ABSTRACT

Analyses carried out in the previous chapters suggest that based on their customary systems of managing and using their assets, indigenous and local communities have genuine claims of ownership over them. From a human-rights perspective, international and regional human-rights instruments provide for community rights to control access to their assets and to be fully involved in the decision-making processes through which legal access authorizations are granted by the permitting authorities to scientific and commercial operators. Furthermore, human-rights instruments make provisions for local communities to have their free and prior informed consent sought within the framework of the decision-making and other processes pertaining to access to and potential use of their assets. On the other hand, analyses in the previous chapters demonstrate that scientific and commercial bodies have the capacities to undertake commercially oriented research and development exploitation of the assets of local communities once they have acquired them. Legally speaking, having invested time, money and their intellectual ingenuity in the transformation of community assets, it is always highly likely that scientific and commercial users will seek legal protection and deservedly earn IPRs such as patents over the outputs of their undertakings. For local and indigenous communities, knowing that they shared their assets with outsiders freely, based as we said earlier upon the flexibilities of their traditional resource-management systems, the acquisition of patents associated with the likelihood of commercial exploitation of their assets by scientific and commercial users raise concerns such as ‘bio-piracy’. Some professional bodies, indigenous peoples associations, international institutions, the research community and countries grouped in regional organizations have developed soft declarations and other legal instruments aimed at community rights in connection with scientific and commercial exploitation of their assets. These instruments attempt to promote respect for the rights and interests of indigenous and local communities over their assets by external users. This chapter has selected and discusses some of these soft measures and legal instruments, stressing their strengths and weaknesses particularly vis-á-vis the protection of community rights and interests.