Policy and law

Indigenous Peoples and local communities face various threats to their customary rights. Traditional knowledge, seeds and medicinal plants can be used commercially without consent or benefit-sharing, and can be misappropriated through intellectual property rights.

National policies on access and benefit-sharing and traditional knowledge protection tend not to recognise community rights over associated biodiversity, genetic resources, landscapes or cultural values. Some international policies protect a broader ‘bundle of rights’, but are not widely ratified or non-binding.

Communities can use different types of tools from local to national to  international level to strengthen their rights, through a relational and mutually reinforcing approach. For example, they can establish agreements directly with international organisations to enhance recognition of their customary laws and rights. They can also influence the development of local laws to protect their customary rights and enhance their recognition at national level.

This section provides examples of policy and legal tools that have been shaped by communities and support community priorities, values and rights.

Potato Park agreements with international organisations

In 2004, the Potato Park established a landmark agreement with a gene bank. The agreement for ‘Repatriation, Restoration and Monitoring of Agro-biodiversity of Native Potatoes and Associated Community Knowledge Systems’ was signed between the Potato Park Association, ANDES and the International Potato Centre (CIP).  Over 400 disease-free native potato varieties, collected from the Potato Park in the 1960s and 70s, were returned.

This agreement reflects the customary principle of reciprocity (equal exchange), and protects community rights – the International Potato Centre  agreed not to allow any intellectual property rights on the varieties from the park, and to provide a share of the monetary benefits from their past use. The Potato Park also developed an inter-community agreement which guides the sharing of repatriated potatoes among communities based on customary laws. This is included as an annex to the agreement with CIP, ensuring the recognition of customary laws.

The Potato Park also established an agreement directly with the Svalbard Seed Vault in Norway, to deposit its entire seed collection for safe-keeping. This enabled the Potato Park communities to become a member of the FAO treaty on plant genetic resources’ multilateral seed system, alongside national governments, thus enhancing its policy influence and relational sovereignty.

Regional laws on biopiracy and GMOs in Peru

In response to an unsupportive national policy context, the Cusco regional government has introduced two regional ordinances. The first, passed in 2007, declares the department of Cusco a GMO-free zone in order to safeguard its rich native crop diversity from transgenic contamination (010-2007-CR/GRC.CUSCO). The second (2008) aims to combat biopiracy in the Cusco region (048-2008-CR/GRC.CUSCO).

These laws were promoted by a campaign led by the NGO ANDES, the Potato Park and other indigenous communities, who argued that threats to biological and cultural diversity would also affect tourism. They were assisted by an indigenous MP, and participation of ANDES in an advisory committee of the Cusco government. These laws influenced other regions of Peru to introduce similar laws, which eventually led to a national law banning GMOs in Peru.

National law on Farmers’ Rights in China

China’s participatory plant breeding program, supported by the Chinese Centre for Agricultural Policy and Farmers’ Seed Network, has linked traditional farmers and scientific breeding institutes.

Direct collaboration over a number of years raised awareness of a leading scientist and policymaker of the importance of traditional crop varieties and knowledge. This ensured that proposals  to weaken existing provisions on farmers’ rights in national law were not accepted. In addition, the revised Seed Law of the People’s Republic of China pays more attention to farmer-managed seed systems.

This section reviews different international policies and laws that communities can use to protect their rights over traditional knowledge and biocultural heritage.

The Convention on Biological Diversity and Article 8(j)

The Convention on Biological Diversity (CBD) was signed at the Rio Earth Summit in 1992, and entered into force in December 1993. It has been ratified by 196 nations. Its three main objectives (PDF) are the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of genetic resources.

The following CBD articles are relevant for protecting biocultural heritage:

Article 15 deals with access to genetic resources and benefit-sharing. Access is to be provided in exchange for a share of the benefits derived from using the resources. Governments have the authority to determine access, subject to prior informed consent and based on mutually agreed terms.

Article 8(j) requires countries to:

• Respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles that are relevant for biodiversity conservation and sustainable use
• Promote their wider application with the approval and involvement of the holders of such knowledge, and
• Encourage the equitable sharing of benefits from the use of such knowledge.

Article 10 (c) requires countries to:

• Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use.

Article 17.2 deals with promoting exchange of information, including indigenous and traditional knowledge and provides for the repatriation or return of information important to indigenous or local communities and relevant for conserving biodiversity.

