Community protocols and Access and Benefit Sharing.

Abstract

The Nagoya Protocol on Access and Benefit Sharing (ABS) under the auspices of the Convention on Biological Diversity represents a further milestone on the path towards the self-determination of Indigenous peoples and local communities in international law. It underscores the emergence of biocultural rights as the rights of Indigenous peoples and local communities over all aspects of their ways of life that are relevant to the conservation and sustainable use of biodiversity, including respect for the diversity of their ecosystem management practices, customary laws, and traditional authorities. It also highlights the role of multilateral environmental agreements as important terrains of struggle for Indigenous peoples' and local communities' rights. Yet despite an increase in the number and scope of rights enshrined at the international and national levels, States' obligations vis-a-vis communities are often unfulfilled at the local level. For example, potential pitfalls of ABS in the absence of good process can include exacerbating issues of legal disaggregation, definitions of community, and conflict between customary and positive law. Rights-based approaches such as community protocols, which are now referenced in the Nagoya Protocol, can help enable communities to address these challenges proactively and to decide for themselves whether or not to engage with ABS, as well as other legal and policy frameworks, in ways commensurate with their values, local endogenous development aspirations, customary laws, and traditional institutions.