Customary law, intellectual property and the protection of traditional

knowledge: An unholy alliance or an unlikely path to self-determination

Australian Centre for Intellectual Property in Agriculture (ACIPA)Law School, Griffith Universitybrendan.tobin@griffith.edu.au

Brendan Tobin

Content

• The role of customary law in international regulation of Indigenous peoples’ rights to genetic resources and traditional knowledge

• Customary law in national & regional law• Resistance to the resurgence of customary law• Addressing the challenges of recognition • Support from Intellectual property regimes• Conclusions

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United Nations Declaration on the Rights of Indigenous Peoples

• Regognises Indigenous peoples’ rights • to resources they traditionally own or use (Art

26) – states are obliged to recognise and protect their rights with due respect for their laws and customs (Art 26)

• to maintain, control, protect and develop their traditional knowledge, cultural heritage, and intellectual property (Art 11, 31) States are to work with indigenous peoples to develop measures to secure these rights (Art 11)

ILO Convention 169• Obliges States to– recognise and respect Indigenous peoples’

customary laws in the development of laws that may affect them (Art 8)

– respect Indigenous peoples rights to their own customs and and traditional decision making institutions (Art 9)

– consult Indigenous peoples prior to granting rights for exploration or exploitation of resources on their lands (Art 15.2)

• Member States– Latin American states Denmark, Netherlands,

Norway, Spain, Fiji, Nepal and Central African Republic 4

Convention on Biological Diversity

• Art 8(j) requires states to– Promote wider use of traditional knowledge with

the consent of Indigenous and local communities– Nagoya Protocol 2010 requires – prior informed consent for access to genetic

resources (Art 6.2) & traditional knowledge (Art 7)– states to ‘take into consideration’ the customary

laws and protocols of Indigenous and local communities (Art. 12) in implementation of the Protocol

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Indigenous perspectives

• property rights distort the very nature of indigenous cultures (Barsh 1999)

• Attempting to alter intellectual property law to accommodate traditional knowledge is like trying to fit a round peg in a square hole. (Dodson 2007)

• As the Tulalip tribe never relinquished their rights and their rights have not been extinguished they are entitled to exercise sovereign control over their knowledge (Hardison 2011) – Native Title approach

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World Intellectual Property Organization (WIPO)

• Int’l Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore 2001

• Draft objectives and articles 2008 – Any regime should be developed with appropriate

recognition and respect for customary law– Customary law has a role to play in identifying

traditional knowledge, ensuring equitable benefit sharing and defining cases of misappropriation

• Mandate to negotiate international instrument(s) 2009 – anticipated diplomatic conference 2012

Resisting customary law’s recovery • WIPO IGC – By 2013 most references to customary

law had disappeared from the Draft articles • European Union draft law for implementation of

Nagoya Protocol (2012) – limits protection to traditional knowledge defined

in contracts – Only requires evidence of prior informed consent

where this regulated in the source country – makes no reference to customary law– The notion of European courts having to

recognise customary law has been described as a nightmare scenario for European lawyers

Getting over the nightmare• Customary, positive and natural law were in classical

times the three primary sources of the law • Customary law is recognised in 100+ constitutions • Rights to culture ground rights to regulate cultural

heritage using customary law• Traditional land/marine tenure underlie customary

rights over genetic resources• If international and regional organizations fail to

adopt measures to secure recognition of customary law, individual states will still need to do so (a) to implement the Nagoya Protocol and (b) to avoid actions for breach of human rights.

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Andean Community • Decision 391– Requires prior informed consent of indigenous ,

Afroamerican and local communities for use of their genetic resources and traditional knowledge

• Decision 486 – Requires disclosure of evidence of prior informed

consent as a condition for granting of patents • Sui Generis Study– indigenous peoples ancestral systems of customary

law and cultural practices should be the basis for protection of traditional knowledge

Africa - Swakopmund Protocol 2010

• African Regional Intellectual Property Organisation regime based on WIPO IGC 2008

• Traditional owners have exclusive rights to authorize use of traditional knowledge (s.7.1)

• Customary law is central to – identifying traditional knowledge (S. 4.3)– determining rights holders (s. 18 (a))– resolution of local and transboundary conflicts

over ownership rights (Ss. 22(1) and 24)

