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

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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: [email protected]

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 master’s degree in International Development Studiesfrom Saint Mary’s 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 NGO’s, aid agencies and otherspromoting sustainable development and protection ofhuman rights.

As awareness of traditional knowledge’s 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 International Potato Centre;and their own internal community benefit sharingagreement. Section V, includes a comparative analysisof the case studies and their significance for analysisof complementarity and conflicts between Peru’snational sui generis regulation and traditionalgovernance of traditional knowledge. A final sectionVI, provides some conclusions and recommendationsfor future action on traditional knowledge protection.

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Section I: Traditional knowledge and customary law

Traditional knowledge relating to biological diversity,its management, protection and use, is extremelydiverse, encompassing a wide range of areas includingcultural expressions, such as song, dance and stories;spiritual, religious and other values and beliefs;conservation, development and management ofecosystems and of both wild and domesticated plantand animal diversity; as well as issues such as law,commerce, astronomy, etc. Often based uponexperiences passed down over centuries, traditionalknowledge is continually being adapted to meet currentlocal subsistence, environmental, social and culturalneeds as well as for the development and maintenanceof local economies.

In recent years, there has been a growing recognitionof the importance of traditional knowledge andassociated biodiversity within the scientific, privatesector and policy-making communities. It is now, forinstance, widely recognized that traditional knowledgeand biodiversity managed by indigenous peoples andlocal communities is crucial for securing global foodsecurity. Development of many modern commercialcrops is dependent upon access to crop geneticspecimens conserved, nurtured and developed byindigenous and local communities on the basis of theirown traditional knowledge. It is similarly seen as avaluable source of resources and inspiration fordevelopment of products in the pharmaceutical,cosmetics, natural products and agro-industries.Furthermore, traditional knowledge is increasinglybeing incorporated as a vital component of planningprocesses seeking prevention and mitigation of theeffects of climate change; desertification; destructionof fragile environments including forests, mountainecosystems, coral reefs and wetlands; as well as for theconservation of biodiversity in general. Traditionalknowledge systems are, therefore, invaluablerepositories of information vital for the survival ofindigenous and local communities and for the good ofthe earth’s population as a whole (Tobin & Swiderska,2001)

As awareness of the importance of traditionalknowledge has grown, so too has awareness of theneed to develop measures to protect rights overtraditional knowledge and the systems within which itis developed, nurtured and maintained. Indigenouspeoples have continually argued that any regime for theprotection of traditional knowledge should be basedupon their own customary laws and practices.

This section provides an overview of issues relating toprotection of traditional knowledge and an introductionto customary law, its definition, nature, and principalcharacteristics and its relation to positive law (i.e.formal codified written law).

1.1 Protection of traditional knowledgePerceptions of why and what traditional knowledgeshould be protected, and how this is to be achieved mayvary widely according to its nature, scope and the valueit is given. This will depend on the aims, interests andlegal vision of those interested in regulating traditionalknowledge, which may differ amongst and betweenindigenous peoples, local communities, governments,researchers, commercial interests, NGOs and others.Notwithstanding such differences, a number of basicsteps will need to be addressed in development of anymeasures for protection. These include identificationof threats facing traditional knowledge and traditionalknowledge systems; definition of objectives; andconsideration of existing and potential mechanismswhich may be adopted or applied in order to meet thedefined objectives.

At the international level there has been a tendency tofocus primarily on threats to traditional knowledgeposed by biopiracy, viewed as the unapproved anduncompensated use of traditional knowledge andbiological and genetic resources for scientific andcommercial purposes. However, it is important to notethat traditional knowledge and traditional knowledgesystems are threatened by a wide range of external andinternal forces which must be addressed if there is tobe long term protection of traditional knowledge andthe knowledge systems upon which it depends forcontinuity and development.

External threats to traditional knowledge includeexpropriation of traditional lands and territories,destruction of resources, inappropriate education,health, agriculture, and forestry development policies(Tobin & Swiderska, 2001). Further threats exist whereextractive industries such as mining, oil and gas andforestry, as well as colonization by large-scale farminginterests and displaced peasant communities underminetraditional lifestyles. Traditional knowledge is alsothreatened where, as the result of intervention byorganised religious groups, indigenous peoples andlocal communities no longer perform traditional rites,practices and worship of sacred sites, which are oftenclosely related to transmission of traditional knowledgeand maintenance of traditional resource and knowledgemanagement strategies. Internal changes brought aboutby interaction with the external world, movement tomarket economies and disenchantment of youth withtraditional lifestyles may undermine the place oftraditional knowledge within indigenous and localcommunity societies. Perhaps the most serious ofthreats to traditional knowledge, is the alarming rateat which languages are being lost around the world andthe interruption of traditional methods of knowledgetransmission. An in-depth analysis of all these issuesis beyond the scope of the present paper; however, two

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threats in particular deserve brief consideration at thistime. These are threats to land and resource rights; anderosion of language, culture and traditional practicesfor the transmission of knowledge.

There is an inextricable link between traditionalknowledge, traditional land and marine tenure and theresources found in these areas. The knowledge ofindigenous peoples and local communities is usuallyspecific to the environment in which they live. Theextent of lands and resources they manage may rangefrom a relatively enclosed ecosystem, as in sedentaryfarming communities, to very extensive territorieswhere indigenous peoples rely on a nomadic hunter/gatherer existence to meet their food and other needs.In either case, traditional knowledge may includeunique knowledge of endemic species, involvemanagement practices to nurture wild crops andanimals, and may lead to development of crop varietiesand domesticated livestock with special characteristics.

Protection of indigenous peoples’ and localcommunities’ rights over their traditional territories(including relevant freshwater and marine ecosystems)is crucial for the maintenance and continuingdevelopment of traditional knowledge. It is not merelya question of land rights; it goes beyond that to the veryspiritual and traditional lifestyles which underliecultural integrity. Loss of control and/or access totraditional territories, and their sacred sites, traditionalfoods, medicinal plants, etc., attacks the very existenceof indigenous peoples and local communities as distinctcultural groups. It undermines their subsistence anddevelopment strategies grounded in time-honouredpractices governing the use of traditional territories andresources, which are enshrined in customary law.Traditional lands, territories and resources are at oneand the same time the source of traditional knowledgeand dependent upon traditional knowledge for theirconservation and sustainable use. Failure to protect therights of indigenous peoples and local communitiesover their lands, territories and resources attacks thefoundations for protection of traditional knowledge,while failure to protect traditional knowledge threatensthe long-term preservation of global biodiversity whichis concentrated in lands and territories managed byindigenous peoples and local communities. Realizationby indigenous peoples of their human rights to life,food, health, education, culture, housing, anddevelopment are all dependent upon the protection andrealization of their rights to land, territories, resourcesand traditional knowledge. Realization of thesecollective and individual rights are inextricably linkedto their most long sought and consistently denied right,the right to self-determination (Tobin, 2009a). Theseissues will be returned to in more detail below.

Protection of traditional lands and ecosystems byindigenous peoples and local communities has beenachieved by the development of a highly intricate bodyof traditional resource management practices,developed over generations. These traditional resource

management practices, which are the embodiment oftraditional knowledge, have primarily been enforced bya complex system of customary law and practice whichgoverns the use of land and resource within areas oftraditional land and marine tenure. Customary lawcontinues to serve as the primary basis for regulationof rights of indigenous people or local communitiesover their collective lands and resources and thetraditional knowledge systems they embody. Customarylaw may therefore be seen as the third side of thetriangle sustaining traditional resource management,where land rights define the area of jurisdiction,traditional knowledge describes local resource use andmaintenance, and customary law regulates theapplication of that knowledge to the management ofresources within the defined territory (Tobin, 2004).Protection of traditional knowledge is, therefore, reliantupon continuing access to traditional lands and theconservation of ecosystems in a manner which ensuresthe long term conservation of wild and cultivated localresources.

1.1.2 Language, culture and traditionaltransmission of traditional knowledge

As a dynamic body of ever evolving knowledge theviability of traditional knowledge to meet present andfuture needs of its custodians and the wider society isdependent upon its continued use and development byindigenous peoples and local communities. Protectionof traditional knowledge is therefore dependent uponmaintenance of the knowledge systems within whichit is nurtured, developed and passed down fromgeneration to generation. Traditional knowledge whichhas traditionally been maintained through oraltransmission could rarely be managed by a singleindividual. Instead, specific knowledge may be heldby family or tribal groups, with different knowledgebeing held by men, women, healers, shamans,curanderos, hunters, fisherfolk, or farmers. Although,sometimes held by individuals it is generally, thoughnot always, considered to be the knowledge of all thecommunity or people, and is held in trust for theircollective benefit.

The process of knowledge transmission fromgeneration to generation is central to sustaining theability of indigenous peoples and local communities tomeet present needs while sustaining the capacity of theenvironment to meet future needs. Methods fortransmission may be oral or visual including stories,songs, dances, sacred and other culturally based rites,ceremonies and practices. Language is a keycomponent of orally based knowledge systems. Lossof language severely disrupts the flow of knowledgebetween generations and, as many languages becomeextinct (it is estimated that up to ½ of the present 6,000or so languages in the world will be extinct by the endof the century), so does the knowledge embedded inthem. Loss of a language may be likened to the lossof a valuable library.

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Women play a particularly important role in knowledgetransmission to the young through recounting of stories,bringing children with them as they carry out their dailywork. The role of women in transmission of knowledgeis under particular threat as the use of dominantlanguages replaces the use of traditional languagesamong the youth. This can lead to alienation andmarginalization of older women in particular, whofrequently speak only their native language, and caninterrupt the process of traditional knowledgetransmission between generations. Bilingual educationsystems which incorporate a role for women and eldersin knowledge transmission can help to overcome thesetrends, and build increased respect and recognition forthe value of traditional knowledge in youngergenerations.

Traditional transmission of traditional knowledge isalso based upon learning by seeing, which is at leastas important as transmission of oral information.Observation and participation by seeing and doing iscentral to transmission of traditional medicinalknowledge, farming, fishing, hunting, house building,resource management and other skills. Access totraditional territories, lands and resources is crucial ifthese skills and knowledge are to be passed on.Understanding the modes of information transmissionis vital to appreciation of the threats caused by loss ofland or destruction of ecosystems and resourceswithout which it is impossible for traditionalknowledge transmission to occur.

In some cases, knowledge will only be passed on tothose who have gone through often lengthyapprenticeships with shamans or curanderos, followingcompletion of arduous periods and processes ofcleansing and preparation. Youth influenced bydominant society and the need to obtain remunerativeemployment in order to survive in a monetized marketsociety are less likely to undergo years of initiation inorder to be prepared to receive traditional knowledge.Elders in turn, are reluctant to pass on traditionalknowledge to the uninitiated thereby disrupting thefollow of knowledge to new generations. This mayoften be due to concerns about placing potentiallydangerous information regarding medicinal plants etc.into the hands of those who are not fully prepared tocontrol them. Fears that traditional knowledge will belost forever, with the death of elders, have led someindigenous peoples and local communities to seek outnew means to promote traditional knowledgeconservation and transmission for the benefit of futuregenerations. This includes the documentation oftraditional knowledge in written, audio, visual or otherelectronic formats. Ensuring this is done in a mannerwhich secures both the knowledge and the informationnecessary for its safe and appropriate use is achallenge, which will require innovative responses bytraditional knowledge custodians and a willingness toprovide funding and technical support by national andinternational authorities.

1.1.3 Collective and individual responsibilityfor traditional knowledge protection

Responding to the multiple threats faced by traditionalknowledge and traditional knowledge systems requiresa systematic and coordinated multi-sector approach.This will be crucial to securing full and effectiveprotection of rights over traditional knowledge andrelated resources and the way of life and cultures whichare central to their maintenance in the long term.Development of such an approach will take time - timethat some indigenous peoples and local communitiesdo not have.

Waiting for development of national and/orinternational law should not prevent indigenouspeoples and local communities themselves takingnecessary action to protect traditional knowledge. Thismay be achieved through their own endeavours,identifying those threats which may be managedinternally. Alliances with NGOs, academic institutionsand in some cases the commercial sector, may providemeans for securing protection of traditional knowledgewhere action by the community alone is insufficient.Government bodies may prove willing partners inpromoting local initiatives to protect traditionalknowledge. International organizations and aidagencies such as the United Nations Educational,Scientific and Cultural Organization (UNESCO),World Health Organization (WHO), InternationalUnion for the Conservation of Nature (IUCN), UnitedNations University (UNU), Corporación Andina deFomento (CAF), GTZ and others have already showna willingness to provide economic and/or technicalsupport for traditional knowledge protection. Theseactions may complement and help to inform processesto develop legal and other mechanisms for protectionof traditional knowledge and should take into accountlessons from existing experiences in traditionalknowledge protection.

Efforts to develop mechanisms for protection of rightsover traditional knowledge have included theestablishment of community-protected areas(Argumedo, n.d.), use of new contractual models2

(Laird, 2002), traditional knowledge databases andregisters (Alexander et. al, 2003), benefit sharing trustfunds3, and the adoption of national and regional laws4.

2 For discussion of contractual models see, Tobin B. (2002)Biodiversity prospecting contracts: the search for equitableagreements In: Laird, S. (ed.) (2002) Biodiversity andTraditional Knowledge: Equitable Partnerships in Practice,Earthscan Publications Ltd., London

3 For discussion of trust funds see Guerin-MacManis, M.,Nnadozie, K., and Laird, S. (2002) Sharing financial benefits:trust funds for biodiversity bioprospecting, In: Laird, S. (ed.)(2002) Biodiversity and Traditional Knowledge: EquitablePartnerships in Practice, Earthscan Publications Ltd.,London

4 For examples of national TK laws, see, Peruvian Law 27811,Protection of Indigenous Peoples’ Collective Knowledge

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6 See footnote 8 below and associated text.

These processes have been influenced by indigenouspeoples’ and local communities’ customary laws andpractices which, throughout the course of history, haveguided local decision-making regarding the adaptation,preservation, use, exchange and innovation of geneticresources and traditional knowledge.

1.2 Customary lawCustomary law has since time immemorial been partof the legal matrix which provides for the regulationand protection of the world’s population. In fact, themajority of all legal regimes may be seen as havingevolved from some form of customary law andpractice. Its codification and formalisation came toform the basis of positive law, enshrined in dominantlegal regimes such as the common and civil lawsystems.

In many countries colonial powers harnessedcustomary legal regimes as a tool to complementintroduced legal regimes, often leading tomodifications of the customary regimes themselves. Insome cases, customary law is recognised in nationalconstitutions, while in weak states unable to enforcenational law throughout their territory, indigenouspeoples and local communities may continue toadminister their own affairs in accordance with theirown systems of law. In almost all cases, customary lawhas been treated by national legal regimes as being atthe bottom of the legal hierarchy of laws. This situationhas in some cases marginalised customary law, whilein others it has undermined implementation of nationallaw where traditional authorities hold greater sway thannational authorities.

1.2.1 Definition of customary law5

There is no universally recognized definition ofcustomary law. In fact, the term itself is consideredtroublesome not only by legal positivists but also bymany indigenous peoples and local communities whoare concerned that it may wrongly be perceived asmerely a collection of customs lacking the force of law.The truth of the matter is that, except for thoseindigenous peoples living in complete isolation from

the outside world, the legal regimes of indigenouspeoples and local communities have been influencedby contact with colonists, missionaries, nationalauthorities, NGOs etc. This has led to the loss ormodification of some aspects of customary law and theincorporation of external legal principles into whatsome have called ‘indigenous law’ (Argumedo, 2006)‘our laws’ (Muyuy, 2006) or ‘chthonic law’ (Glenn,2000). These terms are themselves limited in theircapacity to identify the full breadth and diversity ofregimes now functioning to govern the internal affairsof a vast diversity of indigenous peoples and localcommunities around the world.

Definition of customary law is not a new challenge. SirWilliam Blackstone in 1769 addressed the issueextensively in his Commentaries on the Laws ofEngland which outlined the parameters of the commonlaw (dictionarylaw.com, 2008). In doing so he set outseven criteria for determination of the validity ofcustomary law, which needed to be immemorial,continuous, peaceable, reasonable, certain, compulsoryand consistent (Callies, 2006). Perhaps the mostchallenging of these is the requirement that it beimmemorial, which would have the effect of freezingcustomary law’s evolution in some far distant past. Thiscriterion has been loosened over time and while stillseen as influential is not considered a determinant onthe validity of customary law. A recent Asian study hasproposed that customary law should be seen as aconstantly evolving body of law in which newprecedents are constantly being set. Some of which willeventually be forgotten while others may become “…part of the immemorial rules…’ (Becker, 1989).

More recently, indigenous peoples participating in thepreparation of a comparative study of their owncustomary law systems in China, India, Panama andPeru have defined customary law as “locally recognisedprinciples, and more specific norms or rules, which areorally held and transmitted and applied by communityinstitutions to internally govern or guide all aspects oflife” (IIED, 2006). This study concluded that it may bepossible to identify underlying principles which arecommon to customary law systems around the world,although the terminology utilised to define them mayvary.6

At both CBD and WIPO-IGC, reliance has been laidupon Black’s Law Dictionary which defines customarylaw as ‘customs that are accepted as legal requirementsor obligatory rules of conduct, practices and beliefs thatare so vital and intrinsic a part of a social and economicsystem that they are treated as if they are laws.’ (Gamer,1989). A paper on customary law issues prepared byWIPO, highlights potential ambiguities and difficulties,inherent in this definition, associated with identificationof what “as if” means in the context of determiningwhether a customary practice has in fact become a law(Gamer, 1989).

Associated with Biological Resources, July 2002, Costa Rica– Law 7788 Biodiversity Law, 23 April 1998, PhilippinesRepublic Act No. 8371,28 July 1997, Portugal’s, Decree-LawNo. 118/2002, April 20, 2002. Regional experiences includethe African Model Legislation for the Protection of the Rightsof Local Communities, Farmers and Breeders, and for theRegulation of Access to Biological Resources and the SouthPacific Draft Model Law For The Protection Of TraditionalEcological Knowledge, Innovations and Practices.

5 For the purposes of this paper, customary law will be used todescribe the legal regimes employed by indigenous peoplesand local communities to govern their internal affairs,recognizing that these are dynamic and constantly evolvingand often incorporate legal concepts and measures drawn fromother legal systems.

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Whatever definition is taken, there will be a need todecide on a case-by-case basis whether customary lawis applicable. For indigenous peoples and localcommunities this is less of a problem, as they are theholders and arbiters of the applicability of customarylaw. However, where customary law is to be appliedto non community members or in national or foreigncourts, lack of clarity in defining customary law mayundermine or impede enforcement.

1.2.2 Nature and characteristics ofcustomary law

A capacity for reflection and modification to meet newchallenges and respond to changing spiritual, moral,cultural, social, economic and environmentalconditions, is a trait required of all legal regimes whichwish to maintain their legitimacy and effectiveness astools for social regulation. This is as true for thosegrounded in positive law as it is for customary lawregimes. Customary law regimes have been andcontinue to be flexible systems of local governancecapable of adapting to changing needs and realitiesand, where necessary, incorporating elements ofnational law or foreign legal principles. Incorporationof measures drawing upon non-traditional sources orin response to external pressures do not of themselvessignify a shift from a customary legal basis forcommunity regulation towards a positivist or mixedcustomary/positivist regime. The inclusion of positivistelements within a customary law framework need notnecessarily be seen as deformation of customarygovernance structures. Rather it connotes adaptabilityin the face of changing realities, without which thecustomary order may find itself overthrown orincreasingly marginalised as a force for governance ofcommunity affairs

Customary law is generally not codified and there issignificant opposition by indigenous peoples and localcommunities to any move towards codification. Thisit is felt would be the first step towards stagnation oftheir legal regimes, removing its flexibility anddynamism. However, even where elements ofcustomary law have been written down, as for instancehas occurred in development of community researchprotocols7, this need not of itself signify a move to a

positivist tradition. The distinction between positivistlaw and customary law lays not so much in thedistinction between a written and oral legal tradition,as has often been assumed, as on their purpose, nature,underlying principles and the incentives forcompliance. In a discussion on Mayan law for example,it is argued that:

“Customary indigenous law aims to restore theharmony and balance in a community; it isessentially collective in nature, whereas the Westernjudicial system is based on individualism.Customary law is based on the principle that thewrongdoer must compensate his or her victim forthe harm that has been done so that he or she canbe reinserted into the community, whereas theWestern system seeks punishment.” (GuiselaMayén, 2006).

The force of customary law is dependent uponcommunity buy in. The incorporation of elements ofpositivist law does not of itself signify a change of thenature of the overall regime as long the underlyingprinciples governing community life are sustained. Inthe same vein, the exercise of traditional decisionmaking authority does not of itself signify the existenceand vitality of a truly customary legal regime. Thelegitimacy of traditional authorities and customary lawwill depend upon continued acquiescence ofcommunity members to be governed by them. Wherecommunity members turn to national authorities in thesearch for justice then the legitimacy of traditionalauthorities or others seeking to govern using customarylaw may be lost. Increasingly, customary law regimeswork alongside national positivist regimes withnational law applying in a limited number of caseswhile the majority of community affairs continue to beadjudged under customary law.

Preparedness to accept and import modifications tocustomary law regimes may, therefore, be seen moreas a strategy of survival than as a break with the past.At what point the level of change signifies a loss ofthe necessary underlying principles to entitle a regimeto be considered as based upon customary law, isunclear. One means of identifying the continuingvalidity of any traditional legal regime may be toidentify the extent to which the underlying principlesof community governance are based upon customarylaw.

Identification of underlying principles common tocustomary law regimes may have an important role toplay in the development of national and internationalmeasures to respect and recognise customary law andpractice. An IIED sponsored project identified threeprinciples common to four local community/indigenouspeoples groups in China, India, Panama and Peru.These included:

Reciprocity: what is received has to be given backin equal measure. It encompasses the principle ofequity, and provides the basis for negotiation and

7 The term “community protocol” has been used to describe avariety of measures adopted to help enforce customary lawprovisions in dealings between indigenous peoples, localcommunities and outsiders. These include contracts based onor incorporating elements of customary law; terms andconditions for the carrying out of research on indigenousterritories, traditional cultural expressions, TK or otherelements of indigenous culture; and codes of conduct orcommunity regulations governing prior informed consentprocedures. In this paper, the term community protocol isused, unless otherwise specified, to refer to protocols settingout general terms and conditions relating to communityprocesses for governing access to, and use of, biological andgenetic resources and associated traditional knowledge.

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9 Murphy, J. B. (2007) Habit and convention at the foundationof custom, In: Perreau-Saussine and J. B. Murphy, The Natureof Customary Law: Legal, Historical and PhilosophicalPerspectives.

