2010 Guest Article: The Evolution of Benefit Sharing

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Home » Resources » Publications » Articles » 2010 Guest Article: The Evolution of Benefit Sharing

2010 Guest Article: The Evolution of Benefit Sharing

The Evolution of Benefit Sharing: Linking Biodiversity and Community Livelihoods

by Elisa Morgera and Elsa Tsioumani (1)

Published online 17 October 2010
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Summary

This article traces the evolution of the use of the legal concept of benefit sharing in the context of the Convention on Biological Diversity (CBD), with a view to highlighting its contribution to indigenous and local communities’ livelihoods. To this end, the article proposes a distinction between inter-State benefit sharing (as identified in the third CBD objective and as usually linked to access to genetic resources) and notably lesser known State-to-community benefit sharing (in relation to the conservation and sustainable use of biodiversity). The article highlights the different legal connotations of the two dimensions of this legal concept, while supporting an integrated interpretation of the CBD. It points to a wide array of benefit sharing-related tools under the CBD that can be used to support indigenous and local communities’ livelihoods in pursuing the convention’s three objectives. The article also identifies other international processes – in the areas of intellectual property, health and climate change – in which these conceptual developments may have a significant influence.

Introduction
Inter-State benefit sharing
State-to-community benefit sharing
     Benefit sharing and the use of traditional knowledge
     Benefit sharing and communities’ participation
     Benefit sharing as compensation for negative impacts on communities
Benefit sharing outside the CBD process
     Intellectual property governance: TRIPS and WIPO IGC
     WHO negotiations on viruses and vaccines
     REDD-plus
Conclusion
Acronyms
Footnotes

This article is based on extracts from: Elisa Morgera and Elsa Tsioumani, “The Evolution of Benefit Sharing: Linking Biodiversity and Community Livelihoods”, Review of European Community and International Environmental Law, 19(2) 2010, p. 150-173.


Introduction

There has been a significant evolution of the use of the legal concept of benefit sharing in the context of the Convention on Biological Diversity (CBD) and its contribution to indigenous and local communities’ livelihoods. In particular, according to the text of the Convention and the decisions of its Conference of the Parties (COP), the concept of benefit sharing has been evolving not only in relation to the use of genetic resources, but also, with remarkably different legal connotations, in relation to the conservation and sustainable use of biodiversity. Accordingly, this leads to distinguishing inter-State (and intra-State) benefit sharing (2)  from State-to-community benefit sharing.

The text of the CBD refers prominently to benefit sharing as its third objective in Article 1 (objectives) (3). In this instance, benefit sharing is tied to the use of genetic resources and embodies an inter-State approach to achieve sustainable development and equity. On the other hand, another key provision of the CBD envisages a qualitatively different concept of benefit sharing as a State-to-community contribution to sustainable development and equity. CBD Article 8(j), with a significantly qualified formulation, calls on parties to encourage the equitable sharing of the benefits arising from the utilization of the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity (i.e., with a specific reference to the first and second objectives of the convention). In this case, benefit sharing envisages the establishment of a relationship between the community and the State in which the community resides, on the basis of national legislation. Interestingly, the implications of Article 8(j) have so far been mostly discussed in the context of the use of genetic resources and/or associated traditional knowledge, and specifically the negotiations on an international access and benefit sharing (ABS) regime (4). Thus, it is common usage to refer to benefit sharing almost exclusively in the context of ‘ABS’ and the third objective of the convention. Such common usage, however, does not take into account the fact that significant developments under the CBD specifically related to the conservation and sustainable use of biodiversity have made recourse to the concept of benefit sharing without any connection to access to or use of genetic resources. These developments embody specific applications of State-to-community benefit sharing, rather than the inter-State concept of benefit sharing used in the ABS context.

Furthermore, benefit sharing is also relevant in the context of other international instruments. Even before the adoption of the CBD, for instance, the Declaration on the Right to Development recognized that States have: the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom. Since then, and mostly prompted by developments in the context of the CBD, several other international instruments and processes have resorted to this concept, particularly in the areas of intellectual property, health and climate change.

Inter-State benefit sharing

The third CBD objective on benefit sharing was at the heart of the political agreement that led to the adoption of the CBD: it was conceived both as an economic incentive for the developing world to conserve biodiversity, as well as a means to correct injustices by promoting equity (5). Placing an obligation on developed countries to share the benefits arising from genetic resource utilization made the CBD not only a conservation agreement, but also one targeting sustainable development and justice. It has been argued that benefits from biodiversity use were expected not simply to finance conservation objectives; they would also contribute to the sustainable development of countries of origin in general, and eventually to the livelihoods of indigenous and local communities traditionally holding the resources and associated knowledge. (6)

The language of the third CBD objective seems to point to three means of sharing benefits (7), each underpinned by specific provisions of the Convention: appropriate access to genetic resources (addressed in Article 15); appropriate transfer of relevant technologies (Article 16), including biotechnology (addressed in Article 19); and appropriate funding (addressed in Articles 20 and 21). Although deliberations regarding the implementation challenges tied to these provisions have taken different tracks under the Convention, they all refer to inter-State benefit sharing, generally leaving considerable discretion to the Party concerned.

Through years of CBD deliberations, the third CBD objective (benefit sharing from the use of genetic resources) has been firmly linked in negotiations and academic literature with access to genetic resources, as ensuring access was generally seen as the pre-condition for continuing research and potentially realizing the benefits to be shared. However, it should be noted that the Convention language places greater emphasis on benefit sharing, while access is presented as a subordinate concept. In that regard, it should be recalled that Article 1 refers to access to genetic resources as one potential means towards achieving benefit sharing. Furthermore, and using clearly legally binding language, Article 15(7) deals specifically with inter-State benefit sharing, calling upon Parties to take legislative, administrative or policy measures aiming to share the results of research and development, and the benefits arising from the commercial and other utilization of genetic resources with the provider country, underscoring that such sharing of benefits must be based on mutually agreed terms (MAT) (8). Notably, this requirement for national benefit sharing measures is not linked to access. The provisions of Article 15 do not include reference to access-related ‘measures’, with Article 15(2) stating, using less binding language, that Parties ‘shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses … and not to impose restrictions that run counter to the objectives of this Convention’.

