, the right to selfdetermination.189 The procedural requirement of “exhaustion of domestic remedies” is also an admissibility hurdle as many cases have received an inadmissibility decision due to the failure of the authors to prove that they have exhausted domestic remedies.190 Furthermore, the HRC has provided the notion of “victim” in its previous jurisprudence that individuals and groups need to prove that their rights have been directly affected in order to make their cases admissible.191 Only in exceptional circumstances, the case would also be admissible if the applicants can prove that the violation is reasonably foreseeable or imminent.192 These difficulties echo the data of the operational history of the CESCR: to date it has received 90 individual communications, in which 22 of them are concluded with an inadmissibility decision.193 Nevertheless, the case laws under the regional human rights courts and UN treaty bodies reveals a unique possibility of adjudicating ABS claims, such as PIC and benefit-sharing, that are based on specific human rights of IPLCs before human rights courts and tribunals. It also affirms the positive duties of states to safeguard IPLCs’ participation in the process of projects that might affect their rights and to provide remedies when there is a violation. Thus, the identified course of incorporating ABS into human rights upholds a mutually supportive understanding of the Nagoya Protocol and human rights, which could enhance the relevance and enforceability of ABS rules at both international and domestic levels. The significant judicial practice of the Inter189

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Bantekas (n 178) 201. 185 These include, CCPR, CERD, CAT, CEDAW, CRPD, CED, CMW, CESCR and CRC, see OHCHR, ‘Individual Communications’ https://www.ohchr.org/en/ treaty-bodies/complaints-about-human-rights-violations accessed 10/11/2022. 186 See UNTC (1966). 187 See UNTC (2008). 188 The common steps of the compliance procedures concern admissibility, merits, decision, remedies and implementation.

For a detailed discussion, see Sect. 3.1 of chapter two. See also, Tyagi (2011). 190 Bantekas (n 178) 275. 191 See Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v Mauritius [09 April 1981] (HRC) UN Doc CCPR/C/12/D/35/1978 para 9.1 and B. d. B. et al. v The Netherlands [30 March 1989] (HRC) UN Doc A/44/40 para 6.6. 192 Toonen v Australia [31 March 1994] (HRC) UN Doc CCPR/C/50/D/488/1992 para 5.1. 193 Statistic at OHCHR, ‘Jurisprudence’ https://juris. ohchr.org/Search/Results accessed 14/11/2022.

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American Court in cross-referencing the CBD and the Nagoya Protocol also demonstrates the value of mutual supportiveness and opens the ground for cross-fertilisation between international biodiversity law and human rights law. This legal development has important implications for empowering IPLCs because it acknowledges the intrinsic relationship between IPLCs’ fundamental human rights to lands, natural resources and culture vis-à-vis their procedural ABS rights recognised by environmental treaties. To revisit the design of the indirect trigger of the compliance mechanism under the Nagoya Protocol in light of human rights, we could find that it reaffirms and reinforces IPLCs’ right of access to justice. This unprecedented chance may contribute to addressing the persisting power asymmetries between sovereign states and IPLCs as it provides an alternative to the adversarial means of human rights mechanisms. Specifically, as the ABS procedures allow directedly affected IPLCs to submit information and do not limit this entitlement to individuals, it may alleviate the individualistic limitation of human rights law in the sense that IPLCs as a group do not have legal standing to bring complains before any of the above-mentioned international judicial and quasi-judicial organs. Furthermore, as the IPLCs do not have to be established as “victims” as such in order to provide information, the compliance mechanism of the Nagoya Protocol might be more accessible than the procedures of human rights. Overall, it is a small but important step forward towards the empowerment of IPLCs in the enforcement process of international norms.

5.5.1.4 Access to Justice at the Domestic Level As demonstrated, the international standards have set forth that the right of access to justice before competent national tribunals is an essential element of human rights law. The domestic realisation of access to justice also functions as a prerequisite for international proceedings, as one must exhaust domestic remedy to make the case admissible before an international human rights

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tribunal.194 State parties to human rights treaties play a vital role in this context, as the domestic implementation of their international commitments determines the function and the effectiveness of not only the administration of justice and the delivery of remedies, but also the general respect for human rights of all persons within their jurisdictions.195 The extent to which states have integrated the internationally agreed norms on access to justice into their domestic systems varies greatly among states.196 For this reason, doubts and criticism about the factual justiciability of human rights at the domestic level and the role of domestic judges and legislators in protecting human rights have never ceased in scholarly discourse.197 Generally speaking, the international human rights frameworks seem to have the greatest impact where treaty norms have been internalised in the domestic contexts, and lead to comparably better results when the incorporation is through domestic law-making processes but not norm enforcement mechanisms (such as individual complaints).198 In practice, the right of access to justice may be satisfied by proceedings either before a judicial body or an administrative one, on the basis that the administrative remedies prove to be adequate for the redress.199 For the “poorest and the most disadvantaged and marginalised”, such proceedings also need to be inclusive and equitable.200 However, as have been demonstrated by various empirical studies, having an institutional and legislative framework in place is only one 194

Shelton (2015) 91. Trindade (n 142) 54. 196 For different judicial interpretation and implementation of access to justice, see generally Shelton (n 194) 96– 100. 197 See, e.g., Diver and Miller (2016). 198 Heyns and Viljoen (2002). 199 CESCR, ‘CESCR General Comment No. 16’ (2005) UN Doc E/C.12/2005/4 para 38; and CESCR, ‘CESCR General Comment No.17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author’ (12 January 2006) UN Doc E/C.12/GC/17 para 18. 200 UNGA, ‘Extreme Poverty and Human Rights’ (9 August 2012) UN Doc A/67/278 paras 5–16. 195

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link in the long-term and multi-faceted process of the legal empowerment agenda.201 Groups that are vulnerable and disadvantaged in society, such as IPLCs, often need more than legal assistance and facilitation in terms of realising their right of access to justice.202 Crucial considerations also include, for instance, how to improve the awareness of IPLCs in terms of their rights and the procedures for securing them, how to provide adequate and accessible information of access to justice and how to “creatively” use international and domestic legal tools that are available in order to achieve the best results.203 Looking at the Nagoya Protocol, the process of transposing its ABS rules into domestic contexts has resulted in numerous national ABS legislations and policies. As discussed, many EU countries such as the Netherlands, France and Germany, have incorporated ABS compliance rules into their national civil and criminal laws, making the norms of the Nagoya Protocol domestically judiciable and enforceable. Indeed, in February 2019, a court in the Netherlands has ruled that the Dutch patents for processing Teff, an ancient Ethiopian grain, are null and void because it has failed to comply with the ABS requirements of EU Regulation 511/2014.204 While the judicial record on this subject is scarce, many cases of administrative remedies do exist. Take India for example: since it enacted its Biological Diversity Act in 2002205 and the Traditional Knowledge Digital Library (TKDL) 201

See Golub (2010) and UNGA (n 200) para 24. Sepúlveda and Donald (2015). 203 At the domestic level, institutional arrangements like national courts, ombudsperson (Human Rights Commissioners), state-appointed human rights defenders safeguard the realisation of human rights. See discussions in Cotula and Mathieu (2008). 204 Information available at Rechtbank Den Haag, ‘Uitspraken’ (Rechtbank Den Haag, 07/12/2018) https:// uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL: RBDHA:2018:13960 accessed 08/05/2019. Background information on Teff case see Andersen and Winge (2012). 205 The 2002 Act is complemented by a serious of other legislation, including Biological Diversity Act [2002] (IN) and Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations [2014] (IN), see CBD (2022). 202

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in 2001, about 270 patent applications filed by pharmaceutical companies from all over the world have either been set aside, withdrawn, amended or revoked by pre-grant oppositions submitted to various International Patent Offices along with prior-art evidences from TKDL.206 Two hundred and twenty IRCC have been issued by India and published on the ABSCH, supporting disclosure requirements and the transparency of information.207 Other examples include a case in which a French research institution, after being accused of biopiracy against IPLCs in French Guiana, agreed to share patent benefits and negotiate ABS terms with the concerned IPLCs in 2016.208 The impact of these developments on social and business behaviours is significant. For instance, in 2018, the Leibniz DSMZ in Germany—one of the largest biological resources collections in the world— became the first institution with its collections fully reviewed and examined in order to be in compliance with the due diligence requirements of the EU Regulation No 511/2014 and the Nagoya Protocol.209 Nevertheless, in countries where no legal basis for ABS-related claims exists, it is unlikely that the Nagoya Protocol could be enforced via national laws or tribunals. Even in countries where ABS laws have been adopted, the lack of elaborated administrative proceedings may also hinder the realisation of the ABS objectives and disable the practice of access to justice whenever needed.210 Yet, from a human rights perspective, the possibility to make human rights-based ABS claims admissible for domestic remedies is still

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Similar outcome is expected in about 1200 more cases, see CSIR and AYUSH, ‘Traditional Knowledge Digital Library’ (TKDL) http://www.tkdl.res.in/tkdl/langdefault/ common/Home.asp?GL=Eng accessed 09/04/2022. 207 In formation available at CBD, ‘Country Profiles: India’ (n 205). 208 See Pain (2016). 209 See DSMZ (2017). 210 Vogel and Kessler (2000). A more specific example is China, where a number of national laws have included ABS requirements but implementing them faces great difficulty due to the lack of administrative procedures and clarity. See Zheng (2019).

