A/HRC/30/53
C.
Convention on Biological Diversity and Nagoya Protocol
20.
The 1992 Convention on Biological Diversity promotes protection of the natural and
cultural heritage of indigenous peoples through the conservation of biological diversity and
the fair and equitable sharing of the benefits arising out of the utilization of genetic
resources (arts. 1 and 19). It requires States 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
encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices” (art. 8 (j)). The Nagoya Protocol on Access to
Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilization (2010) is particularly relevant as it requires States to uphold the established
rights and customary laws of indigenous peoples and ensure their participation in the
implementation of the Protocol (arts. 5 and 12). The Protocol protects access to indigenous
cultural heritage by requiring States to take measures to obtain the prior informed consent
and involvement of indigenous communities for access to relevant genetic resources (art. 6)
and traditional knowledge (art. 7).
21.
The Food and Agricultural Organization of the United Nations International Treaty
on Plant Genetic Resources for Food and Agriculture, recognizing the enormous
contribution of indigenous communities to food production worldwide, requires the
Contracting parties to take measures to protect traditional knowledge relevant to plant
genetic resources for food and agriculture (art. 9) and promote wild crops and plants by
supporting the efforts of indigenous communities (art. 5).
D.
World Intellectual Property Organization
22.
The World Intellectual Property Organization (WIPO) has three conventions that are
particularly relevant to the cultural heritage of indigenous peoples. The Berne Convention
for the Protection of Literary and Artistic Works (1886) provides a mechanism to ensure
international protection of anonymous, pseudonymous and unpublished works, including
traditional cultural expressions (art. 15); the WIPO Performances and Phonograms Treaty
(1996) provides for international protection for performances and phonographic recordings
of expressions of folklore (arts. 2 and 33); and the Beijing Treaty on Audiovisual
Performances (2012), which, upon entry into force, will provide protection to performers of
expressions of folklore with regard to authorizing their performances in audiovisual media.
23.
In 2000, WIPO members established an Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to serve
as a forum to discuss intellectual property issues arising in the context of access to genetic
resources and benefit-sharing, and protection of traditional knowledge and traditional
cultural expressions. In 2009, the Committee initiated formal text-based negotiations with
the objective of reaching agreement on texts of international legal instruments to ensure the
effective protection of genetic resources, traditional knowledge and traditional cultural
expressions.
24.
Although a multitude of legal regimes exist to protect cultural heritage, there is a
lack of adequate integration of protections for indigenous peoples. Such complex and
parallel systems of protection of cultural heritage leads to fragmentation within a multitude
of legal frameworks, which ultimately do not adequately protect the cultural heritage of
indigenous peoples. The systems fail to recognize that, for indigenous peoples, cultural
heritage is holistic and encompasses their spiritual, economic and social connections to
their lands and territories.
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