CBD Working Group and Permanent Body on article 8(j):
The Working Group on article 8(j) has led implementation and  provided an important forum for voicing Indigenous Peoples’ perspectives. At CBD COP16 in 2024, Parties agreed to establish a permanent subsidiary body on article 8J and other provisions relating to Indigenous Peoples and local communities. This is expected to elevate the implementation of article 8J and the voice of Indigenous Peoples across the convention.

CBD COP16 also adopted a new programme of work on article 8J which identifies actions to support the implementation of the 2030 biodiversity targets, and protect the traditional knowledge, territories and rights of Indigenous Peoples and local communities.

Its general principles recognise that “a holistic approach consistent with the spiritual and cultural values and customary practices of Indigenous Peoples and local communities should be adopted, recognising all of their relations, including to their territories, lands and resources, as well as their rights” to control traditional knowledge, innovations, practices and technologies. Parties at COP16 also adopted an important decision on the role of people of African descent in implementing the CBD.

The Working Group on Article 8J has emphasised the links between maintaining traditional knowledge and the continued stewardship of traditional lands and waters by indigenous communities, the customary use of biodiversity, and the rights of Indigenous Peoples and local communities to free prior and informed consent. The working group has developed important  policy guidance which reflects the need to protect biocultural heritage as a whole.

The Global Plan of Action on Customary Sustainable Use aims to promote just implementation of article 10(c ). It recognises that “biodiversity, customary sustainable use and traditional knowledge are intrinsically linked”; that customary sustainable use constantly shapes social and ecological systems, landscapes, seascapes, plants and animal populations, genetic resources and thus adapts to changing conditions such as climate change; and that “cultural and spiritual values and practices of indigenous and local communities play an important role in the conservation and sustainable use of biological diversity”.

The Working Group on Article 8(j) also developed elements for developing sui generis systems (doc) to protect traditional knowledge, endorsed at COP10. These stress the importance of a basis in customary law, and that the rights conferred to protect knowledge can include “rights to all components of the biocultural heritage associated with the traditional knowledge — including rights over the biodiversity, customary laws, cultural and spiritual values and lands and waters traditionally occupied or used by indigenous and local communities”.

They define biocultural heritage as:

The knowledge, innovations and practices of Indigenous and local communities that are often collectively held and are inextricably linked to traditional resources and lands and waters traditionally occupied by indigenous and local communities; including the diversity of genes, varieties, species and ecosystems; cultural and spiritual values; and customary laws shaped within the socio-ecological context of communities

(CBD Secretariat, 2009).

COP10 also adopted a code of ethical conduct to ensure respect for the cultural and intellectual heritage of Indigenous Peoples and local communities, the Tkarihwaié:ri Ethical Code.

It invited governments to use it to develop their own ethical codes of conduct for research; access to, use, exchange and management of traditional knowledge, innovations and practices; and to encourage academic and research institutions, private sector, extractive industries and forestry bodies to adopt it in their policies and processes.

The code provides a set of principles for engaging with Indigenous Peoples and local communities:

• Prior informed consent should be obtained without coercion for any activities related to traditional knowledge on sacred sites and traditional lands and waters
• There should be inter-cultural respect, including respect for spiritual values
• Collective and individual ownership should be understood and respected
• Benefit sharing should be fair and equitable within and among communities
• Traditional land tenure must be recognised, as access to land and water and sacred sites is fundamental to the retention of traditional knowledge
• Traditional resource rights and customary rules on access should be respected
• Communities must not be arbitrarily removed or relocated. Where consent is granted, compensation must be given
• Indigenous and local communities’ responsibility for managing their traditional lands and waters and sacred sites should be respected
• Information should be repatriated to help recover traditional knowledge, and
• Indigenous and local communities should be supported to actively participate, for example in research collaborations.

See: The Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local Communities.

The Akwe Kon Guidelines assess the cultural, social and environmental impacts of proposed developments on sacred sites and traditional lands and waters of indigenous and local communities. Parties formally adopted the guidelines at CBD COP6 in 2002.