10 Aristotle, Politics 1287b 5. Greek text: Oxford Classical Texts,ed. W. D. Ross, Oxford Clarendon Press, 1957, cited inMurphy J.B. (2007) at 64, where Murphy notes that Aristotledoes not explain why custom is more authoritative andconcerns more important matters than statutes. Perhaps hesuggests “it is because custom rests upon ancient and widelyshared norms while written laws often rest on more transientpartisan regimes or because the very weighty matters of familylife and divine worship are largely regulated by custom.”

11 Arthur v Bockenham, 11 Mod. 148 (1707) at 160-161, citedin Callies D. (2005) How custom becomes law in England,In: Orebech P., F. Bosselman, J. Bjarup, D. Callies, M.Chanock and H. Petersen, (2005) The Role of Customary Lawin Sustainable Development, Cambridge University Press,Cambridge, UK

exchange between humans, and also with mountaingods, animals, etc.

Duality: everything has an opposite whichcomplements it; behaviour cannot be individualistic(for example, in the union between man andwoman); and other systems can be accepted or otherparadigms used.

Equilibrium (harmony): refers to balance andharmony, in both nature and society, e.g. respect forthe Pacha Mama (Mother Earth) and mountaingods; resolution of conflicts. Equilibrium needs tobe observed in applying customary laws, all ofwhich are essentially derived from this principle.8

Where identified, such common principles may,together with principles of positive law, inform thedevelopment of national and international protection oftraditional knowledge. Based upon concepts of legalpluralism, this blending of positive and customary lawmay be seen as part of an evolutionary process for thebuilding of functional interfaces between disparatelegal regimes in pluricultural societies (Tobin, 2009b).Care must be taken however to avoid any attempts atharmonising or codifying customary law, which despiteany commonalities is local in nature and enriched byits diversity.

Amongst the principal attributes ascribed to customarylaw are its legitimacy, flexibility and adaptability. (SeeBox 1)

8 International Institute for Environment and Development(IIED). (2006) Protecting Community Rights overTraditional Knowledge: Implications of Customary Laws andPractices, Interim Report. (2005-2006), Downloaded fromhttp://www.iied.org/pubs/display.php?o=G01239

Box 1. Characteristics of Customary law• Dynamic, Flexible, Adaptable• Focuses on Peace, seeking to restore

community relations rather than retribution• It has legitimacy amongst communities• It is culturally sensitive• It is resource specific and environmentally

specific• It responds to the ecosystem approach to

resource management

Source: Final report Townsville Workshop in Tobin 2008

An interrelationship which, whether formallyrecognised or not, continues to play an important partin the legal ordering of a majority of countries in theworld as it has done since earliest times. In a recentcompilation on the nature of customary law (Perreau-Saussine and Murphy 2007)) James Bernard Murphystates, that:

“Philosophical jurisprudence, from Plato to HansKelsen, rests upon three fundamental concepts oforder and three allied concepts of law: the orderintrinsic to human nature grounds natural law, theorder found in informal practices groundscustomary law, and deliberately stipulated ordergrounds enacted law”.9

Natural law has been described as a “universallyaccessible rational standard of morality” (Porter 2007).Customary law is that part of the law derived fromconventions of society which become habitual (Murphy2007) and are adhered to although not externallyimposed. Positive law on the other hand is stipulatedlaw which in many cases evolved as a means to clarifyand harmonise customary practices (Murphy 2007).Within this triptych of legal sources customary law canbe seen as standing ‘in a mediating role betweennatural right in the most basic sense, and written law’(Porter 2007).

Although written or positive law will generally tend tosupersede customary law, this is not always the caseand in some cases customary law may prove moreauthoritative. Aristotle, for instance, argued that“customs (ethe) have more authority and concern moreimportant matters than do written laws”.10(Murphy2007) And the English courts have held that customarylaw can ‘supersede the common law’.11 Over time,however, the position of customary law has beensteadily marginalised leading to fragmentation of thetraditional legal order as positive law has imposed itselfthroughout the world. The result is a system of law thatoften serves short term political expediency rather thanlong term community well-being.

1.2.3 The interrelationship betweencustomary law and positive law

Discussion of customary law and its relation to positivelaw has tended to focus primarily on the distinctionsbetween these two sources of law and their relativemerits. This overlooks the historical interrelationshipbetween customary law, positive law and natural law.

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The current environmental and economic crises haveshown the fragility of this new legal order as a basisfor sound global governance. Recent work on the roleof customary law for sustainable development(Orebech et al. 2005) and protection of TK (Alexanderet. al. (2009) Taubman (2005) Tobin 2009a and 2009b)would seem to support an approach to recognition ofcustomary law as part of a process towardsrestructuring the fragmented legal order, rather thanone of merely building bridges between distinct legalsystems - each of which are in themselves inadequateto achieve these ends. The fact that customary lawplays a role, either formally or informally, in a majorityof countries, makes the issue of any such restructuringless daunting than it might at first seem. Achievingsuch an end will, however, require significant increasein political will in both developed and developingcountries.

Viewing customary law as component part of a widerintegrated, if currently fragmented, legal order does notmean that the distinctions with positive law can orshould be overlooked. Rather, it suggests that whenexamining such distinctions we do so with a viewtowards the identification of foundational principlesdrawn from among the combined sources of law inorder to develop a coherent and lasting basis forequitable global TK governance.

1.2.4 Distinctions between customary lawand positive law

Customary law of indigenous peoples and localcommunities and positive law display significantdifferences which will need to be addressed ifinternational law is to ensure due recognition forcustomary law in ABS and traditional knowledgegovernance. Amongst the most significant differences,are the relationships among individuals and the naturaland supernatural worlds; the nature and definition oftransgressions and harms; and concepts of property.12

For example, the concept of “property” as it isunderstood by western legal systems does not exist inthe customary laws of many indigenous peoples andlocal communities. In western legal systems, propertylaw is intrinsically patrimonial or economic, focusingon private rights including rights to use, exclude, sell,transfer, and encumber property (Tsosie 2007). Incontrast, indigenous peoples property systems tend toemphasize the sacred, spiritual, and relational valuesof resources and their property systems are.

“…commonly characterized by collectiveownership (where the community owns a resource,but individuals may acquire superior rights to orresponsibilities for collective property), andcommunal ownership (where the property isindivisibly owned by the community)…” (Tsosie2007)

Another area where divergence of legal vision occursis with regard to traditional knowledge sharing and thenotion of the public domain. Strict customary laws withsevere penalties for their breach exist among someindigenous peoples to protect against misuse ormisappropriation of knowledge which has been sharedaccording to traditional practices. This may apply tosongs, stories, medicinal knowledge and othertreasured elements of an indigenous peoples’ or localcommunities’ cultural heritage.

The concept of the public domain is primarily definedin relation to intellectual property law which excludesfrom protection information which has been publishedor disseminated by the mass media (i.e. press,television, documentaries, etc.) or has been subject ofwidespread commercial trade. Even where traditionalknowledge was misappropriated or was published ordisseminated without the prior informed consent (PIC)of its traditional custodians, it may be considered tobe within the public domain thereby strippingindigenous peoples and local communities of any rightsto control its subsequent use or even to share in thebenefits derived from its use.

National authorities and regional bodies developing suigeneris regimes for protection of traditional knowledgehave struggled to try to find a way to resolve suchconflicts with varying degrees of success. Peruvianlegislation on the rights of indigenous peoples overtheir traditional knowledge, for instance, recognizestraditional knowledge to be the cultural patrimony ofindigenous peoples and local communities; extendsrights to benefit sharing over knowledge in the publicdomain; and, recognizes customary law’s role indispute resolution.13 However, even while adoptingcertain innovative new measures the Peruvian law hasplaced them within a framework which constrains theirimpact and may create further strains on customary lawand local governance of traditional knowledge. Theseissues will be considered in greater detail below.

In order to overcome the inherent tensions betweencustomary and positive law regimes, it will benecessary to develop greater awareness of thedistinctions between them, including their respectivenature, objectives, principles and characteristics,14 and

12 Tsosie, R. (2007) Cultural challenges to biotechnology:Native American cultural resources and the concept of culturalharm. 36 Journal of Law, Medicine & Ethics, cited extensivelyin Alexander, M., P. Hardison P and M. Ahren (2009) Studyon Compliance in Relation to the Customary Law ofIndigenous and Local Communities, National Law, AcrossJurisdictions, and International Law. Consultancy Paper.UNEP/CBD/ABS/GTLE/2/INF/3.

13 Peru (2002) Law 27811 on the Protection of the CollectiveRights of Indigenous Peoples over their TraditionalKnowledge Relating to Biological Diversity

14 Tomtavala suggests a number of characteristics distinguishingcustomary law from positive law. These include: that it islargely unwritten, informal, spontaneous, conservative, status

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16 In Peru, regulations require that 15% of candidates frompolitical parties be drawn from campesinos communities orindigenous peoples. This does not however ensure theirrepresentation in the legislature and, with many politicalparties placing indigenous people in the lower rankings oftheir electoral list, they still remain grossly underrepresentedin the national legislature.

processes for development and modification of law.Developing measures which can overcome theconflicting nature of customary and positive lawregimes, will be complex enough in countries whereindigenous peoples and local communities reside. It islikely to be even more complex in foreign countrieswhere the knowledge and resources are being utilised.In the short term, development of internationalalternative dispute resolution mechanisms help toensure due recognition and enforcement of customarylaw. This however, can only be seen as a partialsolution. The international community will need as partof the process towards the development of internationallaw and policy on ABS and traditional knowledge, toexamine these issues with a view to providing theframework within which national authorities andtraditional knowledge custodians can work to developthe mechanisms necessary to overcome the tensionsand conflicts between these disparate sources of law.

The effectiveness of national and internationalmeasures will depend in no small part on the robustnessof customary law regimes at the local level. In manycases, these remain vibrant and provide the principallegal ordering for community life, while in other casesthey have fallen into disuse or have disappearedaltogether. Considering the multiplicity and diversityof customary law systems, and the wide differences ofstatus they hold, it seems evident that harmonisationand adoption of a ‘one size fits all’ solution is bothinappropriate and unworkable. This has beeneloquently stated by the Four Directions Council aNorth American indigenous organisation, in afrequently cited quotation:

“Indigenous peoples possess their own locally-specific system of jurisprudence with respect to theclassification of different types of knowledge,proper procedures for acquiring and sharingknowledge, and the rights and responsibilitieswhich attach to possessing knowledge, all of whichare embedded uniquely in each culture and itslanguage. Rather than trying to establish a ‘one sizefits all’ IP regime to protect traditional knowledgethe Four Directions Council proposes thatgovernments agree that traditional knowledge mustbe acquired and used in conformity with thecustomary laws of the people concerned.”15

The challenge is, therefore, to develop a flexible legalframework which facilitates links between customaryand positive law regimes and their respective decision-making and enforcement authorities. This will need tobe done in a manner which empowers indigenouspeoples and local communities and supports realizationof their human rights. What is required is a systemwithin which customary legal regimes can interfacewith the legal regimes in the countries in whichindigenous peoples reside as well as with those ofcountries in which their knowledge is being used.International law will need to provide the frameworkwithin which such interfaces can be effectivelydeveloped

1.2.5 Building functional interfacesbetween legal regimes

National and traditional decision-making authoritiesand the legal regimes upon which they are based arein constant interaction. Effective recognition andapplication of customary law at the national andinternational level requires functional interfacesbetween indigenous peoples’ and local communities’decision-making authorities and national andinternational legislative, administrative and judicialauthorities. These interfaces will need to be maintained,developed and/or strengthened at the legislative,political, administrative, judicial, and enforcementlevels. Examples of interaction between legal regimesmay include recognition of customary law underconstitutional and national law; formal and informalinteractions between government and traditional chieflyauthority; integrated and/or conflicting jurisdictionalauthority between a national court system andtraditional dispute resolution processes; andenforcement of customary law-based decisions,sanctions and awards in national and foreignjurisdictions.

At the national level many countries already haveestablished mechanisms which provide the basis forinteraction between national and customary law andtheir respective decision making authorities. Thisincludes constitutional recognition of customary lawand indigenous peoples’ and local communities’jurisdiction to apply their own laws within theirterritories and to their members. It may also includetheir representation in the national legislature16;establishment or recognition of communityenforcement authorities; application of customary lawin national courts; and, appointment of judges drawn based, and reliant upon its own enforcement procedures; see

Tomtavala Y. (2005) Customary Laws in Pacific IslandCountries & their Implications for the Access & BenefitSharing Regime» PowerPoint Presentation made at the PacificRegional Workshop on Access and Benefit Sharing,Traditional Knowledge and Customary law, organised byUNU-IAS, 21-24 November 2005, Cairns, Copy with UNU-IAS.

15 See G. Dutfield, ‘Rights Resources and Responses’ In:Cultural and Spiritual Values of Biodiversity, D. Posey(London, Intermediate Technology Publications, (1999), p. 4.

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from within the community to administer justice basedupon a mixture of positive and customary law17. Theeffectiveness of such mechanisms will depend upon thelevel of recognition and autonomy given to traditionalauthorities and the extent to which application ofcustomary law by national and traditional authoritiesconforms to the underlying principles of indigenouspeoples’ legal regimes and their cultural, spiritual andmoral beliefs.

The interfaces between international and customarylegal regimes are less well defined. In part, this maybe seen as a logical consequence of underlyingprinciples of international governance based onrecognition of national sovereignty. International lawhas tended to place responsibility for recognition andrespect of customary law on national authorities.However, it is increasingly clear that this must changein order to secure indigenous peoples’ human rights,including rights to self-determination and to theirtraditional territories and resources, as well as tointellectual property and traditional knowledge.International law will, therefore, need to clearlyrecognise customary law as a source of law within thebody of legal pluralism which makes up internationallaw. This is not only a challenge for human rightsbodies: ongoing processes at CBD, WIPO and WTO,relating to protection of traditional knowledge andregulation of ABS must all find mechanisms forensuring recognition of customary law.

A recent study on the role of customary law in securingcompliance with an ABS regime, prepared for the CBDargues that recognition of customary law can mosteffectively be realised at the point of access toknowledge or genetic resources (Alexander et al 2009).The study proposes a number of interrelated provisionsto serve as the basis for empowering indigenouspeoples and local communities to control use of theirtraditional knowledge in accordance with customarylaw, these include:

• Requiring PIC of indigenous peoples as a conditionfor access and use of traditional knowledge andgenetic resources,

• A system of certification to serve as evidence ofcompliance with PIC obligations,

• Requirements for disclosure of evidence of PIC inprocedures for processing applications for the grantof intellectual property and/or product approval,

• Classification of access and or use without PIC asmisappropriation, and

• Establishment of alternative dispute resolutionmechanisms with the capacity to resolve conflictswith due attention to customary law18

The proposal, based in large part on analysis ofcontract and public international law, provides apragmatic solution to what has sometimes seemed anintractable challenge of how to secure a central rolefor customary law in regulation of traditionalknowledge, without paralyzing progress towardsdevelopment of an international ABS regime. Theproposal reflects a balance between claims thatcustomary law relating to traditional knowledge shouldbe fully recognised and enforceable in national andforeign jurisdictions and counter claims that customarylaw should only (if ever) be recognised, if it isevidenced in writing and then only to the extent it doesnot conflict with existing national law. From theperspective of indigenous peoples and localcommunities, this proposal offers a non-intrusivemeans to secure a role for customary law in traditionalknowledge governance - requiring disclosure of onlythose elements of customary law which areincorporated in access agreements. For States, it hasthe attraction of requiring only a bare minimum oflegislation.

The study suggests that access to and use of traditionalknowledge for which PIC has not been obtained shouldfall within the definition of misappropriation. The studyalso proposes the establishment of an internationalsystem of alternative dispute resolution and of anindependent ABS ombudsman’s office, which couldhelp provide access to justice for custodians oftraditional knowledge where misappropriation of theirtraditional knowledge occurs. Such a system shouldprovide that in adjudication of disputes due regard begiven to customary law, the nature of the knowledgeinvolved, and the means by which it wasmisappropriated. Where sacred or secret knowledgeand/or coercion, fraud, or breach of a fiduciaryobligation are involved this might lead to specificremedies, mitigation measures and or penalties basedon customary law.

Unfortunately, the study does not fully explore thechallenges and modalities for securing the role ofcustomary law in adjudication of decisions andenforcement of rights over traditional knowledge wheremisappropriation occurs. It is to be hoped that the CBDwill follow up on its initiative to commission this initialstudy with a further study in this area. This will benecessary to fully inform the debate on an internationalABS regime regarding the appropriateness and gaps inexisting legislation in order to ensure that duerecognition be given to customary law in casesinvolving misappropriation of traditional knowledge.

The study argues that to be effective, any internationalABS regime must recognise customary law, if theConventions goals were to be met and sets out a listof characteristics of customary law and proposals forhow it may be incorporated into an international ABSregime. (See Box 2)

17 In Peru a system of Jueces de Paz ( or Peace Judges) drawnfrom among indigenous peoples and local communities servesas an adjunct to the national judiciary, with responsibility foradministration of justice at the local level.

18 Alexander et. al. (2009)

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19 Noejovich F. (2006) The Role of Indigenous Customary lawin the Protection of Traditional Knowledge and itsRecognition at the International Level, in Ruiz (2006)

Box 2. The relation between customary law and international regulation of ABS1. Customary law is a fully developed legal system with enduring aspects and dynamic features that adjust

to new circumstances that are framed in terms of the more enduring customary legal principles;2. It proceeds from a very different cosmovision (holistic worldview combining multiple dimensions of the

world, including spiritual dimensions);3. There are both practical (utilitarian) and political reasons (indigenous rights) to take customary law into

account. Customary law has been adjusted to local circumstances, and is the context in which indigenouspeoples make sense of and adaptive decisions about, the world around them, as well as the context, inwhich the fairness and equity of policies is judged;

4. Customary law should be respected at all stages of the development of ABS projects, from the proceduresindigenous peoples use to accept, reject and negotiate agreements, to control over the uses of their GRand associated TK;

5. Regimes will need to involve dispute resolution procedures at and above the community level that areled by indigenous peoples and incorporate customary law;

6. If customary law is incorporated into any instrument related to ABS, such as contracts on mutually agreedterms, the regime should ensure that the terms are recognized and enforceable across all jurisdictions;

7. Customary law may make some uses of GR and associated TK more acceptable than others - such asnormal plant breeding versus the development of Genetically Modified Organisms (GMO). Customarylaw issues surrounding medicinal plants may differ from those involving traditional crops. Some sectorsmay lend themselves to broad-scale approaches to benefit sharing that can benefit many indigenouspeoples, to narrower contract-based approaches;

8. “Misappropriation” may refer, inter alia, to: any use [of genetic resources and TK] outside of theindigenous communities of origin; any biotechnological use; any commercialization; or to unjustenrichment without [prior informed consent and/or] compensation.

9. Respecting customary law in ABS regimes is the best way to promote the goals of the Convention, becauselack of respect is likely to lead to intractable conflicts and the failure or limited success of ABS initiatives,and the failure to equitably exchange traditional knowledge, innovation and practices that could contributeto the security of nations and all peoples in meeting the challenges of a rapidly changing globalenvironment;

10. Failure to respect customary law will contribute to the further erosion of traditional biodiversitymanagement systems and traditional knowledge associated with biodiversity, and thus to barriers tomeeting the goals of this Convention as well as the loss of global cultural diversity.

Source: Alexander et. al. (2009)

It has been suggested that development of functionalsystems to regulate ABS and protect traditionalknowledge will require action on three levels(Noejovich 2006), including:

• At the local level, by local communities andindigenous peoples themselves to regulate, use,access, transmission and development oftraditional knowledge.

• At the national level, to regulate its applicationto issues of access to traditional knowledge,biological and genetic resources within the landor territories of indigenous peoples and inrelevant intellectual property norms,

• At the international level, to provide customarynorms with necessary enforcement mechanismsbeyond local and national jurisdiction19

Ensuring coherency between local, national andinternational regulation of ABS and traditionalknowledge will be crucial if the international ABSregime is to function effectively. The internationalcommunity will need, therefore, to approach theprocess of regulating traditional knowledge withsensitivity and respect, and with a commitment tosecuring the full and effective participation ofindigenous peoples’ and local communities’representatives in decision-making on law and policywhich will affect them.

Significant advances at both CBD and WIPO insecuring indigenous participation in their respectiveprocesses are to be welcomed. They are not ofthemselves however, adequate to ensure the full andeffective participation of indigenous peoples and localcommunities in the design of international TK law.More work will also need to be done to build thecapacity of indigenous peoples and local communitiesto develop their own policies, community protocolsand other regulatory measures as well as to manage

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PIC processes and protect their interests in whereentering into negotiations they are in a position toensure that relevant customary law principles arereflected within them. Achieving these ends willrequire a significant increase in commitment to thepromotion and funding of local consultations, capacitybuilding, strengthening of customary law anddevelopment of community protocols. It will alsorequire more formal recognition of indigenous peoplesas peoples to be represented in international negotiationprocesses, something without which their right toconsultation on legislation which will affect them,including international legislation is effectively denied.Adoption of such measures will be crucial for buildingconfidence of indigenous peoples that recognition ofcustomary law is intended to secure their rights and willnot act to progressively undermine and dispossess themof their own legal regimes and the rights they uphold.

As awareness of the importance of traditionalknowledge for the livelihoods and cultures ofindigenous peoples has grown, there have beenincreasing calls for a human rights approach to itprotection. Numerous declarations by indigenouspeoples (Posey 1995) and more recent policy papersby indigenous legal experts have highlighted the linksbetween traditional knowledge, customary law theirrights to self-determination (Ahren 2007, Alexander et.al 2009). The relationship between customary law andhuman rights is a polemic one. On the one hand it isclearly a central tool through which indigenous peoplesand local communities exercise autonomy. On the otherhand, it has often served to deny basic human rightsto certain sectors of the population, in particularwomen. This is a sensitive issue, but one which willneed to be dealt with in order to ensure true fairnessand equity of benefit sharing and protection of therights of all sectors of indigenous peoples and localcommunities over traditional knowledge.

1.2.6 Customary law and gender equalityand equity

Women play a central role in the conservation ofbiological diversity, its sustainable use and in thetransmission of traditional knowledge to youngergenerations. Their role is crucial for ensuring familyand community well-being. Women-led families havebeen identified as being the poorest among the poor;recognition and attendance to their needs and interestsis, therefore, vital for meeting international humanrights obligations and development objectives such asthose set down in the Millennium Development Goals.However, opportunities for women to participate in thedesign and implementation of relevant law, policy anddevelopment projects are often minimal (Tobin &Aguilar, 2007).