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on the table.211 This approach has proved effective for various environmental claims under regional human rights jurisdictions, for instance, the European and the Inter-America systems.212 Importantly, the previously discussed Saramaka and Kaliña and Lokono cases show specifically how the procedural ABS requirements are part and parcel of states’ responsibility in fulfilling their human rights obligations with respect to IPLCs. Based on the principles of systemic integration and mutual supportiveness, this implies that the obligations of the parties imposed by the Nagoya Protocol to take effective measures to ensure IPLCs’ right to access to justice and their opportunities to seek recourse under their legal systems, needs to be interpreted and implemented in light of international human rights standards. The strength of a human rightsbased approach is that the human rights standards can minimise the risk of subjecting IPLCs’ ABS rights to contractual agreements if such rights are deemed inseparable from fundamental human rights to lands, natural resources, and culture. Notably, even in the sphere of private law that governs purely contractual matters, the trend of domestic judges actively embedding more fundamental human rights protections, particularly in Europe, is accelerating.213

5.5.1.5 Implications From the vantage point of the right of access to justice, the strength and limitations of the compliance mechanism and measures of the Nagoya Protocol can be appreciated in more nuanced and holistic manner. The human rights perspective acknowledges the substantive connection between IPLCs’ ABS rights and their fundamental human rights relating to lands, natural resources, and culture. This perspective therefore enunciates that the state must have adequate mechanisms to implement ABS requirements as a means of guaranteeing the respect for human 211

For an in-depth study on the role domestic courts in implementing norms of international environmental treaties, see Anderson and Galizzi (2002). 212 Boyle (2015). 213 Cippitani (2015).

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rights. Indeed, it has been shown that international biodiversity law and human rights law are all part of a legal system with growing interactions and complications. They are by no means separate: not in the law-making process, nor in the judicial or administrative application process at both international and national levels. To read the Nagoya Protocol in line with the principle of mutual supportiveness, state parties are obliged to develop legislative and administrative means to effectively facilitate IPLCs’ right of access to justice to courts, tribunals and nonjudicial remedies justice at both international and domestic levels and cooperate in good faith in cases of disputes and alleged violations. Furthermore, the principle of mutual supportiveness also requires that the ongoing and future lawmaking process under the ABS framework take into consideration of relevant human rights law. This has already been reflected in the recent “soft” law-making by the CBD COP through the adoption of a number of voluntary guidelines.214 Significant emphasis has been put on incorporating the human rights standards of IPLCs into the best practice of implementing the ABS provisions for CBD parties. For instance, the 2016 Mo’otz Kuxtal Voluntary Guidelines have provided detail guidance on how to tailor the national PIC system in order to best accommodate IPLCs’ needs and involve IPLCs in the decision-making and consent-granting process to a fuller extent.215 Admittedly, soft instruments 214

In scholarly discussion, it is increasingly accepted that soft instruments can generate a wide-ranging consensus on legal standards and contribute to the corpus of international law; see Boyle (2014). 215 CBD COP Decision XIII/18, ‘Mo’otz Kuxtal Voluntary Guidelines for the Development of Mechanisms, Legislation or other Appropriate Initiatives to Ensure the “Prior and Informed Consent”, “Free, Prior and Informed Consent” or “Approval and Involvement”, depending on National Circumstances, of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits arising from the Use of their Knowledge, Innovations and Practices relevant for the Conservation and Sustainable use of Biological Diversity, and for Reporting and Preventing Unlawful Appropriation of Traditional Knowledge’ (17 December 2016) UN Doc CBD/COP/DEC/ XIII/18 para 17.

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are not binding upon state parties. But their influence should not be underestimated in terms of enhancing the general compliance with the Nagoya Protocol. A closer examination of the salient issue of compliance reveals unprecedented opportunities and challenges for IPLCs posed by the Nagoya Protocol. The fact that IPLCs could participate in the international compliance procedures of environmental treaties, which were traditionally designed for state parties only, counterbalances the state-centric approach to biodiversity conservation and ABS. It also brings attention to the collective dimension of the rights of IPLCs, which has been insufficiently addressed by human rights mechanisms in the context of environmental issues that affect IPLCs as a whole.216 As discussed, a complementary use of available platforms of the Nagoya Protocol and human rights could empower IPLCs in realising their right of access to justice through different approaches in pursuit of a just and effective solution, when there is a dispute. Admittedly, the compliance mechanism and measures of the Nagoya Protocol fall short of providing protection to IPLCs’ rights that do not concern genetic resources or associated traditional knowledge. There are also gaps where the compliance mechanism of the Nagoya Protocol might pose risks of excluding IPLCs in the compliance process due to its own structural problems and interpretative ambiguities. At the domestic level, the accelerated process of national implementation of the ABS rules provides legal grounds for IPLCs to defend for their ABS rights through different legal and administrative proceedings in various national contexts. The emergence and implementation of administrative measures and bottom-up initiatives also contribute to the realisation of ABS objectives, such as state-facilitated registration of traditional knowledge in India and the businessoriented nongovernmental initiatives of the

Francioni, ‘International Human Rights in an Environmental Horizon’ (n 161) 42.

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UEBT. To this end, measures to empower IPLCs in the compliance process of the Nagoya Protocol can and have to be diverse. Essentially, they need to enhance the capacity and ability of IPLCs to use the legal systems, services, and tools to protect and advance their rights and interests. In general, they also need to improve the inclusivity and effectiveness of the administrative constructions in promoting IPLCs’ participation in the society’s decision-making process. A human rights-based approach to the compliance issue of the Nagoya Protocol renders a specific emphasis on IPLCs’ right to access to justice, which is essential for the realisation of their other fundamental rights pertaining to genetic resources and traditional knowledge. Notably, the legalistic nature of the human rights mechanism upholds IPLCs’ claims and interests in terms of rights, which transfers to stricter requirements for states in fulfilling their obligations vis-à-vis the compliance mechanism of multilateral environmental agreements. Furthermore, in situations where no applicable ABS rules exist, the human rights mechanism can provide remedies to redress harms suffered by IPLCs. In theory, such judicial protection envisages stronger legal enforcement, although this approach may be inadequate in facilitating the participation of IPLCs in the political decisionmaking process and it provides redress only when the violation has already taken place. In practice, we have seen the demonstration of a mutually supportive interpretation and application of the Nagoya Protocol and human rights by the Inter-American Court of Human Rights. Hopefully this development could contribute to strengthening the intrinsic connection between substantive human rights and ABS rights of IPLCs, and eventually bringing about a change in attitude by legislators, courts, policymakers, and all other stakeholders in interpreting and implementing the compliance mechanism of the Nagoya Protocol.

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5.5.2 Compliance with States’ Responsibilities from an Inter-state Perspective 5.5.2.1 Different Approaches to Compliance: From “Wrongful Act” to “NonCompliance” With respect to the Nagoya Protocol, the established compliance mechanisms and measures as well as its inclusion of the dispute settlement mechanism based on the provisions in the CBD demonstrate that both managerial approaches and enforcement-oriented approaches are in place, offering different options for state parties to solve disputes and/or issues of non-compliance. The following paragraphs demonstrate that this double-track design can be observed in human rights law as well, from where an intra-state perspective could be articulated to indicate the possibility of a mutually supportive understanding of the state responsibilities under the Nagoya Protocol and international human rights law. Legal scholars including Risse-Kappen, Ropp and others have observed a significant change over the past decade in the process by which states and non-state actors comply with their human rights commitments and the ways in which they are held accountable—from the speaking of “wrongful act” to “situations of noncompliance”.217 This is based on the observation of a wealth of innovative legal or quasi-legal mechanisms that have been developed and utilised to promote compliance of international human rights laws in addition to traditional judicial enforcement. For instance, after the establishment of the UN Human Rights Council in 2006, a Universal Periodic Review (UPR) mechanism was constructed as an essential element of the institution-building package and soon put into function.218 It is undoubtedly 217

Risse-Kappen and Ropp (2013). UPR was proposed as one of the key elements of the institution-building package in 2007, see Human Rights Council, ‘Institution-building of the United Nations Human Rights Council’ (18 June 2007) UN Doc A/HRC/RES/5/1 anx. And the mechanism was further

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the broadest review mechanism under the UN system as it covers the human rights records of all UN member states with an aim at improving “human rights situation in all countries and address human rights violations wherever they occur”. However, no specific enforcement measures are in place if a state does not cooperate with the UPR: it would only be “called upon” to cooperate and the President of the Human Right Council is requested to “take all appropriate steps and measures” to urge the state concerned to resume cooperation, “in accordance with his mandate”.219 Similar reporting obligations also exist under the UN human rights treaty bodies. Specifically, states parties are obliged to report periodically under the nine core international human rights treaties and two optional protocols220—a obligation commonly referred to as the “reporting periodicity” and the issue of reporting compliance by states parties has been made a standing item on the agenda of the annual meetings of the human rights treaty bodies since 2013.221 Late and non-reporting state parties are named and their information are made public on

refined during the review process through instruments including Human Rights Council, ‘Review of the Work and Functioning of the Human Rights Council’ (12 April 2011) UN Doc A/HRC/RES/16/21 and Human Rights Council, ‘Follow-up to the Human Rights Council Resolution 16/21 with regard to the Universal Periodic Review’ (19 July 2011) UN Doc A/HRC/DEC/17/119. 219 Human Rights Council, ‘Report of the Human Rights Council on its Seventh Organizational Meeting*’ (4 April 2013) UN Doc A/HRC/OM/7/1 2. 220 These include ICERD (1965), ICCPR (1966), ICESCR (1966), CEADW(1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989), Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000), Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Convention on the Rights of Persons with Disabilities (2006) and International Convention for the Protection of All Persons from Enforced Disappearance (2006). 221 UNGA, ‘Implementation of Human Rights Instruments’ (19 August 2013) UN Doc A/68/334 para 47.

