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    RESEARCH DOCUMENTS

    IN I T IAIN I T IAIN I T IAIN I T IAIN I T IAT IVET IVET IVET IVET IVEPREVENTIONPREVENTIONPREVENTIONPREVENTIONPREVENTIONBIOPIRACY

    for thefor thefor thefor thefor theofofofofof

    Year IV No. 11 May 2009

    Across the Great Divide: A case study of complementarity and conflictbetween customary law and TK protection legislation in Peru

    Prepared by: Brendan Tobin*Emily Taylor*

    * Brendan Tobin, (Ashoka Fellow) is a Consultant onInternational Environmental Law and Human Rights. Hisparticipation in the preparation of this report was madepossible through the support of the Peruvian EnvironmentalLaw Society and the Irish Center for Human Rights, NationalUniversity of Ireland, Galway. E-mail at: bmtobin@gmail.com

    SUMMARY OF CONTENTIntroductionSection I: Traditional knowledge and customary law1.1 Protection of traditional knowledge1.2 Customary lawSection II: International protection of traditionalknowledge and customary law2.1 International protection of indigenous peoples

    human rights2.2 International regulation of traditional knowledge2.3 Andean Community Legislation on traditional

    knowledgeSection III Customary law and protection oftraditional knowledge in Peru3.1 Customary Law in Peru3.2 Regulation of traditional knowledge in PeruSection IV: Case studies: ICBG and the Potato Park4.1 Contracting into custom: The Case of the Peruvian

    ICBG Project4.2 Beyond Traditional Resource Management: Case of

    the Potato ParkSection V: Comparative Analysis of Case StudiesConclusionsANNEX IExamples of Articles on traditional knowledge protectiondrawn from national legislationANNEX IIExcerpts from Regional Model Laws for Protection oftraditional knowledgeANNEX IIIExcerpt on customary law from the WG ABS negotiatingtext for an International Regime on Access and Benefit-SharingBibliography

    * Emily Taylor works for the Evaluation Unit at the InternationalDevelopment Research Centre (IDRC) in Ottawa, Canada. Her research in Peru was generously supported by theInnovation, Technology and Society (ITS) program initiativeat IDRC. She has an undergraduate degree in Biology andPsychology from Union College in Schenectady, New York,and a masters degree in International Development Studiesfrom Saint Marys University in Halifax, Nova Scotia.

    Introduction

    Indigenous peoples and local communities havedeveloped an expansive body of traditional knowledgewhich plays a vital role in securing their cultural,spiritual, social, economic and environmental well-being. Protected, enhanced and transmitted overcenturies, traditional knowledge forms part of and atthe same time regulates and controls indigenous andlocal community knowledge systems as they servepresent needs and respond to new challenges andopportunities.

    All cultures, it has been said, possess systematicknowledge of the plants, animals and naturalphenomena in their direct surroundings (Brush, 1996).Among indigenous peoples and local communities thisknowledge forms an important part of their collectivetraditional knowledge. Knowledge which isincreasingly seen as having an invaluable role to playin securing the health of the planet and capacity of theglobal community to respond to present and futurechallenges in food and health security, environmentalquality and sustainable development. Its importance isnow recognized by a wide range of actors includingnational governments eager to protect national andcultural patrimony; the scientific and commercialsectors desirous of finding new avenues for theirresearch and development activities; international

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    agencies such as Convention on Biological Diversity(CBD), Convention to Combat Desertification (CCD),Food and Agriculture Organization of the UnitedNations (FAO), United Nations Conference on Tradeand Development (UNCTAD), United National,Educational, Scientific and Cultural Organization(UNESCO), United Nations Permanent Forum onIndigenous Issues (UNPFII), World IntellectualProperty Organization (WIPO) and World TradeOrganization (WTO) World Health Organization(WHO), and the World Bank, who now appreciate itsimportance for their programmatic and planningactivities; as well as NGOs, aid agencies and otherspromoting sustainable development and protection ofhuman rights.