Customary legal regimes in Andean and Amazonianindigenous peoples and local communities, play animportant role in governing issues such as familyrelations, sexual honor, and domestic violence,

regulation of property and resource rights, participationin decision making and sharing of benefits arising fromdevelopment projects and economic activities.Increased interaction between indigenous peoples andlocal communities and the State in Peru has been amixed blessing for women. While, in some cases, it hashelped bring about greater awareness of women’shuman rights, in others it has further marginalized themand weakened their role in traditional decision makingprocesses.

While each community is unique and dynamic, for themost part Andean cultural life is strongly “gendered”(Estremadoyro 2001). Most Quechua communitiestraditionally believe that men and women havecomplementary roles in society based on the Andeanworld vision of the conjugal pair (Estremadoyro 2001).Andean women, for instance have historically heldimportant positions within traditional governancestructures and participated equally in communitymeetings. These rights have become threatened,however, as decision making moves to morecentralized and formalized settings severely limiting theopportunities for women’s participation in officialdecision-making. This marginalisation may be seen inconsultation processes in Peru, including those relatingto resource exploitation, which are in the main carriedout in Spanish - a language many indigenous women,in particular older women, do not speak (Estremadoyro2001). Similarly, the shift from barter to monetizedeconomies has led to increased concentration ofeconomic power among men, and a significantdiversion of resources away from women who carry alarge share of the burden for sustaining families andcommunities.

The Peruvian Constitution prohibits discrimination onany ground including sex, and requires that indigenouspeoples and local communities in the application oftheir customary laws must not infringe fundamentalhuman rights. Nevertheless, studies in Peru have showna general failure by both national law and customarylaw to protect women’s human rights (Paredes-Pique2004).

The failure of both the state and indigenous authoritiesto effectively protect their rights has led to theformation of grassroots organizations by indigenouswomen in the Andes and Amazon to represent theirconcerns and support the defence of their rights. Onesuch Organization is the Federación de MujeresAguarunas del Alto Marañon (FEMAAM) establishedin 1998 which has as one of its principal objectives theempowerment of Aguaruna women in all aspects oftheir personal and social life, in conditions of equality(Paredes Pique 2004). Organizations such asFEMAAM are helping to reshape gender relations inAmazonia and the Andes and a majority of national andregional organisations representing indigenous peoplesin Peru now include a representative for women’sissues. The election in recent years of a Quechuaindigenous woman to a seat in the Peruvian parliament

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marked a positive step forward in the struggle to securea place for indigenous women in national affairs.

Although customary law is at times in conflict withrealization of women’s human rights, this does notmean that all customary law regimes are in whole orpart discriminatory. Discrimination tends to reflectdiscrimination in other sectors of society with youths,the poor, ethnic minorities and women most likely tobe under-represented and/or discriminated against incustomary decision making (Drzewieniecki 1995).However, due to the constantly evolving and flexiblenature of customary law the gender dynamics ofindigenous peoples and local communities cannot begeneralized and must be analyzed on a case by casebasis. Changes in customary legal regimes may bebrought about by changes in demography, economics,ecology, politics or culture (Drzewieniecki 1995). Suchchanges are noticeable in debates in Peru andinternationally on ABS and traditional knowledgeissues, where women have played an active role. Theissue of gender has, notably, appeared more frequentlyin the work of the Working Group on Article 8 (j) ofCBD than in almost any other area of the Convention’swork, demonstrating the concern of indigenous peoplesand local communities for the recognition and

protection of women’s interests in this area (Tobin &Aguilar 2007).

The relationship between recognition of the rights ofindigenous peoples and local communities to regulatetheir affairs in accordance with customary law andsecuring universal human rights needs to be examinedwith care. Based, as they are, upon differing cultural,spiritual, social, political and economic norms, it ishardly surprising to encounter conflicts betweencustomary law and human rights law. These conflictsmay take the form of infringements of individual rightsby customary law, or of threats posed to collective land,resource and traditional knowledge rights byindividualistic concepts of human rights. Theprogressive realization of women’s human rights withinindigenous peoples and local communities is morelikely to be effective where it comes about throughpersuasion rather than coercion (Engle Merry, 2006).Those promoting respect and recognition of customarylaw for realization of rights to self-determination andprotection of traditional knowledge, will need todemonstrate a concomitant respect and recognition forthe protection of women’s human rights if they are tofind widespread support for their goals among thewider international community.

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Protection of traditional knowledge under internationallaw has been slow in coming. During the last ten tofifteen years, an ever growing array of internationalorganizations has begun to focus their attention ontraditional knowledge issues, leading to a wide rangeof strategies for its protection. The WHO, for instance,has funded preparation of an Atlas on traditionalmedicine and adopted a strategy for protection oftraditional medicine; UNESCO has adopted theConvention on Intangible Cultural Heritage and issupporting the financing of projects to strengthentraditional knowledge systems; UNCTAD hasconvened international workshops and publishedstudies on traditional knowledge. Greater attention isnow given to traditional knowledge in World Bankprojects; CCD and Framework Convention on ClimateChange (FCCC) have all sought to develop programsto incorporate TK into planning processes; while theCBD has sponsored an international study on status andtrends of traditional knowledge, adoption of the Akwe-Kon guidelines on cultural impact assessment, andnegotiation of an ethical code of conduct regardingtraditional knowledge; the CBD is also in the processof developing and negotiating an international Regimeon ABS and traditional knowledge. WIPO has preparedan international study of traditional knowledge and ishost to ongoing negotiations on measures to protecttraditional knowledge and traditional culturalexpressions (TCE); WTO has seen the inclusion oftraditional knowledge issues in the Doha round ofnegotiations; and the UNPFII has provided theopportunity for expert debate and made numerouspronouncements regarding the need for protection oftraditional knowledge, and has also commissioned areport on the role of customary law in traditionalknowledge protection.

Despite these collective efforts, traditional knowledgeremains largely unprotected, a situation which isexacerbated by the lack of a coherent and coordinatedinternational approach to traditional knowledgeprotection. Lack of a unified approach is, in part, areflection of the differing mandates and objectives ofinternational organizations and of the frequentlydivergent positions taken by national delegations atthese different forums. Coherency at the internationallevel is therefore dependent upon the adoption ofconsistent national positions across all forums. Witha view to enhancing coherency at the international levelUNPFII has promoted dialogue among internationalorganizations. This initiative will need to be continuedand strengthened in coming years as implementationof international instruments, negotiation of newinstruments and funding and implementation ofdevelopment projects advance.

Section II: International protection of traditional knowledgeand customary law

Achieving coordinated, coherent and appropriateprotection of traditional knowledge will depend in nosmall measures on the extent to which nationalauthorities, international organizations, aid agencies,NGOs, research institutions, individuals and privatesector actors give due respect and recognition tocustomary law. Achieving this end will require thatrelevant authorities, organisations, agencies, etc., givedue consideration to customary law in the planning,adoption and implementation of national andinternational law and policy, as well as in aid anddevelopment programs and projects for protection oftraditional knowledge.

This section reviews international protection ofindigenous peoples’ human rights and its relation toprotection of traditional knowledge and recognition ofcustomary law. Attention will focus on the InternationalCovenant on Civil and Political Rights andInternational Covenant on Economic Social andCultural Rights, Convention 169 of the InternationalLabour Organization (ILO) and the United NationsDeclaration on the Rights of Indigenous Peoples. Thesection also considers the treatment of customary lawby the CBD and WIPO in their work on traditionalknowledge protection. The section finishes withanalysis of measures taken by the Andean Communityto secure protection of traditional knowledge.

2.1. International protection of indigenouspeoples’ human rights

2.1.1 U.N. Covenants and self – determinationFrom the perspective of indigenous peoples, the mostimportant of all their human rights is their right to self-determination. This right is set out in two bindinginstruments, the International Covenant on Civil andPolitical Rights (CCPR) and the International Covenanton Economic, Social and Cultural Rights (CESCR).Article 1 of each covenant provides that:

1. All peoples have the right of self-determination.By virtue of that right they freely determine theirpolitical status and freely pursue their economic,social and cultural development.

2. All peoples may for their own ends, freelydispose of their natural wealth and resources... Inno case may a people be deprived of their meansof subsistence.

3. The States Parties to the present Covenant …shall promote the realization of the right of self-determination, and shall respect that right inconformity with the provisions of the Charter of theUnited Nations.

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These rights to self-determination were originallyconsidered to apply primarily to newly emergingindependent states in the period of decolonization.Over time, however, they have been interpreted as alsoapplying to indigenous peoples and now form the basisfor their struggle for greater political, cultural andeconomic autonomy.

Indigenous Peoples have drawn attention to theimportance of self-determination as the basis forrealization of their civil, political, economic, social, andcultural human rights. It is seen by indigenous peoplesas crucial for the realization of economic rights andrights to self-development (Posey et. al., 1999); ofrights to live in their own territories, with respect for[their] distinct cultures, political institutions andcustomary legal systems (Posey et. al, 1999); and fortheir effective control, management and administrationof their resources (Posey et. al, 1999). They interpretself-determination as requiring their recognition ‘…asthe exclusive owners of their cultural and intellectualproperty, which they should define for themselves(Julayinbul statement, in Posey et. al, 1999, 570).

Realization of the right to self-determination and tofreely determine their political status and pursue theireconomic, social and cultural development implies aright of indigenous peoples to govern their affairs inaccordance with their own internal laws and throughtheir own institutions and decision-making authorities.Not only must they be empowered to regulate activitieswithin their territories and among their communitymembers; national authorities and the internationalcommunity will need to ensure these rights arerespected, protected and fulfilled. This will require theadoption of necessary legal and policy measures andthe provision of aid where access to and use of geneticresources and traditional knowledge would infringeupon the effective realization of these rights.Indigenous peoples view their rights over traditionalknowledge as being collective, intergenerational andinalienable, ‘…and which each generation has theobligation to safeguard for the next’ (Posey et. al, 1999,571) in effect, viewing traditional knowledge as theircultural patrimony or heritage.

So important is protection of traditional knowledge forindigenous peoples that they have declared it as being‘… just as important as the struggle for self-determination’ (Posey et. al, 1999, 574). In fact, theissues are intertwined with, on the one hand, self-determination acting as ‘… a strong counter force to… intellectual property rights systems’ (Posey et. al,1999, 574), which threaten traditional knowledge;while, on the other hand, appropriate protection oftraditional knowledge serves to bolster realization ofindigenous peoples’ rights to self-determination. Theexistence of this interrelationship supports thearguments in favour of a human rights approach toprotection of traditional knowledge. A firm indicatorof the commitment to such an approach will be theextent to which national authorities and the

international community secure recognition andenforcement of customary law in the regulation of ABSand traditional knowledge, thereby demonstrating thatrights to self-determination are being respected,protected and fulfilled.

The close interrelationship between self-determination,protection of traditional knowledge and respect forindigenous peoples’ customary laws is recognized inthe document “Principles and Guidelines for theProtection of the Heritage of Indigenous Peoples”,prepared for the Sub-Commission on Prevention ofDiscrimination and Protection of Minorities by SpecialRapporteur Mrs. Erica-Irene Daes (1995) These statethat, inter alia,

2. To be effective, the protection of IndigenousPeoples’ heritage should be based broadly on theprinciples of self-determination, which include theright and the duty of Indigenous Peoples to developtheir own cultures and knowledge systems, andforms of social organization;

4. International recognition and respect for theIndigenous Peoples’ own customs, rules andpractices for the transmission of their heritage tofuture generations is essential to these peoples’enjoyment of human rights and human dignity;

15 In the event of any dispute over the custody oruse of any element of Indigenous Peoples’ heritage,judicial and administrative bodies should be guidedby the advice of indigenous elders who arerecognized by the indigenous communities orpeoples concerned as having specific knowledge oftraditional laws.

2.1.2 ILO Convention 169 and rights toculture, land and traditionalterritories

The adoption of ILO Convention 169 marked a newchapter in recognition and protection of indigenouspeoples’ human rights. Most notably, it reversed theILO’s earlier approach which promoted the assimilationinto the wider society, and moved towards theprotection of cultural diversity and land, territorial andresource rights of indigenous and tribal peoples (ILOConvention 170, 1957) (Thornberry, 2002).

The Convention has been described as being very pro-indigenous customs and practices and replete withreferences to indigenous cultures, customs, traditionsand customary law (Thornberry, 2002). Parties to theConvention are obliged to respect and protect thesocial, cultural, religious and spiritual values andpractices of indigenous and tribal peoples (ILOConvention 169, Article 5) and to respect their values,practices and institutions (ILO Convention 169, Article5). Governments are required to respect the cultural andspiritual significance of the relationship indigenous andtribal peoples hold to the lands and/or territories theyoccupy or otherwise use (ILO Convention 169, Article

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13.1). In applying national laws and regulations, dueregard is to be given to their customs and customarylaws (ILO Convention 169, Article 8).

According to the Convention indigenous peoples areentitled to retain and develop their customs andinstitutions (ILO Convention 169, Article 8.2) and todecide their own priorities for the process ofdevelopment as it affects their lives, beliefs,institutions, and spiritual well-being, and the lands theyoccupy or otherwise use (ILO Convention, Article 7).They are also entitled to recognition of their rights tothe natural resources pertaining to these lands and toparticipate in their use, management, and conservation.This extends to freshwater and marine areastraditionally occupied and used by indigenous peoples.

The Convention requires consultation with indigenouspeoples prior to granting of any rights for explorationand or exploitation of resources on their lands (ILOConvention 169, Article 15.2). This applies to thoseresources over which the state has specifically retainedownership rights. Where the state has not specificallydone so, it must be presumed that full ownership rightsover resources rests in indigenous peoples. Where thestate grants rights of exploration or exploitation ofresources indigenous peoples are entitled to participatein the resulting benefits, wherever possible, and toreceive compensation for any damages they sustain.Development of such measures should in accordancewith the Convention be carried out in consultation withindigenous peoples, and are to be carried out in goodfaith and in an appropriate form (ILO Convention 169,Article 6). These provisions are of much importancefor ABS and traditional knowledge governance, as theyplace significant obligations on Parties to theConvention to secure the rights and interests ofindigenous peoples over their biological and geneticresources and traditional knowledge.

Taken together, the provisions of Convention 169 givesignificant support for indigenous peoples strugglingto secure realization of their rights to autonomy.Despite its achievements the Convention has notescaped criticism, most specifically for its failure togive explicit recognition of rights of self-determination.It remains for now, however, the most far-reachinginternational instrument defining obligations onmember states to respect and protect indigenouspeoples’ human rights.

Rights to culture and to apply customary law have, attimes, found themselves in conflict with realization ofindividual human rights, in particular rights of women.Article 8.2, of Convention 169 addresses this issuestating that indigenous and tribal peoples,

“...shall have the right to retain their customs andinstitutions, where these are not incompatible withfundamental rights defined by the national legalsystem and internationally recognized humanrights” (ILO Convention 169, Article 8).

During negotiation of the Convention divergent viewswere raised regarding this provision. Some countriestook the view that recognition of customary lawfrequently acts as a cover for continuing infringementof the rights of women20 Cultural relativism, customarylaw and traditional authority can be and is used tomaintain cultural practices that lead to infringementsof individual human rights. The existence of suchinfringements does not of itself, however, signify thatevery application of customary law is in conflict withhuman rights. Strict imposition of human rightsstandards, based upon western individualistic values,may undermine customary law regimes which are vitalfor protection of collective rights over lands, territories,resources and traditional knowledge.21 Finding theappropriate balance between protection of individualand collective rights is one of the significant challengeswhich must be addressed in development of functionalinterfaces between customary and positive law systems.

Those in favour of recognition of customary law haveargued that ‘the requirement of compatibility withnational law [in article 8.2 of convention 169] is alicence for cultural genocide and allows assimilationistpolicies’ (Thornberry, 2002, 360). In response to thesefears, the ILO has taken the view that reference tonational law and the fundamental rights it defines doesnot devalue the principle of recognition of customarylaw and is clearly linked to the references to humanrights and to internationally recognised rights(Thornberry, 2002). This interpretation leads to theconclusion that national authorities must recognise andrespect those elements of customary law regimes andthe exercise of traditional authority, which do notconflict with fundamental human rights.

2.1.3 United Nations Declaration on theRights of Indigenous Peoples

After more than 20 years of negotiations, the UnitedNations Declaration on the Rights of IndigenousPeoples (UNDRIP) was finally adopted on the 13th ofSeptember, with 142 votes in favour, 4 against22 and11 abstentions23. Perhaps the most significant aspect ofUNDRIP for indigenous peoples is its clear recognitionin Article 3 of their right to self-determination. A studyof the process surrounding the negotiation of UNDRIPand the impacts of its adoption, describes Article 3 as“undoubtedly the most central provision in the entire

20 Thornberry, 200221 Intervention of Ralph Regenvanu at UNU workshop on the

Role of Customary law in TK Protection, side event at IGC12, organised by UNU-IAS, Geneva, 2007.

22 Australia, Canada, New Zealand and the United States. Onthe third of April 2009 Australia reversed its position andendorsed the Declaration.

23 Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia,Georgia, Kenya, Nigeria, Russian Federation, Samoa andUkraine

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Declaration … [as] self-determination is generallyperceived to be the keystone of all human rights, anda prerequisite for the effective enjoyment of otherrights”24. The same study argues that recognition ofrights to self-determination provide the basis forrecognition and enforcement of land, territorial andresource rights, rights to apply customary law, andrights to have treaties entered into with Statesrecognised under international law.25(See Box 3)

UNDRIP recognizes indigenous peoples’ rights overthe lands, territories and resources they havetraditionally, owned, occupied or otherwise used oracquired (UNDRIP, Article 26.1). This includes rightsof ownership, use, development and control (UNDRIP,Article 26.2). States are obliged to give legalrecognition and protection to these rights, with duerespect for indigenous people’s customs, traditions andland tenure systems (UNDRIP, Article 26.3). TheDeclaration also obliges states to consult withindigenous peoples through their representativeorganizations in order to secure their free prior andinformed consent (FPIC) for any projects that mightaffect their lands territories or other resources,particularly where this involves resource developmentuse or exploitation (UNDRIP, 32.2). They are alsorequired to establish fair, independent, impartial, openand transparent processes, giving due recognition tocustomary law in order to adjudicate land and resourcerights (UNDRIP, Article 27). This is to be done inconjunction with indigenous peoples (UNDRIP, Article27). To comply with the Declaration, national andinternational ABS law and policy will need to bedeveloped with the full and informed participation ofindigenous peoples and local communities and withdue regard for their customary laws and practices.

The Declaration provides that where lands and orresources have been confiscated, occupied, used ordamaged, without their FPIC, indigenous peoples areentitled to redress. This may include restitution or,where not possible, just, fair and equitable,compensation (UNDRIP, Article 28.1). Compensationshould take the form of lands, territories or resourcesequal in quality, size and legal status or monetarycompensation, or other appropriate redress (UNDRIP,Article 28.1). The effect of these provisions is to createa right for compensation in cases involving exploitationof biological and genetic resources obtained withoutFPIC, which may extend equally to genetic resourceswhich form part of traditional knowledge or whichhave been collected on their traditional lands orterritories. The rights to compensation extend to eventswhich occurred prior to the Declarations adoption andmay arguably cover damages arising from placement

of indigenous peoples’ traditional knowledge in thepublic domain without their FPIC.

Where, any project causes adverse environmental,economic, social, cultural or spiritual impacts UNDRIPrequires states to provide effective mechanisms formitigation and for just and fair redress (UNDRIP,Article 32.3). Consideration of customary law may berequired to help determine the nature and effect ofimpacts as well as of any remedies required includingmeasures to prevent publication, screening, or otherdissemination of traditional knowledge, and to haltother use of and secure repatriation of genetic resourcesor traditional knowledge,

UNDRIP recognizes the rights of indigenous peoplesto maintain, control, protect and develop their culturalheritage, traditional knowledge and traditional culturalexpressions as well as manifestations of their sciences,technologies and cultures. This includes human andgenetic resources, seeds, medicines, and knowledge of

Box 3 – Self-determination as a basis forprotection of human rights

Pursuant to the right to self-determination,indigenous peoples have the right to control anddecide over their traditional territories and thenatural resources within them. Furthermore, theright to self-determination implies that indigenouspeoples have the same right as the majoritypopulation to determine the future of theirsocieties, how their children will be educated, howtheir social and health care systems should beconstructed, and so on. In short, with theconfirmation that the right to self-determinationapplies also to non-state-forming, indigenouspeoples, indigenous peoples have the right to “takeover” many of the rights and responsibilitiespreviously vested in the state, so they themselvescan decide what their societies should look like

Intrinsically linked to the right to self-determination, Articles 5 and 34 of the Declarationproclaim that indigenous peoples have the right toretain and strengthen their distinct legal systemsand customs. Indigenous peoples’ customary lawsdistinguish themselves from statutory law merelyby being more intrinsically attached to a people’sculture than statutory law. The Declaration clarifiesstates’ obligations to recognize such dual legalsystems.

Also closely connected to the right to self-determination, Article 37 of the Declarationdetermines that “...indigenous peoples have theright to the recognition and observance of treatiesentered into with states”, and their enforcementunder international law .

Source: Ahren M. 2007

24 Minde H., A. Eide, and M. Åhrén (2007) The UN Declarationon the Rights of Indigenous Peoples: What made it possible?The work and process beyond the final adoption, Galdu Cala,Journal of Indigenous Peoples Rights No. 4/2007,at 125

25 Ibid.

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the properties of fauna and flora. The Declaration alsorecognizes their rights to maintain, control, protect anddevelop their intellectual property over such culturalheritage, traditional knowledge and traditional culturalexpressions (UNDRIP, Article 32.3). Member states arerequired to work with indigenous peoples in thedevelopment of effective measures to protect theserights (UNDRIP, 32.1). Adoption and implementationof national ABS and traditional knowledge laws andany international ABS and traditional knowledgeregimes offer opportunities to advance the realizationof these obligations. To comply with UNDRIP, thesemust be developed with the full, informed and effectiveparticipation of indigenous peoples. The provisions ofthe Declaration relating to traditional knowledge do notmention customary law; however, they do recognizegenetic resources, seeds and medicines to be part oftraditional knowledge. By implication, therefore, theobligations of states to regulate biological resourceswith due respect for customary laws and practices, maybe seen as applying also to associated traditionalknowledge.

