Complementarity between the Nagoya Protocol and human rights: legal implications of the principle of mutual supportiveness with respect to indigenous peoples and local communities
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Date
01/07/2020Item status
Restricted AccessEmbargo end date
01/07/2021Author
Zheng, Xiaoou
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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.