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the UN website since 2015.222 However, according to the 2022 compliance report issued by the UN human rights treaty bodies, only about 16 percent of states parties had no overdue reports under the relevant international human rights treaties and protocols in 2021, which is an average performance if compared to previous years.223 In other words, the vast majority of state parties to human rights treaties had not fulfilled their reporting obligation. This raises concerns about the practical efficiency of such mechanisms. Furthermore, there is an emerging social approach that aims at creating an accommodating and enabling environment for the realisation of human rights, for instance, human rights capacity-building projects promoted through UN and other public organisations.224 Overall, both state parties and human rights judicial bodies are increasingly assigned with the role to monitor each other’s behaviour for the ordre public and to raise issues of invalidity before the actual dispute takes place.225 Thus, a shared course by which multilateral treaty obligations are respected—a nonadversarial mechanism that aims at facilitation rather than enforcement—can be observed under the Nagoya Protocol and human rights law. This course is underlined by similar rationale that the implementation of MEAs and human rights could be better supported via facilitative compliance procedures. The specific ways in which international human rights law to address compliance challenges, such as facilitating the participation of civil society organisations to provide specific input, and engaging independent 222 UNGA, ‘Implementation of Human Rights Instruments’ (7 August 2015) UN Doc A/70/302 para 93. 223 The percentages of states parties had no overdue reports under the relevant international human rights treaties and protocols from 2015 to 2021 are respectively: 15, 13, 18, 17, 19, 18, 16. See, ‘Compliance Report for the Thirty-fourth meeting of Chairs of the human rights treaty bodies’ (2022) https://tbinternet.ohchr.org/_layouts/ 15/treatybodyexternal/SessionDetails1.aspx?SessionID= 2586&Lang=en accessed 10/12/2022. 224 This dimension is more social than legal, based on the recognition of the limits of statehood. See Jinks and Goodman (2013). 225 Mégret (n 27) 92.

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biodiversity experts to assess implementation, may also provide lessons to improving the compliance of the Nagoya Protocol and the CBD.226 In addition to concerns about their factual efficiency, there are also worries that this trend might harm the vigour of international law, dilute its normative force227 or go all the way to its worst—it might not work after all.228 Whereas these worries have certain truth and legitimacy in their own accounts, we should perhaps also bear in mind that the extent to which international human rights laws and MEAs are complied with, does not only depend on states’ commitment and willingness, but also their institutional capacity.229 Therefore, although soft compliance mechanisms may be far from satisfying, their contribution to the overall objectives of the MEAs and human rights through negotiation and facilitation instead of dispute settlements or judicial remedies is still significant. In the main, such mechanisms could accommodate and address diverse interests and varying institutional capacities among states and foster a level playing field. It would also enable a more proactive environment to encourage compliance and to prevent non-compliance before the damage really occurs.230 As demonstrated by the party-self trigger of a non-compliance issue under the Nagoya Protocol, sometimes non-compliance is not an intentional wrongful act, but a situation which requires international assistance and cooperation.

5.5.2.2 Inter-state Procedures in International Human Rights Law The inter-state procedures to complain about human rights violations before international and regional human rights courts and tribunals is an essential element of compliance of international human rights law. This possibility is envisaged by various human rights treaties and regional 226 227 228 229 230

Koh et al. (2022). Weill (1983). Koskenniemi (2001). Risse-Kappen and Ropp (n 217) 4. Klabbers (n 52)1003.

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human rights conventions, available for a state to bring another state before certain UN treaties bodies, and/or human rights courts. In addition, ICJ has also delivered several decisions in relation to violation of human rights and international humanitarian law. To date, inter-state complaint procedures have not been used much and remains an unpopular choice for states on the international plane. Under regional human rights courts, there are currently 16 completed inter-state cases under the ECHR while 16 inter-state cases remain pending.231 In comparison, the Inter-American Court and the African Court are much less used in practice. In the Inter-American context, Article 45 of the ACHR envisages the competence of the Inter-American Commission on Human Rights to receive and examine inter-state communication about a violation of a right set forth in the ACHR.232 However, unlike the ECHR, this type of communications may only be admitted if both state parties have made a declaration recognising the competence of the Inter-American Commission.233 At the time of writing, there are only two inter-state communications in this respect. The first was a communication in 2006 between Nicaragua and Costa Rica concerning a breach of the rights of Nicaraguan immigrants in Costa Rica234 and the second was filed by Ecuador against Colombia in 2009 in relation to a military operation conducted by the Colombian army which resulted in extra-judicial killing of an Ecuadorian citizen.235 While the former case was rendered inadmissible, the second dispute eventually reached an amicable settlement between the states concerned. The African Charter also 231

See ECHR (2022). The Inter-American Commission on Human Rights is an organ of the Organization of the American States (OAS), created to promote the observance and defence of human rights and to serve as consultative organ of the OAS. See Pact of San José Article 45(1). 233 ibid Article 45(2). 234 Inadmissibility Report N° 11/07 Nicaragua v Costa Rica [8 March 2007] (Inter-American Commission on Human Rights) Interstate Petition 01/06. 235 Report No. 96/13 Ecuador v Colombia [4 November 2013] (Inter-American Commission on Human Rights) Interstate Petition 12.779. 232

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sets out the possibility of inter-state communications under via Articles 47–59. This process may be triggered by written communication from a state party to another state party, or directly to the African Commission.236 In cases of “a series of serious or massive violations of human and peoples’ rights”, the African Commission may, as requested by the Assembly of Heads of State and Government, “undertake an in-depth study of these cases and make a factual report, accompanied by its finding and recommendations”.237 There have been only three instances of inter-state communication so far to the African Commission.238 With respect to the African Court on Human and Peoples’ Rights, it was created by a protocol to the Charter in 1998, which came into effect on 25 January 2005.239 So far, only 33 African states have ratified the Protocol thus have access to the Court, but this procedure has not been used for an inter-state dispute at the time of writing. It must be noted that among the 33 states, only six states now recognise the competence of the Court to allow petitions from individuals or NGOs.240 With a diminishing level of states’ recognition, it has been worried that whether the African Court could still be considered as a truly Pan-African mechanism or not.241 Under the UN system, it was until 2018 when the CERD received two inter-state communications submitted by Qatar respectively against the 236

African Charter on Human and Peoples’ Rights [adopted 27 June 1981, entered into force 21 October 1986] 1520 UNTS 217 Articles 47–49. 237 ibid Article 58. 238 These include in 1999 the Democratic Republic of the Congo sent a communication in relation to Burundi, Rwanda and Uganda; in 2013, Sudan sent a communication relating to South Sudan and in 2019, Djibouti sent a communication regarding Eritrea. See Reilly and Trout (2021). 239 Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights [adopted 10 June 10 1998, entered into force January 25, 2004] Organization of African Unity (OAU). 240 Rwanda withdrew its Additional Declaration in 2016, followed by Tanzania, Benin, and Cote D’Ivoire further withdrew their Additional Declaration in 2019. 241 Sandner (2020).

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Kingdom of Saudi Arabia and the United Arab Emirates—the very first inter-state communications in history even though these mechanisms having been envisaged by the UN human rights treaties for decades. In the same year, the State of Palestine also submitted an interstate communication to the Committee against Israel under the CERD. While the CERD have established jurisdictions for all three communications, the two communications filed by Qatar have been terminated because of the consensus of all concerned states and the latter case is now being considered by the ad hoc Conciliation Commission.242 As the principal judicial organ of the UN system,243 ICJ has been requested to decide on a number of cases concerning violations of human rights as well as humanitarian law, including, inter alia, the right to self-determination, racial discrimination, human rights in armed conflict, grave breaches of the Geneva Conventions, torture and genocide, among others.244 This growing jurisprudence reflects the significant role of ICJ in promoting the principle of human rights as enshrined in the UN Charter and in developing the international human rights law in the context of general international law.245 This role has several implications for the current research. The first is about the matter of jurisdiction of ICJ founded on the common interests of state parties. As discussed in the previous Sect. 5.1.2, the ICJ has affirmed the concept of collective interest embedded in multilateral treaties with a humanitarian purpose, for instance, the Genocide Convention. The timeliest example is the ICJ Judgement delivered on 22 July 2022, in which the ICJ upheld its jurisdiction in the See OHCHR, ‘Inter-state communications: Committee on the Elimination of Racial Discrimination’ https:// www.ohchr.org/en/treaty-bodies/cerd/inter-statecommunications accessed. 243 Charter of the United Nations [signed 26 June 1945] 1 UNTS XVI, art 92. 244 Cases include, for instance, Also see Higgins (2007). 245 As observed by the former ICJ Judge Bruno Simma, “human rights genie has escaped from the bottle” with an increasing impact on the jurisprudence of the ICJ in recent years, see Simma (2012). Also see Gowlland-Debbas (2015). 242

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case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).246 This case was filed by Gambia in 2019, arguing that Myanmar had violated the Genocide Convention through its treatment of members of the Rohingya group in Myanmar’s Rakhine State.247 A central question about the case’s admissibility is whether Gambia is entitled to invoke Myanmar’s state responsibility for Myanmar’s breach of the obligations under the Genocide Convention. In its Judgement, the ICJ explicitly provides that “all the States parties to the Genocide Convention…have a common interest to ensure the prevention, suppression and punishment of genocide…such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case”.248 Thus, in light of the collective nature of human rights obligations, any state may have legal standing to bring proceedings before the ICJ in cases of violation of erga omnes human rights on the ground that the obligations are owed to the international community as a whole. They may also bring proceedings concerning erga omnes partes obligations on the ground that the obligations are owed to the group of states committed to the same multilateral treaty. To this end, certain environmental concerns such as climate change and biodiversity conservation may also be establishment as erga omnes partes obligations given their multilateral treaty contexts. It follows that any state would have standing to institute proceedings against another state party before the ICJ if no reservation has been made by the parties concerned. This opens 246

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Preliminary Objections) [22 July 2022] (ICJ) General List No. 178. 247 See, UN News (2017) and ICJ (2022) https://www. icj-cij.org/en/case/178 accessed 10/07/2022. 248 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Preliminary Objections) (n 246) paras 106–107.