Effective compliance with the Declaration would entailempowerment of indigenous peoples to regulate ABSand traditional knowledge issues within their ownterritories in accordance with their own customary lawsand practices, so long as these do not infringeinternational human rights standards (UNDRIP, 32.1).UNDRIP specifically recognizes the right ofindigenous peoples to define responsibilities ofindividuals to their communities (UNDRIP, article 35).It also requires that they have access to prompt, justand fair procedures to resolve disputes with states orother parties, and effective remedies for breaches oftheir individual and collective rights. These proceduresand any decision taken under them must be taken withdue regard for the customs, traditions, rules and thelegal systems of indigenous peoples and internationalhuman rights (UNDRIP, Article 40).

At the national level, the Declaration requires states,in consultation and cooperation with indigenouspeoples, to adopt law and policy to achieve its ends(UNDRIP, Article 38). This will include relevant ABSand traditional knowledge, law and policy.

Where national law and policy already recognize rightsof indigenous peoples over the resources on their lands,the Declaration will further strengthen these rights andthe role of customary law and practices to regulate ABSand traditional knowledge issues. Where no nationalABS law and policy exists, UNDRIP may be seen asproviding guidance for national authorities faced withdecisions on ABS and traditional knowledge issueswhich affect indigenous peoples. Where national ABSand/or traditional knowledge law and policy exist,national authorities will need to review such law andpolicy to ensure it is in line with the Declaration(Tobin, 2008).

2.2 International regulation of traditionalknowledge

2.2.1 Convention on Biological Diversity(CBD)

The entry into force of the CBD in 1993, reversed thepractice of hundreds of years where biologicalresources were treated as the common heritage ofmankind and open to unrestricted free access. TheConvention recognises sovereign rights of memberstates over genetic resources and the right ofindigenous peoples and local communities’ to beconsulted and to share in benefits associated withaccess to, and use of, their traditional knowledge.

In 1992 the Conference of the Parties (COP) to theCBD adopted the Bonn Guidelines on Access toGenetic Resources and Benefit Sharing. TheGuidelines, though not legally binding, were intendedto provide practical guidance for the adoption ofnational ABS regulation. The Guidelines were aneffort to create a predictable and efficient internationalsystem that would suit the needs of both user andprovider countries (Zadan, 2005). They providesuggestions on how national legislation can incorporateprinciples of FPIC (Commission on Human Rights,2004, Article 5) and mutually agreed terms in bio-prospecting agreements; how to deal with traditionalknowledge on an equitable basis; disclosure of holdersof traditional knowledge and country of origin in patentapplications; and a certification system for trade ingenetic resources (Rosendal, 2006).

COP has declared the CBD as having primaryresponsibility for the regulation of traditionalknowledge relating to biological diversity (CBD, COPDecision V1/10). Although, neither the Convention northe Bonn Guidelines explicitly recognise any propertyrights over traditional knowledge, their effectiveimplementation creates a de facto right in favour ofindigenous peoples or local communities over theirknowledge. To advance work on traditional knowledgeissues CBD established an Ad Hoc Working Groupon Article 8 (j) and related provisions of the CBD (WG8(j)) with a mandate to provide advice on thedevelopment of legal protection of biodiversity-relatedTK, innovations, and practices (Zedan, 2005).

Based in part on the outcomes of the working groupsdeliberations COP has indicated that protection oftraditional knowledge should be ‘based on acombination of appropriate approaches including, theuse of existing intellectual property mechanisms, suigeneris systems, customary law, the use of contractualarrangements, registers of traditional knowledge, andguidelines and codes of practice (CBD COP DecisionV1/10A, para. 33).’

At the request of COP, WG 8(j) has commenceddevelopment of proposed elements for sui generissystems for the protection of traditional knowledge

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(CBD COP Decision V1/10A). To date this work hasemphasised the importance of FPIC and the need toensure that any system is based on recognition andrespect for customary law and practice26.

Meanwhile, the CBD has given a mandate to its AdHoc Working Group on Access and Benefit-Sharing(WG ABS), to negotiate an international ABS regime,covering both genetic resources and traditionalknowledge. The WG 8(j) has been called upon by COPto collaborate with the WG ABS in this work. Fromthe outset the negotiations at the WG ABS haveacknowledged the need to give due respect andrecognition to customary law in any ABS regime. The5th meeting of the WG ABS, held in Montreal inOctober 2007, identified measures required to ensurecompliance with customary law and local systems ofprotection as one of a number of issues requiringfurther consideration for development of an ABSregime. COP 9, held in Bonn in May 2008 establisheda traditional knowledge expert group to examine,amongst other things, the role of customary law in anyinternational ABS regime.

COP 9 established an expert group on complianceissues relating to an international ABS regime, whichmet in Japan in January 2009 and prepared a report forthe seventh meeting of the WG ABS (UNEP 2009a).In its report the group of experts concluded that:

• An effective and pragmatic way to take accountof customary laws could be to ensure respect forcustomary law in access agreements and/or theinternational regime.

• The involvement of indigenous and localcommunities representatives in the negotiationof mutually agreed terms would enablecustomary laws regarding genetic resources andassociated traditional knowledge to be taken intoaccount.

• Recognition of indigenous and localcommunities’ rights in the international regimewould indirectly promote respect for customarylaws in the national laws of countries whereindigenous and local communities are located.

• One possibility could be to let national law dealwith the issue of customary law.

The Group of Experts, further, concluded that anapproach along the lines they propose would recognisethe diversity of customary law amongst the Parties tothe CBD and respect the cultural specificity and varietyof customary laws among indigenous peoples, avoidinga one-size-fits-all approach (UNEP, 2009a). The Groupalso identified a number of specific measures whichcould promote compliance with the rights ofindigenous and local communities to genetic resources

and associated traditional knowledge, and theircustomary laws, including:

• Establishment or recognition of indigenouscompetent authorities to advise on applicableprocesses for prior informed consent

• An internationally recognized certificate ofcompliance

• Recognition of existing rights of indigenous andlocal communities in minimum and standardcontractual terms for ABS arrangements

• Monitoring of the use of traditional knowledgethrough checkpoints;

• Capacity building of indigenous and localcommunities’ representatives to facilitate theirparticipation in prior informed consent andmutually agreed terms.

The Group of Experts noted that traditional knowledgedatabases or registries could serve as proof in litigationand help bring transparency and certainty to issuesregarding rights over traditional knowledge. However,they noted that some indigenous and local communitiesconsider that databases and registers “…may in factpromote biopiracy since they will foster publicdiffusion of traditional knowledge without thenecessary international guarantees that the rights ofindigenous and local communities will berespected.”(UNEP, 2009a). The Group’s reportprovides little guidance on the role customary lawshould play in cases of misappropriation of traditionalknowledge, which raises many complex practical,technical and legal issues, which remain as yet largelyunexplored.

At the seventh meeting of the WG ABS, in Paris, inApril 2009, the issue of customary law foundsignificant traction amongst delegates as is apparentfrom the report of the meeting which includes the textoutlining elements of an international ABS regime.References to customary law appear throughout thetext, which will serve as the basis for futurenegotiations of the working group. These referencesappear in draft provisions relating to a wide range ofissues including, the objectives of any regime; PICprocedures: benefit-sharing; negotiation of mutuallyagreed terms; development of international minimumconditions and standards; certificates of compliance;establishment of an ABS ombudsman’s office; capacitybuilding; and alternative dispute resolution (UNEP2009b).

The ultimate section of the negotiating text is dedicatedspecifically to measures to secure compliance withcustomary law and local systems of protection (thissection of the report (UNEP, 2009b) is set out in fullin Annex III). It sets out proposed text which wouldrequire countries to recognise the rights of indigenousand local communities over their traditional knowledgeand biological and genetic resources. It also includesdraft provisions on recognition of customary law andfor the use community protocols as a means to prevent

26 CBD COP Decision VII/16, annex ‘Some potential elementsto be considered in the development of sui generis systemsfor the protection of traditional knowledge, innovations andpractices of indigenous and local communities.’

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misappropriation of traditional knowledge, the latterbased largely on proposals made by the AfricanGroup.27 With regard to misappropriation and itsrelationship with customary law the negotiating textincludes draft provisions stating that:

[1. Contracting Parties [shall][should]:

(b) With the full and effective participation of theindigenous and local communities concernedsupport and facilitate local, national and/or regionalcommunity protocols regulating access to traditionalknowledge taking into consideration the relevantcustomary laws and ecological values of indigenousand local communities in order to prevent themisappropriation of their associated traditionalknowledge …;

(c) Ensure that any acquisition, appropriation orutilization of traditional knowledge in contraventionof the relevant community protocols constitutes anact of misappropriation;

(d) Ensure that the application, interpretation andenforcement of protection against misappropriationof traditional knowledge, including determinationof equitable sharing and distribution of benefits,[shall][should] be guided, as far as possible andappropriate, by respect for the ecological values,customary norms, laws and understandings of theholders of the knowledge; (UNEP, 2009b)

The inclusion in the draft text for an international ABSregime, demonstrates once more, the need for furtherresearch in this area, which the CBD should initiatewithout delay. The text developed by the seventh WGABS placed customary law firmly on the negotiatingagenda for an international ABS regime. The extent towhich such provisions are reflected in any finalagreement on ABS will reflect the commitment ofnational governments and the international communityas a whole to securing the rights of indigenous peoplesover their traditional knowledge. Indigenous peoplesand local communities will need to be vigilant toensure that the protection of their rights and recognitionof customary law does not become marginalised as thenegotiations get closer to their conclusion andcompromises are made as demands in one are tradedfor concessions in another.

2.2.2 WIPO - IGCIn 2000, WIPO established the IntergovernmentalCommittee on Intellectual Property, Genetic Resources,Traditional Knowledge and Folklore (IGC) which actsas an international forum for examination of theinterplay between intellectual property, traditionalknowledge, genetic resources, and traditional culturalexpressions (WIPO, 2008). The IGC’s proceedings hasbeen informed by a series of fact finding missionscarried out by WIPO (WIPO, 2000), submissions ofgovernments, international organizations, indigenouspeoples and local communities, NGOs, private sectoractors, research institutions and others. Meetingapproximately twice a year since its inception, the IGChas increasingly provided opportunities for indigenouspeoples to participate in its meetings both as observersand more recently as members of expert panels. Itswork has led to the preparation of numerousinformation documents including documents setting outa gap analysis on protection of traditional culturalexpressions and traditional knowledge. The IGC’sproceedings are now focusing on two principaldocuments which set out draft objectives and principlesfor traditional cultural expressions and for traditionalknowledge28.

The IGC’s draft document on Objectives and Principlesrelating to traditional knowledge makes specificreference to customary law stating that:

Protection beyond the traditional context should notconflict with customary access to, and use andtransmission of, traditional knowledge, and shouldrespect and bolster this customary framework. If sodesired by the traditional knowledge holders,protection should promote the use, development,exchange, transmission and dissemination oftraditional knowledge by the communitiesconcerned in accordance with their customary lawsand practices, taking into account the diversity ofnational experiences29.

The document sets out a comprehensive series of policyobjectives, including to: recognise value; promoterespect; meet the actual needs of holders of traditionalknowledge; promote conservation and preservation oftraditional knowledge; empower holders of traditionalknowledge and acknowledge the distinctive nature oftraditional knowledge systems; support traditionalknowledge systems; contribute to safeguardingtraditional knowledge; repress unfair and inequitableuses; promote innovation and creativity; ensure priorinformed consent and exchanges based on mutuallyagreed terms; promote equitable benefit sharing;promote community development and legitimatetrading activities; preclude the improper grant ofintellectual property rights to unauthorised parties;

27 Proposals on recognition of customary law and communityprotocols made by Namibia on behalf of the African Groupto the seventh meeting of the WG ABS are set out in UNEP(2009c) Collation of Operative Text Including RelatedExplanations and Rationale Submitted by Parties,Governments, International Organizations, Indigenous andLocal Communities and Relevant Stakeholders in Respect ofthe Main Components of the International Regime on Accessand Benefit-Sharing Listed in Decision IX/12, ANNEX IUNEP/CBD/WG-ABS/7/5

28 WIPO/GRTKF/IC/12/5(c)29 WIPO/GRTKF/IC/12/5(c), Principle h

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enhance transparency and mutual confidence; andcomplement protection of traditional culturalexpressions.30

The proposed scope of traditional knowledgeprotection includes the content or substance ofknowledge resulting from intellectual activity in thetraditional context, passed between generations, in anyfield including agricultural, environmental andmedicinal knowledge associated with geneticresources31. Legal remedies are to be provided wherefair and equitable benefit sharing does not take place32;access is to depend on PIC33, and an exemption is madefor customary use and exchange of traditionalknowledge34.

The draft document outlines a system of traditionalknowledge protection designed to preventmisappropriation which is defined as “... anyacquisition, appropriation or utilization of …[traditional knowledge (TK)] … by unfair or illicitmeans; deriving commercial benefit from theacquisition, appropriation or utilization of TK when theperson using that knowledge knows or is negligent infailing to know, that it was acquired or appropriatedby unfair means; and other commercial activitiescontrary to honest practices that gain inequitablebenefit from TK.”35 The WG ABS, at its meeting inMontreal in 2007, incorporated this provision into thedraft elements for an international ABS regime.

The IGC draft outlines a range of modalities forprotection of traditional knowledge including a speciallaw on traditional knowledge, intellectual propertylaws, law of contracts, laws concerning indigenouspeoples, ABS laws etc36. The draft gives specialrecognition to customary law stating that:

The application, interpretation and enforcement ofprotection against misappropriation of traditionalknowledge, including determination of equitablesharing and distribution of benefits, should beguided, as far as possible and appropriate, byrespect for the customary practices, norms, laws andunderstandings of the holder of the knowledge,including the spiritual, sacred or ceremonialcharacteristics of the traditional origin of theknowledge.37

The IGC draft Objectives and Principles on traditionalknowledge recognizes that respect for customary lawmay require consideration of the spiritual, sacred orceremonial characteristics of the traditional origin of

the knowledge38. Furthermore, it provides that keyterms such as “unfair trade” may need to be definedwith attention to concepts of unfair under customarylaw. The proposal sets out obligations requiring that useof traditional knowledge be subject to FPIC, a measurefurther enabling indigenous peoples and localcommunities to exercise control over their knowledgein accordance with their customary law and practices.

WIPO has recently prepared an issues paper oncustomary law (WIPO, 2006) which addresses thenature of customary law, the manner in which it maybe recognized, and preferences of indigenous peoplesand local communities with regard to its recognition.This paper sets out a list of fundamental questions tobe considered in relation to customary law andintellectual property rights. (See Box 4)

The IGC has, to some extent, focused its work onclosing loopholes in the existing IPR system including,as a priority, examination of the means to identifytraditional knowledge in the public domain. This, it hasbeen proposed, could be achieved by the creation ofdatabases of traditional knowledge accessible to patentexaminers in their search for prior art when judging thenovelty of claimed inventions. Enabling identificationof traditional knowledge as prior art (i.e. throughexamination of existing inventions, and the extent ofexisting knowledge) would help to prevent the grantingof bad patents. It would not, however, signify anyincreased recognition and protection of the rights ofindigenous or local communities over traditionalknowledge. Collation of traditional knowledge indatabases, a necessary element of such a system, hasbeen opposed by indigenous peoples and localcommunities who fear it may lead to further loss ofcontrol over traditional knowledge. Analysis carriedout by the United Nations University Institute ofAdvanced Studies, has demonstrated both the potentialand the limitations of databases and registers as toolsfor protection of traditional knowledge, showing it tobe a double-edged sword which must be treated withcare if the rights of traditional knowledge custodiansare to be secured (Alexander et al. 2003).

There have been criticisms that collation of traditionalknowledge will place it in the public domainproviding scientific and commercial users withincreased free access to knowledge which might beutilized without the consent or compensation ofindigenous and local communities. Treating traditional

30 Ibid.31 Article 3, WIPO/GRTKF/IC/12/5(c)32 Article 633 Article 734 Article 835 Article 1, WIPO/GRTKF/IC/10/536 Article 2 Draft provisions.37 WIPO/GRTKF/IC/12/5(c), article 1.3

38 WIPO/GRTKF/IC/12/5(c) Article 1.5 states that : Theapplication, interpretation and enforcement of protectionagainst misappropriation of traditional knowledge, includingdetermination of equitable benefit sharing and distributionof benefits, should be guided, as far as possible andappropriate, by respect for the customary practices, norms,laws and understandings of the holder of the knowledge,including the spiritual, sacred or ceremonial characteristicsof the traditional origin of the knowledge

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Box 4. Fundamental issues for consideration concerning customary law and intellectualproperty law• What forms of relationship between customary law and intellectual property law have been encountered

in practice? What models could be explored?• What lessons can be drawn from recognition of customary law in relation to other (but potentially related)

areas of law, such as family law, the law of succession, the law of land tenure and natural resources,constitutional law, human rights law and criminal law, as well as dispute resolution in general?

• What experiences have been reported concerning the role of customary law in relation to intangibleproperty, and rights and obligations relating to intangible property such as cultural expressions, traditionalknowledge, and specific material such as motifs, designs, as well as the tangible form of expressionssuch as handicrafts, tools, and forms of dress?

• What role for customary law has been recognized in existing and proposed sui generis laws for theprotection of traditional knowledge and traditional cultural expressions/expressions of folklore?

• For the holders of traditional knowledge, the bearers of traditional cultural expressions and the custodiansof genetic resources themselves, what is the preferred role or roles of customary laws and protocols:

§ As a basis for sustainable community-based development, strengthened communityidentity, and promotion of cultural diversity?

§ As a distinct source of law, legally binding in itself – on members of the originalcommunity, and on individuals outside the community circle, including in foreignjurisdictions?

§ As a means of factually guiding the interpretation of laws and principles that applybeyond the traditional reach of customary law and protocols?

§ As a component of culturally appropriate forms of alternative dispute resolution?§ As a condition of access to TK and TCEs?§ As the basis for continuing use rights, recognized as exceptions or limitations to any

other rights granted over TK/TCEs or related and derivative subject matter?

Source: Adapted from WIPO (2006)

knowledge as part of the public domain, withoutdetermining how it got there and where appropriate,protecting it against free use, may have the effect oflegitimizing its historic expropriation. Although thereis a good argument to be made that the existence oftraditional knowledge in the public domain does notimply the exhaustion of rights of indigenous peoplesto control its use, there is little in the way of legalprecedent to demonstrate judicial support for this view.It is vital, therefore, that national and international lawbe developed in a manner which prevents inequitableapplication of the concept of the public domain totraditional knowledge. This is required to preventexhaustion of the rights of indigenous and localcommunities over traditional knowledge through theimposition of foreign legal principles of which theywere unaware or they did not fully understand at thetime traditional knowledge was originally shared,collected or otherwise accessed. Interestingly, the IGCdraft principles and objectives document would allowfor some retroactivity in measures to protect traditionalknowledge, potentially opening the door for protectionof traditional knowledge which has fallen into thepublic domain. This is in line with the practice of anumber of states which have adopted or are in theprocess of developing sui generis traditional knowledgeregimes (Peruvian Law 27811, 2002).

2.2.3 WTOAt the international level the World Trade Organization(WTO) is the only body with a functional compliancemechanism capable of bringing meaningful pressureupon parties to abide by their obligations. The WTOhas with the Doha round of negotiations, begun to givemore attention to the issue of traditional knowledge andits relationship to the Agreement on Trade RelatedIntellectual Property (TRIPS), the principal instrumentgoverning rights and obligations under the globalintellectual property system.

Developing countries, led by Brazil, India and Peru,have consistently argued that protection of rights overtraditional knowledge should be secured bymodification of TRIPS to prevent biopiracy39. This theypropose may be achieved by requiring disclosure of theorigin of genetic resources and traditional knowledge,provision of evidence of PIC for use of resources and

39 See Communication from Peru to the World TradeOrganization, Peru (2007) Combating Biopiracy – ThePeruvian Experience, Dated 13 August 2007, Ip/C/W/493,See also Peru’s communications reference IP/C/W/441, dated8 March 2005, and its revised version IP/C/W/441/Rev.1,dated 19 May 2005

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traditional knowledge, and evidence of fair andequitable benefit sharing as a condition for processingintellectual property applications. This proposal is nowsupported by a majority of WTO Members (Kohr,2008) and the issue has been squarely placed at theWTO director general’s door as one of the key issuesto be resolved as part of implementation of the Doharound of WTO (Mara, 2008).

Amendment of TRIPS to include disclosure requirementswould greatly enhance the power of indigenous peoplesand local communities to regulate access to and use oftraditional knowledge. Where disclosure relates to origin,it would identify the source of traditional knowledge,which will provide transparency regarding provision oftraditional knowledge and whether it has come from alegitimate source. However, if disclosure obligations areto prevent biopiracy they will need to include arequirement to provide evidence of PIC of indigenouspeoples and local communities. Such a requirement willhelp to provide protection for traditional knowledge rightseven in countries which have not adopted relevanttraditional knowledge legislation. As such, it may be seenas a mechanism providing interim protection fortraditional knowledge while relevant national andinternational law is being developed (Tobin, 2000).Requiring evidence of fair and equitable benefit sharingwill help to ensure that those negotiating with indigenouspeoples do so in good faith.

There has been little discussion regarding the naturewhich such evidence would take and it is unclearwhether it would include provision of evidence of fairand equitable distribution of benefits within localcommunities or by an indigenous people. Requiringevidence of how benefits are to be shared within acommunity, is probably beyond the scope ofinternational law and may indeed be resisted byindigenous peoples and local communities. However,equity cannot be assumed to have been realised merelyby transfer of benefits to a representative organisationor traditional authority. Providing support for capacitybuilding of indigenous peoples and local communitiesto receive, manage and equitably distribute benefitsderived from use of their traditional knowledge must,therefore, be a part of any national or global traditionalknowledge protection system.

2.3 Andean Community legislation ontraditional knowledge

Peru is a member of the Andean Community (CAN)40

which is empowered to enact regionally bindinglegislation. In 1996, CAN adopted Decision 391, whichrequires proof of prior informed consent, benefitsharing and disclosure of origin for grant of patents

(Cervantes-Rodriguez, 2006). Decision 391 was shapedby the belief that the sharing of genetic resourceswould become a source of considerable wealth for thecountries involved; that states should have strict controlover the flow of genes in order to combat biopiracy;and that parties entering into ABS agreements shouldconsider not only national but also regional interestsin decision making. The result was legislationrequiring strict and complex state-led processes toregulate the use and transfer of genetic resources (Ruiz,2003). Decision 391 also provided common regionalstandards to protect the rights of traditionalcommunities. The Agreement stipulates that memberstates should “provide greater protection of theknowledge, innovations and traditional practices ofindigenous, Afro-American and local communities”(Dutfield, 2000). This legislation thus, went fartherthan the CBD and the Bonn Guidelines in that itendorsed protection not only of traditional knowledge,but also protection for the innovations and way of lifeof these communities.