Parties’ rights and obligations with regard to access are set out in Article 15(1-2) and 15(4-5) reiterating the principle of national sovereignty over natural resources. They recognize that the authority to determine access to genetic resources rests with the national governments of provider countries, subject to national legislation, and provide that access, as well as benefit sharing, must be based on MAT (9). Article 15 further establishes a number of pre-conditions for access to become operational in inter-State relations on the basis of national legislation, including the prior informed consent (PIC) of the Party providing genetic resources.

According to Article 15(7), benefits to be shared on MAT are not only research and development results, but also the commercial or other benefits derived from the utilization of the genetic resources provided. These benefits (governed by Articles 16 and 19) are recognized to also include: access to and transfer of technology using the genetic resources; participation in biotechnological research activities; and priority access to the results and benefits arising from biotechnological use of the genetic resources. As a specific form of benefit sharing and paralleling Article 18 on scientific and technical cooperation, Article 15(6) requires Parties to promote collaborative scientific research between provider and user Parties (10).

To implement the benefit sharing requirement, countries that have or may have users within their respective jurisdictions need to adopt legislative, administrative or policy measures (11). As noted by Tvedt and Young, this means that there are at least two distinct national legislative components to every ABS situation: source-country measures, including provisions clarifying each country’s sovereign rights over genetic resources, and the identification of access procedures and requirements; and user-country measures, by which each country addresses the responsibility of users under their jurisdiction who are utilizing genetic resources from other countries (12). Following the generally accepted understanding that all countries are both users and providers of genetic resources, which is particularly true in the field of crop genetic resources development, all countries are required to adopt national legislation to implement the CBD benefit sharing requirement in inter-State relations. This is especially vital for those developed and developing countries engaged in intense research and sophisticated uses of genetic resources.

The Bonn Guidelines (13) were adopted in order to assist governments in establishing legislative, administrative or policy measures on ABS. However, they provide limited guidance with regard to implementation of the benefit sharing requirements as set in CBD Article 15(7). The Guidelines provide that ‘Contracting Parties with users of genetic resources under their jurisdiction should take appropriate legal, administrative or policy measures, as appropriate, to support compliance with prior informed consent of the Contracting Party providing such resources and mutually agreed terms on which access was granted.’ (14) The Guidelines further provide a list of measures that countries with users in their jurisdiction could consider, including mechanisms to provide information to potential users on their obligations; measures to encourage disclosure of the country of origin of genetic resources and traditional knowledge in applications for intellectual property rights; measures to prevent the use of genetic resources obtained without the prior informed consent of the provider Party; cooperation between Parties to address alleged infringements of ABS agreements; voluntary certification schemes; measures discouraging unfair trade practices; and other measures to encourage users to comply with the Guidelines’ provision on users’ obligations for implementation of MAT (15). This provision states, inter alia, that users should ‘as much as possible endeavour to carry out their use of the genetic resources in, and with the participation of, the providing country’ and should also ensure the fair and equitable sharing of benefits arising from the commercialization or other use of genetic resources, including technology transfer to providing countries, in conformity with MAT. The Guidelines further provide some guidance with regard to the types, timing and distribution of benefits, and mechanisms for benefit sharing, in order to assist Parties and stakeholders in the development of MAT to ensure fair and equitable sharing of benefits, as well as a list of examples of monetary and non-monetary benefits (16). Reflecting the voluntary nature of the guidelines, no specific requirements are provided. On the contrary, it is acknowledged that the benefit sharing mechanism may vary depending upon the type of benefits, the specific conditions in the country and the stakeholders involved, and that it should be flexible, being determined by the partners involved in benefit sharing and varying on a case-by-case basis. (17)

Against this background, it is notable that the Bonn Guidelines place greater emphasis on the benefit sharing obligations of private-party users as part of their contractual obligations (18), rather than on the inter-State dimension of the CBD benefit sharing requirement. This is combined with the Guidelines’ focus on the need for providing countries’ legislation on access, which seems to underestimate the fact that access legislation in providing countries is not sufficient to achieve fair and equitable benefit sharing. Achieving benefit sharing would further require enactment of supportive legislation in countries with users in their jurisdiction, in order to secure their compliance (19). Negotiations on an ABS protocol currently undertaken in the CBD framework are expected to clarify the benefit sharing requirement, ensure compliance and drive the development of mutually supportive national legislation.

While Articles 1 and 15 do not explicitly mention traditional knowledge, this is addressed in the context of in situ conservation in Article 8(j) with regard to the conservation and sustainable use of biodiversity, thereby including traditional knowledge associated with genetic resources, as well as the equitable sharing of benefits arising out of the utilization of such knowledge. On this basis, notwithstanding the fact that Articles 1 and 15 refer to inter-State relations, while Article 8(j) refers to Parties’ domestic policies with respect to traditional knowledge of indigenous and local communities living in their territory (as discussed in detail in part III), Article 8(j) has been mostly discussed in the context of ABS in the CBD framework, and traditional knowledge is being addressed in the current negotiations for an international ABS regime on the basis of a combined reading of Articles 15 and 8(j). This interpretation beyond the letter of the Convention may be explained by the fact that on many occasions, genetic resources attract the interest of bioprospectors and gain value because of the traditional knowledge associated with them. In other words, it is traditional knowledge that sparks the utilization process or provides the lead to the potentially useful properties of a genetic resource. It has thus been argued that in these cases, genetic resources and traditional knowledge are inseparable. Furthermore, several high-profile controversial patent cases have involved the misappropriation and patenting of traditional knowledge associated with genetic resources. (20)

While genetic resources belong to States in accordance with the principle of national sovereignty, traditional knowledge is held by a particular culture or people: it is created in a cultural context and is local in nature. In that regard, measures at the local level, including benefit sharing, are needed for traditional knowledge to be nurtured and the associated genetic resources to be protected. While enactment of national legislation is a necessary precondition for the implementation of, and compliance with, the benefit sharing requirement, specifically targeted policy and legal measures are therefore further needed for the benefits to reach the community level in the provider country, in order to both reward the custodians of biodiversity and holders of traditional knowledge, and assist in poverty alleviation and sustainable development in the provider country.

