Customary law, a right and a responsibility: The fundamental role of indigenous peoples in protectin

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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 ABS Transactions In Search
  of Amicable Solutions
• 15 and 16 February 2008 Bremen / Germany

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Contents

• TKs relation to customary law
• International recognition of customary law
• Customary law and TK protection in Peru
• Responsibilities for protection of TK
• Conclusions
• Future work

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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

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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. - Blacks law dictionary
• Customary legal regimes are sui generis systems
  for protection of TK.
• Alternative terms
• Our laws
• Indigenous law

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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)

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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

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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
• 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

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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

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Customary law and TK Protection in Peru

• Constitutional recognition of TK
• ICBG case study
• National Sui Generis TK law

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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

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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.

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IPAAMAMU

• Decision to negotiate taken by community
  representatives in IPAAMAMU based on
  traditional decision making practices
• Defined criteria for negotiations,
• 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

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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

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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

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CL challenges

• 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

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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

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Responsibilities for recognition and
strengthening of CL
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CL National dimension

• Communities
• 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
• 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

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CL International dimension

• Foreign jurisdiction
• 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

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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.

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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

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Thank You

• bmtobin_at_gmail.com