In 2000 CAN adopted Decision 486, establishing aregional intellectual property rights regime which setsout clear obligations with regard to ABS and traditionalknowledge. In similar language to Decision 391,Decision 486 recognises the rights and authority ofindigenous, afro-american and local communities tocontrol their collective knowledge. It also requires thatit be applied in a manner which does not contraveneDecision 391, in essence creating a link betweenrecognition of rights over intellectual property andaccess to genetic resources and traditional knowledge.Decision 486 was the first regional instrument toinclude binding legal obligations to disclose the originand demonstrate a legal right to use genetic resourcesand traditional knowledge in patent applications. Theseobligations apply to any applications for patents if theproduct or process for which the application is filedwere obtained or developed from genetic resources orderived products or traditional knowledge originatingin any one of the CAN member countries.41

Decision 486 establishes an important precedent bysubordinating the right to a grant of patents tocompliance with relevant Andean, international andnational law relating to acquisition of genetic resourcesand traditional knowledge. Although, the decision doesnot specifically mention customary law, its requirementthat PIC be obtained from indigenous, afro-americanand local communities may in effect make the grantof patents conditional upon compliance with relevantcustomary law relating to access and use of traditionalknowledge. The Decision provides that competentnational authorities may ex officio or upon request ofa party at any time, declare a patent null and void when

41 Comunidad Andina de Naciones (CAN) Decision 486,Régimen Común sobre Propiedad Industrial, Article 2.Downloaded from: http://www.comunidadandina.org/normativa/dec/d486.HTM

40 The Andean Community of Nations includes Bolivia,Colombia, Ecuador and Peru. The Bolivarian Republic ofVenezuela, a member of CAN and its predecessor the AndeanPact, retired from the regional group in 2004

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the applicant failed to show valid PIC for use oftraditional knowledge (Ruiz, 2006). The application ofthese provisions for the protection of traditionalknowledge rights has been severely undermined by theadoption in Peru of Law 29316 with a view toimplementing the Peruvian - US Trade PromotionAgreement (hereafter referred to as the Free TradeAgreement) which was signed in the last days of theBush administration in January 2009. This issue willbe returned to in more detail below.

Indigenous peoples in the region have examined thepossibilities of making the grant of intellectual propertyrights subject to compliance with customary lawprinciples. One interesting proposal, is for theestablishment of a right of cultural objection to anapplication for a patent or other intellectual propertywhere grant of a property right would conflict with theethical mores or threaten the cultural or spiritualintegrity of an indigenous people or local community.42

Exercise of such a right to object would require thattraditional authorities be granted a role in defining andadjudicating cases in which an intellectual propertygrant would run counter to the rights of indigenouspeoples or local communities. This would offer anopportunity to extend the remit of customary lawbeyond the communities own jurisdiction.

CAN has also developed a regional biodiversitystrategy, adopted in 2002, which calls forestablishment of a common policy to strengthen andprotect traditional knowledge and practices relating to

biodiversity with the participation of and consultationwith indigenous, afro-american and localcommunities(Ruiz, 2006). The strategy includes as oneof the expected outcomes of this work theestablishment of a common Andean regime onprotection of traditional knowledge. In order toadvance work in this area CAN formed a workinggroup to commence work on the development of a suigeneris Andean traditional knowledge regime. Basedupon three regional workshops of indigenousrepresentatives and indigenous legal and technicalexperts a draft proposal was prepared outliningelements for a regime founded upon a number of keyprinciples, including PIC of indigenous peoples and thecentral role of customary law (De La Cruz, et. al,2006). The proposal is noteworthy also for itsexpansive definition of traditional knowledge toinclude not only traditional knowledge directly relatedto biodiversity but also all forms of intellectualexpression by indigenous peoples including culturalexpressions, crafts, artistic works etc (Ruiz, 2006).Adopting such an expansive definition highlights theholistic approach which indigenous peoples view asnecessary to secure the effective protection of theirtraditional knowledge. It also reflects their concernsthat fragmentation of traditional knowledge intocategories based upon existing categories of intellectualproperty may have the effect of compartmentalisingspecific elements of traditional knowledge of potentialcommercial value and undermine the integrated natureof traditional knowledge systems.

42 This notion of a cultural objection is found in Article 66 ofCosta Rica’s Law 7788, known as the Biodiversity Law, whichestablishes “The right of local communities and indigenouspeoples to oppose any access to their resources and associatedknowledge, be it for cultural, spiritual, social, economic orother motives...”

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Section III Customary law and protection of traditionalknowledge in Peru

Peru has 48 indigenous peoples, with 42 linguisticgroups living in the Amazon region. The indigenouspopulation in Peru is approximately 9.3 million or 47%of the national population, in the main part Quechuasand Aymaras from the Andes. In addition to beinghome to one of the largest indigenous populations, Peruis also one of the most biologically diverse countriesin the world. Peru’s pluricultural and multiethnic natureprovides a good testing ground for the development oftraditional knowledge law and policy.

Peru’s Constitution of 1993, recognises the right ofindigenous peoples and local communities to applytheir own customary laws within what is described asa special regime. Peru has since the early 1990s, hada vibrant national ABS and traditional knowledgedebate and has been home to a number of precedent-setting experiences in the development of contractual,community and state measures to protect traditionalknowledge. These include the ICBG agreements andPotato Park which will be examined in detail in thefollowing section. At the national level, Peru hasadopted sui generis law for protection of indigenouspeoples’ rights over their knowledge relating tobiological diversity, which was the first comprehensivenational regime of its kind. As such it is of muchinterest for both its successes and the limitations, allof which will serve to inform future developments inthis area.

This section will consider the status of customary lawin Peru, national regulation of traditional knowledgeand the compatibility between national sui generislegislation and customary governance systems, as wellas Peru’s role in international processes relating totraditional knowledge protection.

3.1. Customary Law in PeruCustomary law has long provided the basis for internalregulation of community affairs of Peru’s indigenouspeoples. The extent of its influence has, however, beenseriously compromised in some communities and hasbeen subject to significant modifications in others.Notwithstanding, there are still indigenous peoples andlocal communities in Peru for whom customary law isthe sole or primary source of law, and the state hasdemonstrated an ever increasing preparedness torespect, recognize and protect its role as a part of thePeruvian legal landscape.

The development of customary law amongstindigenous peoples of Peru has been shaped in part bythe distinct nature of the environments and culturalsocieties which appeared in the Peruvian Amazon onone hand, and its Coastal and Andean regions on theother. While in the Amazon there was a tendency to

group along the lines of family or tribal groups whichrarely exceeded 500 members, in the Coastal andAndean regions there is evidence of extensive cultureswhich brought large areas and their inhabitants undercentralized control and subject to more uniform legalgovernance. This process culminated in the great IncaEmpire which spanned a territory stretching fromColombia to Chile and which made inroads as well intothe Amazonian region, although it failed to subduemany Amazonian peoples.

Although legal systems may have varied extensively,in particular between the decentralized family/tribalcustomary regimes of the Amazon and the morecentralized systems of the Coast and Andes, they arebelieved to have maintained one central point ofsimilarity. They were primarily based upon the interestof the collective over the rights of the individual.

3.1.1 Constitutional recognition ofindigenous peoples and customarylaw

The Peruvian Constitution of 1993 recognizes the Stateas being pluricultural and multiethnic (PeruvianConstitution, 1993, article 2.19). Indigenous peoples,referred to as campesino communities (Coastal andAndean Regions) and native communities (Amazonianregion), are given legal recognition in the Constitution,which also recognises their autonomy, subject tonational law, in relation to their organization,communal work, the free disposition of their territories,their economy and administration (Constitution ofPeru, 1993, Article 89). Furthermore the Constitutionentitles them to exercise judicial functions within theirterritories in accordance with their customary laws aslong as they do not violate the fundamental rights ofthe person (Constitution of Peru, 1993, Article 149).

Article 149, of the Constitution sets out the elementsof a system of ‘special jurisdiction’ for native andcampesino communities, which may be summarised as:

1. Recognition of the jurisdictional functions ofnative and campesino communities’ authorities.

2. The power of these authorities to exercise suchfunctions within their territorial area

3. The right of these authorities to apply customarylaw

4. The requirements that this jurisdiction beexercised with due respect for the fundamentalrights of the person

5. The competence of the legislature to define theforms of coordination between the indigenousspecial jurisdiction and the national judicialsystem (Tamayo Flores, 1998).

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The recognition of customary law, in the Constitutionof 1993 may be seen as an attempt to instil greaterrespect for the pluricultural and multiethnic nature ofthe State. The Constitution also, however, changed therelationship between the state and indigenous peoplesfrom one of protection of communal rights to one ofrecognition of individual rights. This was part of amarket economy philosophy which led toreclassification of the status of indigenous territories.In the 1979 Constitution, these were declared to beinalienable, immune from embargo, and impresciptible.However, the Constitution of 1993 no longerrecognised indigenous lands as being inalienable andimmune from embargo, and it allowed thatimpresciptibility of lands could be overridden wherethey were deemed to have been abandoned. Thiscreated the anomalous position where the Constitution,while recognizing Peru’s obligation to protect thepluricultural and multiethnic nature of the State, at thesame time removed the very guarantees to collectiveproperty upon which many indigenous peoples’cultures depend (Tamayo Flores, 1998).

In early 2008, the dangers apparent in this weakeningof indigenous land rights became fully apparent withthe adoption of a series of executive regulations whichsought to reduce the percentage of communitymembers whose vote was necessary to allow for saleof community-held land. They also provided forgranting of rights on forested lands over whichindigenous peoples have usufruct rights, opening theway for the granting of land rights for large scalecommercial agricultural development. Following,extensive demonstrations by indigenous peoples, anumber of these regulations were rescinded, butindigenous rights over traditional territories remainunder threat.

3.2. Regulation of traditional knowledge inPeru

Development of relevant law and policy for protectionof traditional knowledge has been the subject of intensenational debate in Peru since the entry into force of theCBD in 1993. The national debate has been informedand influenced by a series of projects, programs andlegislative developments at the national and regionallevel. This included the ICBG negotiations andagreements, regional negotiations leading to theadoption of Decision 391, and a national consultativeprocess on traditional knowledge law.

Adoption of national regulations in this area requirespolitical will to complement participatory processesand drafting processes for development of law andpolicy. In Peru this political will has not always beenforthcoming and adoption of national law and policyhas, in no small part, been due to the commitment andpersistence of individuals in government agencies,NGOs and indigenous organizations who havepromoted and facilitated debate of these issues.Adoption of legislation has also required, a

preparedness of its promoters to take their opportunitieswhere they arise, utilizing fortuitous events and atendency of legislators towards political expediency,where appropriate. At times, this may requirepostponing the search for a perfect system of traditionalknowledge protection at the outset, in order to getlegislation on the books which may in time be modifiedto secure more holistic and sensitive protection oftraditional knowledge.

Adoption of two significant measures in Peru, thenational biodiversity law and Peru’s traditionalknowledge law, which have defined the scope ofprotection of traditional knowledge may, in part, be putdown to such opportunism. Their importance ishowever not diminished by the nature of their adoption,although their impact may have been lessened by thefailure to secure full and informed debate during theirdevelopment and subsequent adoption by congress.

3.2.1 Development of biodiversity andtraditional knowledge law and policy

Peru is considered to be a megadiverse country due toits extremely high level of biodiversity. It is estimatedthat Peru is home to over 4,000 medicinal plants and130 native crop species (Ruiz, 2004). In addition toits tremendous biodiversity, there are 44 cultural andethnic indigenous groups, located for the most part inthe Andean and Amazonian regions of the country(Ruiz, 2004). Many of these ethnic and cultural groupshave been recognized for their use of traditionalknowledge in cultivating and conserving a wide varietyof crops.

In July 1997, Peru adopted Law 26839, Law onConservation and Sustainable Use of BiologicalDiversity. The law implements in part Decision 391 ofthe Andean community, recognising that indigenous,Afro-Peruvian and local communities have the right tocontrol access to their traditional knowledge. The lawrecognised traditional knowledge to be the culturalpatrimony of indigenous peoples.

Recognition of traditional knowledge as culturalpatrimony of indigenous and local communities is ofmuch significance. In the first place, it distinguishespatrimony of indigenous peoples from nationalpatrimony, as a whole, thereby ensuring that rights overtraditional knowledge are not presumed to vest in thestate. Secondly, it recognizes the intergenerational andintra-generational nature of traditional knowledge. Thisimplies a responsibility for indigenous peoples andlocal communities to manage traditional knowledge forthe benefit of both present and future generations.Furthermore, it may be presumed that culturalpatrimony should be subject to the same principles asthose applying to national patrimony. In Peru, thismeans it should be inalienable, impresciptible andimmune from embargo. However, as seen above theseguarantees have been eroded under the 1993Constitution.

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3.2.2 Peruvian Law 27811National concern to protect traditional knowledge wasfirst demonstrated with the adoption of LegislativeDecree 832 in April 1996. The Decree provided thata sui generis system of protection for TK may beestablished and, if appropriate, a registry ofknowledge of native and campesino communities.This Decree established an important foundation forsubsequent development of a comprehensive legalregime for protection of the collective rights ofindigenous peoples over TK relating to biologicaldiversity (Ruiz, 2006).

In August 2002 Peru adopted law 27811 for theProtection of the Collective Knowledge of IndigenousPeoples (Peruvian Law 27811, 2002). The law isdeclaratory in nature. This means it does not presumeto grant rights over traditional knowledge but ratherrecognises that those rights spring not from any act ofgovernment but from the existence of the knowledgeitself. Article 2, defines traditional knowledge as “theaccumulated, transgenerational knowledge evolved byindigenous peoples and communities concerning theproperties, uses and characteristics of biologicaldiversity (Peruvian Law 27811, 2002)”.

The declared objectives of the law are to: protect,preserve and develop collective knowledge; to ensurefair and equitable distribution of benefits derived fromthe use of collective knowledge; to use collectiveknowledge to benefit indigenous peoples andhumankind; to assure that any use of collectiveknowledge requires the prior informed consent ofindigenous peoples; to promote indigenous capacity todistribute collectively generated benefits; and finally,to prevent patents on inventions based on the collectiveknowledge of indigenous peoples without properconsent.

Law 27811 was influenced by and is, it has beenclaimed, based on the approach used by the ICBGagreements under which Aguaruna communities, usingtraditional decision-making processes, determined theconditions for use of their traditional knowledge forresearch and development activities (Ruiz et. al, 2004).The law requires prior informed consent from relevantcustodians of traditional knowledge prior to use forscientific, industrial or commercial purposes. Wherecommercial use is intended parties are obliged to enterinto a licence setting out the terms and conditions foruse and minimum conditions on benefit sharing etc.The licence must comply with minimum standards setout in the law with regard to terms and conditions ofaccess, use, and benefit sharing, including the paymentof fees and royalties to indigenous communities(WIPO, 2000).

As with the national biodiversity law, traditionalknowledge is recognized as cultural patrimony, with allthe attendant intergenerational and intragenerationalrights and responsibilities that signifies. The Lawallows individual communities to negotiate for use of

traditional knowledge with the condition that theynotify other affected communities and seek theirsupport for negotiations. Communities are individuallyfree to enter into agreements for use of knowledgeshared with other communities, but their agreementwould not preclude other communities possessing thesame resources from entering into a similar agreement(Ruiz, 2004). The law does not require consensusamong communities for a negotiation to go ahead,which may potentially lead to conflicts. Resolution oftensions between the individual community rights tonegotiate and the collective right of a people over theircultural patrimony may potentially be achieved byrecourse to customary law. Law 27811 specificallyprovides that indigenous communities are entitled toresort to their own customary law and practice as ameans for resolving disputes. There is no obligation,however, on any community to submit to customarylaw jurisdiction, other than the force of traditionalauthorities themselves and the result may be to hastenthe demise of customary institutions wherecommunities seek individual commercial gain. Thisissue will be returned to below in the case study of theICBG Agreements.

The law gives powers to the Peruvian National Institutefor the Defence of Competition and IntellectualProperty (INDECOPI) to prevent the publication ofmaterial relating to traditional knowledge in breach ofcommunity rights. In essence, this amounts torecognizing traditional knowledge as a form of tradesecret and attempting to protect it accordingly. Anindigenous community in possession of collectivetraditional knowledge is to be protected against anyunauthorized or unfair disclosure, acquisition or use ofthat knowledge, insofar as such traditional knowledgeis not in the public domain. This protection extendsto third parties having obtained the information underobligation of confidentiality (WIPO, 2000). In the casethat community’s rights to traditional knowledge areinfringed; the law permits indigenous communities totake legal action to secure their rights with the burdenof proof falling on the defendant to show their rightto make use of traditional knowledge.

Benefits of agreements for use of traditional knowledgeare to be shared not only with contracting indigenouscommunities but also with the wider indigenouscommunity through an Indigenous Development Fund,managed by indigenous peoples. The Fund will receivea portion of benefits derived from bio-prospectingagreements, and a percentage of the profits obtainedfrom inventions and technologies based on communitytraditional knowledge. The money is to be used towardthe overall development of indigenous peoples byfinancing projects and activities (WIPO, 2000).

The regime establishes a national system of traditionalknowledge registers, including a Public NationalRegister; a Confidential National Register; and LocalRegisters, which are intended to provide both defensiveand positive protection for traditional knowledge

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(Ruiz, 2004). Defensive protection is to be achievedby helping to prevent the grant of bad patents byfacilitating patent examiners in their search of prior art.Positive protection is achieved by the increasedcapacity of national authorities to protect registeredtraditional knowledge against misappropriation, as wellas by facilitating the maintenance and transmission oftraditional knowledge between generations. Under thelaw, INDECOPI is responsible for establishing both thenational registers and with providing advice to localcommunities in establishing community registers,which are envisioned as local initiatives to documentcollective knowledge of each community which will bemaintained by and for the benefit of the communitiesthemselves (Ruiz, 2004). The role of communityregisters as a source of evidence of traditionalknowledge rights is unclear as the national traditionalknowledge law makes no provision for theirrecognition in legal proceedings at the national level.However, it is possible that both INDECOPI and thenational courts may decide to recognize them as such.

During national debates on Law 27811, indigenouspeoples demonstrated grave concerns that placingtraditional knowledge in any register would lead to lossof control over access and increase the possibilities forunapproved and uncompensated use. Their concernsstem largely from fears that traditional knowledge willfall within the public domain resulting in the loss ofrights to control its subsequent use and to share inbenefits derived from such use. These concerns are wellfounded and a study prepared by the United NationsUniversity Institute of Advanced Studies on the potentialand limitations of registers and databases as a means forprotecting traditional knowledge, concludes that ‘[s]trictapplication of the principle of the public domain to[traditional knowledge] may … lead to inequities forindigenous peoples. (Alexander et. al. 2003).

3.2.3 Traditional knowledge and the publicdomain

There is a widely and erroneous belief that the conceptof the public domain is immutable and cannot besubject to reinterpretation. In fact, the concept andscope of the public domain is far from static and mayvary from place to place and from time to time. Publicdomain is taken to refer to abstract materials consideredto be ‘public property’, which is not owned orcontrolled by anyone (Wikipedia, 2008). What fallswithin the public domain is defined by reference tointellectual property legislation which definescopyright, trademarks, patents, etc. which are thesubject of property rights. Identification of publicdomain material depends upon the status of intellectualproperty legislation nationally and internationally. Asa result, public domain materials may differ fromcountry to country. Material in the public domain inone country, may not be public domain in another.Following such an approach, identification oftraditional knowledge falling within the public domain

would most appropriately be done by reference tolegislation which established protection of traditionalknowledge.

As there is little legislation existing in this area,definition of traditional knowledge in the publicdomain falls to be interpreted under existing intellectualproperty rights legislation, which is widely recognisedas being inadequate to protect traditional knowledge.Reinterpretation of the applicability of the concept ofthe public domain to traditional knowledge willtherefore be necessary to prevent the effective negationof rights and obligations relating to traditionalknowledge as set out international human rights lawand in the customary laws and practice of indigenouspeoples and local communities. The failure ofinternational and national law to exclude from thepublic domain traditional knowledge, the subject ofancestral rights based on customary law serves tolegitimise and facilitate its expropriation in violationof the rights of authors as set out in the InternationalCovenant on Economic, Social and Cultural Rights andthe wider set of rights over traditional knowledgerecognized in the UN Declaration on the rights ofIndigenous Peoples.

The Peruvian law adopts an interesting positionregarding traditional knowledge in the public domain43.In the first place, it recognizes that indigenous peoplesare entitled to be compensated for its use, and proposesa form of knowledge tax be imposed on all commercialsales of products, directly or indirectly utilizingtraditional knowledge. This is an important precedent,in essence supporting the proposition that the rights ofindigenous peoples over their traditional knowledge arenot necessarily exhausted by the fact that suchknowledge has made its way into the public domain(Dutfield, 2000). The law does not, however, recognizeany right for indigenous peoples to control or otherwiseregulate or prevent the use of their knowledge if it hasfallen into the public domain. The result has been todefine rights over knowledge on the basis of where theknowledge is found not on the basis of how it got there.

A more ambitious attempt to redefine the ambit ofapplication of the public domain to traditionalknowledge has been set down in draft model law onprotection of traditional knowledge relating tobiodiversity in Pacific Island countries, prepared forconsideration by member states of the South Pacific

43 Where something is held to be in the public domain, it isconsidered under law to be free for use by any person withoutprior informed consent and without the obligation to makeany payment for its use. Ideas, products, processes etc. whichmay be likened to knowledge, innovations and practices areconsidered to fall within the public domain where they havebeen published or have appeared in the media, such as press,radio or films, or they have been widely commercialised. TKmay fall into the public domain, for example through thepublication of scientific reports, compendiums of traditionalmedicine or documentaries of traditional farming practices.

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Forum. This draft took as its fundament that what isimportant is not where traditional knowledge is foundbut how it came to be there. Article 3 of the draft modellaw defines its application as including traditionalecological knowledge in the public domain. Indetermining the extent to which the Act should beapplied to the public domain it says this ‘… willdepend upon an assessment of the following factors:

(a) whether there was an intention by the ownerto share the knowledge, and if so the purpose forsharing;(b) whether permission was given to publicise ordisseminate the knowledge;(c) whether the owner knew that the knowledgemight be used for commercial ends;(d) whether the owner understood that sharing theknowledge with outsiders would result in a loss ofcontrol over its subsequent use;(e) the extent to which unauthorised use of theknowledge may undermine the spiritual andcultural integrity of the owners.’44

Both the Peruvian traditional knowledge law and theSouth Pacific Model Law demonstrate a willingness tochallenge the notion of an immutable principle of thepublic domain in order to bring greater equity totraditional knowledge regulation. These efforts willneed to be replicated at the international level otherwisethe public domain will be used as a means to legitimizepast and future expropriation of traditional knowledge.