As opposed to the silence of the CBD third objective and Article 15 on traditional knowledge, the Bonn Guidelines note that benefits should be shared fairly and equitably with all those who have been identified as having contributed to the resource management, scientific and/or commercial process, including indigenous and local communities, and that benefits should be directed in such a way as to promote conservation and sustainable use of biological diversity (21). This express reference to indigenous and local communities as potential beneficiaries in the ABS process can be arguably read in conjunction with references, in the objectives of the Guidelines, to the promotion of technology transfer, contribution to the development by Parties of ABS mechanisms that recognize the protection of traditional knowledge, and contribution to poverty alleviation and realization of food security, health and cultural integrity.

For the time being, it seems that CBD Parties are unwilling (and/or legally unable) to implement benefit sharing as an inter-State obligation. Even if we assume that the political will exists to achieve such a goal, several challenges and questions remain with regard to the optimal legislative and regulatory approach for user countries to ensure that benefits are fairly and equitably shared with the provider country. In addition, specific tools are required for the benefits to reach the indigenous peoples and local communities and for benefit sharing as a general concept to contribute to the realization of equity and sustainable development considerations. The need for user country legislation to implement the CBD’s inter-State benefit sharing requirement would need to be combined with systems of distribution of benefits within the provider country, to fit each country’s specific circumstances and regulatory traditions, in order for the CBD ABS provisions to influence and promote realization of benefit sharing at the community level. A tool attempting to bridge inter-State benefit sharing with communities’ needs, aspirations and livelihoods that has been recently proposed is the bio-cultural protocol – a tool promoted by Natural Justice, a non-government organisation of lawyers working with communities in southern Africa.

State-to-community benefit sharing

In contrast to the more widely shared understanding of benefit sharing as an inter-State obligation under the third objective of the CBD, the concept that emerges from CBD Article 8(j) portrays benefit sharing as recognition of the contribution of indigenous and local communities’ traditional knowledge, innovation and practices to the conservation of biodiversity and, based on a combined reading with Article 10(c) (22) , to the sustainable use of biodiversity components, in consideration of the fact that traditional knowledge derives from the customary use of biodiversity components and contributes to ensuring the conservation of biodiversity. This concept of benefit sharing seems to differ significantly from that used in the ABS context as discussed above, in that benefits are encouraged to flow from the State to a community within its territory for a different use of biodiversity – its conservation and sustainable use, according to the first and second objectives of the Convention - rather than in relation to the access and use of genetic resources more specifically, under the third objective. In the case benefit sharing from conservation and sustainable use, therefore, the benefits are expected to flow directly to communities and immediately contribute to their livelihoods as a matter internal to one State.

As opposed to the clearly mandatory language used in Article 15, the text of the Convention with regard to State-to-community benefit sharing is quite open-ended and controversial. The CBD preamble only stresses the ‘desirability’ of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biodiversity and the sustainable use of its components. The language of Article 8(j) itself refers to ‘encourage[ing] the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’, and its chapeau is qualified by the phrase ‘as far as possible and appropriate,’ leading to discussions among CBD Parties as to the legal significance of the provision.

Notwithstanding all these difficulties, a clear trend seems to emerge from the multitude of decisions adopted by the CBD COP referring to the concept of State-to-community benefit sharing in the context of various programmes of work (the main instrument that CBD Parties have developed for themselves to achieve the commitments contained in the Convention) and voluntary guidelines related to the conservation and sustainable use of biodiversity with specific regard to protected areas, forests, mountains, tourism, environmental and socio-cultural impact assessment, and the ecosystem approach. Interestingly, not all these references provide an explicit link to CBD Article 8(j), and in many respects the concept of State-to-community benefit sharing may not necessarily be directly dependent on the use of traditional knowledge as such, thus seemingly having been developed in a way that goes beyond the letter of Article 8(j). As will be discussed below, the concept may rather operate as a broader incentive to ensure the full and effective participation of indigenous and local communities in decision-making and adaptive management of biodiversity, or as compensation for the costs and negative impacts of biodiversity conservation or sustainable management activities on indigenous and local communities. As such, the concept of State-to-community benefit sharing becomes an essential substantive tool that underpins procedural guarantees to ensure community involvement in decision-making and sustainable management of living resources.

Benefit sharing and the use of traditional knowledge

The link between benefit sharing and the use of traditional knowledge as a contribution to the conservation and sustainable use of biodiversity was highlighted in Agenda 21, where governments are called upon to ‘recognize and foster the traditional methods and the knowledge of indigenous people and their communities, emphasizing the particular role of women, relevant to the conservation of biological diversity and the sustainable use of biological resources, and ensure the opportunity for the participation of those groups in the economic and commercial benefits derived from the use of such traditional methods and knowledge.’ (23) The Johannesburg Plan of Implementation (JPOI) provides more action-oriented language, calling for the development and implementation of benefit sharing mechanisms on mutually agreed terms for the use of traditional knowledge, innovations and practices, subject to national legislation and with communities’ approval and involvement (24). Notably, the latter reference highlights a sense of urgency in proceeding with national implementation on State-to-community benefit sharing and the need to avoid a top-down approach in doing so. In addition, the JPOI moves away from a purely economic view of the benefits linked to traditional knowledge.

The CBD programme of work on Article 8(j) and related provisions may also lead to understanding benefit sharing as dependent on the use of traditional knowledge, innovations and practices. According to Task 7 of its programme of work, the CBD Working Group on Article 8(j) is to develop guidelines for the development of mechanisms, legislation or other appropriate initiatives to ensure that indigenous and local communities obtain a fair and equitable share of benefits arising from the use and application of their knowledge, innovations and practices; and that private and public institutions interested in using such knowledge, practices and innovations obtain the prior informed approval of these communities (25). Expanding upon the text of Article 8(j), therefore, the programme of work specifies the need for a bottom-up approach to State-to-community benefit sharing, and for communities to be active participants in the development of such benefit sharing mechanisms.