This signals a commitment to using these guidelines in addition to, or instead of, standard EIA procedures, for any developments proposed on Indigenous Peoples’ lands.
See: Akwe-Kon Guidelines (PDF)

CBD COP10 in Nagoya (2010) adopted an international legally binding protocol on access to genetic resources and benefit-sharing - the Nagoya Protocol. The protocol aims to implement the CBD’s third objective on access and benefit sharing, and is binding on user countries as well as provider countries.

It introduces a legal requirement for  user countries to introduce legal, administrative or policy measures to ensure compliance with the access and benefit-sharing law of provider countries. The protocol requires countries to take the following measures with respect to indigenous and local communities:

• Legislative, administrative or policy measures to ensure benefits from the use of traditional knowledge associated with genetic resources are shared fairly and equitably with the communities concerned, based on mutually agreed terms. The same applies to genetic resources that are held by indigenous and local communities, in accordance with domestic legislation.
• Measures to ensure that traditional knowledge associated with genetic resources is accessed with the prior and informed consent or approval and involvement of indigenous and local communities. The same applies to genetic resources, where communities have the established right to grant access.
• Countries should take the customary laws, community protocols and procedures of indigenous and local communities into consideration when implementing the provisions on traditional knowledge; and endeavour to support the development of community protocols for access and benefit-sharing relating to traditional knowledge.

However, the protocol has some limitations that reduce the scope for benefit-sharing with countries and communities:

• It does not apply to genetic resources collected before it enters into force, or explicitly to biochemicals derived from genetic resources (see articles 2 and 3)
• Enforcement mechanisms are weak – for example, it only requires one unspecified checkpoint in user countries
  Prior informed consent and benefit-sharing with indigenous and local communities for access to genetic resources held by them is to be “in accordance with domestic legislation”, and
• It emphasises state sovereignty over natural resources, but does not recognise the customary rights of communities over genetic resources (like the CBD). This is a concern for many Indigenous Peoples and local communities, given their dependence on genetic resources for food, health and so on, and their role in conserving and improving many genetic resources.

The International Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA) was adopted in 2001, and came into force in June 2004. Its objectives are the conservation and sustainable use of plant genetic resources and equitable benefit sharing from their use. The treaty establishes a multilateral system for access and benefit-sharing to facilitate access between countries for food security.

Farmers’ rights under the treaty:
Article 9.1 of the treaty recognises the enormous contribution that indigenous and local communities and farmers have made to conserving and developing plant genetic resources. Article 9.2 identifies three measures to protect and promote farmers’ rights:

1. The protection of traditional knowledge relevant to PGRFA
2. The right to equitably participate in sharing benefits from the use of PGRFA, and
3. The right to participate in national decision-making on conservation and sustainable use of PGRFA.
   Article 9.3 states that “nothing in this article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed”.

Implementing farmers’ rights:
Farmers’ rights should be implemented and guided by the overall objectives of the treaty and related provisions on in situ conservation and sustainable use, in particular:

• Article 5.1 on supporting farmer and community efforts to manage and conserve plant genetic resources on farm; and in situ conservation of wild crop relatives and wild plants for food production, including indigenous and local communities’ efforts, and
• Article 6 on promoting sustainable use of PGRFA through appropriate policy and legal measures, which may include fair agricultural policies that help maintain diverse farming systems.

Taken together, these provisions call for a broad interpretation of farmers’ rights which goes beyond the right to benefit-sharing, to include the right of farmers to continue the practices which contribute to the conservation and sustainable use of PGRFA, and to maintain the traditional knowledge and livelihood systems needed for this.

Therefore, in the context of the treaty, protection of farmers’ rights requires protection of a broader set of rights than those identified in article 9.2. In particular, farmers’ customary rights over genetic resources, landscapes, cultural and spiritual values and customary laws which sustain traditional knowledge and livelihood systems.

Implementing farmers’ rights will also mean addressing the negative impacts of other policies. In particular, intellectual property right policies that protect plant breeder’s rights but not farmers' rights.

Although the treaty’s objectives on conservation and sustainable use apply to all plant genetic resources for food and agriculture, the multilateral system for access and benefit-sharing covers only crops and varieties listed in the treaty’s annex. These are major food crops such as wheat, potatoes, rice, maize and so on.

Materials accessed from the multilateral system can be used for research, training and breeding for food and agriculture, which can include developing commercial products.

If any intellectual property right that restricts the further use of a product for research, training and breeding purposes is obtained, benefit-sharing is mandatory, at 1.1% of net sales.