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the ground to consider inter-state procedures before ICJ about serious and multilateral environmental issues, including the potential erga omnes partes obligations as envisaged by the Nagoya Protocol (Sect. 5.1.2). However, this prospect is also worried by both states and ICJ judges that it might encourage more reservations to the ICJ’s jurisdiction as well as “vague and insubstantial allegations”.249 The second is about the clarification on the source and content of international human rights norms, especially those with respect to Indigenous Peoples.250 Specifically, the issue of Indigenous Peoples’ right to self-determination is taken up by the ICJ via cases including the Namibia case in 1970, the Western Sahara case in 1975, the East Timor case in 1995, and the Israeli Wall case in 2004. In the advisory opinion on the Namibia case in 1970, the ICJ asserted the applicability of self-determination as a principle enshrined in the UN Charter to all peoples in colonial situations.251 This position has been confirmed by Judge Dillard in the Western Sahara case in 1975,252 where the ICJ formally acknowledged the existence of the Indigenous notion of land rights that is based on a nonEuropean conception of title as generative of “legal ties” between the Mauritanian entity and the territory of Western Sahara.253 However, since no actual legal effect was given to the Indigenous notion of land rights as opposed to the title derived from a European colonial claim, this case has been regretted as a lost opportunity for empowering Indigenous form of political organisations.254 In a more recent case 249

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Dissenting Opinion of Judge Xue) [22 July 2022] (ICJ) para 39. 250 Gowlland-Debbas (n 245) 118. 251 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [21 June 1971] (ICJ) Rep 16 31. Also see McCorquodale (1994). 252 Western Sahara (Advisory Opinion) [16 October 1975] (ICJ) Rep 12. The Court heard this case at the request of the UN General Assembly. 253 Ibid 40.

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concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the Israeli Wall case) in 2004, the ICJ reaffirmed that “the right of peoples to selfdetermination is today a right erga omnes”, citing the UN Charter and the Human Rights Covenants.255 It concluded that the wall construction, along with measures taken previously, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right”.256 Consequently, the ICJ reckoned that Israel is bound to comply with its obligation to respect the right of the Palestinian people to selfdetermination and its obligations under international humanitarian law and international human rights law.257 This brief appraisal manifests the ongoing engagement of the ICJ in some of the most contentious human rights issues as it clarifies the relationship between human rights and other areas of international law.258 This increasing jurisprudence may contribute to the interpretation of many fundamental human rights norms with an evolving nature, demonstrating the central role and capacity of the ICJ in “mainstreaming” human rights in the international law today.259 To this end, we could also hope that this trend may eventually lead to the recognition of the indivisible relationship between the realisation of IPLCs’ human rights of self-determination, development, culture, property, and non-discrimination, many of which are also fundamentally dependant on a healthy and sustainable environment.

5.5.2.3 Implications From an inter-state perspective, the issue of compliance concerns different approaches to invoke state responsibility for wrongful acts 254

Michael Reisman (1995). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [9 July 2004] (ICJ) Rep 136 paras 87 and 88. 256 ibid paras 115–122. 257 ibid paras 149–154. 258 See, Rehman (2003); Omar (2008). 259 It is in the words of Bruno Simma, see Simma (n 245) 7. Also Morgan (2011). 255

References

and/or compliance measures to address noncompliance. As discussed, regardless its many deficiencies, the non-adversarial approach that aims at facilitating compliance has become the primary mechanism to promote compliance under the Nagoya Protocol. Similar course to uphold multilateral treaty obligations by compliance measures in human rights can also be observed in the UN system. This trend demonstrates the value added of the compliance mechanisms in strengthening the institutional capacity and political willingness in achieving the overall objectives of the MEAs and human rights. The shared rationale is that it is perhaps more efficient to prevent violation of rights and address tensions and risks of non-compliance via facilitating states to comply with their international obligations rather than speaking of wrongful act and relying on the traditional reactive approach and judicial enforcement. This development might be an inevitable innovation of international law due to the nature and purpose of environmental protection and human rights.260 More importantly, it requires continuous efforts from all stakeholders to evaluate the performance of these mechanisms and measures so that the innovative methods of implementation and compliance can accurately reflect the issues of non-compliance and support the interconnected objectives of both MEAs and human rights. Traditional methods for invoking state responsibility, nevertheless, remain possible in theory. As discussed, a broader interest in treaty compliance is evident under the international ABS framework and that obligations relating directly to biodiversity conservation and protection of IPLCs’ rights under the Nagoya Protocol could be constructed as obligations that are binding erga omnes partes. This may be compared to the many human rights norms that are established for the collective interests and therefore rendered jurisdiction under the ICJ. Even though confrontational means have not been

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sought for regarding inter-state disputes about biodiversity-related issues, the analysis about inter-state procedures in international human rights law has demonstrated the possibility of this approach. On the one hand, it could strengthen the normative ground of inter-state ABS claims if they are based on the collective interests of the international community or even inter-linked with states’ human rights obligations towards IPLCs. Arguably, this could increase state parties’ political will to comply with the Nagoya Protocol. However, on the other hand, as cautioned by Judge Xue Hanqin in her dissenting opinion in The Gambia v. Myanmar case, it may also encourage more reservations to the ICJ’s jurisdiction as well as “vague and insubstantial allegations”.261

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154 McCorquodale R (1994) Self-determination: a human rights approach. Int Comp Law Q 43:858 Mégret F (2018) Nature of obligations. In: Moeckli D et al. (eds) International human rights law, 3rd edn. Oxford University Press, p 86 Melendez-Ortiz R, Roffe P, Roffe P (eds) (2009) Intellectual property and sustainable development: development agendas in a changing world. Edward Elgar Michael Reisman W (1995) Protecting indigenous rights in international adjudication. Am J Int Law 89(2):354 Morgan R (2011) Transforming law and institution: indigenous peoples, the united nations and human rights. Ashgate, p 117 Morgera E, Tsioumani E, Buck M (2014) Unraveling the nagoya protocol: a commentary on the nagoya protocol on access and benefit-sharing to the convention on biological diversity. Brill, p 251 Morgera E (2015) Benefit-sharing as a bridge between the environmental and human rights accountability of multinational corporations. In: Boer B (ed) Environmental law dimensions of human rights. Oxford University Press, p 38 Nègre C (2010) Responsibility and international environmental law. In: Crawford J, Pellet A, Olleson S (eds) The law of international responsibility. Oxford University Press, pp 808–809 Neumann D et al. (2018) Global biodiversity research tied up by juridical interpretations of access and benefit sharing. Organ Diversity Evol 18(1):6 Nijar GS (2011) The nagoya protocol on access and benefit sharing of genetic resources: analysis and implementation options for developing countries, p 5 Oliva MJ (2011) Sharing the benefits of biodiversity: a new international protocol and its implications for research and development. Planta Medica 77:1221 Omar SM (2008) The right to self-determination and the indigenous people of Western Sahara. Cambridge Rev Int Affairs 21(1):47 Pain E (2016) French institute agrees to share patent benefits after biopiracy accusations. http://www. sciencemag.org/news/2016/02/french-institute-agreesshare-patent-benefits-after-biopiracy-accusations. Accessed 06 Aug 2022 Pateiro LM (2020) Advances and uncertainties in compliance measures for users from the nagoya protocol in the european union. Rev Eur Comp Int Environ Law 5 Pauwelyn J (2003) A typology of multilateral treaty obligations: are WTO obligations bilateral or collective in nature? Eur J Int Law 14(5):907 Phillips FK (2016) Intellectual property rights in traditional knowledge: enabler of sustainable development. Utrecht J Int Eur Law 32(83):1 Rabitz F (2015) Biopiracy after the nagoya protocol: problem structure, regime design and implementation challenges. Braz Polit Sci Rev 9(2):48 Redgwell C (2007) Access to environmental justice. In: Francioni F (ed) Access to justice as a human right. Oxford University Press, p 153 Rehman J (2003) International human rights law: a practical approach. Longman, p 46

