Complementarity between the Nagoya Protocol and human rights: legal implications of the principle of mutual supportiveness with respect to indigenous peoples and local communities

Abstract

This is a research project on the potential complementarity between the Nagoya Protocol and the international human rights law with respect to Indigenous peoples and local communities (IPLCs). The Nagoya Protocol is a multilateral treaty that governs issues of access to genetic resources (GR) and associated traditional knowledge (TK) and the fair and equitable sharing of benefits arising from their utilisation under the Convention on Biological Diversity (CBD). State Parties of the Nagoya Protocol are obliged to facilitate access and benefit-sharing (ABS), especially when Indigenous and local communities (ILCs) are involved and their GR and TK are at stake. Adopted in 2010 and entering into force in 2014, the Nagoya Protocol now has 123 Parties and the CBD has almost universal recognition from States. The implementation process of the Nagoya Protocol is accelerating and the impact of its ABS rules is profound and increasing, not only in shaping the behaviours and obligations of States and multinational corporations vis-à-vis ILCs, but also in understanding the dynamics and interrelations between international environmental law and other branches of international law. Recent developments in international human rights law show a trend of integrating ABS norms into the protection of the rights of IPLCs. The ABS requirements of fair and equitable benefit-sharing and prior informed consent (PIC) are increasingly elaborated as part and parcel of IPLCs’ human rights concerning their lands, natural resources, culture and TK at the UN level and by regional human rights courts and tribunals. Against this background, it is worth asking what the human rights implications are for interpreting and implementing the Nagoya Protocol, and in turn, how the Nagoya Protocol may contribute to the protection of IPLCs’ human rights. For instance, what are the implications of the right of Indigenous peoples to self-determination in an ABS context? What is the connection and distinction between the human rights norm “free, prior and informed consent” with the ABS norm PIC? Do human rights to develop and property also include an aspect of fair and equitable benefit-sharing? Does the recognition of ILCs’ customary law in the Nagoya Protocol strengthen their human right to culture? And fundamentally, how and to what extent, are State Parties of the Nagoya Protocol obliged to interpret and implement the ABS rules in accordance with international human rights law? The principles of systemic integration and mutual supportiveness provide the theoretical framework of this thesis. As emerging principles of international law, they require different branches of international law to be interpreted and implemented in a systemic and mutually supportive manner. The value of these principles manifests in situations where there is conflict between norms derived from different fields of international law. Furthermore, the principle of mutual supportiveness speaks beyond interpretative matters—as demonstrated in the thesis, this principle could also shed light on the law-making processes when efforts at reconciling competing rules have been exhausted, as well as implementation challenges at both international and domestic levels. Essentially, this theoretical approach is underpinned by the perspective that international law is a dynamic, complex and interconnected system in which norms operate and evolve interdependently. Particularly, ABS and human rights should not and cannot be isolated from one another for achieving their respective objectives. Based on a range of international treaties and “soft” instruments, the practices of the UN, international treaty bodies, courts and tribunals, and relevant scholarly debates, this research provides a pragmatic account of the implications of the principles of systemic integration and mutual supportiveness in understanding the complementarity between the Nagoya Protocol and international human rights law.