Where there are no such restrictions on product use, voluntary contributions are called for. These funds go into a benefit-sharing fund that is meant to give priority to farmers in developing countries who conserve and sustainably use plant genetic resources, but much of the funding goes to national agricultural research organisations.

See: FAO Treaty on Plant Genetic Resources for Food and Agriculture
 

The World Intellectual Property Organisation (WIPO) aims to promote intellectual property rights (IPRs) worldwide. In 2000, it established an inter-governmental committee to address IPR issues relating to genetic resources, traditional knowledge and folklore, including how to protect traditional knowledge from misappropriation and how to share benefits from commercialisation equitably.

The committee has developed a set of policy objectives and principles for protecting traditional knowledge. It has also explored disclosure requirements for genetic resources and traditional knowledge in patent applications.

Progress has been very slow. Developing countries have repeatedly called for a legally binding treaty to protect traditional knowledge, while industrialised countries have opposed this. In 2010, the WIPO General Assembly extended the Inter-Governmental Committee’s mandate for two years, with the objective of reaching agreement on a text for an international legal instrument (or instruments) which will effectively protect traditional knowledge, traditional cultural expressions, folklore and genetic resources.

In May 2024, WIPO member states adopted the first WIPO treaty to address the interface between intellectual property, genetic resources and traditional knowledge, and include provisions specifically for Indigenous Peoples and local communities.

The treaty aims to prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and associated traditional knowledge. It includes a requirement for patent applications based on genetic resources and/or associated traditional knowledge to disclose their origin or source.  

During the course of the negotiation process, Indigenous Peoples and local communities raised concerns that they could not actively participate in the policy process and that negotiators focused more on existing intellectual property rights models than their customary laws for protection of traditional knowledge.

In many cases existing IPRs do not align with customary laws, for example by focusing on private commercial and ownership rights and not collective heritage, or  only on intellectual rights rather than protecting rights over interlinked biocultural heritage. Many global IPR treaties threaten the rights of Indigenous Peoples and local communities over their biocultural heritage.

After several years of negotiation, with active participation by Indigenous Peoples, the UN General Assembly adopted the Declaration on the Rights of Indigenous People in September 2007. 

The declaration recognises Indigenous Peoples’ rights to their traditional knowledge, biodiversity resources, territories, cultural and spiritual values and customary laws, and to free prior and informed consent. Although it is not legally binding, 146 countries have adopted the declaration, signalling a commitment to its principles.

UNDRIP contains a number of provisions that communities can use to strengthen their rights over biocultural heritage:

• Territorial rights: article 26 states that Indigenous Peoples have the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used. They have the right to own, use, develop and control these. States shall give legal recognition and protection to these lands, territories and resources.
• Biocultural rights: Indigenous Peoples have the right to practice and revitalise their cultural traditions and customs (article 11). “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as… genetic resources, seeds, medicines, knowledge of the properties of flora and fauna…” (article 31).
• Spiritual rights: Indigenous Peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions (article 12). Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or occupied and used lands, territories, waters and coastal seas and other resources (article 25)
• Decision-making rights: Indigenous Peoples have the right to participate in decision-making in matters which would affect their rights (article. 18); and right to self-determination (article 3).
• Free prior and informed consent: “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories or other resources. States shall consult with Indigenous Peoples through their own representative institutions to obtain their free prior informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the use of mineral, water or other resources.” (article 32)

The International Labour Organisation is a specialised UN agency that aims to improve living and working conditions. ILO Convention 169, concerning Indigenous and Tribal Peoples in Independent Countries, entered into force in 1991.

It calls on governments to develop systematic actions to protect the rights of indigenous and tribal peoples, including their social, economic and cultural rights, customs, traditions and institutions. 

It emphasises the right of indigenous and tribal peoples to decide their own priorities for development as it affects their lives, beliefs, institutions and spiritual wellbeing. And it calls for due regard for customary laws of the peoples concerned; and for their participation in decisions that affect them.

ILO 169 also recognises the need to respect the special importance of peoples’ relationship with their lands and territories, in particular the collective aspects of this relationship, for their cultural and spiritual values.

