Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing
Kabir Bavikatte and Daniel F. Robinson
Law, Environment and Development Journal 7/1 (2011)

The authors’ analysis of the Nagoya Protocol on ABS comes from an understanding of the law as a “site of struggle” where different groups lobby for their interests. Some of these groups are clearly more powerful than others, which explains the reticence of State law regarding rights of indigenous peoples and local communities. However, they consider critical to acknowledge that power begets resistance and that indigenous peoples and local communities have not just been passive victims of the law but on the contrary have fought strategic and pitched battles to stem and sometimes turn the legal tide. In this context, the authors analyze the Nagoya Protocol with the aid of three guiding questions: what was the status quo prior to the Nagoya Protocol; what did indigenous peoples and local communities seek to achieve through the Protocol and how did they go about doing this; and what is the outcome of these community efforts in the Nagoya Protocol. In answering these questions, they also attempt to map the emerging biocultural rights of indigenous peoples and local communities under the CBD, as well as their struggles specifically within the CBD Working Groups on ABS and on Article 8(j), aiming to trace the trajectory of the activism of indigenous peoples and local communities in the CBD processes. Download the article [pdf] …