Other areas of work under the CBD have contributed to clarifying in more detail the link between benefit sharing and the use of traditional knowledge. Building upon the Rio Forest Principles (26), the CBD work programme on forest biodiversity explicitly refers to the fair and equitable sharing of the benefits from forest-related traditional knowledge (27), emphasizing its link with sustainable use in the context of forest management by indigenous and local communities. Furthermore, the work programme foresees that at the national level the development of community-based approaches for the conservation and sustainable use of forest biodiversity will build upon integrating traditional forest-related knowledge and benefit sharing considerations, in accordance with Article 8(j) and related CBD provisions.

The CBD Addis Ababa Principles and Guidelines on the Sustainable Use of Biodiversity (28) link the inclusion of traditional knowledge in biodiversity management planning with benefit sharing. Principle 4(a) states that adaptive management should be practiced based on science and local and traditional knowledge, according to a rationale underlining that ‘in many societies traditional and local knowledge has led to much use of biological diversity being sustainable over long time-periods without detriment to the environment or the resource’, thus considering the incorporation of such knowledge into modern use systems critical to avoid inappropriate use and enhance sustainable use of biodiversity components. Accordingly, adaptive management plans are to incorporate ‘systems to generate sustainable revenue, where the benefits go to indigenous and local communities and local stakeholders to support successful implementation.’ (29)

Other COP decisions also indicated that benefit sharing may be a means to contribute to the further preservation of traditional knowledge, in addition to rewarding communities for the use of their knowledge. The CBD Working Group on Protected Areas points in this direction, by encouraging ‘the establishment of protected areas that benefit indigenous and local communities, including by respecting, preserving, and maintaining their traditional knowledge in accordance with Article 8(j) and related provisions.’ (30)

The above-mentioned references to benefit sharing evidence an approach that favours the incorporation of traditional knowledge in living resources management through planning, and provide for rewarding communities that contribute to the adaptive management of biodiversity.

Benefit sharing and communities’ participation

State-to-community benefit sharing can also be seen as a substantive tool reinforcing general principles of public participation in environmental decision-making and management, and particularly as underpinning procedures to ensure the meaningful participation of indigenous and local communities in the conservation and sustainable use of biodiversity. There is a significant number of explicit references to benefit sharing in the CBD COP decisions that, going beyond the letter of Article 8(j), point to the use of this concept as expecting States to fully involve communities in the governance of biodiversity conservation and sustainable use, encouraging and rewarding them for their participation in decision-making through legal recognition and promotion of community management systems, provision of capacity-building services, making available employment or other income-generation opportunities, and ultimately sharing economic revenues derived from the conservation and sustainable use of biodiversity (such as park entrance fees, licences fees for wildlife watching or sustainable hunting, etc.) or giving precedence to community-based mechanisms for conservation and sustainable use.

The CBD COP decisions on the ecosystem approach, for instance, indicate that benefit sharing is expected to target stakeholders responsible for the production and management of the benefits flowing from the multiple functions provided by biodiversity at the ecosystem level, including capacity-building, especially at the level of local communities managing biological diversity in ecosystems and local incentives for good management practices (31). In line with the ecosystem approach, the CBD work programme on protected areas also clearly links benefit sharing with communities’ participation in biodiversity conservation. Its programme element 2 is tellingly titled ‘Governance, participation, equity and benefit sharing’ and links the goal of promoting equity and benefit sharing with the legal recognition and effective management of indigenous and local community conserved areas in a manner consistent with the goals of conserving both biodiversity and the knowledge, innovations and practices of these communities; using the social and economic benefits generated by protected areas for poverty reduction, consistent with protected-area management objectives. To this end, it stresses the need for engaging indigenous and local communities and relevant stakeholders in participatory planning and governance. (32)

The CBD Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity further provide an interesting exemplification of benefit sharing as an incentive for communities’ participation. The operational guidelines to Principle 4 recommend adopting policies and regulations that ensure that indigenous and local communities and local stakeholders who are engaged in the management of a resource for sustainable use receive an equitable share of any benefits derived from that use; and promoting economic incentives that will guarantee additional benefits to those involved in the management of any biodiversity components, such as job opportunities for local peoples, or equal distribution of returns amongst locals and outside investors, and support for co-management. In addition, the guidelines use benefit sharing as a means specifically to ensure local stakeholder participation in projects led by foreign investors. In these instances, the link with Article 8(j) is hardly visible. Rather, one can infer that benefit sharing is used as an incentive to ensure the effective participation of indigenous and local communities in the sustainable use of biodiversity, further contributing to sustainable development, as well as a means to prompt compliance with conservation and sustainable use regulations.

Benefit sharing as compensation for negative impacts on communities

The CBD Parties have also contributed to a formulation of State-to-community benefit sharing as a way to compensate indigenous and local communities for negative impacts caused by conservation and sustainable use efforts. The CBD work programme on protected areas, for instance, points to the need to ‘[a]ssess the economic and socio-cultural costs, benefits and impacts arising from the establishment and maintenance of protected areas, particularly for indigenous and local communities, and adjust policies to avoid and mitigate negative impacts, and where appropriate compensate costs and equitably share benefits in accordance with the national legislation’. (33)

