The CBD’s recent creation of a permanent body for Indigenous Peoples and Local Communities (SB8J) marks a significant shift in how global biodiversity governance engages with traditional knowledge. But does SB8J offer real change or just renewed symbolism? Achyuth B Nandan examines this question and looks at the implications of this development. Achyuth is a PhD candidate at Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, specialising in intellectual property law. He is also a registered advocate with the Bar Council of Kerala. His previous posts can be accessed here.
Establishment of Permanent Subsidiary Body on Article 8(j) of the CBD: A New Direction for IPLCs and Traditional Knowledge Protection?
By Achyuth B. Nandan
For the first time in history, an environmental treaty, the Convention on Biological Diversity (CBD), has established a permanent subsidiary body dedicated specifically to Indigenous Peoples and Local Communities (IPLCs), recognised globally as key custodians of biodiversity. The new body, the Subsidiary Body on Article 8(j) and related provisions (SB8J), was created through Conference of the Parties (COP)-16 Decision 16/5 and replaces the earlier Ad Hoc Working Group. SB8J now holds a formal mandate to advise the COP and the subsidiary bodies of the Nagoya and Cartagena Protocols on issues concerning traditional knowledge (TK).
The first meeting of SB8J, held in Panama from October 27 to 30, 2025, is seen as a milestone in multilateralism, especially because the CBD-Nagoya Protocol framework has been criticised for limited and often symbolic IPLC participation. Whether SB8J will genuinely strengthen IPLC rights remains uncertain, given that the broader ABS regime remains characterised by soft-law language, uneven obligations, and inconsistent domestic implementation.
Key outcomes of the First SB8J Meeting
The structure and agenda of the meeting focused on resource mobilisation, developing the body’s modus operandi, preparing guidelines for Kunming-Montreal Global Biodiversity Framework (KMGBF) Targets 1-3, and integrating TK into the forthcoming global biodiversity progress report.
Key outcomes included drafting guidance on TK integration into KMGBF reporting, discussing SB8J’s structure, and reviewing the Article 8(j) work programme, including updates to the Voluntary Glossary. Draft guidance on KMBGF targets 2 and 3 ( ecosystem restoration and the conservation areas) remains in bracketed text, pending finalisation at COP17 in Armenia (October 2026).
The Aspirational Nature of Article 8(j) and the Implementation Gaps within the CBD-Nagoya Protocol Framework pertaining to ATK protection
Article 8(j) is often treated as the CBD’s central recognition of IPLCs’ participation and TK protection. However, the provision stops short of creating a binding obligation. It merely encourages states to promote the wider application of TK with the approval and involvement of the knowledge-holding communities and to ensure equitable benefit sharing. This leaves no enforceable right for IPLCs to participate in ABS decision-making. The CBD is also silent on IPLCs roles when genetic resources (GRs) under their stewardship are accessed, resulting in highly uneven national practices.
In contrast, the preamble and Article 15.5 impose a mandatory Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT) for access to GRs, unless waived by the state. Thus, states act as sovereign gatekeepers for GR access, while TK-related rights of indigenous participation remain normatively aspirational.
Article 7 of the Nagoya Protocol attempts to operationalise Article 8(j). Unlike Article 6, which centres the state, Article 7 requires that access to TK must be subject to PIC or approval, with the involvement of IPLCs. With the rise of synthetic biology, this bilateral PIC-MAT model continues to apply to sequence data and related information accessed within the national jurisdiction (bilateral arrangement), while foreign DSI housed in open-access public database like Genebank will be addressed under the COP-16 mandated Multilateral Mechanism for benefit sharing. In practice, Article 7 is often seen as recognising a community-level assent and veto, but domestic implementation frequently dilutes this. Where customary law and self-determination are recognised, PIC procedures tend to be community-driven and substantive. Elsewhere, states retain near-total authority, making PIC a procedural formality rather than a meaningful safeguard.
Compliance gaps further weaken TK protection. Article 16 obliges user countries to ensure TK is accessed with PIC and MAT, but Article 17’s monitoring provisions omit TK entirely, assuming it will be captured through its linkage to GRs. This assumption fails in practice, leaving TK vulnerable.
Operationalising Article 8(j) of the CBD through SB8J: What it means for India and like nations
State sovereignty over GRs is clearly articulated in the CBD-Nagoya framework, but IPLCs rights remain context-dependent, producing major disparities in implementation. SB8J’s effectiveness will therefore depend on how these structural uncertainties interact with domestic political systems.
