Assessment of Domestic Policies Guiding the Fair and Equitable Sharing of Benefits From Utilization of Genetic Resources and Traditional Knowledge

Hasrat Arjjumend and Konstantia Koutouki

International Journal of Law and Public Administration, 2020, vol. 3, issue 1, 55-76

Abstract: The objective of the Nagoya Protocol guides Parties to regulate illegitimate access and utilization of biological resources or associated traditional knowledge, and also directs Parties to share with fairness, equity and justice the monetary or non-monetary benefits arising out of utilization of genetic resources. In a nod to the United Nations Declaration on Rights of Indigenous People, the Nagoya Protocol binds the Parties to create access and benefit sharing (ABS) laws, policies or administrative measures as envisaged in Articles 5.2 and 5.5 of the Protocol, and obliges the States to allow for benefits to flow to Indigenous peoples and local communities (ILCs). Present paper is based on an opinion survey of academic/research institutions, civil society organizations and concerned individuals apart from competent national authorities of Asian countries. Review of secondary information, especially domestic ABS laws of relevant countries, and participant observation were other means of legal and policy analysis. The findings of this paper illustrate that the accrued benefits from the utilization of genetic resources or traditional knowledge are not adequately realized by Indigenous people or local communities. State sovereignty occupies dominance when justice and equity principles are considered in benefit sharing mechanism. It leads to the infringement of Indigenous rights and conservation objectives. Discrepancies in domestic ABS laws and in the frameworks for their implementation could be addressed by ensuring the participation of ILCs in domestic ABS rulemaking, decision-making processes, and the participatory execution of ABS mechanisms at all levels. The resulting gains in efficiency in the ABS process could then better achieve the goal of conserving and sustainably using biodiversity, while also ensuring respect for the rights of Indigenous people.

Date: 2020
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