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Reilly R, Trout H (2021) Inter-state complaints in international human rights law. British Institute of International and Comparative Law, p 20 Risse-Kappen T, Ropp SC (2013) Introduction and overview. In: Risse-Kappen T et al. (eds) The persistent power of human rights: from commitment to compliance. Cambridge University Press, p 12 Roa M, Klugman B (2014) Considering strategic litigation as an advocacy tool: a case study of the defence of reproductive rights in Colombia. Reprod Health Matters 22(44):31 Sandner P (2020) Will Africa’s human rights court survive? Deutsche Welle Schmidt MG (1992) Individual human rights complaints procedures based on united nations treaties and the need for reform. Int Comp Law Q 41(3):645 Sepúlveda MC, Donald K (2015) Beyond legal empowerment: improving access to justice from the human rights perspective. Int J Human Rights 19(3):244 Shelton D (2015) Remedies in international human rights law, 3rd edn. Oxford University Press, p 91 Simma B (2012) Mainstreaming human rights: the contribution of the international court of justice. J Int Dispute Settlement 3(1):7 Stewart RB (2000) Economic incentives for environmental protection: opportunities and obstacles. In: Revesz RL, Sands P, Stewart RB (eds) Environmental law, the economy and sustainable development. Cambridge University Press, p 171 Tigre MA (2021) Indigenous communities of the Lhaka Honhat (Our Land) association v. Argentina. Am J Int Law 115(4):706 Tobin B (2014) Biopiracy by law: european union draft law threatens indigenous People’s rights over their traditional knowledge and genetic resources. EIPR: Eur Intellect Property Rev 36(2):127 Trindade AAC (2011) The access of individuals to international justice. Oxford University Press, p 211 Trindade AC (2015) Some reflections on the right of access to justice in its wide dimension. In: Wolfrum R, Seršić M, Šošić T (eds) Contemporary developments in international law. Brill Nijhoff, p 464 Tvedt MW, Young TR (2007) Beyond access: exploring implementation of the fair and equitable sharing commitment in the CBD. IUCN, 35 Tyagi Y (2011) The UN human rights committee: practice and procedure. Cambridge University Press, p 401 UN News (2017) UN human rights chief points to ‘textbook example of ethnic cleansing Myanmar. UN. https://news.un.org/en/story/2017/09/564622-unhuman-rights-chief-points-textbook-example-ethniccleansing-myanmar. Accessed 10 July 2022 UEBT (2012) Ethical BioTrade standard. UEBT. https://www.ethicalbiotrade.org/setting-the-standard/. Accessed 16 Nov 2022 UNCTAD (2014) The convention on biological diversity and the nagoya protocol: intellectual property implications—a handbook on the interface between global access and benefit sharing rules and intellectual property. UNCTAD, p 52

References UNDP (2016) Global study on legal aid: global report. United Nations Development Programme and United Nations Office on Drugs and Crime, p 66 UNGA (2001) Report of the international law commission. Supp No. 10 UN Doc A/56/10 319 UNTC (1966) Optional protocol to the international covenant on civil and political rights. https://treaties. un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no= IV-5&chapter=4&clang=_en. Accessed 22 Nov 2022 UNTC (2008) Optional protocol to the international covenant on economic, social and cultural rights. UN Treaty Collection. https://treaties.un.org/pages/ viewdetails.aspx?src=ind&mtdsg_no=iv-3a&chapter=4&lang=en. Accessed 22 Nov 2022 Victor DG, Raustiala K, Skolnikoff EB (eds) The implementation and effectiveness of international environmental commitments : theory and practice. MIT Press, p1 Vogel D, Kessler T (2000) How compliance happens and doesn’t happen domestically. In: Weiss EB, Jacobson HK (eds) Engaging countries: strengthening compliance with international environmental accords. MIT Press, p 22

155 Weill P (1983) Towards relative normativity in international law? Am J Int Law 77(3):440 Weiss EB, Jacobson HK (2000) Assessing the record and designing strategies to engage countries. In: Weiss EB, Jacobson HK (eds) Engaging countries: strengthening compliance with international environmental accords. MIT Press, p 39 Young TR (2013) An international cooperation perspective on the implementation of the nagoya protocol. In: Morgera E, Buck M, Tsioumani E (eds) The 2010 nagoya protocol on access and benefit-sharing in perspective: implications for international law and implementation challenges. Brill Nijhoff, p 491 Zheng X (2019) Key legal challenges and opportunities in the implementation of the nagoya protocol: the case of China. Rev Eur Comp Int Environ Law 28(2):176 Zheng X (2021) Empowering indigenous peoples and local communities: a human rights‐based appraisal of the compliance mechanism of the nagoya protocol. Rev Eur Comp Int Environ Law 30(1):61

Part III Looking Forward

6

The Value Added of Complementarity Thesis and Its Limitations

The CBD and its Nagoya Protocol set to address issues of biodiversity degradation and unfair appropriation of world’s genetic resources and traditional knowledge of unprecedented pace and scale—problems that are collective, intergenerational and cross-cutting. The development of the international ABS framework needs to reflect the interests of the global community as well as the aspirations of the most vulnerable peoples and groups around the world. This requires the application of the true spirit of good faith and inclusiveness in the process of interpreting and implementing ABS rules at international and domestic levels, in which the responsibility and accountability of states, business, and international community is key. ABS issues are often human rights issues when IPLCs are concerned. Genetic resources, traditional knowledge, lands, and natural resources define ways of life and cultural identities of IPLCs that sometimes cannot be reduced to stringent contractual terms and percentages of profits as envisaged by especially monetary benefit-sharing terms. The intrinsic and diverse interconnectedness between IPLCs and nature bring to light features that are embedded in human rights norms and principles, including the selfdetermination, non-discrimination, sustainable development, and access to justice, just to name a few, which are both an integral aspect of the fundamental human rights, and an essential approach for their realisation.

The previous chapters have provided a thorough scrutiny of the Nagoya Protocol and relevant human rights standards with a primary focus on IPLCs. They have articulated the extent to which the human rights of IPLCs may be applicable in the ABS context of the Nagoya Protocol and how these two branches of international law may complement each other in realising their respective objectives, developing what is currently very minimal literature on the exact application of the principle of mutual supportiveness at the interface between international environmental law and human rights law. This chapter elucidates the value added as well as the limitations of the complementarity between the Nagoya Protocol and international human rights law via discussing the key findings in response to the research questions set out in Part I.

6.1

Key Findings

6.1.1 Strengths and Limitations of the Nagoya Protocol in Advancing the Human Rights of IPLCs This issue is dealt with in Part II of this book under the theme of access, benefit-sharing, and compliance respectively. In general, it has been observed that the Nagoya Protocol substantiates a multilateral framework with overarching prin-

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0_6

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ciples and specific procedural requirements to ensure access to genetic resources and associated traditional knowledge are based on IPLCs’ FPIC and that fair and equitable benefit-sharing are negotiated and realised with IPLCs in accordance with their customary rules and community protocols. This objective is based primarily on a comprehensive set of obligations for state parties to ensure inter-state and inter-sate ABS. The implementation of these obligations and the overall effectiveness of the ABS framework are also monitored and evaluated by the compliance mechanism of the Nagoya Protocol, which unprecedentedly includes IPLCs in its international compliance system and provides them with an “indirect trigger” of the compliance procedures through the Compliance Committee. Thus, the Nagoya Protocol is facilitating a normative shift in international environmental law as states commit themselves to ABS principles and undertake legislative and policy duties to transpose ABS rules into their domestic systems. Consequentially, practices of access to and utilisation of IPLCs’ genetic resources and traditional knowledge are subject to specific procedures and substantive requirements, which significantly lifted the legal and practical standards of access and utilisation. Against this background, the Nagoya Protocol contributes to safeguarding IPLC’s rights pertaining to their natural resources and knowledge, as well as to their customary laws and thus cultural integrity. However, as have been discussed throughout the chapters, there persist interpretative ambiguity and practical challenges in applying the Nagoya Protocol at both the international and domestic levels. Legal uncertainty is often a result of different possibilities of interpreting the operative provisions, especially with the frequently used qualifiers such as “as appropriate”, “with the aim of ensuring” and “in accordance with domestic law”. As discussed in the Chapter two, this deliberate flexibility for states’ interpretation and implementation reflects the principle recognised in the CBD and the Nagoya Protocol that states have sovereign rights over

their natural resources thus the authority to determine how their genetic resources may be accessed, what benefit should be shared and under what condition. This approach poses risk of undermining IPLCs’ rights over their genetic resources and traditional knowledge, as it suggests that IPLCs’ rights are subsidiary to domestic recognition. Therefore, the fundamental limitation of the Nagoya Protocol is embedded in its legal design as a multilateral treaty—legal in the sense that it is made by states and functions between states from a positivist understanding of international law. It follows that the ABS rights of IPLCs might be neglected or rejected if they live in countries where there is no applicable ABS rules or no legal recognition of their status as holder of genetic resources and traditional knowledge. The availability and wide margin of state’s discretion in interpreting and implementing the Nagoya Protocol may allow situations where the ABS laws and policies do not cover IPLCs, hence aggravate the persisting power asymmetry among IPLCs, state authorities and multinational corporations.