The Akwé: Kon Guidelines for the conduct of cultural, environmental and social impact assessment on sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities, provide for a more detailed application of State-to-community benefit sharing as compensation. The Guidelines contain references to benefit sharing that seem to be based on an understanding of traditional practices as inherent in the traditional occupation of lands and waters, and seem to suggest that impact assessments can be used as tools that contribute to the equitable sharing of benefits, by identifying and weighting expected cultural, social and environmental costs and impacts of proposed developments, as well as communities’ opportunities and traditional contributions to conservation and sustainable use. The Guidelines recommend that the cultural, environmental and social impact assessment reflects ‘a balance between economic, social, cultural and environmental concerns, on the one hand, while, on the other hand, maximizing opportunities for the conservation and sustainable use of biological diversity, the access and equitable sharing of benefits and the recognition of traditional knowledge, innovations and practices in accordance with Article 8(j) of the Convention, and should seek to minimize risks to biological diversity.’ (34) Specifically, they provide that ‘[p]roposed developments on sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities should ensure that tangible benefits accrue to such communities, such as payment for environmental services, job creation within safe and hazard-free working environments, viable revenue from the levying of appropriate fees, access to markets, and diversification of income-generating (economic) opportunities for small and medium-sized businesses.’ (35)

Along similar lines, the CBD Guidelines on Biodiversity and Tourism seem to imply a concept of benefit sharing as compensation, by including among their goals the ‘[f]air and equitable sharing of benefits of tourism activities, with emphasis on the specific needs of the indigenous and local communities concerned,’ (36) and the need for ‘[p]roviding alternative and supplementary ways for communities to receive revenue from biological diversity.’ (37) To this end, the Guidelines list a series of possible benefits arising from tourism and the conservation of biodiversity to be shared with indigenous and local communities, including job creation, fostering local enterprises, participation in tourism enterprises and projects, education, direct investment opportunities, economic linkages and ecological services. (38)

The relevance of State-to-community benefit sharing is also reflected in the current debate on the indigenous peoples’ right to provide prior informed consent. In 2009, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, for instance, included an analysis of the duty of States to consult with indigenous peoples on matters affecting them, focusing in particular on consultations in the context of development and natural resources extraction initiatives affecting indigenous lands. He stressed that indigenous peoples should be provided with ‘full and objective information about all aspects of the project that will affect them, including the impact of the project on their lives and environment.’ (39) To this end, an environmental and social impact study should be carried out and its outcome should be presented to indigenous groups at an early stage of the consultations. In addition, the Special Rapporteur recommended that consensus-driven consultation processes should not only address measures to mitigate or compensate for adverse impacts of projects, but also explore and arrive at means of equitable benefit sharing in a spirit of true partnership.

State-to-community benefit sharing as compensation for negative impacts thus represents a practical implication of the principle of intra-generational equity, as taking into account the possible impacts of policies and decisions on the poor. As the above-cited guidance from the CBD COP shows, State-to-community benefit sharing not only provides for incentives and rewards when community practices and knowledge contribute to conservation and sustainable use, but also specific measures (payments for ecosystem services, diversification of income-generating opportunities, and other mitigation measures) to address instances in which the interests of biodiversity protection are in irreconcilable conflict with the legitimate interests of communities, and the former need to prevail. To this end, undertaking cultural, social and environmental impact assessments with the full engagement of relevant communities is an indispensable procedural step.

Benefit sharing outside the CBD process

The legal concept of benefit sharing is relevant in other international processes, outside the framework of the CBD and other biodiversity-related conventions. These include negotiations on the relationship between the CBD and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO); the protection of genetic resources, traditional knowledge and traditional cultural expressions in the framework of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO); the framework for sharing influenza viruses and access to vaccines and other benefits under the World Health Organization (WHO); and reducing emissions from deforestation, forest degradation, sustainable forest management, forest conservation and enhancement of carbon stocks (REDD-plus) under the UN Framework Convention on Climate Change (UNFCCC).

Intellectual property governance: TRIPS and WIPO IGC

The intellectual property governance structure provides a clear example of how several negotiators, particularly from developing countries, have been attempting to use principles enshrined in the CBD in other fora to achieve inter-State benefit sharing and promote equity and sustainable development objectives. Following several high-profile controversial patent cases involving genetic resources and traditional knowledge, including turmeric, neem, ayahuasca and hoodia, many analysts realized that the intellectual property structures and officers lack the norms and tools to prevent ‘wrong’ patents based on prior art, let alone to take into account the CBD objectives. It was argued that unless the TRIPS Agreement is amended to ensure respect for the CBD principles also in the intellectual property field, implementation and enforceability of such principles will be lacking. (40) While patenting based on the use of genetic resources is allowed under TRIPS (subject to meeting patentability criteria), the CBD objectives are currently not supported because the patentability requirements do not require evidence of prior informed consent or MAT for benefit sharing. Furthermore, there is nothing in TRIPS to provide support for the CBD’s principle of national sovereignty so foreign companies may obtain private rights derived from national resources without having to adhere to CBD principles. Although it can be argued that access to resources in violation of the CBD principles of prior informed consent and benefit sharing may not be legitimate, in the absence of national legislation implementing such principles, enforceability is weak, if existent at all. Therefore, several developing countries have been calling for an amendment to TRIPS to bring it in line with the CBD by introducing requirements to disclose the origin of genetic material and evidence of prior informed consent and benefit sharing in patent applications. The original proposal, submitted by a group of developing countries led by India and Brazil (41), was eventually supported by a coalition of 110 WTO members by 2008, when a strategic alliance was made with the EU and Switzerland calling for a procedural decision to negotiate in parallel the biodiversity amendment and geographical indications, another issue under discussion in the TRIPS Council.

