Recognition of Customary Law and Institutions and Community Protocols of Indigenous People in Domestic ABS Legislation or Policies in Accordance with the Provisions of Nagoya Protocol

Abstract

The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of
Indigenous people and local communities in accordance with United Nations Declaration of Rights
of Indigenous People. The Parties are obliged to take legislative, administrative and technical
measures to recognize, respect and support/ensure the customary laws & institutions and
community protocols of Indigenous peoples and local communities (ILCs). Within the ambit of
contemporary debates encompassing Indigenous peoples’ right to self-determination, this paper
examines the effectiveness of international law (i.e. Nagoya Protocol) to influence existing or
evolving domestic laws, policies or administrative measures of Parties on access and benefit
sharing. Through opinion surveys of Indigenous organizations and national authorities of CBD’s
Parties, the findings indicate that the space, recognition and respect created in existing or evolving
domestic ABS measures for rights of Indigenous communities are too inadequate to effectively
implement the statutory provisions related to customary laws & institutions and community
protocols, as envisaged in Nagoya Protocol. As the bio-cultural rights of Indigenous people are key
to conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation to be
sufficiently effective in translating the spirit of international ABS laws into domestic policies.