Access and benefit sharing (ABS) is a combination of a rights- and an incentives-based approach to the conservation of biological diversity. ABS, which is effectively an implementing system for Articles 15 and 8(j) of the Convention on Biological Diversity (CBD), requires the prior informed consent of states and communities prior to the commercial or research utilization of their genetic resources and associated traditional knowledge and the fair and equitable sharing of benefits arising from such use.

Since the coming into force of the CBD in 1993, very few efforts had been undertaken by commercial and research users of genetic resources and associated traditional knowledge to either seek consent of or share benefits with states and communities. This adverse state of affairs resulted in the beginning of negotiations towards an international regime on ABS in 2004 by the Conference of Parties (COP) to the CBD. It culminated in the Nagoya Protocol on ABS, which was adopted by the 10th COP in October 2010.

The six years of painstaking and often acrimonious negotiations between state Parties to the CBD along with the active involvement of representatives of Indigenous peoples and local communities resulted in some significant rights breakthroughs in the Nagoya Protocol. These are:

1. The recognition of the rights of Indigenous peoples and local communities over their traditional knowledge,
2. The legal recognition of the customary laws and community protocols and procedures of Indigenous peoples and local communities as governing the use of their knowledge and resources, and
3. The binding obligation on all non-traditional users of genetic and knowledge resources of Indigenous peoples and local communities to seek the latter’s prior informed consent and to ensure the fair and equitable sharing of benefits arising from the use of such knowledge and resources.

While there is a small but growing number of ABS agreements with Indigenous peoples and local communities globally, these have often been plagued by a lack of adequate enforcement by state Parties. The value of any Convention or Protocol lies in its implementation. While Indigenous peoples and local communities have secured recognition of their rights to their traditional knowledge in international law, the concomitant domestic protection of these rights through legal recognition of the customary laws, community protocols, and community systems of governance still has a long way to go. Much of this has to do with countries approaching ABS as purely an incentive-based approach to conservation while ignoring the complementary rights-based approach. With the establishment of the Nagoya Protocol and binding obligations on state Parties, a deeper and a more meaningful respect for community rights is envisioned. For more information, read IISD reports and analysis from past negotiations of the Working Group on Access and Benefit Sharing under the Convention on Biological Diversity.

Natural Justice is supporting communities to explore how biocultural community protocols can assist them to engage with ABS according to their values. We are also providing technical advice to (sub-)national government agencies and other international organizations on similar issues and contributing expertise to a UNEP-hosted Access and Benefit Sharing Knowledge Hub.