India provides an instructive example in this context. India has issued the largest number of Internationally Recognized Certificates of Compliance (IRCCs) (the certificates that evidence lawful access to genetic resources or traditional knowledge through PIC and MAT), globally, and its ABS regime, rooted in the Biological Diversity Act 2002, amended Act 2023, and Biodiversity Rules 2024, follows a state-mediated model. Rule 11(x) incorporates PIC, but the National Biodiversity Authority (NBA) and State Biodiversity Boards (SBBs) retain final decision-making authority. Consultation with benefit claimants or, where unidentified, with the local Biodiversity Management Committee (BMC) is required.
In practice, PIC is deemed satisfied when the BMC in the relevant area is consulted, even when the actual knowledge-holding community is unidentified. While BMCs serve as conduits for consent, they are organs of the state and part of local government, raising the question of whether this amounts to “real consent”.
India’s constitutional structure does not permit autonomous, community-exclusive authority over PIC. This does not weaken the ABS regime legally; rather, it reflects the institutional design within which PIC must operate. However, it inevitably dilutes the normative ideal of community empowerment.
By contrast, Bhutan’s Biodiversity Act 2022 and its Rules 2023 retain clear community authority, continuing the community-centric approach of the 2003 law. This aligns with Bhutan’s recognition of customary institutions, producing a governance model more receptive to direct IPLC decision-making. Similar trends exist in Kenya, South Africa, and several Latin American States.
SB8J’s effectiveness will therefore diverge predominantly as:
- In countries with constitutional recognition of IPLCs, SB8J could strengthen participation.
- In states where PIC is state-mediated, an activist SB8J approach may clash with domestic structures and risk institutional friction. (An example of this variation is India’s legal stance on Indigenous identity. Historically, India has maintained that the term Indigenous does not apply within its legal framework. These countries implement PIC primarily through state institutions, rather than through autonomous community bodies, and incorporating a community-exclusive decision-making approach may be challenging without constitutional restructuring.)
A deeper systemic concern remains, the failure of ABS to deliver real benefits. Globally, successful benefit-sharing cases are almost nonexistent. The Arogyapacha case in India collapsed; Camu Camu in Peru resulted in no meaningful benefits; Hoodia benefits for the San people proved unsustainable and minimal. The earlier Ad Hoc Working Group on Article 8(j) produced largely voluntary guidelines and soft-law tools with little tangible impact.
Unless SB8J directly tackles structural issues such as weak bargaining power, information asymmetry, and poor monitoring, it risks replicating the limited outcomes of its predecessor.
IPLCs and ATK Protection in the Context of Patent Jurisprudence
Concerns over IP-driven misappropriation of GRs and TK have persisted for decades, and although incremental reforms have helped, major structural issues remain. Against this backdrop, the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (2024) represents a significant development.
The treaty’s central feature is a mandatory disclosure requirement, which is expected to strengthen biodiversity governance by enhancing transparency in patent applications. Under Article 3.2, applicants must disclose when an invention is based on TK associated with GRs and must identify the relevant IPLCs. Many countries, including India, Brazil, Norway, the EU, Peru, and South Africa, already require some form of disclosure.
However, disclosure alone does not ensure benefit sharing; without mechanisms to track downstream use, disclosure risks becoming a procedural box-ticking exercise. The treaty’s real strength lies in preventing erroneous patents and improving prior-art assessment, thus enhancing patent quality.
Two interpretive positions in this regard have emerged. The broader view sees the treaty as supporting ABS compliance by increasing transparency. The narrower view argues that patent law should not be tasked with enforcing ABS obligations. This narrow interpretation is weak because examining disclosure accuracy directly supports the patent office’s core responsibility, which is assessing patentability.
At the same time, it must be recognised that although positive protection for TK was explored during negotiations, the final treaty does not grant exclusive rights to IPLCs nor regulate commercial use of TK. The underlying governance problems, weak community bargaining power and limited benefit sharing, remain unresolved.
In this context, SB8J becomes particularly relevant. Unless the WIPO treaty’s transparency mechanisms are paired with enhanced community participation through SB8J, neither framework will meaningfully protect TK or ensure fair benefits for IPLCs.