BIODIVERSITY BEYOND NATIONAL JURISDICTION (BBNJ) AGREEMENT AND ROLE OF TRADITIONAL KNOWLEDGE

 

AUTHORED BY - KIRTI MINHAS*

 

ABSTRACT

Traditional Knowledge (TK) of the ocean and its resources has to be recognised by the International community. The indigenous and local community holders of the traditional knowledge have to be bought into the international community for the development and implementation of conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ) under the United Nations Law of the Sea (UNCLOS).

 

The paper discusses the working definitions of TK which are part of international instruments to understand what exactly is TK. There is no definitive definition of the term. The second section of the paper will cover international instruments including the Convention on Biodiversity (CBD) and its Nagoya Protocol along with UNCLOS to explain the need for TK in the BBNJ instrument. It will consider the overlap between the two conventions with regard to marine resources and the legal impact on marine scientific research (MSR). Along with the legal landscape of access to and utilization of marine resources. Further, the last part of the paper discusses the latest draft of BBNJ and the importance it has given traditional knowledge. An overview of the draft treaty is provided in order to suggest a way forward for India.

               

• I. INTRODUCTION

Ocean and its resources are one of the most valued resources of the world. More than 90% of the planet is water. Humans depend on the ocean for a lot of activities as well. 17% of the source of food in the world comes from the ocean, then there is transportation and world trade more than 70% of which is through the ocean.[1] 50% of the air we breathe is generated from oceans and it helps in balancing climate change. A pictorial representation of the same is made in Figure 1.

 

 

 

Figure 1, Source: National Ocean Service

Sustainable use of the oceans and their resources is a key feature for the protection of biodiversity. Sustainable Development Goal (SDG) 14[2] on conservation and sustainable uses of ocean and life below water is essential for reaching other goals as well.  14.7 in which focuses on increasing economic benefits to small islands, least developed nations, and developing nations with sustainable use of marine resources.

 

The legal instrument already in place for the same is the Convention on Biological Diversity (CBD)[3] and the Nagoya Protocol on access and benefit sharing[4]. Further, for the achievement of the goal, one of the recent treaties undergoing development in the United Nations is the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ)[5] under the United Nations Convention on Law of the Sea (UNCLOS).[6]

 

Indigenous people and local communities (IPLC) play an important role in achieving all these goals. CBD talks about benefit sharing with the local communities through prior informed consent and mutually agreed terms. These communities are holders of a vast amount of traditional knowledge about oceans and their resources. In the negotiations of BBNJ the Small Island Developing States (SIDS) advocated for incorporating TK in the instrument.

 

This paper will be focused on bringing out the relevance of traditional knowledge in the BBNJ and along the way will explain how TK has been defined and its interaction with CBD. Secondly, the integration of TK with BBNJ and the coastal waters of the state. Further, a complete overview of the sustainability of biodiversity beyond national jurisdiction will be explained.

 

• I. INTERNATIONAL LAW AND TRADITIONAL KNOWLEDGE (TK)

1. Definition of Traditional Knowledge:

There is no absolute definition of traditional knowledge in international law although many international instruments including BBNJ, Trade-related Aspects of Intellectual Property (TRIPS), CBD, etc. reference the traditional knowledge. The concept of traditional knowledge is explained in certain international instruments but does not explicitly define the term. All of these references, it is associated with a group of people who have the said knowledge like indigenous and local communities. Article 8 (j) of CBD obligates parties to:

 

“respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations, and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.” [7]   And the working group of the Article uses an informal definition i.e. “knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”.[8]

 

The international IP instruments have also given a working definition of TK. The World Intellectual Property Organisation (WIPO) has adopted a definition of TK through its intergovernmental governmental committee (IGC) on IP and Genetic Resources, TK, and Folklore.[9] It defines TK as “Traditional knowledge is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity”. This includes knowledge related to ecology, agriculture, medicines, remedies, biodiversity etc.

 

The practices and traditions of indigenous and local communities have been experienced and developed over centuries and have passed on from generation to generation. It is a collective/ community right in the form of stories, folklore, scriptures, language, cultural expressions, rituals, beliefs, agricultural, fishing practices, etc. It is of practical nature and has mainly been discovered in the fields of agriculture, aquaculture, horticulture, environment management, fisheries, plant species, etc.

 

The connection point among TK and advancements in the domains of pharmaceuticals, drugs, cosmetic care products, farming, synthetic compounds, and ecological protection, comprises the center of the ‘biopiracy’. given vital destinations wherein Intellectual Property, explicitly the patent system straightforwardly draws in TK in contestation over the use of Genetic Resources (GRs) across various information structures.

