August 2011

Yesterday, Today and Tomorrow: Looking Afresh at the Convention on Biological Diversity
Elisa Morgera and Elsa Tsioumani
University of Edinburgh School of Law Working Paper no. 2011/21 (August 2011)

In light of almost twenty years of implementation, this article looks afresh at the Convention on Biological Diversity (CBD), by assessing its evolution and current legal significance with a view to better understanding its immediate future. To this end, the article critically analyses the outcomes of the tenth meeting of the CBD Conference of the Parties, in order to determine progress in the development and implementation of the Convention at the level of both international cooperation and national implementation.

After briefly introducing the modus operandi of the convention, the article outlines the legal and policy relevance of the international community’s failure to meet the global target of reducing significantly the rate of biodiversity loss by 2010. Attention then focuses on the process and main outcomes of COP-10, which is arguably the most important CBD COP thus far, and assesses these outcomes with a view to discussing the future of the convention. Among other topics, the article offers a brief analysis of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilisation, in order to clarify how the operationalization of the third objective of the CBD may influence the implementation of the whole CBD regime. The article then assesses COP-10 decisions on indigenous and local communities and traditional knowledge, exploring the reciprocal influence between the UN Declaration on the Rights of Indigenous Peoples and the CBD. The legal implications of the Strategic Plan for Biodiversity 2011-2020 are then identified, followed by a discussion of the developments in addressing the relationship between sustainable funding and successful implementation, and of the increasing attention paid by the CBD parties to climate change impacts and response measures. The conclusions identify the challenges posed by the significant evolution of the CBD’s scope as well as the increased need for coherent implementation of its three objectives at the international and national level.

The paper is a pre-publication version of an article to be published in the 2011 Yearbook of International Environmental Law. Read the abstract, including link to full article …

Peru’s Congress unanimously approves Law on Prior Consultation
Andina, 25 August 2011

LIMA, PERU: The Peruvian Congress approved the Law on Prior Consultation, which guarantees indigenous people’s right to free, prior and informed consent to any projects affecting them and their lands. The law was issued in implementation of ILO Convention 169. The UN Special Rapporteur on the rights of indigenous peoples James Anaya said the law’s approval represents an important step forward for indigenous peoples’ rights in the country and elsewhere in the Latin American region. Read the article … Read the press release by James Anaya …

India may prosecute GM eggplant developers
SciDev.Net, 25 August 2011

NEW DELHI, INDIA: India’s National Biodiversity Authority is considering unprecedented legal action against the developers of genetically modified eggplant (brinjal) for alleged violation of the country’s biodiversity laws. Read the article …

Tapping Gujarat hill station’s herbal wealth
The Times of India, 29 August 2011

GUJARAT, INDIA: The Gujarat government is set to tap the traditional knowledge of tribal healers to promote health tourism. In Saputara, known as the “abode of serpents,” in Gujarat’s Dang district, the traditional healers are mainly from the Bhil tribe. They are known far and wide for their effective snake bite cures. “Around 520 out of the 1,100 medicinal herbs listed in the pharmacopia of AYUSH (the Indian government’s traditional medicine department) are found in Saputara,” according to S.K. Nanda, the district in charge officer who has spent around three decades in the area. Read the article …

Botswana to develop policy to protect traditional knowledge, 25 August 2011

CAPE TOWN, SOUTH AFRICA: Botswana is developing a policy to protect, preserve and promote its indigenous knowledge and mainstream it into the country’s macro-economic framework. Development of the policy will involve identifying, documenting and gathering local traditional knowledge practices, including agriculture, health, culture and religious beliefs, and then feeding them into a legislative framework. “The initiative is intended to bring economic empowerment through benefit-sharing and [providing] royalties to communities rich in indigenous knowledge,” said Oabona Monngakgotla, the project’s manager. Read the article …

IK to support economic expansion
The Business Diary, 24 August 2011

GABORONE, BOTSWANA: As Botswana forges ahead with efforts to diversify the economy, a step back to evaluate the potential of indigenous knowledge (IK) towards economic growth is being taken. The country’s government is initiating an 18-month project expected to help formulate an indigenous knowledge policy that will address the uniqueness and complexity of indigenous or traditional knowledge to promote a coordinated national indigenous knowledge research and development agenda. Read the article …