6.1.2 Interrelationship Between the Nagoya Protocol and Human Rights on States’ Obligations vis-à-vis IPLCs The Nagoya Protocol concerns genetic resources and traditional knowledge; therefore, its ABS principles and rules interlink and interact with human rights norms regulating lands and natural resources, intellectual property, as well as issues of Indigenous and traditional ownership over such resources and knowledge, and more broadly the cultural identities and ways of life of IPLCs. Part II of this book surveyed many substantive human rights of IPLCs, including, inter alia, selfdetermination, equality and non-discrimination, property, development, culture, and access to justice, as well as procedural human rights of FPIC, consultation, impact assessment and those

6.1 Key Findings

pertaining to IPLCs’ customary laws. The discussion of the relevance of these human rights to ABS has been situated in the contexts of access, benefit-sharing, and compliance, but undoubtedly these rights of IPLCs are intrinsically intertwined and inseparable in their content and realisation. From the perspective of states’ obligations, especially with respect to IPLCs, we may observe that human rights law has become the dominant rubric for pursuing the rights of IPLCs and shaping states’ obligations with a significant trend to integrating environmental reasoning and concerns, for instance, the outstanding inclusion of a right to a healthy environment in the case of Lhaka Honhat Association v Argentina, delivered by the Inter-American Court in 2020. This is also the case with respect to procedural elements that have been established by MEAs, such as FPIC, impact assessment, benefit-sharing, which eventually have become part and parcel of human rights requirements too. Evident in a rich and emerging source of human rights jurisprudence, the sovereign power of states and its claims over natural resources is increasingly conditioned by their responsibility to respect, protect and fulfil IPLCs’ human rights, which often concern their lands, natural resources, cultural and knowledge. As a result, it is inevitable for states to take into consideration the relevant human rights law and standards when interpreting and implementing the CBD and the Nagoya Protocol. It is a matter of good governance and best practice, but more importantly, a matter that is determined by international law—as enshrined in the multifaceted implications of the principle of mutual supportiveness. Furthermore, as discussed in the chapter on compliance, some of the states’ obligations in human rights law and MEAs share the characteristic of being erga omnes partes, reflecting not only the interests of states in bilateral and reciprocal relationships but the collective interests of the community as a whole. The interrelationship between the Nagoya Protocol and human rights law on states’ obligations is thus not merely an emerging trend, but also with substantive legal and practical implications.

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6.1.3 A Mutually Supportive Approach to Interpretation and Implementation Judge Higgins, the former president of the ICJ, has suggested that international law should be perceived as “a normative system and a process rather than as rules”.1 The environmental law, or specifically, the ABS framework as established under the CBD and the Nagoya Protocol, is no exception.2 The mutually supportive interpretation and implementation of the Nagoya Protocol and international human rights law is premised on this perception of international law. Generally, it has become a regular occurrence on international fora that different branches of international law should be interpreted and implemented in a systemic and mutually supportive manner, especially in between the fields concerning trade and environment protection, biodiversity conservation, sustainable development, and human rights. It is clear from the literature that the questions of systemic integration and mutual supportiveness have a doctrinal dimension on solving potentially conflicting legal norms or harmonising the “fragmented” international law.3 Nevertheless, they speak beyond merely doctrinal matters—as demonstrated in this book, the principle could also shed light on addressing practical challenges in interpreting and implementing treaty norms and the law-making process as well as the standard setting at both international and domestic levels. Much has been written about how international trade law should be and/or can be mutually supportive with environmental law, or how international law-making on IPRs should 1

Rosalyn Higgins (1994). As Fitzmaurice has argued, “special features of the environment have resulted in particular solutions, applications or rules, but this does not mean in any way that environmental law is separate from the general principles of international law”, Malgosia A. Fitzmaurice (1994). 3 Riccardo Pavoni (2010) and International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/ L.682 8. 2

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consider and address the issue of traditional knowledge.4 In contrast, the interface between international environmental law and international human rights law remains an under-studied field. This is in particular the case with IPLCs, whose cultural integrity and ways of life rely on the natural environment yet whose fundamental human rights relating to lands and resources are consistently under threat. This book has suggested that the multifaceted challenges facing global biodiversity conservation and fair and equitable benefit-sharing with IPLCs determine that the CBD and its Nagoya Protocol cannot be interpreted and implemented in isolation from international human rights standards. In practice, the extent to which the ABS rules may be interpreted and implemented in a mutually supportive manner with IPLCs’ human rights is influenced by the multiple actors with varying priorities and agendas. This includes states, as their willingness and capacity to endorse international human rights law in an ABS context is key for the effectiveness of both systems. It also includes inter-governmental organisations, including its functional parts such as working groups and executive secretaries, as they play a central role in facilitating the multilateral negotiations and charting the course of responding to the emerging challenges of both normative and technical nature. These institutions are essential in furthering the multilateral objectives, but their work may also be counterproductive. As discussed in the Chap. 4, the endorsement of the term IPLCs has been constructed as such so it would not make a substantive implication based on complicated legal restrictions of treaty interpretation. Furthermore, international and regional judicial bodies and tribunals are vital in supporting a mutually supportive interpretation of states’ obligations imposed by international human rights law and environmental law via their judicial interpretation. For instance, in the Kaliña and Lokono case, the Inter-American Court cross-referenced states’ obligations under the CBD to support its interpretation of human rights 4 Pavoni (n 3) 661, Graham Dutfield (2004); Peter Drahos (2014); Johanna Gibson (2016).

and highlighted the relevance of the Nagoya Protocol. The approach to mutual supportiveness has thus been tested and rejected at the interface between the CBD and the human rights law. Its specific implications need to be assessed on a case-by-case basis.

6.1.4 Normative and Practical Implications The specific normative and practical implications of the principle of mutual supportiveness in understanding the interrelationship between the Nagoya Protocol and human rights law lie at the heart of the value of the complementarity thesis. The chapters in Part II have approached it from two general perspectives, asking how human rights may complement the interpretation and implementation of the Nagoya Protocol and vice versa. For the Nagoya Protocol, the integration of international human rights can strengthen the normative ground and procedural significance of the ABS rules and mechanisms. For instance, the property rights of IPLCs to their lands and natural resources could provide a much stronger normative ground for imposing procedural obligations on states such as consultation, FPIC and benefit-sharing. Furthermore, human rights principles and standards can clarify ambiguity and uncertainties in treaty provisions in favours of IPLCs human rights by invalidating the narrow reading of the Nagoya Protocol and restricting states parties’ discretion to interpret and implement the ABS provisions according to their own political preferences or legislative conveniences. For instance, the human rights standards on FPIC could invalidate the narrow reading of Article 6 on PIC in the sense that IPLCs’ rights to grant FPIC is not just an extrinsic normative creation by states, but an intrinsic right derived from the identity of such peoples and communities. In addition, international human rights principles and standards could help to set the benchmark for interpreting and implementing the ABS rules of the Nagoya Protocol, especially when they overlap and/or conflict with human rights requirements or remain implicit. For example,

6.2 The Value Added and Challenges Ahead

the human rights principle of non-discrimination and equality requires gender equality, as well as equal and fair treatment of those vulnerable to discriminatory and unfair customary rules within IPLCs—issues touched upon by the Nagoya Protocol but remain ambiguous. Finally, under jurisdictions where procedural requirements such as FPIC and benefit-sharing have been explicitly recognised as integral safeguards for realising IPLCs’ human rights, there are opportunities for IPLCs to bring ABS claims to human rights judicial bodies and seek for domestic enforcement—thus “sharpening the teeth” of international environmental norms. In turn, the book has demonstrated that the ongoing international and domestic implementation of the Nagoya Protocol could help to contextualise the realisation of IPLCs’ human rights. Specifically, it could provide specific contexts, timely normative guidance, and practical evidence on how to transpose human rights standards into feasible agendas of state governments and private entities with respect to utilising genetic resources and traditional knowledge and fair and equitable benefit-sharing. For instance, the detailed procedural guidance for negotiating and implementing benefit-sharing terms in accordance with IPLCs’ customary laws could complement the realisation of IPLCs’ right to lands and natural resources, development, and culture. Furthermore, the Nagoya Protocol bears great potential to inform the jurisprudential interpretations of international human rights norms, as well as the development of new human rights instruments and standards, especially with respect to IPLCs. The ABS rules of the Nagoya Protocol also could help to expand the focus of traditional human rights mechanisms from coercion and infringement of states vis-à-vis IPLCs, to the emerging tension between IPLCs and powerful multinational companies.5 In addition, state parties could demonstrate their compliance with human rights obligations by acting in accordance with ABS laws, for instance, to recognise IPLCs’ customary laws and to ensure consultation, FPIC and benefit-sharing. Finally, 5

Jacob Katz Cogan (2011).

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the domestic implementation of the Nagoya Protocol, especially by making them applicable in national courts, could render substantive power to not only ABS principles and standards, but also relevant human rights of IPLCs. For instance, among emerging national ABS legislation and policies, many EU countries such as the Netherlands, France, and Germany, have incorporated ABS compliance rules into their national civil and criminal laws; therefore, made the norms of the Nagoya Protocol domestically judiciable and enforceable. Such domestic implementation could give teeth to the internationally recognised human rights values and principles, especially of those “soft” human rights instrument like UNDRIP. Thus, a mutually supportive interpretation and implementation could contribute to alleviating the potential clash of cultures, national policies, enforcement strategies and normative conflicts, generated from the multilateral law-making processes and the varying degrees of national implementation. The principle of mutual supportiveness is therefore essential for achieving the respective goals of international legal frameworks and harmonising the common principles and procedural requirements in protecting IPLCs’ rights over their lands, territories, natural resources, and traditional knowledge.