 

TK, regardless of its pertinence (by and large restricted to an indigenous group or on occasion just inside a family locally), TK across the globe has been viewed as founded on specific moral and moral precepts. This homogenous way of behaving of TK renders an effect that is past national limits. The restriction of the fishing of specific species during their reproducing season is a visible and standard practice among all native fishing networks. The same could be seen in safeguarding coral reefs by native networks by the use of comparative procedures in various areas of the planet.[10]

 

The legislation pertaining to TK in India is depicted in Figure 2. These amendments in the different Intellectual Property (IP) legislation were made in consonance with the TRIPS agreement which in Article 27.3b[11] introduced sui generis protection for TK and plant variety. India observed noteworthy activism to protect traditional knowledge from being patented in Europe and America. The basmati, haldi, and neem controversy created pressure and led to some simple yet major sui generis protection of TK. Government of India (GOI), took the initiative and materialise TK in form of the Traditional Knowledge Digital Library (TKDL) which was established with the objective of incorporating a list of codified TK practices of India.[12]

 

Figure 2, Source Ragavan (2001)[13]

 

 

 

 

1. International Instruments of Marine Resources relevance of TK

1. Convention on Biological Diversity (CBD) and Nagoya Protocol

CBD, 1993 is addressing the biodiversity of terrestrial and aquatic origin. Article 3[14] of the convention lays down the three main objectives of CBD: conservation of biological diversity, sustainable use, and sovereignty of the state over all natural resources. The convention came to light also for the introduction of access and benefit sharing (ABS) for the exploitation and utilization of natural resources including marine and marine genetic resources. The Nagoya Protocol, 2010 which came into force on 2014 under the convention elaborates the mechanism for ABS. Figure 3 explains the ABS framework under the protocol which is based on prior informed consent (PIC) and mutually agreed terms (MAT).

 

Figure 3, Source: Pharma Sea Toolkit

 

CBD has done work in the field of ecological or biological significant areas (EBSA) which directly connects traditional knowledge with its holders. The areas are also in the coastal waters and as well as in areas beyond national jurisdiction. [15]

 

 

1. United Nations Convention on Law of the Sea (UNCLOS), 1982 and over-lapping framework

Law of the Sea has evolved through customary laws and traditions over a period of time. It is hence effectively implemented by maritime actors and institutions. The convention came into force in 1994 around the same time as CBD. It is important to understand the two different regimes in which marine resources are governed. UNCLOS refers to living, natural and biological resources and gives different rights to states for exploitation, exploration, and research of the resources[16] based on the maritime boundaries as explained in figure 4.  

 

There is a potential overlap between UNCLOS and CBD, provisions of CBD and Nagoya protocol apply to the national jurisdiction of coastal states. And the UNCLOS determines the maritime boundaries of the coastal state. As explained in the figure 3 according to UNCLOS the boundaries of state extend to 200nm up to the exclusive economic zone (EEZ) and continental shelf (CS) (Article 56 & 77 UNCLOS).

 

Figure 4

 

It is safe to conclude that the CBD applies up to a maximum of 350 nm from the baseline as there is a provision for extension of CS. The committee on limits of continental shelf can extend it up to a maximum of 150nm. (Article 77 UNCLOS).

 

Exclusive rights over the resources have to be differentiated from sovereignty over the maritime boundaries. Only for certain activities, do the sovereign rights apply, and few rights in the maritime zones are for other nations as well. 

 

One of the rights under UNCLOS Article 248 covers Marine Scientific Research (MSR). The rights are granted to coastal states to have information about any MSR project in the coastal waters. Coastal states grant consent for all MSR projects. It should be noted that PIC and MAT from the Nagoya protocol will be applicable up to 200 nm or 350 nm as the case may be for any activity related to marine resources. This can complicate the process as many countries are unclear on the procedure and a joint approach.

 

Another Agreement to prevent unregulated high seas fisheries in the central Arctic Ocean (CAOFA)[17] has a reference to indigenous and local communities in its preamble and Article 4 (4) & 5 (2) and focuses on the local knowledge in the work undertaken by the agreement. With this, a connection can be envisioned with the BBNJ instrument as well.

 

1. Incorporation of TK into BBNJ

 Oceans cover more than 71% of the planet as we have seen in the introduction. Out of that 64% of the surface are areas beyond national jurisdictions (ABNJ). As in the area beyond 200 nm or 350 nm of any nation.  Hence the United Nation under UNCLOS is holding negotiations for Biodiversity beyond national jurisdiction agreement. BBNJ revised draft as of 2022[18] recognises the use of traditional knowledge as part of scientific information. Article 10 bis elaborates on the marine genetic resources and associated knowledge with the IPLC. The article adopts the Nagoya protocol principles and instructs states to take legislative or policy measures to include ABS on MAT. The agreement is also proposing consultation and assessment of proposals with IPLC under Article 18 (c). The relevant provisions are mentioned in table 1.