Namibia: Traditional Authorities Welcome Benefit Sharing Bill, 29 August 2011

WINDHOEK, NAMIBIA: Namibian traditional authorities say the Draft Access and Benefit Sharing Bill is long overdue, as traditional communities have been exploited long enough. Topnaar Chief, Seth Kooitjie, made the remark at the National Consultative Workshop on Access and Benefit Sharing to Genetic Resources and Associated Traditional Knowledge Draft Bill, recently. Access and benefit sharing is intended to place developing countries in a better position to profit from their resources and to provide incentives for the conservation and sustainable use of their biodiversity. Read the article …

Nagoya Protocol’s Rules for Genetic Resources Pose Challenges for US Drug Developers
Genetic Engineering & Biotechnology News, 24 August 2011

NEW YORK, USA: In this piece, Alex Philippidis examines US ABS and patent policy of relevance to the rules of the Nagoya Protocol on ABS and the ongoing WIPO negotiations on intellectual property and genetic resources, traditional knowledge and traditional cultural expressions. Read the article …

Indigenous Voices of the Arctic
National Geographic News Watch, 26 August 2011

AKUREYRI, ICELAND: In these videos, three students with roots in indigenous cultures describe what they are doing to build bridges between the keepers of traditional knowledge and scientists. They were interviewed at the Seventh International Congress of Arctic Social Sciences (ICASS VII), held in June 2011, in Iceland. Read the story and see the videos …

Equator Prize 2012: A Call for Nominations from 146 Countries for Resilient Communities
Equator Initiative, August 2011

NEW YORK, USA: The Equator Initiative has announced the call for nominations for the Equator Prize 2012, which will recognize 25 local and indigenous initiatives that demonstrate success in improving community livelihoods and wellbeing through sustainable natural resource management. All winning initiatives will receive US $5,000, with 10 selected for “special recognition” and a total of US $20,000 each. Representatives of all 25 winning communities will participate in a community meeting in conjunction with the UN Conference on Sustainable Development (Rio+20), to be held in Brazil in June 2012. The Equator Prize 2012 will focus on local innovation and excellence in promoting community wellbeing and sustainable livelihoods, environmental conservation, and sustainable natural resource management. Eight new “special recognition” categories – in areas such as community-based adaptation, food security, forest management, energy, water, and more – have been created with the overall theme of “resilient communities for sustainable development.” Geographical eligibility for the Equator Prize 2012 has been expanded to include all countries receiving support from the UNDP. Further information, including links to nomination forms …

A patent perspective on WAI 262
Matt Adams
International Law Office newsletter, 22 August 2011

AUCKLAND, NEW ZEALAND: In this note, Matt Adams comments on part of the Waitangi Tribunal’s recently released WAI 262 report, regarding intellectual property in the genetic and biological resources of taonga species – that is, flora and fauna that are significant to the culture or identity of Maori tribes. The tribunal observed that Maori are obliged to act as kaitiaki (ie, cultural guardians) towards such species within their tribal areas. He notes that the tribunal recommended the establishment of a Maori advisory committee to advise the commissioner of patents on whether inventions are derived from Maori traditional knowledge or use taonga species; and creation of a mechanism to augment the commissioner’s expertise when dealing with applications that raise issues for Maori. The commissioner should have the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga. An ordre public clause would provide this power. Ordre public is also relevant to the consequences of failing to disclose use of traditional knowledge in the patenting process. Adams further notes that the tribunal recommended the establishment of a register of traditional knowledge: the act of kaitiaki registering their interest in taonga species will provide a clear statement to third parties of Maori interest, and is intended to give patent applicants fair warning of such interest and of the need to engage with kaitiaki. The register would also allow kaitiaki to record in summary form aspects of traditional knowledge that they consider might be used by patent applicants.

With regard to disclosure, the tribunal recommended the introduction of a legal requirement for patent applicants to disclose the source and the country of origin of genetic or biological material that contributes to an invention, and suggested that applicants should disclose whether Maori traditional knowledge or the genetic and biological resources of taonga species have contributed to the inventive activity that led to the patent application. Read the article [free subscription required] …

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