6.2

The Value Added and Challenges Ahead

Complementary is not a novel invention but a fundamental idea at the core of international legal system, especially the one that has been established after the Second World War based on the UN framework. International legal scholars have written extensively about the harmonisation, the coherence, and the systemic nature of international law and worried about its fragmentation— all constitute a backdrop against which an articulation about the complementary between specific branches of international law become a valuable and important issue. This investigation on the Nagoya Protocol and human rights with a sharpened focus on IPLCs demonstrates that

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international legal frameworks, principles and rules are available for achieving the collective objectives in environmental and human rights protection. It is not being able to fully interpret and implement them in an integrated and complementary way lies at the heart of the challenges facing IPLCs and biodiversity conservation. It shows that the interaction between ABS and human rights at various levels creates a legal sphere where an increasing number of actions and policies towards biodiversity conservation, sustainable development and human rights protection take place. Complementarity may be seen as an invisible force that holds the diverse norms—and by extension the diverse areas of the international legal system—together in a systemic and coherent manner. To this end, the principle of mutual supportiveness constitutes a reasonable and necessary aspect in terms of the practice of legal reasoning, international lawmaking and implementation. Mutual supportiveness is therefore an imperative approach to complementarity but not the only one. The broader discourse in political science and international relations about multilateralism, global governance and multiculturalism all have their parts towards the realisation of the many collective objectives of our world, including, inter alia, biodiversity conservation, sustainable development, fair and equitable benefit-sharing, and the realisation of human rights. In the field of environmental law, a human rights-based approach is fundamental. How human rights norms and standards may shed light on the Nagoya Protocol also has its relevance in other areas of environmental law, for instance, climate change and the protection of oceans and seas. Once we endorse a human rights perspective, defining the rights and obligations embedded in MEAs become a practice relying on relative parameters and international law principles are enriched with specific meanings and aspects. For instance, in terms of fair and equitable benefitsharing and the technical standards of MAT, undefined legal concepts such as “fair and equitable” become relative, and its interpretation and application depend on the systemic context. Fair implies fairness only when it is also considered

fair by IPLCs, equitable implies equity only when the all the negotiators for MAT are well-informed and equipped with negotiation capacities. This human rights-based approach can offer robust ground to the empowerment of IPLCs in the environmental context in general, by providing essential guidance and benchmark to evaluate the normative development, procedural requirements, and best practices under the MEAs. Overall, in light of the principle of mutual supportiveness, the development of international environmental norms and frameworks need to be firmly grounded in respect for human rights and the general principle of international law. It is the raison d'être of the international law as an evolving system, as well as a necessary mindset in response to the emerging global issues that pose interrelated challenges to human rights, biodiversity conservation and social justice. Admittedly, the complementary thesis has its limitations and the principle of mutual supportiveness needs to be appraised critically. In general, factors including the ambiguity of treaty language, the North–South divide in ideology and capacity, the time lags between commitment and performance under MEAs, among others, all pose significant challenge to a mutually supportive interpretation and implementation. There is also limitation on forming a perspective of complementarity between international environmental law and human rights law relying on the “soft” law instruments—declarations, voluntary guidelines and decisions adopted by the UNGA and CBD parties, and views issued by quasijudicial bodies such as the UN human rights treaty bodies, because they are in principle not of a binding force for states. Furthermore, the value of mutual supportiveness might be questioned by scholars who request empirical data to demonstrate the actual effectiveness of a treaty regime,6 or the exact approach and performance at the

6 See in general, Oona A. Hathaway (2002); Ryan Goodman and Derek Jinks (2003); Oona A. Hathaway (2007).

References

domestic level by courts and tribunals towards international binding and non-binding norms.7 In practice, to ensure the ABS framework compliant with human rights standards requires ensuring that the legal and policy frameworks to take duly consideration of human rights risks and impacts, exclude arbitrary and discriminatory application, and incorporate effective and appropriate safeguards and remedies. The discussions in this book have pointed out how this remains a challenge in both interpretation and implementation with respect to many different procedures in access, benefit-sharing, and compliance. There may well be fundamental conflicts among the different claims of human rights based on cultural rights and non-discrimination, or that of development claims to engage in and benefit from progress in science and technology and environmental claims to preservation and to a healthy environment. As have been discussed, the balance between de jure and de facto equality and non-discrimination is also extremely fragile and difficult to achieve when it concerns multiple IPLCs or different individuals within these groups. Overall, from normative uncertainties to institutional gaps including budget problems, trusting issues, differences in scientific and financial capabilities under the MEAs, to even broader global challenges including climate change, pandemic and regional security, multifaceted challenges face the protection of IPLCs and their genetic resources and traditional knowledge, demanding systemic solutions and safeguards to the consistency of international legal system and the many fundamental values it defends.

6.3

Final Remarks

In answering the research questions this book has provided an original analysis of the human rights implications of the interpretation and implementation of the Nagoya Protocol. It contributes to furthering scholarly research on the interplay 7 See essays in Helmut Philipp Aust and Georg Nolte (eds) (2016).

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between the environmental law and the human rights law, articulating the exact application of the principle of mutual supportiveness. The focus of this research project has been Indigenous Peoples, minorities, local communities, and women within these often-marginalised groups. The aim has been to identify the ways in which their fundamental human rights could be fully respected in the ABS context of the Nagoya Protocol and the ways in which state parties could fulfil their ABS obligations in accordance with international human rights principles and standards. This book is relevant for structuring an interpretation of the Nagoya Protocol in accordance with international human rights law in order to address the multifaceted challenges facing IPLCs nowadays. It could also provide jurists, domestic legislators, human rights practitioners, and NGOs with a more coherent and holistic view for interpreting and implementing the Nagoya Protocol and human rights law vis-à-vis IPLCs. Essentially, it contributes a pragmatic legal account of the complementarity between the Nagoya Protocol and human rights for realising the original and primary objectives of the international environmental law and human rights law—a clean, safe, healthy, and sustainable environment in which human dignity, justice, fairness, and equity are respected and pursued for all.

References Fitzmaurice MA (1994) International environmental law as a special field. Netherlands Yearbook Intern Law 25:183 Goodman R, Jinks D (2003) Measuring the effects of human rights treaties. Eur J Intern Law 14(1):172 Graham Dutfield (2004) Intellectual property, biogenetic resources and traditional knowledge (Earthscan), p 3 Hathaway OA (2007) Why do countries commit to human rights treaties? J Confl Resol 51(4):588 Helmut Philipp Aust, Georg Nolte (eds) (2016) The interpretation of international law by domestic courts: uniformity, diversity, convergence (Oxford University Press), p 1 Jacob Katz Cogan (2011) The regulatory turn in international law. Harvard Int Law J 52(2):321 Johanna Gibson (2016) Community resources: intellectual property, international trade, and protection of traditional knowledge (Routledge), p 185

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6 The Value Added of Complementarity Thesis and Its Limitations

Oona A. Hathaway (2002) Do human rights treaties make a difference? Yale Law J 111(8) Pavoni R (2010) Mutual supportiveness as a principle of interpretation and law-making: a watershed for the ‘WTO-and-Competing-Regimes’ Debate? Eur J Int Law 21(3):661

Peter Drahos (2014) Intellectual property, indigenous people and their knowledge (Cambridge University Press), p 108 Rosalyn Higgins (1994) Problems and process: international law and how we use it (Clarendon Press), p 8

Table of Cases

and

1 International Court of Justice Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [28 May 1951] Rep 15. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [5 February 1970] Rep 6. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [21 June 1971] Rep 16. Western Sahara (Advisory Opinion) [16 October 1975] Rep 12. Aegean Sea Continental Shelf Case (Greece v Turkey) [19 September 1978] Rep 62. Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) [12 November 1991] Rep 53. Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) [3 February 1994] Rep 6. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [15 February 1995] Rep 112. Case Concerning East Timor (Portugal v Australia) [30 June 1995] Rep 90. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [25 September 1997] Rep 7. Case Concerning Oil Platforms (Iran v United States of America) [6 November 2003] Rep 803. Case Concerning Oil Platforms (Separate Opinion of Judge Higgins) [6 November 2003] Rep 803.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [9 July 2004] Rep 136. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [13 July 2009] ICGJ 421.

2 Permanent Court of International Justice S.S. “Wimbledon” (United Kingdom, France, Italy & Japan v Germany) [17 August 1923] Series A No. 1.

3 Human Rights Committee Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v Mauritius [09 April 1981] UN Doc CCPR/C/12/D/35/1978. Sandra Lovelace v Canada [30 July 1981] UN Doc. CCPR/C/13/D/24/1977. Ivan Kitok v Sweden [25 March 1987] UN Doc. CCPR/C/33/D/197/1985 (1988). B. d. B. et al. v. The Netherlands [30 March 1989] UN Doc A/44/40. Lubicon Lake Band v Canada [26 March 1990] UN Doc Supp. No. 40 (A/45/40). Toonen v Australia [31 March 1994] UN Doc CCPR/C/50/D/488/1992. Länsman et al. v Finland [26 October 1994] UN Doc CCPR/C/52/D/511/1992. Jouni E. Länsman et al. v Finland [30 October 1996] UN Doc CCPR/C/58/D/671/1995.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0

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John Wilson v Australia [1 April 2004] UN Doc CCPR/C/80/D/1239/2004. Poma v Peru [24 April 2009] UN Doc CCPR/ C/95/D/1457/2006. Paadar v Finland [5 June 2014] UN Doc CCPR/ C/110/D/2102/2011.

4 African Commission on Human and Peoples’ Rights Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya [2010] 276/2003.