At the same time, certain developed countries have been calling for disclosure requirements and mechanisms to be addressed in the framework of negotiations held in WIPO IGC. Established in 2001, the IGC received a renewed mandate by the 2009 session of WIPO General Assemblies (42) to continue its work and undertake text-based negotiations towards international legal instrument(s) which will ensure effective protection of genetic resources, traditional knowledge and traditional cultural expressions, ‘without prejudice to the work pursued in other fora’ – such fora including in particular the TRIPS Council, other WIPO committees and bodies such as the Working Group on the Patent Cooperation Treaty, and arguably the CBD with regard to its ABS negotiations. It should be noted that the establishment of the IGC was a result of the influence of the CBD principles, as well as of developing countries’ concerns regarding the consequences of patents over their genetic resources and traditional knowledge, and inherent injustices enshrined in the intellectual property system (43). The question of how to establish mechanisms or obligations that can capture ABS-relevant benefits from the patent systems and channel them back to the country providing genetic resources and/or traditional knowledge thus remains open in various fora. (44)

WHO negotiations on viruses and vaccines

Over the past five years, WHO negotiations to increase equitable access to vaccines for highly pathogenic avian influenza A and pandemic 2009 influenza A over the past five years have evolved into a highly controversial area of global health diplomacy. (45) In this context, vaccines are the benefits to be shared in return for access to viruses, to facilitate medical research. The debate has mirrored difficulties encountered in the CBD framework, as developing countries are concerned that their populations would not have access to influenza vaccines. Such concerns, and the lack of any mechanism to ensure equitable access to other benefits from research on influenza viruses, prompted Indonesia to refuse to share its H5N1 virus samples with the WHO. (46)

The question of whether and to what extent the CBD applies to pathogens, and therefore whether the principle of national sovereignty should apply, remains open. While application of the principle of national sovereignty in this case is generally not regarded as conducive to facilitating timely sharing of virus samples required to improve global health governance, pathogens used to develop vaccines and medicines are economic resources and could be covered by the commercial dimension of ABS. The issue was addressed in the CBD during deliberations on the scope of the international regime when developing countries sought to ensure that a future ABS framework would cover viruses and other pathogenic material, without reaching a solution. (47)

The discontent of developing countries with the traditional global influenza strategy has led to a reform process under the WHO on the sharing of influenza viruses and on access to vaccines and other benefits. In 2007, a resolution was adopted (48) which, using language clearly reflecting the influence of the CBD, urges WHO member States to ensure and promote ‘transparent, fair and equitable sharing of the benefits arising from the generation of information, diagnostics, medicines, vaccines and other technologies.’ Subsequent inter-governmental meetings have worked on drafting a pandemic influenza preparedness framework for the sharing of viruses and access to vaccines, although significant areas remained unresolved.

REDD-plus

Consideration of REDD-plus under the UNFCCC opens the door to possible international legal provisions on forest conservation and sustainable use with a view to mitigating climate change, as well as a Pandora’s Box of concerns to ensure that the other multiple values of forests are not overlooked, particularly those related to biodiversity and the livelihoods of forest-dependent indigenous and local communities.

In 2007, this item was formally included in the UNFCCC negotiations by the Bali Action Plan, as consideration of ‘policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.’ (49) In addition, parties were encouraged to explore a range of actions, including demonstration activities, to address deforestation and forest degradation. (50)

Negotiations on REDD-plus under the UNFCCC may concern both inter-State benefit sharing, with regard to the question of whether public funding or market-based mechanisms or a combination of both may be used to reward developing countries for their emission reductions, and State-to-community benefit sharing, in so far as negotiations have focused on safeguards. While negotiations are mainly concerned with the former at this stage, it is worth remarking that questions of respect for traditional knowledge and participation of indigenous and local communities in REDD-plus have been mainly discussed in the context of social safeguards (51), without any specific reference to (State-to-community) benefit sharing. Nonetheless, the close links between traditional knowledge, communities’ effective participation and possibly compensation for negative impacts deriving from REDD-plus actions may point in the direction of State-to-community benefit sharing. And indeed legal literature anticipates that benefit sharing will be part, or a result of, a future REDD-plus international frame-work. (52)

In this respect it is instructive that the pilot initiatives on REDD led by the UN System and the World Bank have already addressed benefit sharing. The UN-REDD Programme (the United Nations Collaborative initiative on Reducing Emissions from Deforestation and forest Degradation in developing countries) adopted in 2009 its ‘Operational Guidance: Engagement of Indigenous Peoples and Other Forest Dependent Communities’, (53) which refers to the obligations stemming from CBD Article 8(j) as providing guidance and overarching principles for engagement with indigenous peoples based on a human rights-based approach. It further identifies relevant provisions of the UN Declaration on the Rights of Indigenous Peoples in the context of REDD and provides a detailed discussion of how free prior informed consent relates to REDD activities, including the need for ‘a preliminary assessment of likely economic, social, cultural and environmental impacts, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle,’ based on the CBD Akwé: Kon voluntary guidelines. It is also noted that failure to use these guidelines could raise ‘serious questions as to [whether the] environmental and social impact assessment conforms to international best practice and standards.’ Finally, the guidelines call for participation also in benefit sharing and in the establishment of REDD payment distribution.

The World Bank’s ‘Forest Carbon Partnership Facility’ published in 2009 a guidance document on ‘National Consultations and Participation for REDD’ (54), which adopts pragmatic – rather than human rights-based – language, calling for prior informed ‘consultation and participation’ in order to elaborate more effective and more sustainable policies and programmes. This terminology is based on the Bank’s Operational Guidelines (OP) 4.10 on Indigenous Peoples (55), which require ‘prior, informed consultation’ as a fundamental step in the planning and implementation of projects financed by the World Bank that may affect indigenous peoples, as well as that ‘Indigenous Peoples receive social and economic benefits that are culturally appropriate and gender and inter-generationally inclusive.’ (56) For present purposes, it should be noted that the guidance document refers both to the ‘equitable and effective distribution of REDD revenues’ and to guaranteeing the equitable share of REDD benefits with stakeholders affected vis-à-vis REDD strategies, particularly poor and marginalized groups. This ambiguous choice of terms seems to leave open the question of whether non-economic benefits arising from REDD activities will also come into play.

It remains to be seen, therefore, whether State-to-community benefit sharing will play a significant role in international or national law on REDD-plus, as a reward for forest-related traditional knowledge, as an incentive for communities’ participation in REDD+ activities, or as compensation for negative impacts of REDD-plus activities on forest-dependent indigenous and local communities, building on the guidance and tools developed under the CBD.