3.2.4 Peru and international regulation oftraditional knowledge

Peru was amongst the first countries to ratify theInternational Labour Organization Convention 169,which in accordance with the Constitution became partof national law. Convention 169 has been relied uponby indigenous peoples in Peru to defend their territorialand resource rights, and in 2008 was used to bringpressure upon the national authorities to repealexecutive orders which would have affected their rightsover forest lands in particular. Peru also voted in favourof UNDRIP and is also host to an office establishedto implement UNESCO’s convention on intangiblecultural heritage.

Peru was one of the first countries to ratify the CBD,and has played an active role in the promotion andimplementation of its provisions. This has included theadoption of national law and policy on ABS andtraditional knowledge as well as regional policy as partof the Andean Community. It has also involved activeparticipation in ABS and traditional knowledge relateddebates at COP, WG ABS and WG 8(j), representation

on the CBD’s Expert Panel on ABS, co-chairing ofCBD negotiations leading to adoption of the BonnGuidelines, hosting of the CBD Technical Group ofExperts on Certificates of Origin in January 2007, andchairing of the Group of Technical Experts onCompliance.

Peru has been actively represented at the IGC bygovernment, NGO and indigenous organizations. Casestudies of community management of traditionalknowledge 45; national measures to protect traditionalknowledge, including sui generis traditional knowledgelegislation; and the work and actions of the nationalbiopiracy commission have been fed into the process.WIPO visited Peru as part of its fact finding missionsand included significant coverage of the novelprovisions of the ICBG Agreements in its final report.Peru has submitted a series of reports prepared by theINDECOPI, to the IGC, regarding instances ofpotential and actual biopiracy involving Peruviangenetic resources46. Peru has also made specificproposals at WIPO on the issue of disclosure of origin,which is promoted as a means to ensure that intellectualproperty regimes help regulate use and impedemisappropriation of genetic resources and traditionalknowledge.

The idea for a disclosure of origin system wasdeveloped in Peru in the mid 1990’s (Tobin, 1997).Three factors influenced the construction of theproposal. First, although the CBD had entered intoforce, there was still a lack of any international law toprevent misappropriation of traditional knowledge.Second, a regional ABS regime, under development atthe time by Andean countries, was seen as incapableof ensuring compliance by users once resources lefttheir jurisdiction. Third, the negotiation of the PeruvianICBG agreements, demonstrated the limitations ofcontracts to protect against third partymisappropriation. In the case of Peru, disclosurerequirements were originally incorporated into nationalregulations implementing the Andean regime for

44 See Model Law For The Protection of Traditional EcologicalKnowledge, Innovations And Practices, Downloaded 22January 2009 from http://www.grain.org/brl_files/brl-model-law-pacific-en.pdf

45 Representatives of Peru’s indigenous peoples have presentedthe case of the Potato Park to the IGG.

46 Peru has submitted a series of reports on biopiracy relatedissues to the IGC, these include Peru (2003) Patents referringto Lepidium Meyenii (Maca): Responses of Peru,, WIPO/GRTKF/IC/5, submitted to the 5th IGC; Peru (2005a) PatentSystem and the Fight against Biopiracy: The PeruvianExperience, WIPO/GRTKF/IC/8/12, which sets out the resultsof the search for potential cases of biopiracy of six resourcesof Peruvian origin (hercampuri, camu camu, yacón, caigua,sacha inchi and chancapiedra) that was made using thedatabases accessible through the web sites of the United StatesPatent and Trademark Office, the European Patent Office andthe Japan Patent Office, submitted to the 8th IGC; and, Peru(2005b) Analysis of Potential Cases of Biopiracy: The Caseof Camu Camu (Myrciaria Dubia) WIPO/GRTKF/IC/9/10,submitted to the 9th IGC, which describes the progress madein identifying and analysing patent applications and patentsconcerning inventions obtained or developed through the useof camu camu (Myrciaria dubia).

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protection of the rights of breeders of new plantvarieties, by Supreme Decree 008-06-ITINCI (1996)47.

3.2.5 The US- Peruvian Free TradeAgreement – Diluting traditionalknowledge rights

In January 2009, Peru entered into a Free TradeAgreement with the U.S. As part of the process, Peruhas adopted law 29316 (Peru, 2009) which includes anumber of provisions relating to implementation ofDecision 486 of the Andean Community and thenational sui generis traditional knowledge law. Theseprovisions have led to claims that rights over geneticresources and traditional knowledge in Peru are underthreat to the detriment of indigenous peoples and localcommunities. Amongst the most contentious issues inLaw 29316, are its failure to include isolates such asgenes and germplasm in the list of exclusions from thedefinition of inventions; to provide for annulment ofpatents granted using traditional knowledge for whichevidence of a licence or authorization has not beenprovided; and to secure indigenous peoples’ and localcommunities’ rights to control access to and use oftraditional knowledge in the public domain.

The Andean Community has in Decision 486 excludedfrom the definition of inventions “… Any living thing,either complete or partial, as found in nature, naturalbiological processes, and biological material, asexisting in nature, or able to be separated, includingthe genome or germplasm of any living thing” (Article15 (b)). It does provide, however, for the patenting ofmicroorganisms “… until other measures are adoptedas a result of the examination provided for in TRIPSarticle 27 3(b)” (Second Transitory Provision, Decision486). In contrast Article 25 B of Law 29316 onlyexcludes from the definition of inventions “… (b) Anyliving thing, either complete or partial, as found innature, (c) biological material, either complete orpartial, found in nature, (d) natural biologicalprocesses.” By failing to specifically refer to biologicalmaterial able to be separated, including the genome andgermplasm, Law 29316 may, it has been argued, haveopened the door for patenting of Peru’s genetic wealthas microorganisms - a term which has been very widelyinterpreted by patenting authorities in somejurisdictions. This argument has been countered byclaims that the exclusion of biological material, eithercomplete or partial, as found in nature would excludegenes, germplasm and other naturally occurringisolates.

The effect of Law 29316 on patenting of the genomeand germplasm and other isolates, is highly ambiguous.Decision 486 is directly applicable in Peru and it isquestionable whether Law 29316 has the power or theeffect of modifying those areas excluded from the

definition of inventions under that Decision. Peru maytherefore be obliged to implement Law 29316 as if theprovisions of Decision 486 had been faithfully repeatedin its text. The resultant lack of legal certainty, servesno-ones interests and INDECOPI, in its role as Peru’spatent authority, may be advised to issue aninterpretative statement clarifying how it will approachany applications for patenting of genes or germplasm.This, it is proposed, should indicate that applicationsfor patenting of isolates, including genes andgermplasm, taken from biological material for whicha country of the Andean Community is the country oforigin will not be treated as inventions.

With regard to the issue of prior informed consent forthe use of genetic resources and traditional knowledge,Law 29316 does not in effect modify the obligationscreated under Decision 486. Although, the new lawdefines conditions for patentability in traditional terms,the relevant provisions in decision 486 regarding theprocessing of patent applications remain in force inPeru. These include obligations to provide copies ofaccess contracts for use of genetic resources and oflicences or authorization for use of traditionalknowledge for which a member state of the AndeanCommunity is a country of origin. These provisions doadd to the substantive provisions for granting of patentsbut are rather formal requirements which must becomplied with as a precondition for the processing ofpatent applications. Where Law 29316 does seek tomodify the provisions of Decision 486 is in relation tothe remedies in the event of the grant of a patent.Article 75 (h) of Decision 486 empowers nationalauthorities to either ex officio or at the request of aparty at any time, “when pertinent”, annul patentswhere a copy of an access agreement for use of geneticresources and/or a licence or authorization for accessto and use of traditional knowledge, have not beenprovided (Ruiz, 2006). Article 8 of Law 29316,however, states that annulment can only occur wherethe reason for its annulment could have justified arefusal to grant the patent in the first place. This wouldeffectively exclude failure to provide relevant accesscontracts or licences for use of genetic resources ortraditional knowledge, which as noted above are notsubstantive requirements for the grant of a patent.Remedies in Law 29316 focus primarily oncompensation involving monetary and non-monetarybenefits, which may not be adequate to secure rightsover traditional knowledge, especially in cases whereknowledge has important cultural or spiritualsignificance. Interestingly Law 29316 specificallyhighlights the possibility of securing compulsorylicences for use of protected inventions based ontraditional knowledge. As stated above, it is unclearwhether Peru is empowered to adopt nationallegislation modifying the applicability of provisions ofDecision 486 other than in those cases specifically leftto national jurisdiction, which is not the case withprovisions on annulment of patents. However, even ifLaw 29316 is deemed valid on this issue, this does not

47 Peru (2007) Combating Biopiracy – The Peruvian ExperienceDated 13 August 2007, Communication from Peru to theWTO, Ip/C/W/493.

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mean that patents involving traditional knowledgecannot be annulled.

Article 8 of Law 29316 provides that patents may beannulled where there has been fraud, misrepresentation,or inequitable conduct. Interpretation of what amountsto fraud, misrepresentation or inequitable conduct, mayreasonably be presumed to include cases of biopiracyrelating to genetic resources or traditional knowledge.This might arise, for instance, where prior informedconsent for use of genetic resources or traditionalknowledge was not obtained or was obtained as theresult of coercion, misrepresentation or bribery, orwhere benefit sharing was patently inequitable. It mayalso potentially be utilized to annul patents overinventions utilizing sacred or other sensitive traditionalknowledge whose development and use would havesignificant cultural or religious impacts on itscustodians. This would be most likely to occur wherethe nature of the intended or potential use and impactswere not fully disclosed to traditional knowledgecustodians at the time consent for access was given.

It is unclear from Law 29316 what nexus may berequired between the applicant for the patent and theactor responsible, for the fraud, misrepresentation orinequitable conduct, in order to secure the annulmentof a patent. This is a matter of some importanceaffecting not only traditional knowledge custodians butalso commercial users of traditional knowledge. Law29316 has, in its attempts to ease the requirements onpatenting of inventions making use of traditionalknowledge and genetic resources, increased rather thandecreased legal uncertainty; which serves the interestneither of custodians or users of traditional knowledge.On the one hand, custodians will have less confidenceabout the ability of national and international law toprotect their rights, leading to reduced openness toprovide access to traditional knowledge; while, on theother hand, users will have less certainty that theirinvestments will be secured against future challengesto patent rights. Considering the ambiguities caused byLaw 29316, those wishing to use genetic resources ortraditional knowledge for which a member country ofthe Andean Community is a country of origin, areadvised to ensure that it has been legally obtained inaccordance with national, Andean, and internationallaw. The only means to effectively ensure this, will beto seek evidence of a contract for access to geneticresources and/or that a licence or authorization foraccess to and use of traditional knowledge has beenobtained as Decision 486 requires.

While the failure to include provisions reflecting theannulment provisions of Decision 486 does not excludethe possibility for patents to be challenged, they doplace an undue burden of proof regarding the right touse traditional knowledge on those least likely to beable to bear it. As discussed earlier, Peru has been oneof the principal proponents of international measuresfor modification of the TRIPS Agreement to requiredisclosure of origin in intellectual property rights

regimes. These proposals are based in part on thepremise that the burden of proof regarding the right touse traditional knowledge should fall on those wishingto use it (Tobin, 1997) rather than on indigenouspeoples and local communities. This is crucial iftraditional knowledge custodians, who will rarely havethe capacity and resources to identify breaches of theirrights, are to commence and maintain costly actionsseeking revocation of patents, and to enforcesubsequent judgements are to attain access to justice.Implementation of Law 29316 should, therefore, becarried out in a manner which is supportive of thecountry’s obligations to secure the human rights ofindigenous peoples and local communities, includingtheir rights over traditional knowledge. It will also needto consider the scope for interpretation of obligations,rights and exclusions to patentability under Law 29316,which is congruent with international, regional andnational traditional knowledge law and policy.

As discussed earlier, the legal status of traditionalknowledge in the public domain is still far fromresolved. Peru’s sui generis law recognises a right forcustodians to share in benefits derived from use of theirtraditional knowledge even when it has fallen into thepublic domain. This is to be achieved by requiringpayment of a percentage of benefits into an IndigenousFund - this has not been affected by Law 29316. Peru’ssui generis traditional knowledge law is not, however,clear as to whether prior informed consent is requiredfor the use of traditional knowledge in the publicdomain. Law 29316 addresses this issue by specificallyexcluding use of traditional knowledge in the publicdomain from requirements for provision of copy of alicence or authorization for its use in patentapplications. This may not in effect have modified inany meaningful fashion the obligations of users oftraditional knowledge in the public domain vis-à-vis thenational sui generis law. However, the articulation ofthis exclusion does greatly limit their possibilities tochallenge use of traditional knowledge in the publicdomain on the grounds of ancestral rights, and in thelight of emerging human rights law in this area. It alsopre-empts ongoing negotiations in WIPO, CBD andWTO which are addressing rights over traditionalknowledge including knowledge which has fallen intothe public domain. As such it sets a lamentableprecedent in limiting indigenous peoples’ and localcommunities’ rights to control access to and use oftraditional knowledge which has fallen into the publicdomain, the result of which may be to legitimise thehistoric expropriation of indigenous peoples’ traditionalknowledge (Tobin, 2001).

Despite the specific exclusion of obligations to provideevidence of prior informed consent for use oftraditional knowledge in the public domain in Law29316, this does not necessarily mean that such use isfree from any challenge. As noted above, Law 29316entitles national authorities to annul a patent in theevent of fraud, misrepresentation or inequitable

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conduct. If traditional knowledge has fallen into thepublic domain as the result of such fraud, etc.,indigenous peoples and local communities may,arguably, be entitled to challenge the grant of a patent.The national authorities would not appear to beconstrained by the Free Trade Agreement with the U.S.from requiring the user to show that they had taken allreasonable steps to ensure that traditional knowledgeused in development of a patented invention has beenobtained with the prior informed consent of istraditional custodians. Failure to show that reasonablesteps had been taken, could then be used as the basisfor annulment of an invention which is based ontraditional knowledge which directly or indirectly cameinto the public domain following fraud,misrepresentation or inequitable conduct. Users oftraditional knowledge should, therefore, exercisecaution in using traditional knowledge from the publicdomain and, when in any doubt, ensure that evidenceof prior informed consent for its use and disclosure intothe public domain is sought. Reliance on unsupportedassurances of researchers, independent bioprospectors,etc., may prove costly if patent rights come underchallenge due to improper access to and disclosure oftraditional knowledge into the public domain.

Despite Peru having placed the issue of protection ofnational sovereign rights over genetic resources and therights of indigenous and local communities over theirtraditional knowledge high on the agenda of thenegotiations for the Free Trade Agreement at the outset,the final text provides only passing reference to theseissues. Sovereignty over genetic resources is notreferenced directly but may be inferred from theobjectives of the Free Trade Agreement with regard tothe environment which recognize that each Party hassovereign rights and responsibilities with respect to itsnatural resources. With regard to traditional knowledge,Article 18.11 (3) of the Agreement states that “TheParties recognize the importance of respecting andpreserving traditional knowledge and practices ofindigenous and other communities that contribute to theconservation and sustainable use of biologicaldiversity.” These are a poor reflection of Peru’s originalproposals in this area, and Peru will need to give muchattention to how it may ensure that the Agreement doesnot undermine the important advances made at thenational level to protect traditional knowledge rightsand its credibility as a champion of traditionalknowledge rights on the international stage.

When seen in the light of the Free Trade Agreement’srequirements for Peru to adopt TRIPS plus intellectualproperty rights protection, which will primarily benefitUS industry, the failure to secure even minimalrecognition of rights over traditional knowledgedemonstrates clear discrimination against indigenouspeoples, which in itself may amount to a breach of theirhuman rights. Furthermore, the Free Trade Agreementhas led to adoption by Peru of a series of legislativemeasures which threaten the lands and traditionalterritories of indigenous peoples and local communities

- lands and territories whose inviolability is crucial formaintaining traditional knowledge systems and thecultures which have nurtured and developed themthrough the centuries. These laws have been met withfierce resistance by indigenous peoples, who havetaken to the streets and forests to protect their hard wonand still limited land and resource rights. Calling foreffective recognition of their human rights as set downin Convention 169, indigenous peoples’ opposition hasled to the overturning of some of these measures.However, the threat to indigenous peoples’ landscontinues including measures designed to open uplarge tracts of Peru’s Amazonian territories to largescale commercial agriculture. The Peruvian experience,cautions against seeking protection of traditionalknowledge through trade measures alone, and showsthe need for adoption of a human rights approach tointernational, regional and national protection oftraditional knowledge.

3.2.6 Peruvian and other models fortraditional knowledge law and policy

As much for its limitations as well as its successes, thePeruvian experience has provided important precedentsto inform the international debate on traditionalknowledge protection, and practical lessons forlegislative development in other countries. Similarly,the Peruvian process was influenced and informed byemerging law and practice in other countries of theAndean region and from around the world. A detailedanalysis of this national and regional legislation isbeyond the scope of the present study; however, a briefoverview of a number of important cases will help hereto demonstrate some common principles which areemerging as well as a diversity of mechanisms andapproaches being applied to traditional knowledgeprotection. A representative selection of articles ontraditional knowledge protection drawn from nationallaws and legislative proposals is included in Annex I

Common principles which may be identified fromexamination of national and regional laws and drafttraditional knowledge legislation include the following:

• Access to traditional knowledge requires PIC ofindigenous peoples and local communities,

• traditional knowledge is inalienable, being heldfor the benefit of present and future generations,

• traditional knowledge laws do not affect therights of indigenous peoples or localcommunities to continue with the traditional use,sharing and sale of traditional knowledge andrelated resources and products (e.g. traditionalmedicinal products),

• traditional knowledge laws are declaratory innature; that means indigenous peoples’ rightsover their traditional knowledge stem from theexistence of the knowledge itself and not fromany act of government,

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• where registers of traditional knowledge existthey may serve to help protect traditionalknowledge but registration is not a requirementfor recognition of rights,

• commercial use of traditional knowledgerequires written contracts,

• traditional knowledge custodians are entitled todeny applications for rights to use theirknowledge,

• rights over traditional knowledge are notnecessarily exhausted by its existence in thepublic domain,

• Indigenous peoples’ and local communities’customary laws have an important role to playin traditional knowledge regulation.

Although it is difficult to assess to what extent thedevelopment and adoption of the Peruvian law wasinfluenced by and influenced action in other countries,it is notable that it incorporates these same coreprinciples. The existence of a widely accepted set ofcore principles, may be taken to demonstrate a growingState practice, which should be recognised by andprove influential international efforts to develop lawand policy in this area.

Although, common purpose can be found amonglegislative models adopted around the world, there isalso much variance in the manner in which rights overtraditional knowledge is approached. Bangladesh hasprepared draft stand alone legislation for protection oftraditional knowledge, which recognises sovereignrights over all intellectual and cultural practices relatedto biological and genetic resources, while providingrecognition for the “original rights” of indigenouspeoples and local communities over traditionalknowledge directly linked to specific knowledgethrough their livelihood practices.48 Costa Rica’snational biodiversity law recognises sui generiscommunity intellectual rights of indigenous peoplesand local communities over their traditional knowledge,innovations and practices related to biodiversity, andestablishes the basis for national projects to support

traditional breeding practices and other elements oftraditional knowledge (Costa Rica, Law 7788, 1998).India has amended its intellectual property legislationto impede the patenting of products which areconsidered obvious due to the state of the art of existingtraditional knowledge. The Philippines hasincorporated protection of rights over traditionalknowledge within national legislation on indigenouspeoples’ rights, including rights over ancestral landsand natural resources.49 In contrast with developingcountry legislation, Portugal, the first developedcountry to adopt traditional knowledge regulations,establishes a system of protection based uponprinciples of intellectual property law, makingprotection contingent on registration of knowledge andlimiting protection where traditional knowledge is thesubject of pre-existing rights (Portugal’s Decree Law,118, 2002).

At the regional level, the Organization of African Unityhas adopted a model law for member states, which setsout a clear definition of Community Intellectual Rights,prohibits patenting of life forms and requires thatrecords of collected traditional knowledge be given tolocal communities.50 The South Pacific draft modellaw provides for a system of national and regionalregisters of traditional knowledge and seeks todistinguish between commercial and scientific use ofresources.51 Excerpts from Regional Model Lawsconcerning protection of traditional knowledge areincluded in Annex II.

Consideration of the challenges opportunities andimpediments faced in the development adoption andimplementation of national and regional measures fortraditional knowledge protection provides a clearpanorama of the wide range of issues which need tobe addressed in development of traditional knowledgelaw and policy. However, existing experiences do notprovide a definitive answer on how to recognise andincorporate customary law in any system for protectionof traditional knowledge, an issue which is now at thecentre of debates on compliance measures for an ABSregime.52

48 (Draft) Biodiversity and Community Knowledge ProtectionAct of Bangladesh, 29 September 1998, Downloaded, 2February 2009, from http://www.grain.org/docs/bangladesh-comrights-1998-en.pdf

49 Philippines Republic Act No. 8371. An Act to Recognize,Protect and Promote the Rights of Indigenous CulturalCommunities/ Indigenous Peoples, Creating a NationalCommission on Indigenous Peoples, EstablishingImplementing, Mechanisms, Appropriating Funds There of,and for other Purposes, 28 July 1997, Downloaded 2 February2009, from http://www.chanrobles.com/republicactno8371.htm

50 African Model Legislation for the Protection of the Rights ofLocal Communities, Farmers and Breeders, and for theRegulation of Access to Biological Resources, Downloaded,2 February 2009, from http://www.opbw.org/nat_imp/model_laws/oau-model-law.pdf

51 Draft Model Law for the Protection of Traditional EcologicalKnowledge, Innovations and Practices. Downloaded, 2February 2009 from, http://www.grain.org/brl_files/brl-model-law-pacific-en.pdf

52 For discussion of customary law’s role in securing compliancewith ABS regulations see, Alexander et al. (2009)

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Section IV: Case studies: ICBG and the Potato ParkThe knowledge of indigenous and local communitieshas long been sought after by a range of collectors,including missionaries, anthropologists, and ethno-biologists. Only rarely have such communities beenfully informed of the intended or potential future usesof such knowledge and even less frequently, invited toenter into negotiation of agreements for its use. Withthe entry into force of the CBD, this trend started tochange and a number of high profile agreements havesince been negotiated with the informed participationof indigenous peoples. Furthermore, some communitiesand peoples have established their own researchprotocols to regulate access to and use of theirknowledge. These are still, however, the exception tothe rule. This section examines two case studies whereindigenous peoples have taken proactive measures witha view to protection of their rights and interestsassociated with traditional knowledge and biologicalresources. This has involved the use of a mixture ofcustomary governance mechanisms and innovative newlegal approaches designed by indigenous peoples andlocal communities.

