• Adequate comprehension of the disclosed information on the part of the
• A voluntary decision by the representatives to agree to the proposed course of
Table 3.1 sets out the main legal instruments and guidelines requiring prior
informed consent from indigenous communities.
Mutually agreed terms - that is, agreement on the terms for the use of genetic
resources and subsequent benefit sharing - must be reached between the users and
the providers of genetic resources. The CBD does not give exact specifications or
suggestions. Instead, article 15(7) requires that parties to the CBD
shall take legislative, administrative or policy measures … with the aim of sharing in a
fair and equitable way the results of research and development and the benefits arising
from the commercial and other utilization of genetic resources with the Contracting Party
providing such resources. Such sharing shall be upon mutually agreed terms (CBD 1992 ).
Given the wide variety of possible exchanges and mutually agreed terms, any
imposition of specific systems would be too rigid. Mutually agreed terms could, for
instance, also cover transfer of technology. However, given the importance of this
topic to development and fair benefit sharing, it is also provided for in a separate
Article 16. Access to and Transfer of Technology:
1. Each Contracting Party … undertakes … to provide and/or facilitate access for and
transfer to other Contracting Parties of technologies that are relevant to the conserva-
tion and sustainable use of biological diversity ….
2. Access to and transfer of technology … to developing countries shall be provided
and/or facilitated under fair and most favourable terms…
The Contracting Parties, recognizing that patents and other intellectual property rights
may have an influence on the implementation of this Convention, shall cooperate in
this regard subject to national legislation and international law in order to ensure that
such rights are supportive of and do not run counter to its objectives (CBD 1992 ).
Article 16 raises a long-standing problem for the CBD, namely the potential
incompatibility of benefit sharing with the international intellectual property rights
system, in particular the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement).
Table 3.1 International Legal Instruments and Guidelines Requiring Prior Informed Consent
from Indi genous Communities
Convention 169 on Indigenous and Tribal Peoples (International Labour Organization),
entered into force 5 September 1991
Convention on Biological Diversity (CBD), entered into force 29 December 1993
Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits Arising out of their Utilization (Bonn Guidelines, non-binding)
United Nations Declaration on the Rights of Indigenous People (non-binding)