This international agreement has the highest profile of accords addressing this issue. The Convention on Biological Diversity (CBD), Article 8(j) requires that signatories 'shall, as far as possible and as appropriate' and 'subject to [their] national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to 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 benefits arising from the utilization of such knowledge, innovations and practices'. Article 10© commits contracting parties, 'as far as possible, and as appropriate ... [to] protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with the conservation or sustainable use requirements'.
Both of these articles are relatively vague. They do not actually spell out what states can or should do to fulfill their obligations. Part of the reason for this, is that parties negotiating the CBD did not agree on how far signatories should be obliged to go to protect traditional knowledge.
In the period leading up to 1992, when the CBD was finalized, the idea of protecting traditional knowledge was still new; no one had any fixed ideas about how it should be done. Partly, as a consequence of this ambiguity, the Conference of the Parties to the CBD (COP-CBD) established two Ad Hoc Open Ended Intersessional Working Groups to investigate, among others, the means member states could use 'as appropriate' and 'subject to their own legislation' to protect traditional knowledge.
In May 1998, the Fourth COP-CBD created the Ad Hoc Open Ended Intersessional Working Group on the Implementation of Article 8(j) to advise the Parties on the 'development of legal and other appropriate forms of protection of the knowledge of indigenous and local communities'. In May 2000, the Fifth Conference of the Parties extended the mandate of this working group, and directed it to take steps towards the development of parameters for such legal systems.
The Working Group's mandate was renewed by the Sixth Conference of the Parties (COPVI) in April 2002. In fact, this group's progress has been slow. However, it must be appreciated that the 8 (j) Working Group's mandates is extraordinarily broad, as it attempts to work through largely uncharted territory. Furthermore, its very existence is an important stage in the potential evolution of a better defined international norm for the protection of traditional knowledge.
In October 2001, the Ad Hoc Open Ended Working Group on Access and Benefit Sharing created the draft Bonn Guidelines. This was for State Parties developing national legislation to regulate access to genetic resources and benefit sharing. A variation of these guidelines was adopted by the COP VI in April 2002 through Decision VI/24.
Though they are not binding, they still have great potential for influencing the way countries develop their access laws. Among others, the Bonn Guidelines recommend that 'respecting established legal rights of indigenous and local communities associated with the genetic resources being accessed or where traditional knowledge associated with these genetic resources is being accessed, the prior informed consent of indigenous and local communities and the approval and involvement of the holders of traditional knowledge, innovations and practices should be obtained, in accordance with their traditional practices, national access policies and subject to domestic laws.'
This is significant, because the CBD does not explicitly state that it is necessary to get the PIC of constituent communities. It has been argued that the requirement to obtain such consent is implicit in the text of the Convention; nonetheless, it is not an explicit requirement. Consequently, it could be argued that the Bonn Guidelines go one step further than the CBD in this regard. In other words, they offer an interpretation of the CBD that clarifies an outstanding ambiguity.
Furthermore, COP VI recommended that state parties should include, in their national laws, requirements for parties to provide the origin of genetic resources and traditional knowledge used when developing innovations over which they seek IP rights (Decisions VI/10 and I/24).