The first study examines the negotiation of abioprospecting agreement by indigenous communitiesof the Aguaruna people of the northern PeruvianAmazon negotiated within the framework of theInternational Collaborative Biodiversity Group (ICBG)Program.53 The ICBG Program has sponsoredcollaborative bio-prospecting involving a range ofacademic, commercial and community partners, aroundthe world, with a view to promoting collection ofgenetic resources traditionally used by indigenouspeoples for the development of new medicinalproducts. The program had previously establishedprojects involving traditional knowledge in Nigeria andSuriname; however, the project in Peru was the firstin which indigenous peoples and their representativeswere directly involved in the negotiation processes.

The second case study examines the experience of thePotato Park, an agricultural collective located nearCuzco. The Park was established by six Quechuacommunities, in order to protect their traditional geneticresources from threats of biopiracy. The communities,who manage the Park themselves, are currently in theprocess of developing sui generis governancemechanisms based on customary law to regulate accessto and use of their genetic resources and traditionalknowledge. They have also utilized customary law asthe basis for contractual arrangements for repatriationof native crop varieties, and for the development ofmechanism to oversee any benefit sharing between andwithin communities. This case study examines thecompatibility of the Peruvian Law for the Protectionof Traditional Knowledge with the customarygovernance mechanisms of the Potato Park.

4.1 Contracting into custom: The Case ofthe Peruvian ICBG Project

The Peru ICBG project was one of the first experiencesin which indigenous peoples effectively negotiated ontheir own behalf an international bioprospectingagreement. In the process, it established a number ofimportant precedents for bioprospecting activitiesinvolving traditional knowledge. This experienceserved as a model for the development of national suigeneris legislation for TK protection in Peru (Ruiz,2004).

The Peru ICBG Project involved a number of US andPeruvian research institutions including WashingtonUniversity, the Peruvian University of CayetanoHeredia and the Natural History Museum of SanMarcos University. It also included Searle & Co., a USpharmaceutical company, which at that time was asubsidiary of the Monsanto Corporation. From 1994 to1996, representatives of the ICBG program partnerswere involved in negotiations with local organizationsrepresenting Aguaruna communities, and regional andnational indigenous organizations. This ultimately ledto the signing of a series of interrelated agreements foruse of biological resources and traditional knowledgein the development of new pharmaceutical products.

Both the process and the final outcome of negotiations,provide an opportunity to consider the extent to whichcustomary law played a role in protection of rights ofthe Aguarunas over their traditional knowledge. Theissue of customary law and how it applies to the ICBGprogram in Peru is examined under three mainheadings: Representative organizations; prior informedconsent; and the ICBG contracts. A final subsectionconsiders the lessons learned and their significance fornational traditional knowledge regulation and futurebioprospecting agreements involving indigenouspeoples.

53 For a fuller description of the ICBG Program see, Lewis W.and V. Ramani, (2007) Ethics and Practice in Ethnobiology:Analysis of the International Collaborative BiodiversityProject in Peru, In: McManis, C. (2007) Biodiversity and theLaw: Intellectual Property, Biotechnology and TraditionalKnowledge, Earthscan, Rosenthal, J. P. (1997) TheInternational Cooperative Biodiversity Groups (ICBG)Program, A U.S. Government funded effort to promoteequitable sharing of biodiversity benefits in the context ofintegrated research and development toward drug discovery,biodiversity conservation and economic development. ABenefit-sharing case study for the Conference of Parties toConvention on Biological Diversity. Downloaded from http://www.cbd.int/doc/case-studies/abs/cs-abs-icbg.pdf,December 8, 2008. ICBG (1997) Report of a Special Panelof Experts on the International Cooperative BiodiversityGroups (ICBG), Report Release Date: August 15, 1997,Program Review Meeting: Bethesda, Maryland - February27-28, 1997, downloaded from http://www.icbg.org/pub/documents/finalreport_19970815.pd, December 8, 2008.

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4.1.1 Community representationThe Aguarunas (Awajun) are part of the Jivarolinguistic family who are reputed for their resilienceand ability to maintain their cultural and territorialintegrity, having successfully resisted colonization bythe Incas, as well as the encroachment of religiousorganizations and sustained periods of pressure fromexternal forces including Spanish conquistadores. Forcenturies the Aguaruna peoples maintained thisintegrity without a centralized authority, remaininggrouped mainly by family. In the 1970s, however, inresponse to increased threats to their way of life, theAguaruna began to establish new politicalorganizations to defend themselves (Wikipedia, 2008).These organizations significantly changed Aguarunainternal governance structures with the creation of newpolitical bases for indigenous peoples of the region. By2002, there were 13 distinct indigenous organizations- working at the local or regional level - representingAguaruna communities. The majority of the 187individually titled Aguaruna communities in Peru areaffiliated with local Aguaruna-run organizations, or insome cases regional organizations which include otherAmazonian ethnic groups (e.g. the Huambisa andChayahuita) (Greene, 2004). The most influentialrepresentative organizations established during thisperiod were the Organización Central de ComunidadesAguarunas del Alto Marañon (OCCAAM) founded in1975, and the Consejo Aguaruna y Huambisa (CAH)an organization founded in 1977. Both of theseorganisations played a central role in the ICBGnegotiation process.

The ICBG negotiations with Aguaruna organizationsmay be separated into two distinct phases. The first setof negotiations involved ICBG program partners andthe Consejo Aguaruna y Huambisa which, at that time,represented a majority of Aguaruna communities.These negotiations were terminated in early 1995,amidst claims by the Consejo Aguaruna y Huambisaof biopiracy and lack of good faith by WashingtonUniversity - claims which were disputed byWashington University.

In late 1995, the ICBG program partners entered intoa new set of negotiations with three local federationsrepresenting Aguaruna communities not affiliated to theConsejo Aguaruna y Huambisa. These includedOCCAAM, the Federación de ComunidadesAguarunas del Río Dominguza (FAD), the Federaciónde Comunidades Nativas del Río Nieva(FECONARIN) and their national representativeorganization, the Confederación de NacionalidadesAmazónicas del Peruana (CONAP) (hereafter referredto collectively as the “Collaborating Organizations”)(Greene, 2004). These organisations were later joinedby the Organización Aguaruna Alto Mayo (OAAM).In these latter negotiations, the CollaboratingOrganizations secured independent legal advice fromthe Peruvian Environmental Law Society (SPDA).

At the date of commencement of negotiations, the CBDhad been signed and ratified by Peru and was part ofnational law, although no implementing ABS ortraditional knowledge law had been adopted.Negotiations were, however, ongoing in the AndeanCommunity to develop regional ABS legislation, andthere was a vibrant national debate on ABS andtraditional knowledge issues. Immediately prior to thecompletion of the negotiations the Andean communityadopted Decision 391 establishing a regional ABSregime. Throughout the ICBG negotiations, thegovernment played only a very peripheral role in theprocess, in effect leaving the issue to the Aguarunasand the contracting ICBG parties.

4.1.2 Prior informed consentDespite the lack of national legislation on ABS ortraditional knowledge legislation at the time of theICBG negotiations, these were influenced by theCBD’s provisions on traditional knowledge. Theprocess was also influenced by the negotiations forAndean Community Decision 391, which provided thataccess to traditional knowledge requires the PIC ofindigenous communities. The parties accepted from theoutset that PIC was a prerequisite for any agreementto collect and use traditional knowledge and/or collectresources on indigenous people’s lands. There was,however, no defined procedure for seeking PIC. In theabsence of national regulations on this issue, it was leftto the parties and customary law to define themodalities for seeking PIC.

As there was no unified decision making structureamongst Aguarunas, the question of who was entitledto negotiate on their behalf was, by and large, decidedon the basis of the extent to which the negotiatingparties were deemed to be representative of asignificant sector of Aguarunas. In the first set ofnegotiations this was less problematic, as the ConsejoAguaruna Y Huambisa was (at the time) the mostwidely representative of the Aguaruna people as awhole. However, when these negotiations collapsedand Washington University wished to enter into a newset of negotiations with CONAP and the localParticipating Indigenous Organizations, one of the firstquestions requiring clarification was the level to whichthese organizations represented a significant sector ofAguaruna communities, and the extent to which thesecommunities would support the ICBG project.

To ensure the negotiations had local backing, theCollaborating Organisations requested that the ICBGprogram fund a consultative meeting with communityrepresentatives in the Aguaruna heartland. This led toa meeting in the form of an IPAAMAMU, held in SantaMaria de Nieva in the northern Peruvian Amazon 1995.An IPAAMAMU has been described as the maximuminstance of consultation and decision making amongstthe Jivaro people, being based upon traditional meansemployed by the Aguaruna and Huambisa, to buildunity and maintain fraternal relationships in the manner

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of their ancestors (Sarasara, n.d.). The IPAAMAMUbrought together more than 80 representatives of 60Aguaruna communities - as well as representatives ofsome Huambisa communities - to hear the proposalfrom the ICBG parties, in order to determine whetheror not to go forward with the negotiations. The extentto which the IPAAMAMU meeting truly reflectedtraditional decision-making authority and practiceamongst the Aguarunas is unclear. However, byharnessing a traditional structure for seeking goodcommunity relations and deciding upon commonactivities, the collaborating indigenous organizationssought to apply an element of customary law to presentday decision making needs. The result was to build abridge between traditional authority and new collectivedecision-making practices.

Although the IPAAMAMU took the form of aconsultative meeting with the participation of the ICBGpartners and legal advisers from CONAP and SPDA,all non-Aguaruna or Huambisa participants were askedat the end to withdraw, to allow for a closed discussion.Based upon these deliberations, it was agreed that the

negotiation of the ICBG agreements should continue,a decision which was recorded in a declaration of themeeting. The declaration specifically placedresponsibility for the negotiation in the hands ofCONAP, its in-house legal adviser, and the legaladviser from SDPA.

The ICBG negotiations culminated in the signing of aseries of agreements in 1996. Collections of biologicalresources were to be made only on the lands ofcommunities affiliated with the CollaboratingOrganizations, and then only after the community itselfhad given consent for collection. Collection of traditionalknowledge was only allowed from members of suchaffiliated communities and then only after approval bythe community and subject to signing of a PIC form bythe individual providing traditional knowledge. Theagreements also established a detailed code of conductfor collectors. The code specifically recognises the rightsof Collaborating Organizations and communities to,among other things, exclude any individual(s) orinstitution(s) guilty of a breach the code fromparticipating in collection activities. (See Box 5)

Box 5 ICBG - Agreed Code of ConductThe Parties to the Biological Collection Agreement agreed to practice guidelines of conduct and ethicsassociated with the collection of biological material and ethnobotanical information, and the recognition ofintellectual property (IP). The following items in the agreed code of conduct are noteworthy:

• Collaborate with Aguaruna organizations, communities, and individuals, as well as others to developmultilingual and multicultural educational and training programs and other projects needed to enhancethe cultural and linguistic recognition of the Aguaruna People and to improve the quality of life inCollaborating Communities.

• Collaborate in projects of conservation in order to maintain the biodiversity of the ecosystem.• Develop programs of economic value at community and regional levels by restoring and enhancing

economically significant plants and by other means.• Take a socially responsible approach in their associations with the Aguaruna People, including a full

feedback of scientific and other findings and results.• Help secure the recognition of traditional indigenous knowledge as inventive and intellectual, and,

therefore, worthy of protection in all legal, ethical, and professional frameworks.• Respect the right of privacy of informants and the confidentiality of information received.• Respect local social values, traditions, and customary law and practice among the Aguaruna People

when residing in their communities and at other times.• Not deplete populations of biological material nor collect species suspected of being rare or endangered.• Collect only the requisite amount of biological material needed for making plant and animal vouchers

and extracting plant collections.• Exhibit particular sensitivity in collecting of material used by the informants, particularly when cultivated

in home gardens and often in limited supply.• Be respectful of traditional Aguaruna medicinal information and practice, mindful of potentially striking

differences between Aguaruna medicine and western medicine.• Collaborating Organizations and Communities are entitled to seek exclusion from collection activities

of any individual or institution that commits a serious or fundamental breach of the code.• Be respectful of the taboos and spiritual aspects of the Aguaruna People with regard to genetic resources

and know-how.

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Box 6 Prior informed consent procedures under the Peruvian ICBG Agreements. Communities were informed by an indigenous project coordinator on a variety of issues including:

• What the project was about in some detail: collecting, research, and what might be produced• What rights the people would have and how their knowledge would be protected.• The concept of informed consent• The benefits that the federation, community, and individual would obtain from the project: payments to

assistants and informants, payments for food and lodging, payments for plant samples collected andused in research, and potential long-term benefits.

• The intention to establish an Aguaruna Fund with earnings from collecting and user fees and how itwas proposed this income would be divided equally between the three (and later four) participatingfederations

If a community agreed to collection of traditional knowledge an Acta (written record of a decision of thecommunity) would be drawn up and members of the village would provide a signature or mark by his orher name in agreement. This was followed at that time or at a latter date by the signing of the PIC documentby those individuals willing to participate in provision of traditional knowledge.

The terms of the PIC document included:

• That consent was voluntary.• Purpose of the project was to obtain plants and information of their use in traditional medicine, the

material and information being used in research which could lead to the development of newpharmaceuticals.

• Participation would involve plant collecting and providing information, such as the common name ofplants, use of plants, plant part used, methods of preparation and use, storage, and preference comparedto other plants to treat particular diseases or conditions.

• Participants could withdraw from activity without prejudice.• The Intellectual Property Rights (IPR) of the participants to be protected. If the participation of informant

leads to a discovery or an invention, the informant and community will be acknowledged and if a productis commercialized the federations, and hence all communities and members, will be compensated throughthe Aguaruna Fund. Special recognition of the community and informant who provided the data wouldalso be included in, for example, patents.

• Reasonable measures to be taken to protect the confidentiality of information provided.

Source: Lewis W. and V. Ramani (2007)

Both prior informed consent procedures and the codeof conduct provided opportunities for the participatingAguaruna communities to employ customary law inorder to govern access to resources on their lands aswell as to traditional knowledge. Consent fromindigenous communities, was required at three levels,

• Be respectful when collecting information regarding the treatment of women, particularly when womenhealers do not wish to disclose information to men. In this regard, such information shall only beprovided to ICBG women investigators.

• All information collected regarding the practices or innovations of the Aguaruna People, relevant tothe means for the preparation of compounds, infusions, or poultices, etc., shall not be disclosed to thirdparties, nor utilized for the development of any product without the prior consent of the CollaboratingOrganizations.

• The investigators shall maintain a closed access database of the knowledge, innovations, and practicesof Aguaruna Peoples collected during the course of the ICBG Project. Access to the database shall beon a need-to-know basis and shall be restricted to that necessary in order to achieve effective realizationof the project’s ends.

Source: WIPO (1999)

first by participating organizations, secondly fromcommunities affiliated to the participatingorganizations and thirdly from those individualmembers of consenting communities who providedtraditional knowledge. (See Box 6)

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4.1.3 ICBG ContractsThe ICBG project includes a number of interrelatedagreements including an overarching biologicaldiversity collection agreement; a know-how licencegoverning use of traditional knowledge; a licenceoption agreement, which entitled Searle & Co. to a firstoption on any product discoveries made by ICBGprogram partners; and, subcontracting agreements withthe Peruvian University partners.54

Biological Collecting AgreementA biological collecting agreement was entered into bythe three participating universities and theCollaborating Organizations. This agreementestablished the conditions for collection and use ofplants, plant extracts, and traditional knowledge withinthe Indigenous territories involved in the agreement.The biological collecting agreement prohibited anypatenting of life forms without the prior informedconsent of the communities. Under the Agreementrights to use traditional knowledge and geneticresources are conditional upon the existence of a validsubsisting know-how licence, see below.

Know-How License AgreementA know-how licence agreement was entered into by theCollaborating Organizations and Searle, whichestablished the conditions for collection and use oftraditional knowledge. The license extended theCollaborating Organisations’ control not only over theirtraditional knowledge, but alsoover the use of plants, plantextracts, natural productsisolated from plant extracts,and any compounds whosestructural design wasdeveloped based upon thestructure of such naturalproducts isolated from plantextracts.

License Option AgreementA licence option agreementwas entered into byWashington University, theparticipating Peruvianuniversities, and Searle. Thisagreement established theterms and conditionsgoverning transfer to and useby Searle of plants, plant extracts, and traditionalknowledge, as well as Searle’s rights to a first optionover any discoveries or inventions made by theparticipating universities.

Subcontract agreementsSubcontract agreements were entered into by each ofthe Peruvian universities and Washington University.These agreements established the role of the Peruvianuniversities in the collection and assay of biologicalmaterial, and the benefits they received from the ICBGgrant. These agreements are peripheral to the mainagreements, and are not discussed in the followinganalysis.

The ICBG agreements do not specifically mentioncustomary law. However, they were negotiated with aview to ensuring the protection of traditional practices;strengthening opportunities for the Aguarunas to applycustomary law to prior informed consent proceduresand control of collection activities; and to ensure, tothe greatest extent possible, that community valueswould be upheld with regard to access to and use ofresources. In this manner, customary legal principlesguided negotiations and played an important role in theimplementation of the ICBG project.

At the centre of the ICBG agreements, a newcontractual model was employed - in the form of atraditional knowledge know-how licence - and strictconditions were placed upon the use of resources andknowledge. The know-how licence agreement wasdesigned to increase control over use of both geneticresources and traditional knowledge. It placed theparticipating Aguaruna organizations into a directcontractual relationship with Searle.55 This agreementprovided that Searle could not use any patent rights it

55 Searle’s external legal advisers initially took the position thatthe proposal for a know-how licensing regime would signifysuch a major shift in Monsanto’s way of doing business thatit would require approval of the CEO which could take up tosix months to obtain. This position was reversed within 24hours following the decision by the CollaboratingOrganisations’ negotiating team to break off negotiationsunless the licensing regime was adopted. [personal record ofnegotiations - on file with lead author]

Universidad PeruanaCayetano Heredia

Museo-UniversidadSan Marcos

WashingtonUniversity

AguarunaCollaboratingOrganizations

Searle and Co.

BiologicalCollectingAgreement

SubcontractAgreements

Know-HowLicense

Structure of the Peru ICBG-agreements

License OptionAgreement

54 For further discussion of the Peruvian ICBG Agreements see,Greene S. (2004), Lewis W. and V. Ramani (2007), Tobin(2001) and (2002), and Tobin and Swiderska (2001).

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4.1.4 ICBG agreements and nationaltraditional knowledge regulation

The relationship between the ICBG agreements and thedevelopment of national traditional knowledge lawcannot be overemphasized. In fact, it was the processof negotiation surrounding the ICBG agreements whichserved as the catalyst for the commencement of thenational process for regulation of traditionalknowledge. In early 1996, representatives of SPDAwere invited to meet with the director of the InstitutoNacional de Defensa de la Competencia y de laProtección de la Propiedad Intelectual (INDECOPI –i.e. the Peruvian National Institute for the Defence ofCompetition and Intellectual Property) to discuss thepotential for developing national law regarding TK.The meeting was convened to discuss the need fornational legislation to protect traditional knowledge.Using the ICBG as an example attention was broughtto the fact that without clear national legislation it wasimpossible to prevent biopiracy. Attention was givento the proposed agreements and the Searle & Co.’soffer to pay three times higher royalties for inventionsdeveloped utilizing biological resources traditionallyused by the Aguaruna people than it offered forinventions based on randomly collected biologicalresources.

The difference in royalty rates represented the valuebeing placed on resources identified by indigenouspeoples as having medicinal, toxic, or other activeproperties. In effect, traditional knowledge was beingrewarded for providing users with lead time inidentifying useful biological material. Failure to secureprotection of traditional knowledge was, therefore, notonly a threat to indigenous peoples rights, it alsounjustly enriched foreign and national commercialusers to the detriment of indigenous peoples - and,thereby, of the national interest as a whole. It is unclearwhat influence these considerations had and the weightINDECOPI may have given them in relation to otherimportant issues such as the need to protect theAguarunas moral and ancestral rights over theirknowledge. Within less than a month of this meeting,INDECOPI began to guide a legislative draftingprocess which would ultimately lead to the adoptionof national sui generis legislation on traditionalknowledge in 2002.

Having in effect kick-started the process that wouldeventually lead to the adoption of the nationaltraditional knowledge law, most (if not all) local andregional organizations representing Aguarunacommunities signed declarations, in the months leadingup to its adoption, calling upon the national authoritiesto defer its adoption. These declarations were the resultof two workshops held in Santa Maria de Nieva during2002. The workshops, organized by local and nationalorganizations representing the Aguarunas, with thesupport of the International Institute for Environmentand Development (IIED) and the Lima based NGO the

might obtain to impede traditional use, sale orexchange of traditional knowledge and resources, andprovided the legal relationship necessary to enable theCollaborating Organizations to sue Searle if necessaryfor any breach of contract.

The ICBG biodiversity collection agreements made useof any plants, plant extracts or copies of extractsdependent upon the continuation in force of a knowhow licence for use of relevant traditional knowledge.Upon termination of the licence all parties were toterminate use of all genetic resources and traditionalknowledge except as otherwise agreed with theCollaborating Organizations. The agreements adopteda number of interesting strategies for securing rightsover traditional knowledge while recognizing thepotential and limitations of intellectual property rightsin a number of distinct areas, which included:

• Treating traditional knowledge as a form ofinformation technology and utilizing a know-how licensing arrangement to regulate access toand use of both traditional knowledge andassociated genetic resources,

• Definition of know-how to include all relevanttraditional knowledge of the Aguaruna peopleswhether or not it was available in the publicdomain,

• Preventing the exercise of patent rights torestrict the use, sharing or sale of traditionalmedicinal products,

• Preventing the use of traditional knowledge inthe development and patenting of life forms,

• Securing grant-back of royalty free licences foruse of patents in research and development bythe Aguaruna people,

• Providing for joint ownership of patents.Research under the agreement led to anapplication for a patent in the names of thevarious research parties and the representativesof the indigenous parties to the agreement.