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South Pacific Forum

• Traditional Biological Knowledge, Innovations and Practices Act 2000 requires prior informed consent for access to traditional knowledge

• South Pacific Forum guidelines on TBKIP Model law 2010 highlights the role of customary law for– identification of traditional knowledge, – determining rights of ownership, – resolution of disputes, and – distribution of benefits

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Customary International law

• Based on state practice and opinio juris - is claimed to have crystallised around rights to – Languages, sacred sites and cultural artefacts

(Weissner 1999)– self-determination, lands, and cultural integrity

(Anaya 2004)– Customary legal regimes (Perry 2011, Tobin 2011)

• and the obligation of states to – respect and recognise Indigenous peoples’

customary law in order to secure their human rights (Tobin 2011)

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Challenges for recognition of customary law

• Identification of cases requiring consideration of customary law

• Identification of applicable customary law• Identification of those versed in customary law • Rules governing proof of customary law• Protection of the sacred nature of customary law

(e.g. women’s knowledge) in judicial proceedings• Identification of criteria for recognition of foreign

judgments based on customary law and of decisions of local/village/chief’s courts

Mechanisms for securing recognition of customary law

• Extend Indigenous peoples jurisdiction to apply customary law to third parties

• Review laws of evidence and proof of custom • Build judicial capacity to apply customary law • Include expert witnesses in judicial processes • Establish mixed judicial bodies • Promote alternative dispute resolution forums

practised in recognition of customary law • Support development of Biocultural Protocols

Biocultural Protocols

• Term derived from work to develop the Potato Park based on Quechua customary law principles of reciprocity, duality and equilibrium (IIED 2006)

• Local protocols are used to define the scope of existing rights and outline customary law based access procedures

• People wide protocols as proposed by Awajun (jivaros) and Inuit could help define parameters of global protection of biocultural rights

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EU Parliament Resolution 15 Jan 2013

• Calls for effective protection of rights over genetic resources and traditional law

• Parliamentary commission reviewing draft law.• Less understanding of the need for consideration of

customary law both for development of the law and its future implementation

• The Resolution calls upon the Union’s negotiators to support adoption of a mandatory system of disclosure of origin requirements in intellectual property laws in international negotiations at WIPO and the World Trade Organization

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Disclosure of origin• Disclosure regimes seek to use intellectual property

systems to prevent biopiracy (Tobin 1994, 1997) • As a condition for processing of intellectual property

applications disclosure regimes may require evidence of the origin/source of genetic resources/traditional knowledge; of prior informed consent; and of mutually agreed terms/fair and equitable benefit sharing.

• Disclosure regimes have been adopted in 50 + states (Vivas 2012)

• Requiring evidence of prior informed consent empowers Indigenous peoples to apply customary law principles to access and use agreements

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Conclusions

• International law obliges all states to give due respect/recognition/consideration to customary law in the protection of Indigenous peoples rights

• Lack of consideration of customary law in the European Union draft legislation exposes a major compliance gap in the Nagoya Protocol

• Ongoing negotiations at the WIPO-IGC provide the best current possibility for plugging that gap though clear recognition of customary law and the establishment of mandatory disclosure of origin requirements

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Conclusions• Intellectual property regimes may prove key to securing

recognition of customary law and its necessary complement in the task of securing protection of Indigenous peoples resource and knowledge rights

• In light of the precedent set by the Nagoya Protocol all industrial and development sectors should apply a due diligence standard to ensure the existence of prior informed consent of Indigenous peoples and local communities for projects that may affect them.

• The validity of such consent may rest on whether it complies with customary law

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Future Research

• Comparative analysis of interfaces between customary and national legal regimes

• Identification of best practices relevant for ensuring respect, recognition and consideration for customary law– situation in European jurisdictions– experiences in constitutional, legislative and judical,

recogntion and enforcement of custom– Experiencesin empowerment of Indigenous and lcoal

community justice systems

NEW BOOK• Contents• 1. Customary law in context • 2. Self-determination in practice • 3.Where custom is the law • 4. In search of the living law • 5 Ancestral rights recovered• 6 Natural resources or essences of life? • 7 Right to culture and cultural heritage • 8 Traditional knowledge • 9 Intercultural equity and justice• In closing: traditions for the future

Published August 201420% discount from routledge.com use Code DC361 22