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Article 8 of the Convention Biological Diversity

and the Human Rights of Indigenous Peoples


A Paper presented by Robert T. Coulter
at the Seminar on Traditional Sami Knowledge
Kiruna, Sweden December 9-10, 1997

Abstract: The purpose of this paper is to provide a brief analysis of the portions of
the Convention on Biological Diversity that are directly relevant to indigenous
peoples and to describe the broader international law context that has given rise
to Article 8(j) and that provides the relevant legal context for understanding and
applying the provisions of the Convention respecting indigenous peoples.

Analysis
First of all, in the Preamble to the Convention the parties recognize "the close
and traditional dependence of many indigenous and local communities
embodying traditional lifestyles on biological resources, and the desirability of
sharing equitably benefits arising from the use of traditional knowledge,
innovations and practices relevant to the conservation of biological diversity and
the sustainable use of its components." In this language the Convention
acknowledges that the knowledge, innovations and practices of indigenous
peoples and certain local communities are related to or derive from the
relationship of the people concerned to the biological resources -- or as we
sometimes say, the relationship to the land and the Earth. For many indigenous
peoples, this is a relationship of subsistence use, that is, for hunting, fishing and
gathering. It is often a rather direct relationship, one not mediated by
entrepreneurs, transportation systems, financial arrangements or market
mechanisms.
There are three components to the requirements of Article 8(j):
Each Party, subject to its national legislation, shall:
1. respect, preserve and maintain the knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity,