The convention provides a key instrument for protecting Indigenous Peoples’ rights as it is legally binding. However, it does not specifically address the protection of traditional knowledge, and it has only been ratified by 23 countries. These are largely Latin American and European countries, but also include the Central African Republic, Nepal and Fiji.

UNESCO - the United Nations Educational, Scientific and Cultural Organisation - has developed a number of international conventions relating to the protection of cultural and intellectual heritage.

The Convention for the Safeguarding of Intangible Cultural Heritage, which came into force in April 2006, aims to safeguard oral traditions and expressions, including language, performing arts, social practices, rituals and festive events, and knowledge and practices concerning nature and the universe. However, it focuses only on intangible heritage.

The UNESCO World Heritage Convention, on the other hand, focuses on protecting both cultural and natural heritage, and recognises the inter-linkages between landscapes, culture, traditional knowledge and biodiversity. It recognises that ‘cultural landscapes’, which are associated with a traditional way of life, often reflect techniques of sustainable land use and a specific spiritual relation to nature. And it recognises their role in maintaining biodiversity.

While these are valuable instruments, national governments rather than Indigenous Peoples and local communities largely control their development and their implementation at international, national and local level.

A number of human rights conventions contain  useful provisions  for protecting Indigenous Peoples’ rights, but in many cases they have not been ratified or fully implemented by governments and focus on  individual rather than collective rights. Perhaps the most relevant are:

• Universal Declaration of Human Rights, 1948: this acknowledges the right to collective as well as individual ownership of property; the right to manifest religion or belief in teaching, practice, worship or observance; and the right to protection for the moral and material interests resulting from any scientific, literary or artistic production of which you are the author.
• International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), 1966: all peoples have the right to self-determination; and all peoples may, for their own ends, freely dispose of their natural wealth and resources, without any obligations arising out of international economic cooperation. People must never be deprived of their means of subsistence.

The Permanent Forum on Indigenous Issues is mandated to advise other UN agencies on indigenous issues. It is an advisory body to the United Nations Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

The forum explores policy issues and develops recommendations with the active participation of regional indigenous representatives as well as states, and an indigenous co-chair. It provides a forum where Indigenous Peoples can report indigenous rights abuses, and reviews implementation of the UN Declaration on the Rights of Indigenous Peoples.

The forum holds two-week meetings every year in New York in April or May. It has also convened a number of technical workshops to explore key issues, including protection of traditional knowledge, free and prior informed consent, and the CBD’s access and benefit-sharing protocol and indigenous rights.

The UNPFII Technical Workshop on Indigenous Traditional Knowledge in Panama, 2005, recommended that the “UNPFII should encourage the further elaboration of the concept of ‘collective biocultural heritage’ as the framework for standard setting activities on indigenous traditional knowledge”.

The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) was adopted by the Human Rights Council in 2018, with 33 countries voting for its adoption.

This provides important provisions that local communities, small-scale, subsistence and family farmers, pastoralists, hunters and gatherers and fisherfolk “who have a special dependency on and attachment to the land” can use to advance their rights.

The declaration also applies to Indigenous Peoples working on the land, transhumant, nomadic and semi-nomadic communities, the landless and migrant and seasonal workers.

UNDROP obliges states to take legal, administrative and other steps to achieve full realisation of the rights set out in the declaration, including freedom from all forms of discrimination for peasants and peasant women (article 4); the right to access and sustainably use natural resources in their communities (article 5); to establish peasant organisations (article 9); to actively participate in the development and implementation of policies and projects and that may affect their land and livelihoods (article 10); and to adequate food and nutrition and food sovereignty (article 15).

Article 17 recognises the rights of peasants to land, individually and/or collectively, including to access, sustainably use and manage land and water bodies, coastal seas, fisheries, pastures and forests, to achieve an adequate standard of living, to have a place to live in security, peace and dignity and to develop their cultures.

It requires states to take measures to provide legal recognition for land tenure rights, including customary land tenure rights; and “to recognise and protect the natural commons and their related systems of collective use and management”.

Article 19 recognises the rights of peasants and people working in rural areas to seeds,  protection of traditional knowledge relevant to plant genetic resources for food and agriculture; equitable participation in benefits from the utilisation of plant genetic resources; and to participate in decision-making on the conservation and sustainable use of plant genetic resources.