Conclusion

The developments under the CBD have progressively clarified that inter-State and State-to-community benefit sharing may contribute in different ways and under different conditions to communities’ livelihoods, as well as have a bearing on other global processes. Given the fact that the CBD Secretariat and CBD Parties are becoming more and more aware of the need to demonstrate the relevance of the Convention to global development and human well-being, efforts are now needed to fully implement benefit sharing with a view to effectively supporting sustainable development and equity.

With specific regard to inter-State benefit sharing related to access to genetic resources and traditional knowledge, enactment of national legislation should be accompanied by a system involving an international ABS regime and an amendment to the intellectual property rights architecture, in combination with a compliance and enforcement system, to deal with cross-border movements of genetic resources and development of products based on genetic resources and traditional knowledge. Consistency among the different international fora working in the field is thus critical. Against this background, specific legal tools are needed to ensure that benefits reach the community level and reward indigenous peoples and local communities for their stewardship.

Work on State-to-community benefit sharing with regard to the CBD conservation and sustainable use objectives also needs to be intensified. The overall picture of procedural requirements that emerges from various COP decisions must be reflected systematically in national legislation, to ensure that benefits arising from the conservation and sustainable use of biodiversity reach indigenous and local communities in recognition of their traditional knowledge contributions, as an incentive for their participation in decision-making and as compensation for negative impacts arising from priority conservation measures, ultimately facilitating compliance with the law.

The fragmentation of the CBD processes, resulting in a myriad of overlapping COP decisions, however, may have obscured the significant evolution of benefit sharing and its overall coherence. This is not only an obstacle for law-makers involved in the implementation of the Convention at the national level, but also for negotiators willing to ensure mutual supportiveness with the Convention in other international processes. It may also be a hindrance to private sector entities involved in the conservation and sustainable use of biodiversity on the ground, and to international and national adjudicators willing to uphold a community human rights-based approach to environmental protection. Furthermore, notwithstanding the legal and conceptual differences between inter-State and State-to-community dimension of benefit sharing, the urgent need for an integrative interpretation and application of the text of the Convention and its COP decisions cannot be over-estimated in achieving the CBD’s three objectives in a mutually reinforcing way.


Acronyms and Abbreviations

ABS: Access and Benefit Sharing
CBD: Convention on Biological Diversity
COP: Conference of the Parties
IGC: Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
JPOI: Johannesburg Plan of Implementation
MAT: Mutually agreed terms
REDD-plus: Reducing emissions from deforestation, forest degradation, sustainable forest management, forest conservation and enhancement of carbon stocks
TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights
UNFCCC: UN Framework Convention on Climate Change
WHO: World Health Organization
WIPO: World Intellectual Property Organization
WTO: World Trade Organization

