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

• 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– 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, – 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

• 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 – 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

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

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