2. promote the wider application of such knowledge, innovations and practices


with the approval and involvement of the holders, and

3. encourage the equitable sharing of the benefits arising from the use of such
knowledge, innovations and practices.
This is "hard law" -- binding legal commitments of the parties. Not the "soft law"
of declarations.
Note that the relevant national legislation, where it exists, will take precedence
over the obligations of this article. The obligations of parties are also conditioned
by the initial phrase of Article 8: "Each Contracting Party shall, so far as possible
and as appropriate ..." These phrases taken together significantly reduce the
nature of the commitment in 8(j), but they cannot be understood, or at least
should not be understood to entirely do away with the obligations set forth. It is,
however important to acknowledge that where national legislation fails to respect
or recognize indigenous peoples' rights or where such legislation actually
diminishes or impairs these rights, in these situations, this article could become a
nullity. Thus, the realization of the promise of Article 8(j) depends in important
part upon the existence of a larger body of rights in regard to indigenous
peoples. This point will be discussed further below.
Note also that the term "indigenous peoples" is not used. The terms are
"indigenous and local communities embodying traditional lifestyles relevant for
the conservation and sustainable use of biological diversity." Leaving aside the
interesting question of what is a local community, it is clear that the Convention
accepts the idea of indigenous communities, that is, groups of some sort. This is
something of an innovation, albeit perhaps an unintended step forward.
But the Article, apparently inadvertently, incorporates a problem in its English
language version, because grammatically the phrase "embodying traditional
lifestyles ...," would apply to both indigenous and local communities. It is clear
from the history of the negotiation and drafting of the article that the text was
intended to read: "indigenous communities and local communities embodying
traditional lifestyles ... ." There is no apparent evidence that the parties to the
Convention intended the Article to apply only to those indigenous communities
that embody traditional lifestyles. How this drafting mistake is to be interpreted
and applied consistently with the intentions of the parties is a subject that
deserves separate and detailed examination.
If the Article were taken literally in English it would raise very serious concerns
for indigenous peoples. Would indigenous communities that have televisions be
excluded? What about communities that nowadays hunt with firearms? Even
some of the remote Yanomami people of the Amazon of Brazil now use an
occasional firearm for hunting. What about communities that have relatively
modern lifestyles but nevertheless maintain traditional knowledge and practices
for their resource management, farming and other activities relevant for
conservation? It seems certain that the only reasonable interpretation of the
Article is to read it as if the word "communities" had been mistakenly omitted
after the work "indigenous."
Who are the holders of this knowledge referred to in 8(j)? Where the knowledge
is traditional and held by the group or community, how will the country determine
the approval or disapproval of the community as required for the wider
application of the knowledge, innovations and practices? In many countries,
indigenous communities have not been recognized as having rights of self-
government. Does this article then imply that parties must respect indigenous
rights to act in their collective capacity, through their own institutions? Perhaps
so, but it may be too much to impose such implications on this Article.
Nevertheless, it appears that the Article is likely to be frustrated without the
realization of a broader body of rights on the part of indigenous communities or
peoples.
What is meant by equitable sharing of benefits? To whom should these benefits
flow? Who will decide? Answers to these questions as well will depend on the
development of a framework of human rights for indigenous peoples.
Some key terms have been given some definition or discussion by the
Secretariat for the Convention. For example, "respect" means to accord the
knowledge, innovations and practices a status comparable to that accorded to
other knowledge, innovations and practices, according to the note by the
Secretariat. But what does this mean in fact or in law?
These are serious questions that the parties must answer as they proceed to
implement this Article. No doubt indigenous peoples and others must have
opportunities to express opinions and to provide information relevant to these
questions. Most important, these questions must be answered by reference to
and in the context of the body of international law on the rights of indigenous
peoples that will be described below.
Linkages
Three other articles of the Convention are linked to 8(j) and are essential to a
complete grasp of the Convention's impact on indigenous peoples. Article 10(c)
requires that parties "protect and encourage customary use of biological
resources in accordance with traditional cultural practices that are compatible
with conservation or sustainable use requirements." Article 17.2 calls for the
parties to facilitate the exchange of information -- including indigenous and
traditional knowledge. Article 18.4 requires the parties to "encourage and develop
methods of cooperation for the development and use of technologies, including
indigenous and traditional technologies."
How shall these Articles be implemented? One commentator has remarked that
the Convention is "impressively opaque." (Kadidal, Shayana. "Plants, Poverty,
and Pharmaceutical Patents," 103 Yale Law Journal, 223, 1993, quoting "The
Earth Conference: Biodivisive," The Economist (U.S. Edition), June 13, 1992, at
93,94.)
The Madrid Workshop on "Traditional Knowledge and Biological Diversity held at
the end of November has resulted in a large number of recommendations for the
adoption of a plan of work for the implementation of 8(j) and a set of
recommended options for the creation of a subsidiary body to give on-going
consideration to the implementation of 8(j). These recommendations will be taken
to the next Conference of the Parties (COP IV) in Bratislava in May 4-15, 1998.
One of the recommendations that may be adopted is to have regional meetings
concerning the implementation of 8(j) in advance of future workshops such as
that in Madrid. This would facilitate the participation of greater numbers of
indigenous peoples and others. We might even hope to see the participation of a
greater number of states. Regional meetings are also likely in preparation for
COP IV.
Prominent among the recommendations to be considered by COP IV are
recommendations for the on-going and substantial participation of indigenous
representatives in all work relating to 8(j) and the other articles linked to
traditional and local knowledge. The Convention does not now provide for the on-
going, serious and substantive participation of indigenous peoples'
representatives, and this participation is surely required if 8(j) and related articles
are to be successfully implemented.
The Broader International Law Context
This provision of the CBD arose out of long years of indigenous advocacy
beginning notably in 1977 to link indigenous rights and environmental protection.
At the first conference at the UN on the rights of indigenous peoples in 1977,
American Indians called for protection of the environment as a human right and