Footnotes

  1. Elisa Morgera (LLM, PhD) is Lecturer in European Environmental Law and Director of the LLM Programme in Global Environment and Climate Change Law at the School of Law, University of Edinburgh, UK. Elsa Tsioumani (LLM) is a lawyer and consultant in international and European environmental law and policy, based in Thessaloniki, Greece, and senior writer for UNU-IAS TK Bulletin.
  2. The inter-State dimension was stressed in D. Shelton, Fair Play, Fair Pay: Preserving Traditional Knowledge and Biological Resources 5 Yearbook of International Environmental Law (1994), 76, at 83.
  3. CBD Article 1 refers to: the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.
  4. Following the call of the UN World Summit on Sustainable Development to negotiate, within the CBD framework, an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilization of genetic resources (Johannesburg Plan of Implementation (UN. Doc. A/CONF.199/20, 4 September 2002), Resolution 2, Annex, para 44(o) (JPOI)), the seventh Conference of the Parties to the CBD mandated the CBD Working Group on ABS to negotiate an international regime on ABS. Discussions on the international ABS regime also dominated negotiations at the CBD Working Group on Article 8(j) and related provisions.
  5. See M.W. Tvedt and T. Young, Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, IUCN ABS Series No. 2 (IUCN, 2007), at 75-98.
  6. For discussion of the potential contribution of ABS to development, see W. Reid et al., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (World Resources Institute, 1993); and R. Wynberg and S. Laird, Bioprospecting, Access and Benefit Sharing: Revisiting the Grand Bargain in R. Wynberg et al. (eds) Indigenous Peoples, Consent and Benefit sharing: Lessons from the San Hoodia Case (Springer, 2009), 69.
  7. See L. Glowka et al., A Guide to the Convention on Biological Diversity, IUCN Environmental Policy and Law Paper No. 30 (IUCN, 1994).
  8. CBD Article 15(7) reads: Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.
  9. The Convention therefore establishes a contractual mechanism to facilitate the achievement of ABS obligations and objectives. See M.W. Tvedt and T. Young above, at 18.
  10. CBD Article 15(6) reads: Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.
  11. See M.W. Tvedt and T. Young above, at 8.
  12. Ibid, at 3.
  13. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (Bonn Guidelines), adopted under access and benefit sharing as related to genetic resources (CBD Decision VI/24, 27 May 2002).
  14. Ibid., sub-para. 16(d).
  15. Ibid., sub-para. 6(b). See C. V. Barber, S. Johnston and B. Tobin, User measures: options for developing measures in user countries to implement the access and benefit sharing provisions of the Convention on Biological Diversity (UNU-IAS, 2003).
  16. Bonn Guidelines, Section D, paras 45-50, and Appendix II.
  17. Ibid., para. 49.
  18. It should be reiterated that a specific ABS agreement would be negotiated and agreed upon for each individual case. Parties to the ABS agreement could be the States (government entities) providing and requiring access, but also the State providing access and a private entity (i.e. a company or university) requiring access and having to share the benefits. Depending on the individual agreement reached on the basis of national legislation of the country providing access, benefits would be shared with the providing country and/or the community concerned.
  19. See M.W. Tvedt and T. Young above, at 18.
  20. See Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development (Commission on Intellectual Property Rights, 2002), at 76.
  21. Bonn Guidelines, para. 48.
  22. CBD Article 10(c) reads as follows: Each Contracting Party shall, as far as possible and as appropriate: [...] Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.
  23. Agenda 21, para. 15(4)(g) (emphasis added).
  24. Johannesburg Plan of Implementation, paras. 44(j).
  25. Programme of Work on the Implementation of Article 8(j) and Related Provisions of the Convention on Biological Diversity, adopted in Article 8(j) and related provisions (CBD Decision V/16, 22 June 2000), Annex.
  26. Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (UN Doc. A/CONF.151/126, 13 June 1992).
  27. Forest biological diversity (CBD Decision VI/22, 27 May 2002), para. 13.
  28. Addis Ababa Principles and Guidelines for the Sustainable use of Biodiversity, adopted by CBD COP Decision VII/12, Sustainable Use (Article 10) (13 April 2004), Annex II.
  29. Ibid., operational guidelines to Principle 4.
  30. Programme of Work on Protected Areas, adopted by CBD COP Decision VII/28, Protected Areas (Articles 8 (a) to (e)) (13 April 2004), Annex, para. 1.1.7.
  31. Principles of the Ecosystem approach, in Ecosystem approach (CBD Decision V/6, 22 June 2000), Annex B, Operational Guidance 2, para. 9.
  32. Ibid., Annex I, paras. 2.1.3-2.1.5.
  33. See Programme of Work on Protected Areas, n. 99 above, para. 2(1)(1).
  34. Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, in Article 8(j) and related provisions (CBD COP 7 Decision VII/16F, 13 April 2004), para. 56.
  35. Ibid., para. 46.
  36. International Guidelines for Activities Related to Sustainable Tourism Development in Vulnerable Terrestrial, Marine and Coastal Ecosystems and Habitats of Major Importance for Biological Diversity and Protected Areas, Including Fragile Riparian and Mountain Ecosystems, Biological Diversity and Tourism (CBD Decision VII/14, 13 April 2004), Annex, para 22.
  37. Ibid., para. 43
  38. Ibid., para. 23.
  39. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (UN Doc. A/HRC/12/34, 15 July 2009), para. 53.
  40. See M. Chouchena-Rojas, M. Ruiz Muller, D. Vivas and S. Winkler, Disclosure Requirements: Ensuring mutual supportiveness between the WTO TRIPS Agreement and the CBD (IUCN and ICTSD, November 2005).
  41. Documents circulated under the 2001 mandate of the Doha Development Agenda are available at: Article 27.3b, traditional knowledge, biodiversity (WTO, undated), found at:
  42. Report of the 38th (19th Ordinary) session of the WIPO General Assembly (Geneva, 22 September ╨ 1 October 2009, doc. WO/GA/38/20, 1 October 2009), para. 217.
  43. WIPO Secretariat, Matters concerning intellectual property and genetic resources, traditional knowledge and folklore (WO/GA/26/6, 25 August 2000), paras 1-2.
  44. R. Andersen et al., International Agreements and processes affecting an international regime on ABS under CBD , FNI Report 3.2010 (March 2010) at 34.
  45. D. P. Fidler Negotiating Equitable Access to Influenza Vaccines: Global Health Diplomacy and the Controversies Surrounding Avian Influenza H5N1 and Pandemic Influenza H1N1 7:5:1000247 PLoS Med (4 May 2010).
  46. Indonesia's refusal to share its virus samples was based on CBD principles: it was argued that it had the right not to share the samples because it controlled access on samples collected in its territory, other Parties could not use them without their prior informed consent, and their use should result in benefits for Indonesia. See D. P. Fidler Influenza virus samples, international and global health diplomacy 14:1 Emerging Infectious Diseases, 2008, cited at R. Andersen et al. above, at 40.
  47. C. Chiarolla, et al., Summary of the seventh meeting of the Working Group on Access and Benefit sharing of the CBD, 2-8 April 2009 , 9:465 Earth Negotiations Bulletin (2009).
  48. See WHO resolution 60.28 (May 2007) on Pandemic Influenza Preparedness: sharing of influenza viruses and access to vaccines and other benefits.
  49. Bali Action Plan, Decision 1/CP.13 in Report of the Conference of the Parties on its thirteenth session: Decisions adopted by the Conference of the Parties (FCCC/CP/2007/6/Add.1, 14 March 2008), para. 1(b)(iii).
  50. Reducing emissions from deforestation in developing countries: approaches to stimulate action, Decision 2/CP.13, in Report of the Conference of the Parties on its thirteenth session: Decisions adopted by the Conference of the Parties, ibid., para. 3.
  51. The text resulting from negotiations in the Working Group on Long-Term Cooperative Action (Report of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention on its eighth session (FCCC/AWGLCA/2009/17, 5 February 2010), section G) at the Copenhagen Climate Change Conference in December 2009 contains language on respecting the knowledge and rights of indigenous peoples and members of local communities, by taking into account relevant international obligations, national circumstances and laws; full and effective participation of relevant stakeholders, including in particular indigenous peoples and local communities in REDD actions; and ensuring that REDD actions are used to enhance social and environmental benefits. Another portion of text provides that developing countries developing and implementing their national strategy or action plan on REDD ensure the full and effective participation of indigenous peoples and local communities in addressing drivers of deforestation and forest degradation, land tenure issues, forest governance issues, gender considerations and safeguards.
  52. See, for instance, K. Graham and A. Thorpe, Community-based Monitoring, Reporting and Verification of REDD Projects: Innovative Potentials for Benefit sharing 3:3 Climate and Carbon Law Review (2009), 303; and J. Costenbader, Benefit sharing , in J. Costenbader (ed.) Legal Frameworks for REDD: Design and Implementation at the National Level, IUCN Environmental Policy and Law Paper No. 77 (IUCN, 2010), at 57-80.
  53. UN REDD Programme, Operational Guidance: Engagement of Indigenous Peoples and Other Forest Dependent Communities (UN REDD Programme, March 2009), found at
  54. Forest Carbon Partnership Facility, National Consultations and Participation for REDD (Note FMT 2009-2, 6 May 2009), found at
  55. World Bank, Operational Policies (OP) 4.10 ╨ Indigenous Peoples (July 2005), found at
  56. Ibid., para. 1.
   
 
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