The Convention on Biological Diversity (CBD) was the first legally binding international treaty to address the conservation, sustainable use and equitable sharing of benefits derived from the utilization of biological diversity in general. It covers domesticated as well as undomesticated biodiversity, and includes species, genetic diversity within species, and ecosystems. With Article 8(j), the Parties to the CBD agree to respect, preserve and maintain traditional knowledge, innovation and practices, as far as possible, as appropriate and subject to their national legislation.
The rights of holders of traditional knowledge associated with genetic resources have been improved with the Nagoya Protocol. Article 5 says clearly that” benefits arising from the utilization of genetic resources that are held by indigenous and local communities” should be shared, as well as “the benefits arising from the utilization of traditional knowledge associated with genetic resources”. Article 7 states: “each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.”These provisions could apply to genetic resources for food and agriculture and the related traditional knowledge. However, Article 4 of the Nagoya Protocol also accepts other access and benefit-sharing instruments: “Where a specialized international access and benefit-sharing instrument applies that is consistent with, and does not run counter to the objectives of the Convention and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.” Therefore, the Nagoya Protocol does not apply to the 36 species which are part of the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture.
Berne Declaration, Bread for the World, Ecoropa, Tebtebba, and Third World Network (2013) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilisation: Background and Analysis
W. Pelegrina and I. Gorre (2010) Overview of typical measures relevant for the realization of Farmers’ Rights to fair and equitable benefit sharing Global Consultation on Farmers’ Rights 23-25 November 2010, Addis Ababa, EthiopiaJ. Santili (2010), Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization Global Consultation on Farmers’ Rights 23-25 November 2010, Addis Ababa, Ethiopia