They also have the right to save, use, exchange and sell their farm-saved seed or propagating material and to maintain, control, protect and develop their own seeds and traditional knowledge.

States are required to “take appropriate measures to support peasant seed systems, and promote the use of peasant seeds and agrobiodiversity”, and ensure that seed policies and IPRs respect these rights.

Article 26 recognises the rights of peasants to enjoy their own culture without discrimination; to maintain their traditional and local knowledge, ways of life, methods of production or technology, customs and tradition; and to express their local customs, languages, culture, religions, literature and art, in conformity with international human rights standards.

Some regions have introduced regional laws to protect traditional knowledge and genetic resources. Where these resources are shared between countries, the laws promote common standards so that those seeking access can’t just go to the country with the lowest requirements. Regional laws also provide model legislation that can guide countries developing national laws.

The African Model Legislation for the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources was adopted by the African Union (AU) in 2000. The law is intended to be used as a guide for African countries developing national laws on local community rights, plant breeders’ rights and regulation of access to biological resources.

It contains some progressive provisions on the rights of Indigenous Peoples and local communities. It recognises that both the state and its people have sovereign and inalienable rights over biological resources. It requires that states recognise the rights of Indigenous Peoples and local communities over biological resources, as well as traditional knowledge, innovations and practices. Access must be subject to prior informed consent from communities. It also forbids patents on life forms.

The model law recognises the collective rights of communities, and their customary law, whether it is written down or not. It also recognises farmers’ rights as in the FAO Treaty on Plant Genetic Resources for Food and Agriculture. And it makes plant breeders’ rights subject to recognition of farmers’ rights.

See: The African Model Legislation for the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources.

The ARIPO Swakopmund Protocol on protection of traditional knowledge and expressions of folklore  was adopted in 2010, within the framework of the African Regional Intellectual Property Organisation (ARIPO).

It is open for signature to African member countries of ARIPO. Countries can use and refine the protocol to develop laws to protect traditional knowledge at national level. The protocol grants exclusive rights to communities to authorise the exploitation of their traditional knowledge and prevent exploitation without their prior informed consent. It emphasises that protection must be tailored to the specific characteristics of traditional knowledge, including its collective and community context. 

The protocol grants automatic protection for traditional knowledge that meets the criteria in section IV: knowledge which is generated and sustained in a traditional and inter-generational context, distinctively associated with a local community, and integral to its identity through a form of custodianship or collective ownership or responsibility.

Such a relationship may be established informally by customary practices, laws or protocols. The duration of rights is for as long as these criteria are met. However, rights over knowledge that belongs exclusively to an individual shall last for 25 years.

The protocol states that it shall not be interpreted as limiting the diverse holistic conceptions of traditional knowledge. However, it only recognises the rights of communities over their traditional knowledge, and not over related biological resources. It does not recognise the enormous contribution of communities to conserving and improving genetic resources, or their customary rights and responsibilities  over these resources. This may create practical challenges since traditional knowledge and genetic resources are often used together.

The Andean Community Decision 391 on access to genetic resources and  benefit-sharing was adopted in 1996. It is effective in the Andean Community which includes Bolivia, Colombia, Peru, Ecuador and Venezuela.

It recognises indigenous and local communities’ rights to decide about their know-how, innovations and the traditional practices associated with their genetic resources. When intangible components are involved, the terms for equitable benefit-sharing are to be included in an annex to the access agreement. However, it states that member countries exercise sovereignty over their genetic resources and consequently determine the conditions for access to them.

See: The Andean Community Decision 391 on access to genetic resources.

The Association of South East Asian Nations, composed of 10 countries,  developed a draft  Framework Agreement on Access to Biological and Genetic Resources in 2000.  It requires that all resource providers are actively included in negotiations on potential benefits from the use of  biological and genetic resources, and that each party shall establish processes to ensure fair and equitable benefit-sharing from the use of traditional knowledge and resources.

It leaves it up to member states to determine the nature of access arrangements and grant prior informed consent before access can take place. Competent national authorities are responsible for establishing legally binding procedures for prior informed consent at local level, which “must provide for the active involvement of Indigenous Peoples and local communities embodying traditional lifestyles”.

In addition the PIC process must “respect and comply with customary laws, practices and protocols of Indigenous Peoples and local communities”. However, it seems that this agreement has not been formally adopted by ASEAN member states.