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

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TK is cultural patrimony implies inter and intra generational rights and responsibilities ... collective cultural patrimony rights & individual communities ... – PowerPoint PPT presentation

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


1
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

2
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

3
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

4
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

5
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)

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

7
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

8
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

9
Customary law and TK Protection in Peru
  • Constitutional recognition of TK
  • ICBG case study
  • National Sui Generis TK law

10
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

11
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.

12
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

13
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

14
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

15
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

16
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

17
Responsibilities for recognition and
strengthening of CL
18
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

19
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

20
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.

21
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

22
Thank You
  • bmtobin_at_gmail.com
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