Biology Reference
In-Depth Information
3.2.3 Access and Benefit-Sharing Articles
Three main CBD articles cover access and benefit sharing provisions: articles 8(j),
15 and 16.
Article 8(j):
Each contracting Party shall, as far as possible and as appropriate … respect, preserve
and maintain knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of bio-
logical diversity and promote their wider application with the approval and involvement
of the holders of such knowledge, innovations and practices and encourage the equitable
sharing of the benefits arising from the utilization of such knowledge, innovations and
practices (CBD
1992
).
The CBD thus aligns with international efforts to strengthen the rights of indig-
enous peoples. Beyond genetic resources, the convention covers knowledge, inno-
vations and practices of indigenous and local communities embodying traditional
lifestyles. The provisions for prior informed consent and mutually agreed terms
are especially important in the context of accessing traditional knowledge and will
be described further below.
Article 15. Access to Genetic Resources:
1. Recognizing the sovereign rights of States over their natural resources, the authority
to determine access to genetic resources rests with the national governments ….
2. Each Contracting Party shall endeavour to create conditions to facilitate access to
genetic resources for environmentally sound uses by other Contracting Parties ….
4. Access, where granted, shall be on
mutually agreed terms
….
5. Access to genetic resources shall be subject to
prior informed consent
…. [emphasis
added] (CBD
1992
)
The essence of benefit sharing in terms of the CBD is thus captured in two legal
expressions: 'prior informed consent' and 'mutually agreed terms'.
Prior informed consent
needs to be obtained before any non-human genetic
resource is accessed, according to the CBD, but its prominence in the literature is
greatest in the context of traditional knowledge. Since the early 1990s, the concept
of prior informed consent has been employed systematically in connection with
indigenous peoples' rights of self-determination. However, to date no definition of
the term has been agreed internationally (Haira
2006
: 6). The following definition
is adapted from the medical context:
Prior informed consent is the voluntary, uncoerced decision made by a subgroup that
legitimately represents an indigenous community, on the basis of adequate information
and deliberation, to accept rather than reject some proposed course of action that will
affect the community (Schroeder
2009
: 31).
Essentially, obtaining prior informed consent requires four steps (Schroeder
2009
: 31):
• Legitimate authorization to consent
• Full disclosure of all the relevant information
