WP2. A socio-legal study of the BCPs

The second WP is a study of the BCPs’ content and political and legal efficiency, with a particular focus on the stated socio-cultural and ontological principles.

Our underlying assumption is that BCPs cannot be understood outside a social and political context increasingly concerned with biocultural rights (BRs). In the relevant literature, BRs are described as a basket of group rights aimed at protecting the stewardship role towards the environment that certain ILCs are presumed to have. According to these studies, these rights emerge from the interpretation of the texts and negotiating documents of multilateral environmental agreements (e.g., CBD, the Nagoya Protocol and other environment-related United Nations (UN) treaties and declarations).

These environment-focused documents increasingly recognizing the relevance of TK, practices and ways of life for the conservation of the environment give these rights a specific nature. According to their advocates, they are built upon two foundations: one related to the interests of ILCs – as a group, i.e. collective rights – and the other related to a more general interest of humankind in the conservation of the environment – a universal rights’ approach.

In other words, if ILCs are protected for themselves, their international recognition is primarily premised on their instrumental role in the conservation and sustainable use of the environment. The acknowledgement of BRs therefore does not take as its point of departure the right of a group or community to flourish, but rather the ethic of stewardship, i.e. the ethic entrenched in their role as conservationists or custodians of local ecosystems.

The basket of BRs is made of three categories of rights to which is added a duty, which makes them quite unusual in the human rights tradition: 

1. Rights to land and natural resources: the right to access and use traditional lands and access and use rights over biotic and abiotic resources present in the land;
2. Rights to self-determination, i.e. self-government (Anaya 2004), itself comprising two strands: a) the aptitude of each people and community to regulate their internal matters through the use of their traditional legal institutions and rules (ibid.); b) the protection from the imposition of decisions taken by external actors and regarding matters that can influence the community (e.g., exploitation of resources by extractive industry);
3. Rights to cultural identity. This includes rights and conditions necessary to safeguard the integrity of the values, worldviews, institutions, practices, knowledge of the local communities and indigenous peoples;
4. Duty of sustainability stemming for the ethic of stewardship at the core of the BRs.

Except for the few instances where BCPs can be part of the PIC process set up by domestic ABS regulations (v. supra, the reference to Peru or Madagascar), they have a quite different function. Wherever domestic legislation does not (or does not fully) implement community PIC or does not protect sufficiently local and/or indigenous communities, BCPs cannot be part of the legal order and, thus, they seem to fulfill a completely different function: premised on the underpinning principles of the biocultural jurisprudence, they are geared towards the advancement of BRs.

Our aim is to assess whether and to what extent these BCPs may shift the studied domestic legislation towards the recognition of BRs. We also purport to critically appraise the potential or ascertained consequences of their recognition.