Customary law, a right and a
responsibility: The fundamental role
of indigenous peoples in protecting
rights over TK
Brendan Tobin
Asociación para la Defensa de los
Derechos Naturales (ADN)
International Workshop
on Access to Genetic Resources, Traditional Knowledge and Benefit Sharing
“Undoing the Knot in A&BS Transactions: In Search of Amicable Solutions”
15 and 16 February 2008 Bremen / Germany
Contents
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TK’s relation to customary law
International recognition of customary law
Customary law and TK protection in Peru
Responsibilities for protection of TK
Conclusions
Future work
TK and customary law
• “Collective knowledge is indivisible from cultural
identity and the laws, institutions, value systems and
cosmovision of indigenous peoples” Declaration of the Indigenous
World Association and Indigenous Media Network, XXIII Session of the Working Group on Indigenous
Peoples, 2005
• Traditional resource management is based on:
• Traditional tenure - Area controlled by community
• Traditional knowledge – of use/conservation of
resources in traditional tenure area.
• Customary law - Rules based on TK regulating use of
resources in traditional tenure area
Defining Customary Law
• Akwe Kon guidelines
– Customary laws are “… customs that are accepted as legal
requirements or obligatory rules of conduct, practices and
beliefs that are so vital and intrinsic a part of a social and
economic system that they are treated as if they are laws.”
- Black`s law dictionary
• Customary legal regimes are sui generis systems for
protection of TK.
• Alternative terms:
– Our laws
– Indigenous law
CBD
• Decision VI/10 –
– CBD is the primary instrument for protection of biodiversity related TK
• Decision VII/16 –
– sui generis legislation should take into consideration customary law
• WG 8 (j) –
– draft of sui generis elements – focus on PIC and customary law
• WG ABS –
– customary law amongst issues for consideration in negotiation of an
international regime on ABS and Article 8 (j) (WG 3 and 6)
IGC – draft elements on TK
• Legal protection for TK may be secured by
– special laws on TK, intellectual property laws, law of
contracts, laws concerning indigenous peoples, ABS laws,
sui generis laws, and
– customary law
• Any regime should be developed with appropriate
recognition and respect for customary law and its
role in protection of TK
• This may require consideration of the spiritual,
sacred or ceremonial characteristics of TK
Human Rights and CL
• UN Declaration on Rights of Indigenous
Peoples
– Recognises rights to cultural heritage and intellectual property
• Includes human and genetic resources, seeds, medicines, and knowledge
of fauna and flora.
– States are to work with indigenous peoples to develop effective
measures to protect TK
– States undertake to develop measures to ensure access to justice with
due regard for
• Indigneous peoples customs, traditions, rules and legal systems
• international human rights
• ILO Convention 169
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Rights to institutional structures and customary law
Requires consultation prior to granting rights to collect resources
CL must not breach fundamental human rights
Application of national law with due regard for customary law
Andean Community
• Decision 391
– Requires PIC of indigenous , Afroamerican and local
communities for use of TK
• Decision 486
– Requires disclosure of evidence of PIC as a condition for
granting of Patent
• Sui Generis Study
– recommended that indigenous peoples own ancestral
systems based on customary law and their own cultural
practices be applied for TK protection
Customary law and TK Protection
in Peru
•Constitutional recognition of TK
•ICBG case study
•National Sui Generis TK law
Constitution of Peru – 1993
• Peru is Pluricultural and multiethnic
• Campesino and native communities are legally
entitled to exercise autonomy with regard to their
organization, administration, communal work,
economy and disposition of their territories
• They are also entitled to exercise judicial functions
within their territories in accordance with customary
law
• These must not violate the fundamental rights of the
person
Contracting into custom
• ICBG
– Washington University, Searle & Co., 2 Peruvian
universities,
– 3 local Aguaruna federations and CONAP.
• For development of new medicinal products
based upon resources with traditional use by
Aguarunas.
• Customary law – not clear on PIC issues.
IPAAMAMU
• Decision to negotiate taken by community
representatives in IPAAMAMU – based on traditional
decision making practices
• Defined criteria for negotiations,
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Prior informed consent process – comprehensive
Benefit sharing for all Aguarunas - trust to be set up
Protection of rights to control use – know how license
Defence of traditional uses – inalienable rights
Recognition of TK innovation – shared patents
Prevent patents over life forms – Moral imperative
Peruvian sui generis legislation
• TK is cultural patrimony – implies inter and intra
generational rights and responsibilities
• Access is subject to PIC – which may be given by a
single community
• Must inform other custodians of the agreement
• Terms may be kept confidential
• Conflict between collective cultural patrimony rights
& individual communities rights to give PIC
• Customary law may be used to resolve conflicts
between communities
TK and the public domain
• Peru
– TK treated as a form of trade secret
– License for commercial use – MAT
– Use of TK in the public domain requires payment of
benefits to indigenous fund
– Only applies to TK which fell into public domain in the last
20 years
South Pacific draft model law
– rights to use TK in the public domain depends upon:
• how it got there,
• benefit sharing,
• spiritual importance
CL – challenges
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Multiple forms of CL
CL is limited by communities jurisdiction
Oral
Depends upon community buy-in
Codification seen as changing customary law
into positive law
• CL may conflict with human rights
Challenges to regulate for CL
• National law may extend CL jurisdiction
• Challenge to do so without undermining the system
itself.
• Individual human rights may conflict with community
collective rights
• Aguaruna workshop 2002 –Indigenous peoples
should develop community protocols to define
processes and conditions for access to their TK.
• Emerging projects: Inuit, San, Jivaros, South Pacific
Responsibilities for recognition
and strengthening of CL
CL: National dimension
• Communities
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CL systems depend on community buy-in
Build capacity to negotiate CL based agreements
Developing protocols requires commitment
Must avoid arbitrariness in decision making
Must not breach fundamental human rights
• National
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Constitutional recognition
Clear definition of jurisdiction to apply CL
Review application to non indigenous
Build capacity of enforcement and judicial authorities
Develop sui generis legislation
CL: International dimension
• Foreign jurisdiction
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Preparedness and capacity to apply CL
Recognition of CL as a source of law
Recognition of judgments of traditional authorities
Requirements to disclose evidence of PIC
• International
– Require PIC for use of TK – disclosure - certs
– Require providers and users to respect CL
– Establish international dispute resolution mechanisms
which take into consideration customary law
– Identify global principles of equity
Conclusions
• CL must be considered in development of TK
and associated ABS law
• This can be done
– National law - PIC
– User measures
– Alternative dispute resolution
– Revisit the interpretation of public domain
• Effective recognition of CL depends upon the
interface with, national and international,
legal regimes.
Conclusions
• Balance must be found between:
– Achieving recognition of CL
– securing actionable legal rights
– legal certainty for users
• Community protocols may act as a bridge between
regimes - empowering indigenous peoples to play a
central role in defining mechanisms for protection of
their rights
• Provision of support for initiatives of indigenous
peoples in this area may help provide the key to
overcome the inertia in international TK related
negotiations
Thank You
bmtobin@gmail.com