4. Chapter Four : Challenges in Implementing South Africa’s
5.4 Recognition of Biocultural Rights and Community Protocols in the Nagoya
determination of indigenous communities. These include provisions in Articles 6 and 7 of the Nagoya Protocol, respectively, which pertain to access to the genetic resources and traditional knowledge of indigenous communities. Both these Articles encourage the prior informed consent or approval and involvement of indigenous communities before there is access to their genetic resources and associated traditional knowledge. Article 6.2 is particularly significant as it
551 Bavikatte, K & Robinson, DF (n.30) at 49.
552 Ibid at 50.
553 Ibid.
554 Ibid.
555 Ibid.
556 Ibid at 51
557 Ibid.
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encourages Parties to uphold the rights of indigenous communities over their genetic resources;
something which was not recognized in the CBD. Article 5 of the Nagoya Protocol highlights another biocultural right of indigenous communities in that it encourages Parties to ensure that indigenous communities benefit from the utilization of their traditional knowledge and genetic resources by third parties. As discussed under Chapter Two, the caveats contained in Articles 5, 6 and 7 of the Nagoya Protocol offer Parties flexibility and discretion with regards to the implementation of these provisions. Parties are, however, only granted flexibility with regards to the type of measures that they may take in the implementation of these provisions of the Nagoya Protocol. They do not have the option not to take measures when there is clearly a need for measures to be taken.
An important biocultural right contained in the Nagoya Protocol is the right of self-governance of indigenous communities, by reference being made to their customary laws and Community Protocols.558 Under Article 12 of the Nagoya Protocol, Parties are encouraged to consider the customary laws and Community Protocols of indigenous communities in their implementation of the provisions of the Nagoya Protocol. The Nagoya Protocol accordingly recognizes the governance systems of indigenous communities and in so doing, recognizes indigenous communities’ rights of self-determination.559
The use of the terms ‘in accordance with domestic law’ and ‘as applicable’ under Article 12 of the Nagoya Protocol offers Parties flexibility with regards to their consideration of customary laws and Community Protocols and implies that States are under no general obligation to take into consideration customary laws and Community Protocols. As with the provisions of Articles 5, 6 and 7 of the Nagoya Protocol, the above qualifications do not, however, offer States the option not to take into consideration the customary laws and Community Protocols of indigenous communities when there is clearly an identified need to do so. Article 12 proclaims that States
‘shall’ take into consideration customary laws and Community Protocols in the implementation of their obligations under the Nagoya Protocol and the obligations to do so are therefore mandatory in nature. States are only granted flexibility with regards to the extent they wish to take such governance mechanisms into account.560 The provisions of Article 12 therefore
558 Article 12, Nagoya Protocol
559 Bavikatte, K & Robinson, DF (n.30) at 52.
560 Greiber, T et al (n. 11) at 140.
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constitute a significant achievement for community rights and communal control over natural resources.561
Although all of the biocultural rights set out above allow for limited Party involvement and none of such rights are completely unqualified, they nevertheless remain a major milestone in the recognition of the self-determination of indigenous communities. These biocultural rights, as established in the Nagoya Protocol, can therefore be seen as substantial gains for indigenous communities in their struggle against biopiracy. Notwithstanding the Nagoya Protocol’s recognition of the rights of indigenous communities to self-determination and to manage their genetic resources and traditional knowledge, in order for indigenous communities to capitalize on the biocultural rights enshrined in the Nagoya Protocol, there must be improved exercise of community rights at local level.562
The current intellectual property systems are founded on the western notion of individualism, in terms of which the focus is on knowledge produced from individual effort.563 However, traditional knowledge does not fit this mold and is as a result of communal rather than individual effort.564 Traditional knowledge is not static and it evolves over time, thereby making it ill- designed for an intellectual property system which is designed for individualism and exclusivity.565 Such knowledge focuses on the bio-cultural relationship between self and culture, whereby indigenous communities are more concerned with their obligations to each other and their natural resources, rather than in their ability to assert interest in property against the world.566
Biocultural Community Protocols,567 as advanced in the Nagoya Protocol, constitute a response to the implementation challenges facing indigenous communities in the protection of their genetic resources and associated traditional knowledge. A Biocultural Community Protocol
561 Ibid.
562 Bavikatte, K & Robinson, DF (n.30) at 54.
563 Cross, JT, ‘Property rights and Traditional Knowledge’ in PER, Vol.13 No. 4, 2010, 12 at 12.
564 Ibid.
565 Ibid.
566 Du Plessis, E, ‘Protection of Traditional Knowledge in South Africa: Does the “commons” provide a solution?
Social Science Research Network, September 10, 2011, 1 at 7. Available at http://ssrn.com/abstract=1997992.
Accessed on 12th October 2012.
567 Community Protocols constitute Charters of rules and responsibilities, in which indigenous communities set out their customary rights to natural resources, in accordance with customary, national and international law.
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promotes the indigenous community’s way of life, which is based on the customary sustainable use of biodiversity and such a Protocol is community led.568