5 African Court on Human and Peoples’ Rights

Table of Cases

Case of the Yakye Axa Indigenous Community v Paraguay [17 June 2005] IACHR Series C no 125. Case of the Sawhoyamaxa Indigenous Community v Paraguay [29 March 2006] IACHR Series C No 146. Case of the Saramaka People v Suriname [28 November 2007] IACHR Series C no 172. Case of Kaliña and Lokono Peoples v Suriname [25 November 2015] IACHR Series C no 309. Case of Lagos del Campo v Peru [31 August 2017] IACHR Series C no 340. Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina [24 November 2020] IACHR Series C no 420.

8 European Commission of Human Rights Austria v Italy [11 January 1961] APP No. 788/ 60.

African Commission on Human and Peoples’ Rights v Republic of Kenya [26 May 2017] App No 006/2012.

6 Inter-American Commission on Human Rights Merits Report No. 27/98 [1998] OEA/Ser/L/ V/II.98 Doc. 35. Inadmissibility Report No. 11/07 Nicaragua v Costa Rica [2007] Interstate Petition 01/06. Report No. 96/13 Ecuador v Colombia [2013] Interstate Petition 12.779.

9 European Court of Human Rights Loizidou v. Turkey [18 December 1996] 23 EHRR 513. Al-Adsani v The United Kingdom [21 November 2001] 34 EHRR 11. Fogarty v. the United Kingdom [21 November 2001] 34 EHRR 12. McElhinney v Ireland [21 November 2001] 34 EHRR 13.

10 World Trade Organisation 7 Inter-American Court on Human Rights The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75) Advisory Opinion OC-2/82 [24 September 1982] IACHR Series A no 2. Aloeboetoe v Suriname [10 September 1993] IACHR Series C no 15. Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua [31 August 2001] IACHR Series C no 79.

United States—Standards for Reformulated and Conventional Gasoline [20 May 1996] WT/DS2/10. United States—Import Prohibition of Certain Shrimp and Shrimp Products [1998] WT/DS58/R. European Communities—Approval and Marketing of Biotech Products [29 September 2006] WT/DS291/R; WT/DS292/R; WT/DS292/R. China—Measures related to the Exportation of Various Raw Materials [5 July 2011] WT/ DS394/R; WT/DS395/R; WT/DS398/R.

Table of Instruments

1 International Instruments 1.1 Treaties Charter of the United Nations [signed 26 June 1945] 1 UNTS XVI. Statute of the International Court of Justice [18 April 1946] 33 UNTS 993. International Convention on the Elimination of All Forms of Racial Discrimination [adopted 21 December 1965, entered into force 4 January 1969] 660 UNTS 195. Vienna Convention on the Law of Treaties [adopted 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331. International Covenant on Civil and Political Rights [adopted 16 December 1966, entered into force 3 January 1976] 999 UNTS 171. Optional Protocol to the International Covenant on Civil and Political Rights [adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171. International Covenant on Economic, Social and Cultural Rights [adopted 16 December 1966, entered into force 3 January 1976] 993 UNTS 3. Convention on the Elimination of All Forms of Discrimination against Women [adopted 18 December 1979, entered into force 3 September 1981] 1249 UNTS 13. Convention on International Access to Justice [adopted 25 October 1980, entered into force 1 May 1988] HCCH Publications 29.

Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries [adopted 27 June 1989, entered into force 5 September 1991] ILO C169. Convention on Biological Diversity [adopted 5 June 1992, entered into force 29 December 1993] 1760 UNTS 79. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade [adopted 10 September 1998, entered into force 24 February 2004] 2244 UNTS 337. Cartagena Protocol on Biosafety [adopted 29 January 2000, entered into force 11 September 2003] 2226 UNTS 208. International Treaty on Plant genetic resources for Food and Agriculture [adopted 3 November 2001, entered into force 29 June 2004] 2400 UNTS. Convention on the Protection and Promotion of the Diversity of Cultural Expressions [adopted 20 October 2005, entered into force18 March 2007] 2440 UNTS 311. Convention on the Rights of Persons with Disabilities [adopted 24 January 2007, entered into force 3 May 2008] 2515 UNTS 3. Nagoya Protocol on Access to genetic resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization [adopted 29 October 2010, entered into force 12 October 2014] UNTS XXVII.8.b.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Zheng, The Complementarity Between the Nagoya Protocol and Human Rights, Sustainable Development Goals Series, https://doi.org/10.1007/978-981-99-3513-0

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1.2 General Comments/General Recommendations CEDAW General Recommendation No. 19: Violence against Women (1992) UN Doc A/47/38. CEDAW General Recommendation No. 28 on the Core Obligations of States parties under Article 2 of the Convention (16 December 2010) UN Doc CEDAW/C/GC/28. CERD General Recommendation No. 21: Right to Self-determination (1996) UN Doc A/51/18. CERD General Recommendation No. 23: Indigenous Peoples (1997) UN Doc A/52/18. CESCR General Comment No. 3: The Nature of States Parties’ Obligations (14 December 1990) UN Doc E/1991/23. CESCR General Comment No. 21: Right of Everyone to Take Part in Cultural Life (21 December 2009) UN Doc E/C.12/GC/21. CCPR General Comment No.12: Article 1 The Right to Self-determination of Peoples (13 March 1984) UN Doc HRI/GEN/1/Rev.9 (Vol. II). CCPR General Comment No.18: Non-discrimination (10 November 1989) UN Doc HRI/GEN/1/Rev.9 (Vol. I). CCPR General Comment No. 23: Article 27 (Rights of Minorities) (8 April 1994) UN Doc CCPR/C/21/Rev.1/Add.5. CCPR General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights (5 November 2008) UN Doc CCPR/C/GC/33.

1.3 UN Resolutions/Declarations Universal Declaration of Human Rights [10 December 1948] UNGA Res 217 A (III). Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief [25 November 1981] UNGA Res 36/55. Declaration on the Right to Development [4 December 1986] UNGA Res A/RES/41/128.

Table of Instruments

Rio Declaration on Environment and Development [12 August 1992] UN Doc A/CONF.151/26 (Vol. I). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities [18 December 1992] UNGA Res 47/135. United Nations Declaration on the Rights of Indigenous Peoples [13 December 2007] UNGA Res 61/295. The Human Right to a Clean, Healthy and Sustainable Environment [26 July 2022] UN Doc A/76/L.75.

1.4 Guidelines and Other “Soft” Instruments Interntional Code of Conduct on the Distribution and Use of Pesticides (adopted 1985, admended 1989 and 2002) FAO Council Resolution 1/123. London Guidelines on Exchange of Information on Chemicals in International Trade (adopted 1987, admended 1989) UNEP Governing Council Decision 15/30. Bonn Guidelines on Access to genetic resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (27 May 2002) UN Doc UNEP/CBD/COP/6/20. Akwé: Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities (13 April 2004) UN Doc UNEP/CBD/COP/DEC/VII/16. Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (26 February 2010) Decision SS. XI/5. The Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local Communities

Table of Instruments

(29 October 2010) UN Doc UNEP/CBD/COP/ DEC/X/42. Mo’otz Kuxtal Voluntary Guidelines for the Development of Mechanisms, Legislation or other Appropriate Initiatives to Ensure the “Prior and Informed Consent”, “Free, Prior and Informed Consent” or “Approval and Involvement”, depending on National Circumstances, of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits arising from the Use of their Knowledge, Innovations and Practices relevant for the Conservation and Sustainable use of Biological Diversity, and for Reporting and Preventing Unlawful Appropriation of Traditional Knowledge (17 December 2016) UN Doc CBD/COP/ DEC/XIII/18. Rutzolijirisaxik Voluntary Guidelines for the Repatriation of Traditional Knowledge of Indigenous Peoples and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity (30 November 2018) UN Doc CBD/COP/DEC/14/12. ASEAN Human Rights Declaration [18 November 2012] The Association of Southeast Asian Nations.

2 Regional and Domestic Instruments European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 [adopted 4 November 1950, entered into force 3 September 1953] ETS 5. Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms [adopted 20 March 1952, entered into force 3 September 1952] 213 UNTS 262.

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African Charter on Human and Peoples’ Rights [adopted 27 June 1981, entered into force 21 October 1986] 1520 UNTS 217. American Convention on Human Rights, “Pact of San Jose”, Costa Rica [adopted 22 November 1969, entered into force 18 July 1978] 1144 UNTS 123. Arab Charter on Human Rights [adopted 22 May 2004, entered into force 2008] The Council of the League of Arab States. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [adopted 25 June 1998, entered into force 30 October 2001]. Regulation (EU) No 511/2014 of the European Parliament and of the Council of 16 April 2014 on Compliance Measures for Users from the Nagoya Protocol on Access to genetic resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union [2014] OJ L 150/59. Gesetz zur Umsetzung der Verpflichtungen nach dem Nagoya-Protokoll, zur Durchführung der Verordnung (EU) Nr. 511/2014 und zur Änderung des Patentgesetzes sowie zur Änderung des Umweltauditgesetzes [2015] (DE). Décret n° 2017-848 du 9 mai 2017 Relatif à L'accès aux Ressources Génétiques et aux Connaissances Traditionnelles associées et au Partage des Avantages Découlant de leur Utilisation [2017] (FR). Biological Diversity Act [2002] (IN). Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations [2014] (IN). Biodiversity Act [2004] (SA). Regulations on Bio-Prospecting, Access and Benefit-Sharing [2008] (SA). Law of the People’s Republic of China on Regional National Autonomy [2001] (CH). Constitution of the People's Republic of China [2018] (CH).