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

This book studies the questions of how and to what extent the Nagoya Protocol on Access and Benefit-Sharing (ABS) can be interpreted and implemented in light of international human rights law, with a sharpened focus on Indigenous Peoples and local communities. The complementarity thesis is built upon the understanding that ABS and human rights should not and cannot be isolated from one another in order to achieve their respective objectives. A mutually supportive approach to these two bodies of international law is articulated throughout the chapters, covering a wide range of international treaties and ‘soft’ instruments, as well as the practices of the United Nations, international treaty bodies, courts, other international organizations and sometimes NGOs. Legal researchers, legislators and policymakers, human rights practitioners and indeed anyone interested in the development of a more coherent and integrated system of international ABS framework will find this book helpful, with its succinct coverage of current ABS and human rights laws and practices, their pragmatic implications and possible ways of integration forward. 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