Table 1, Created by author

Article	Name of the Article	Relevant portion from the Article
10 bis	Access to traditional knowledge of indigenous peoples and local communities associated with marine genetic resources of areas beyond national jurisdiction	Parties shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that traditional knowledge associated with marine genetic resources of areas beyond national jurisdiction.
18	Consultations on and assessment of proposals	Indigenous peoples and local communities with relevant traditional knowledge, the scientific community, civil society and other relevant stakeholders shall be invited to submit
30	Process for environmental impact assessments
43	Cooperation in capacity-building and transfer of marine technology

 

IPLC who are creators, protectors, conservators, developers, guardians of the TK have a significant role in conservation and introducing more sustainable practices and use of marine resources and biological diversity. There are several types of TK which are relevant for BBNJ. It can be divided into main three categories

1. TK based on species and marine processes including that of migratory marine species.
2. TK resulting from best practices of environment conservation and management.
3. TK related to instrument free navigation 

 

1. Way forward for India

Traditional Knowledge of Indigenous and local communities is an important asset for any nation. India realises that and hence have being the initiative of TKDL. It is high time India support inclusion of traditional knowledge in the BBJN negotiations as well. Indigenous Peoples in India comprise an estimated population of 104 million or 8.6% of the national population.[19] And along with that, it has to start the capacity building of the local communities related to the ocean in the coastal areas of the country as the coast is more than 7500 km. There is a need for India to pass the long pending legislation on traditional knowledge, The Protection of Traditional Knowledge Bill, 2016. The BBNJ instrument will have to be adopted by nations. India should be a pioneer for the same as it is to achieve goals of conservation and sustainable use by adopting traditional knowledge. TKLD should start working on the inclusion of marine and ocean-related knowledge and know-how.

 

 

 

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[3] The Convention on Biological Diversity, 1993 https://www.cbd.int/convention/ (last visited Jul 21, 2022).

[4] The Nagoya Protocol on Access and Benefit-sharing, https://www.cbd.int/abs/ (last visited Jul 21, 2022).

[5] BBNJ treaty , (2022), www.un.org/bbnj (last visited Jul 20, 2022).

[6] United Nations Convention on the Law of the Sea of 10 December 1982, https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm (last visited Jul 21, 2022).

[7] The Convention on Biological Diversity, § 8 (j) supra note 3.

[8] What the Convention says about Traditional Knowledge, Innovations and Practices, https://www.cbd.int/traditional/what.shtml (last visited Jul 21, 2022).

[9] Intergovernmental Committee (IGC), Wipo.int (2022), https://www.wipo.int/tk/en/igc/ (last visited Jul 22, 2022).

[10] Etsoshan Y. Ovung et al., Indigenous Community Fishing Practices in Nagaland, Eastern Indian Himalayas, 14 Sustainability 7049 (2022); Ch Sebastian Raju et al., Fishing methods, use of indigenous knowledge and traditional practices in fisheries management of Lake Kolleru, 4 Artic. J. Entomol. Zool. Stud. 37–44 (2016), https://www.researchgate.net/publication/306323384.

[11] WTO | intellectual property (TRIPS) - Reviews, Article 27.3b, traditional knowledge, biodiversity, https://www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm (last visited Jul 21, 2022).

[12] Shambhu Prasad Chakrabarty & Ravneet Kaur, A Primer to Traditional Knowledge Protection in India: The Road Ahead, 42 Liverp. Law Rev. 401–427 (123AD), https://doi.org/10.1007/s10991-021-09281-4 (last visited Jul 21, 2022).

[13] Srividhya Ragavan, Srividhya Ragavan, Protection of Traditional Knowledge, 2 MINN. INTELL, 2 PROP. REV (2001), https://scholarship.law.umn.edu/mjlstAvailableat:https://scholarship.law.umn.edu/mjlst/vol2/iss2/1 (last visited Jul 21, 2022).

[14] The Convention on Biological Diversity, § 3 supra note 3.

[15] Ecologically or Biologically Significant Marine Areas (EBSAs), Cbd.int (2022), https://www.cbd.int/ebsa/ (last visited Jul 22, 2022).

[16] PROTECTION AND PRESERVATION  OF THE MARINE ENVIRONMENT UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, https://www.un.org/depts/los/convention_agreements/texts/unclos/part12.htm (last visited Jul 21, 2022).

[17] Christian Freel, The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean Enters into Force - United States Department of State United States Department of State (2022), https://www.state.gov/the-agreement-to-prevent-unregulated-high-seas-fisheries-in-the-central-arctic. (last visited Jul 22, 2022).

[18] |Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (General Assembly resolution 72/249), Un.org (2022), https://www.un.org/bbnj/ (last visited Jul 22, 2022).

[19] Indigenous peoples in India, (2022), https://www.iwgia.org/en/india.html (last visited Jul 22, 2022).