included this concept in the first draft declaration on the rights of indigenous
peoples. Indigenous leaders have continued to make environmental protection
and protection of indigenous knowledge a prominent part of our quest for human
rights in the UN and in other international bodies over the past 20 years.
The most important body of hard international law concerning indigenous
peoples is Convention No. 169 of the International Labor Organization,
"Concerning Indigenous and Tribal Peoples in Independent Countries" adopted
in June 1989. The Convention, now ratified by some ten countries, spells out a
broad range of human rights and specific measures in regard to indigenous and
tribal peoples. In addition to proscribing discrimination, the Convention contains a
definition of indigenous peoples and a comprehensive framework of rights to
protect indigenous peoples' land, cultures, languages and institutions. Many
articles of the Convention relate to indigenous knowledge and protection of the
environment.
Articles 1 and 4 protect cultural rights.
Article 5(b) provides: "The integrity of the values, practices and institutions of
these peoples shall be respected."
Article 7(4) states: "Governments shall take measures, in cooperation with the
people concerned, to protect and preserve the environment of the territories they
inhabit."
Article 14 provides for the right of indigenous peoples to participate in the use,
management, and conservation of resources pertaining to their lands.
Article 23 is most important in relation to 8(j). It calls for governments to take into
account the traditional technologies and cultural characteristics of indigenous
peoples, and calls for the recognition and support of traditional subsistence
activities. A number of other articles also refer to indigenous knowledge and
technologies.
Another important instrument in establishing modern legal standards in regard to
indigenous peoples is the Resolution of the European Parliament of February 9,
1994, entitled Resolution on Action Required to Provide Effective Protection for
Indigenous Peoples. (Eur. Parl. Doc. PV 58(II) (1994) Article 4 of this Resolution
recognizes the right to culture, including the "intangible features of their culture"
and the right to land. Article 7 specifically recognizes the right to common
ownership of their traditional lands. Article 11 reaffirms the "essential role which
they have played and which they must continue to play in the conservation of
their natural environment."
The United Nations is developing a comprehensive draft Declaration on the
Rights of Indigenous Peoples (E/CN.4/Sub.2/1994/2) that recognizes a broad
range of rights from self-determination to land and resource rights, rights to
culture, intellectual property and education, and a full range of other rights -- both
individual and collective. This draft is now being considered by the Commission
on Human Rights and is expected to be adopted by the General Assembly in the
next few years. Many articles in the Declaration recognize, protect or affirm
cultural rights, rights to traditional practices, rights to own, use and manage lands
and resources and so on. Article 26, for example, refers to indigenous peoples'
"traditions and customs for development and management of resources." Most
important is Article 29: "Indigenous peoples are entitled to the recognition of the
full ownership, control and protection of their cultural and intellectual property."
Special measures are called for to protect indigenous sciences and technologies.
The Organization of American States is also preparing to adopt a comprehensive
and far-reaching Declaration on the Rights of Indigenous Peoples.
(OEA/Ser/L/V/II.90, Doc. 9 rev. 1 (1995) This Declaration includes detailed
provisions on the right to self-government, indigenous law, land and resource
rights, cultural rights, and prominently, intellectual property rights. Article XX
contains strong and detailed requirements for the recognition and protection of
indigenous cultural, technological and scientific heritage.
Another important part of this growing body of international law and norms is
Agenda 21 (A/CONF.151/26 (vols. 1, 2, & 3), Annex 2(1992)), the program of
action formally adopted by the countries participating in the UN Conference on
the Environment and Development -- the Río "Earth Summit" in 1992. Agenda 21
is a broad program calling for recognition of indigenous peoples' role in
environmental protection and for participation of indigenous peoples in the
formulation of national policies and programs. The program, among many
requirements, calls for governments to protect indigenous peoples' intellectual
property and customary practices. It also calls for better understanding of
indigenous peoples' knowledge and resources management experience.
Some other important bodies of principles and standards relevant to Article 8(j)
are:
The Draft Principles and Guidelines for the Protection of the Heritage of
Indigenous Peoples prepared by Erica-Irene Daes for the UN Sub-Commission
on the Prevention of Discrimination and Protection of Minorities.
(E/CN.4/Sub.2/1995/26, annex 1)
The UNESCO model protocol for intellectual property rights related to
folklore (1985).
The Commission on Sustainable Development, Inter-Governmental Panel
on Forests, Program of Work. (E/CN.4/IFF/1997/2) The Panel is now the Inter-
Governmental Forum on Forests.
The International Convention to Combat Desertification -- the decisions of
the Conference of Parties on traditional knowledge. (A/Res/47/188)
The International Tropical Timber Agreement, and
The Inter-American Development Bank, Strategies and Procedures on
Socio-Cultural Issues as Related to the Environment (1990).
This body of law and norms is important because it elucidates the meaning of 8(j)
and how it is to be implemented. This body of law and norms represents a
definite convergence of international opinion about the content of indigenous
peoples' rights. This convergence of opinion -- represented in the conventions
and instruments I have discussed constitutes -- in the view of Professor S. James
Anaya (Anaya, S. James. Indigenous Peoples in International Law, New York,
Oxford; Oxford University Press (1996), pp. 55-58), and in my own view, a body
of international common law that has become binding on states in the legal and
moral sense, even in the absence of formal treaties or legislation.
The Need for Comprehensive Human Rights
As others have observed, the noble goals of 8(j) are not likely to be achieved
unless indigenous peoples' land and resource rights are recognized and
protected. Likewise, unless indigenous peoples are recognized as having the
right to control their resources, including their intellectual property, then these
land rights and rights respecting knowledge will mean little. These rights of
control and governance are included in what is referred to as the right of self-
determination. And the right of self-determination cannot be realized unless
indigenous peoples' institutions, governments, laws and traditions are accorded
the legal respect and protection they deserve.
Article 8(j) is certainly a valuable series of steps forward, but it is not a substitute
for a comprehensive body of human rights principles concerning indigenous
peoples; indeed it practically calls for such a body of human rights standards to
be adopted. It may be hopeless to insist that in 8(j) the parties have implicitly
committed themselves to a comprehensive framework of indigenous rights. But
8(j) certainly represents several great stones in the growing edifice of
international law in regard to indigenous peoples; and it begs us to go on building
that edifice of rights in order to realize the goals of the Article.