    As awareness of traditional knowledges intrinsic,cultural, social, spiritual, environmental and economicvalue has grown, so too have concerns to developnecessary law and policy to protect rights over it.Efforts are now ongoing in various internationalforums to develop law and policy in this area, whileat the regional and national level a range of measureshave been adopted or are under development.Indigenous peoples and local communities haveconsistently argued that that their traditionalknowledge should be protected in accordance withtheir own legal regimes, commonly referred to as theircustomary laws and practices. This position hasreceived a fairly positive response at the national,regional and international levels. However, there isstill a large gap in understanding the modalities andmechanism which will be necessary for securing itscentral role in regulation of traditional knowledgewhen it leaves the immediate control of its traditionalcustodians.

    Peru has over the past decade been home to some ofthe most innovative and precedent- setting experiencesin the development of measures to protect traditionalknowledge. These have included local communityinitiatives to protect a diversity of traditional crop andmedicinal plant species; customary law based contractsfor repatriation of traditional crop varieties (Argumedo,n.d.); agreements for licensing traditional knowledgeknow-how for research and development of newpharmaceutical products (Lewis & Ramani, 2008); andadoption of national legislation on collectiveknowledge of indigenous peoples relating tobiodiversity. In all cases, a desire to recognize andrespect customary law has proved influential.

    This paper draws upon the Peruvian experience inorder to examine the current and potential role ofcustomary law in national and international regulationof traditional knowledge. It is informed by analysisof international law relating to access and benefit-sharing(ABS), traditional knowledge and indigenouspeoples human rights, as well as by in-depth casestudies of measures taken by indigenous peoples inPeru to protect their knowledge and resource rights.

    Based on this background analysis the paper exploresthe complementarity and conflicts between nationaltraditional knowledge legislation and customarygovernance practices and makes recommendations forfuture research and the adoption and implementationof measures to protect traditional knowledge at local,national and international levels.

    The paper concludes that development of effectivenational, regional and international law and policyfor protection of traditional knowledge will dependupon:

    The full and informed participation of indigenouspeoples in the design, development, adoption, andimplementation of traditional knowledge law andpolicy,

    Commitment to securing the realization byindigenous peoples of their human rights, and inparticular their right to self-determination,

    Adoption of law and policy which respects,recognizes and builds upon customary law andpractice,

    Establishment of functional interfaces betweendecision making authorities of indigenous peoplesand local communities and the national judiciaryand administrative bodies,

    Preparedness and capacity to provide access tojustice including remedies for breaches of contractand misappropriation of traditional knowledge innational and foreign jurisdictions,

    Traditional or other legitimate decision-makingauthorities at the level of indigenous peoples andlocal communities with the capacity to secure theeffective implementation of their own systems ofcustomary law and practices, and

    Holistic protection of traditional knowledgegrounded upon indigenous peoples cosmovision,commitment to strengthening of traditionalknowledge systems and development policies whichnurture and promote continued use of traditionalknowledge by indigenous peoples and localcommunities.

    The paper is set out in six sections. Section I, providesan overview of traditional knowledge and customarylaw. Section II, examines the role of customary law inprotection of traditional knowledge at the internationallevel, with a focus on international human rights, andinternational regulation of ABS, traditional knowledgeand intellectual property. Section III, analyses the statusof customary law and its role in traditional knowledgeprotection in Peru. Section IV, presents the results oftwo case studies of indigenous peoples efforts toprotect their traditional knowledge rights. The first casestudy examines the negotiation, within the frameworkof the International Collaborative Biodiversity Group

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    (ICBG) Program,1 of a bioprospecting agreementbetween organizations representing Aguarunacommunities of the northern Peruvian Amazon, threeUS and Peruvian universities, Washington University,Universidad Peruano Cayetano Heredia and SanMarcos Museo de Historia Natural, and a USpharmaceutical company, Searle & Co. The secondcase study, analyses customary governance ofbiological resources and traditional knowledge by agroup of six local Andean communities in theestablishment and management of a local community

    1 The International Collaborative Biodiversity Group Program(ICBG) was established as a joint program of the U.S. NationalInstitute of Health, National Science Foundation and NationalCancer Institute. For more information on the ICBG see,www.nih.gov/fic/programs/icbg.html

    biocultural protected area (Potato Park); an agreementthey entered into with the Interna