One of the most controversial aspects of the PeruICBG, was the fact that not all the relevant custodiansof the knowledge were party to the agreements(Rosenthal, 1997). The ICBG agreements responded tothis by outlining a process to ensure the equitablesharing of benefits between Aguaruna, Huambisa andother Jivaro peoples (including communities whichwere not party to the agreements). The agreementsestablished a requirement for the development of abenefit sharing mechanism within three years of thecontracts coming into force. In the long run, however,this was not done – due, apparently, to a lack offunding support by the ICBG, as well as a lack ofpolitical will. This demonstrates the importance ofensuring that modalities for ensuring fair and equitablebenefit sharing are secured as a pre-condition forcarrying out collection activities under bioprospectingagreements where not all custodians of traditionalknowledge are party to an agreement for its use.

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Asociacion para la Defensa de los Derechos Naturales(ADN), provided an opportunity to review the thendraft national sui generis law. The meetings enabledthose organisations, which participated in the finalICBG agreements, as well as those which opposedthem, to provide their opinions on the proposed suigeneris law in the light of the ICBG experience.

One of the key concerns of those participating in theworkshops was the potential conflicts which may arisedue to provisions in the Peruvian law on traditionalknowledge which on the one hand recognisedtraditional knowledge as collective cultural patrimony,and on the other hand, granted rights to any individualcommunity to negotiate a contract for use of traditionalknowledge on its own. The traditional knowledge lawprovides that a community negotiating for use oftraditional knowledge should inform other communitieswith the same knowledge of the ongoing negotiations.They are not, however, obliged to provide informationon the terms and conditions of the proposed contract.While the traditional knowledge law recognizes thatcommunities are entitled to utilize customary law toresolve any ensuing conflicts, there are no provisionsfor ensuring this is done. The result may be toundermine customary law, as any community wishingto enter into a bioprospecting contract alone may refuseto recognize its applicability. The conflicts which arose,during the negotiation of the ICBG agreementshighlighted the underlying tensions betweenrecognition of the collective rights of the Aguarunasover their traditional knowledge and the lack of anyfunctional system of collective decision makingamongst all Aguaruna communities to govern whoshould and could negotiate for use of traditionalknowledge.

Based upon their experience with the ICBGnegotiations both workshops came to similarconclusions. These included:

• The draft traditional knowledge law should notbe adopted until full informed participation ofindigenous peoples in its development has beensecured.

• Traditional knowledge is threatened by a widerange of national development policies, lack ofprotection of traditional territories and organizedreligion.

• Traditional knowledge law needs to addressthese multiple threats and should avoidpromoting commercialization of traditionalknowledge.

• National legislation should respect andrecognize customary law and practice and itsrole in regulation of traditional knowledge.

• Indigenous peoples should take the initiative todefend their rights through the development ofcommunity protocols on access to and use oftheir traditional knowledge and biologicaldiversity based upon customary law.

Just over two weeks after the second workshop inAugust 2002, the Peruvian traditional knowledge lawwas adopted by the national congress, with little if anyamendment. The potential for review of the traditionalknowledge law and the adoption of implementingregulations may, however, provide opportunities tosecure amendment, interpretation and enforcement ina manner which more clearly reflects the aspirationsof indigenous peoples, and secures the collective natureof traditional knowledge above any rights of individualcommunities to commercialize traditional knowledge.Proposals for development of community protocols andthe call for a more holistic response to traditionalknowledge protection, should provide guidance fornational authorities for any future work in this area.Despite its failings, the adoption of the law has helpedbring about recognition of rights of indigenous peoplesover their traditional knowledge. Its progressiveimplementation has included the development oftraditional knowledge registers at the national and locallevel.

The level of consensus found in the conclusions of theworkshops is of much importance, demonstrating as itdoes the preparedness and desire of the Aguarunapeople as a whole to play a more direct role incontrolling access to their biological resources andtraditional knowledge. It is also clear from theworkshops outputs that they did not opposebioprospecting per se, but did wish to see it regulatedin accordance with customary law. Furthermore, theyclearly signalled the need for traditional knowledgelegislation to, not only regulate external use, but alsoto support and strengthen local use and continuingdevelopment of traditional knowledge systems. As thenational authorities continue in their efforts to securethe effective implementation of the national traditionalknowledge law, they would do well to reflect upon theresults of the Aguaruna workshops in this area, with aview to addressing traditional knowledge protection ina holistic fashion which will secure its survival into thefuture as a dynamic and necessary part of local,national and international knowledge systems.

4.1.5 Lessons LearnedAnalysis of the ICBG Project in Peru, highlights thechallenges, opportunities and limitations associatedwith the use of bioprospecting contracts as a means toprotect traditional knowledge. In doing so, it helpsidentify measures which may be taken by indigenouspeoples and local communities - as well as privatesector actors, NGO’s and the state - to help ensure thatbioprospecting is carried out in a manner conducive tothe protection of traditional knowledge and traditionalknowledge innovation systems, as well as therealization of fair and equitable benefit sharing. Amongthe lessons which may be taken from this case studyare the following:

Prior informed consent, negotiating contracts andnational traditional knowledge legislation

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• Local community support for bioprospecting isvital to ensure the legitimacy of negotiations andany agreements for access to and use oftraditional knowledge. Where possiblecommunity approval should be sought throughtraditional decision making practices.

• The capacity of indigenous peoples and localcommunities to protect their rights overtraditional knowledge will be reduced wherethey lack unified decision making structures.Such structures may take the form of centralizedfunctional traditional decision makingauthorities and/or unified political organizationswith a capacity and mandate to represent thecollective interests of all traditional knowledgecustodians.

• Collaboration by all organizations representinga particular indigenous people or ethnic groupor of a local or group of associated localcommunities, in the development of communityprotocols, may provide a more equitable meansfor governing access to and use of traditionalknowledge, as well as establishing the basis forequitable benefit sharing.

• In order to ensure the appropriateness,legitimacy and implementation of nationaltraditional knowledge law and policy, nationalauthorities should work closely with indigenouspeoples to develop timely, adequate andexpansive participatory processes in order toenable full and informed participation in thedevelopment of national law and policy.

Bioprospecting contracts, customary law and fair andequitable benefit sharing

• Incorporation of principles drawn fromcustomary law into contractual arrangementswill extend the jurisdiction of customary lawbeyond the boundaries of local community orindigenous peoples’ territories. Such agreementshave the benefit of making users of traditionalknowledge contract into custom.

• Utilization of well-established contractualprinciples and licensing models common tobiotechnology and other commercial sectorsmakes it easier to negotiate functionalagreement.

• Treating traditional knowledge as informationtechnology provides a basis for the creation ofcontractual models which empower indigenouspeoples and local communities to exercisegreater control over use of traditionalknowledge.

• Indigenous peoples should utilize bioprospectingagreements as a means to develop their ownresearch and development activities. This maybe achieved, in part, by incorporating obligationsfor capacity building, access to research resultsand products developed using their traditional

knowledge and biological resources, as well asrights to royalty free licences to utilizeinventions for their own future research anddevelopment activities.

• Making the use of genetic resources dependenton the holding of a valid licence to access anduse associated traditional knowledge extends thecontrol of indigenous peoples and localcommunities over such resources. This willprove important where national legislation doesnot specifically recognize their rights overgenetic resources.

• Indigenous peoples and local communitieswishing to exercise autonomy over theirtraditional knowledge and the benefits derivedfrom its use should establish mechanisms, wherenot already existing, to ensure fair and equitablesharing of benefits. Failure to do so, may leadto state intervention to ensure equitable benefitsharing.

• Indigenous peoples entering into bioprospectingagreements should establish clear procedures forthe making of key decisions regarding anymodifications to agreements, including theirextension, change of parties, revision of benefitsharing etc. Transparency needs to be built intoany process to ensure that the collective interestin traditional knowledge is protected and that theequity of benefit sharing can be secured.

Despite the valuable precedents established by the PeruICBG agreements and their influence on thedevelopment of national traditional knowledge law,their conclusion was not welcomed by all Aguarunafederations, and there was a concerted campaign,supported by a number of international NGO’s, toderail the negotiation process (Greene, 2004). Thisreflected a clear political divide between variousorganizations representing the Aguaruna people as wellas an ideological divide on development strategies. Itwas also fuelled by the lack of clear national legislationon ABS and traditional knowledge, and a lack of anyconflict resolution mechanism to deal with such issues.Although Peru’s TK law provides that communitiesmay use customary law to resolve any conflicts, thelack of any centralized Aguaruna authority reduces thevalue of such provisions.

A future amendment to the law may usefully providefor access to alternative dispute resolution mechanismsmandated to review cases with due reference to andrespect for customary law and practice, and, wherepossible, on the basis of traditional decision makingpractices (such for instance as the IPAAMAMU modelutilized in the ICBG case). This would enhanceopportunities for indigenous peoples and localcommunities to access justice on TK (Taubman, 2005).Legislation should provide a mechanism to enablecustodians of TK to challenge any proposedbioprospecting agreement involving their TK, and

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allow for resolution of the conflict based uponcustomary law and adjudged by relevant experts incustomary law. Selection of experts might be madefrom a panel proposed by representative organizationsof indigenous peoples and local communities.

4.2 Beyond Traditional ResourceManagement: Case of the Potato Park

The Potato Park, located near Cuzco, the ancientcapital of the Inca Empire, is an agricultural collectivethat was developed in 2002 with the support of ANDES(Asociacion para la Naturaleza y el DesarrolloSostenible - a local NGO, based in Cuzco). ANDESfacilitate the efforts of indigenous communities todevelop innovative landscape-based conservationmodels, based on traditional management practices andindigenous knowledge. The Potato Park has broughttogether six Quechua communities for the purpose ofestablishing a preserve where Quechua crops can beconserved, exchanged, developed and protectedaccording to traditional practices, and under theguidance of Quechua community governancemechanisms, based on customary law and practice.

This case study analyzes Quechua communitygovernance mechanisms and their application togovernance of the Potato Park, as well as thecompatibility of these systems with Peru’s nationaltraditional knowledge law. Prior to the creation of thisnational legal regime, customary governancemechanisms of local and indigenous communities hadbeen the primary means of governing the conservation,use and sharing of genetic resources and traditionalknowledge.

The study is based upon a series of interviewsconducted in Lima with individuals who were involvedin the development of the Peruvian traditionalknowledge law, and/or are currently involved in theimplementation of its principles, and/or have significantexpertise regarding this piece of legislation. The secondstage of data collection involved field work andinterviews with representatives of ANDES, and the sixcommunities of the Potato Park. The purpose was tounderstand national and customary approaches togoverning traditional knowledge and genetic resources;how Peru’s traditional knowledge law is likely tostrengthen or weaken traditional resource managementand customary law systems; and what could be doneto make customary and positive systems of governancemore compatible.

4.2.1 Quechua community governancemechanisms

For centuries Quechua community governancemechanisms have defined the parameters for patternsof conduct to which community members adhere(IIED, 2006). An important function of Quechuacommunity governance mechanisms, is to regulate the

way that agro-biodiversity and traditional knowledgeare acquired, shared, conserved, and used. Customarylaws of Quechua communities vary across place andtime, and adapt in response to the conditions and needsof individual communities. For the most part, theselaws are orally held and transmitted from generationto generation. While there is variance between andamongst individual communities, some similarities canbe found within the customary laws of most AndeanQuechua communities.

Almost all Quechua communities share the guidingprinciples of reciprocity, duality, and equilibrium(IIED, 2006). Reciprocity is the belief that what hasbeen received, must be given back in equal measure.The principle of duality holds that everything has anopposite, which complements it. This translates intoa variety of ethical beliefs including the belief thathuman behaviour should not be individualistic (IIED,2006). Finally, the principle of equilibrium refers tobalance and harmony in all aspects of life, includinginteractions with the natural environment. Customarylaws relating to the management of biodiversity arelargely derived from the above-mentioned principles.

Many indigenous communities and NGOs have pointedout the failure of existing international and nationalpolicy and legislation to consider indigenous customarylaws in the formulation of formal laws, and to integrateindigenous governance mechanisms into the largersystem of governance (Argumedo, n.d., 2007).Furthermore, external perspectives of what constitutescustomary law often fails to appreciate the reality oflocal governance structures which frequently do nothave specific modalities for regulating access and useof traditional knowledge by outsiders. For this reason,it has been proposed that a more expansive definitionof customary law is required which takes into accountmore general customary principles or values as well associal norms and beliefs, which may be used as thebasis for helping communities to derive/develop normsfor third party access/use, and for benefit-sharingamongst communities.56

This study has found that the primary function ofcustomary law in communities of the Potato Park is toconserve the complex political, economic, andecological systems that exist at the local level. It alsoplays a crucial role in the overall biological andintellectual diversity that local systems are based upon,which is of crucial importance for ensuring theirresilience and long-term adaptability. One ANDESstaff-member explained that dynamic customarygovernance mechanisms of Andean communities couldbe credited with the very survival of these communitiesthroughout history, in the face of colonization, stateintervention, and the forces of globalization.

56 Pers. Comm. Krystyna Swiderska, 13 February 2009, see alsoIIED, 2006.

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Community governance mechanisms play a particularlyimportant role in guiding community engagement withexternal actors, and institutions including national laws.Traditional institutions have an important function,providing an accepted means through whichcommunities can make collective decisions regardingthe community interpretation and community responseto relevant laws. In other words, if a national lawpresents opportunities to strengthen the complexsystem and diversity in the community, then therelevant authorities may decide to adopt the usefulelements of this law. Alternatively, if a national lawis determined to pose a threat to the local system, thenthe community governance mechanisms will rejectthose elements within the local laws. Although, in somecases, this process may create tensions between the twolegal systems, it is necessary for communities tomaintain strong local governance mechanisms andresist the negative elements of outside influences, whilebenefiting from positive ones.

While it is necessary to avoid the common but falseassumption that there is one “indigenous law”operating in the Andes, there are many commonprinciples, prevalent in the communities of the PotatoPark, which are shared with many other communitiesin the region. Communities of the Potato Park haveover time adapted their customary laws and practicesin order to respond to new challenges and opportunitiesassociated with maintenance of their bioculturalheritage, which has been defined as:

“…the knowledge, innovations and practices ofindigenous peoples and local communities whichare collectively held and inextricably linked toresources and territories; including the variety ofgenes and species and ecosystems; cultural andspiritual values; and customary laws shaped withinthe socio-ecological context of communities.”(Swiderska, 2006)

4.2.2 Community Governance of the PotatoPark

Quechua values of reciprocity, duality and equilibrium(IIED, 2006) provide the framework for the PotatoPark’s approach to protecting the communities’biocultural heritage. Customary governancemechanisms built upon Quechua values, regulate use,access and decision making regarding agro-biodiversityin the Park. These values have also guided the PotatoPark communities in the design and implementation ofa number of innovative activities, including the signingof a historic agreement with the International PotatoCentre (CIP), for the repatriation of native crops, thedevelopment of an inter-community agreement forequitable benefit sharing, and the development of acommunity register to provide both positive anddefensive protection for community resources.

The Potato Park is governed on a day to day basis bya Park’s Council made up of community

representatives. The Council is responsible for guidingdevelopment of sui generis governance mechanismsbased on customary law to regulate the conservationof the Park’s biodiversity, ecosystems and thecommunities’ Quechua culture (Koerner, 2005). Theyhave adopted a holistic approach to development of thisgovernance system, with a view to protecting thebiocultural heritage of the communities. Thisbiocultural heritage includes not only biodiversity andtraditional knowledge but also traditional communityresource management practices.

The Potato Park communities’ customary law remainsdynamic, and is the means by which decisions are madeto ensure coherence of complex local governancesystems. Within the communities of the Potato Park,there are two distinct systems of local governanceoperating. On one hand, each year the communitieselect an authority to represent the community withinnational political processes. This system of localgovernance was imposed through a state mandatedinitiative in the 1960s. These community officials aremainly responsible for providing the link with nationalauthorities and the state led processes. There is also aparallel system of customary governance operatingalongside this formal system in many Andeancommunities, and in all of the communities of thePotato Park: This is the traditional governance system.These authorities continue to exert a great deal ofinfluence in the communities of the Potato Park, andin many Andean communities. Most of the structuresand institutions that have existed in communities priorto the 1960’s and the creation of the formal system,remain under the jurisdiction of the traditionalauthorities. For example, the traditional assembly ofthe communities, remains under the sanction of thetraditional authorities and is responsible for decision-making regarding land distribution, water management,and resolution of conflicts.

A collaborative governance structure, linking the sixcommunities of the Potato Park, constitutes the third -and most unique - type of governance structureoperating in these communities. The Potato Park’sgovernance strategy was developed through a co-evolutionary exchange of ideas, and a common beliefin the need for a collective approach to conserving theentire landscape of the region. Each community nowhas an additional elected official known as a “barefoottechnician” who is responsible for coordinating andrepresenting the community in Potato Park decisionmaking, and for collaboration with ANDES on PotatoPark related activities. While the Potato Parkgovernance system is recently created, it is derivedfrom traditional governance principles and modes ofoperation, and closely linked with the traditionalgovernance mechanisms of each of the sixcommunities.

An intercommunity agreement is in the process ofbeing negotiated, which will provide a commonstrategy for landscape conservation and identify

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common principles related to access and benefitsharing. Because both the governance mechanisms ofthe Potato Park and the Inter-community agreement arebased on customary principles common to the sixcommunities, they are considered to be derivative ofcustomary law. All community efforts to protect geneticresources and traditional knowledge, originate from theideological position that traditional knowledge andgenetic resources cannot be separated from thelandscape and Cosmo-vision within which they weredeveloped and are being conserved. Accordingly, theseefforts are just one part of a larger collective effort toconserve the landscape, and the complex systems inwhich these resources are situated.

The traditional process for making a decision regardingaccess to and use of resources and knowledge requiresthat an external agent present proposals to thetraditional community assembly, and clearly explainhow each party will benefit from the exchange. Theassembly, consisting of traditional authorities, will thenmake a private decision based on both the intentionsof the outsider, and the potential benefits for thecommunity. There is no general rule of thumb formaking such decisions; instead, each decision will bemade on a case by case basis, considering eachsituation independently. The importance of communitygovernance mechanisms in this regard, is that they helpto ensure that knowledge and resources are shared ina way that benefits, rather than destroys or undermines,the community way of life. While communitymembers acknowledge that there are various occasionsupon which they will turn to an external organization- such as ANDES - to ask for guidance or training,ultimately, all decisions are made through internalinstitutions and decision making structures, andcommunities remain in full control of their owndecisions.

The basic premise governing exchange and sharing ofresources within the Potato Park is the Andeanprinciple of reciprocity (or anyi, in Quechua). As onecommunity member put it, this means that “Goodintentions are met with good intentions”. Whenmaking decisions regarding the exchange of theseresources, decision makers will take into account whythe outsider wants access to these resources, and howexternal agents are likely to use these resources in thefuture. While some resources will be readily sharedwith an outsider who expresses a justifiable need, thecommunities hold that there are other resources whichrequire complete secrecy.

4.2.3 Customary Governance and Peru’ssui generis traditional knowledge law

Policy makers and legal experts, as well as communitymembers and staff members of ANDES, revealed anumber of areas of compatibility shared by the nationaland local legal regimes. For example, both nationalauthorities and the Potato Park communities haverecognized that biopiracy is a significant threat that

cannot be prevented by traditional governancemechanisms alone. While traditional governancemechanisms are the primary means of making decisionswithin communities, and sometimes even betweencommunities, it is very difficult for communities toenforce these mechanisms on outsiders and prevent themisappropriation of their resources. In order to addressthese issues, communities need the support of externalinstitutions in order to protect their rights overtraditional knowledge and genetic resources. At thesame time, traditional governance mechanisms areintegral to the maintenance and conservation oftraditional knowledge and genetic resources withincommunities. So while traditional governancemechanisms are not capable of being entirely effectiveon their own, they can and must play an important partin the state institutional structure for the protection ofthese resources.

Policy makers explained that Peru’s traditionalknowledge law was designed to be as non-authoritarianas possible, and to give as much decision makingcontrol as possible to indigenous peoples through theenforcement of prior informed consent. While it wasthe “representative organizations” rather than thecommunities themselves that were granted the authorityto provide prior informed consent, the national suigeneris traditional knowledge law does demonstrate awillingness of the state to decentralize decision-makingwith regard to traditional knowledge.

4.2.4 Objectives, nature and form ofprotection,

Peru’s traditional knowledge law and the CBDoriginate from a Western perspective of the world andassociated concepts of knowledge and property rights.Customary Governance mechanisms, on the otherhand, originate from an entirely different Cosmo-vision. Thus, it is not only the principles of theparticular legal regimes that will need to be reconciled,but also their fundamental moral and ethicalunderpinnings.

There is a general sentiment among communitymembers - and even some policy makers - that thenational sui generis law is too narrow, focusingprimarily on issues relating to commercialization andcommoditization of traditional knowledge. The lawemphasizes biopiracy or outside misappropriation ofthese resources as the principle threat to theconservation of traditional knowledge and geneticresources, giving little attention to the need tostrengthen and support traditional knowledge systemsfor their wider cultural, social, ecological, spiritual andintrinsic values. While there is general support forgovernment’s efforts to address the threat of biopiracy,without a cross-sectoral approach to protection oftraditional knowledge and traditional knowledgesystems their long term sustainability cannot beassured.

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There are a wide range of opinions regarding what itmeans to truly “protect” traditional knowledge. On onehand, within the circles of policy makers and legalexperts, “protection” is commonly considered in termsof protecting against biopiracy and protectingindigenous communities’ rights to commercialize andreceive monetary benefits from outsiders’ use of theirresources. An alternative vision of protection promotedby community members as well as a number of otherinterviewees is much more holistic. This vision, whichrecognizes the embeddedness of these resources withincomplex local systems, and the importance ofmaintaining decision-making control within thecommunity, is principally concerned with the protectionof the day-to-day uses of these resources within thecommunity. It also encompasses the right to land, theprotection of the free flow of seeds, as well asmaintaining control of these resources so that they canbe passed on to future generations. In addition to thethreat of biopiracy, there were other threats identifiedby members of the Potato Park, such as Westerneducation, agricultural extension and the introductionof modern technologies, encroaching urban centres,outward migration, and the loss of culture and languagewithin the communities.

From the perspective of communities, protection alsorequires support for communities in their day-to-dayuse and development of local crops, and in maintainingcontrol of these resources within the community. Atthe very least, national legislation must be designed soas not to undermine other aspects of the complex localsystem in its effort to protect these resources. Giventhat the purpose of Peru’s traditional knowledge lawis to benefit indigenous peoples and local communities,and its approach is intended to be as non-authoritarianas possible, there may be a possibility for meaningfulco-management whereby state legislation aids in therecognition and external enforcement of traditionalgovernance mechanisms for the protection oftraditional knowledge. Given the integral role andfunction of traditional governance in the maintenanceand conservation of traditional knowledge and geneticresources, it is imperative that any national law for theprotection of traditional knowledge must strengthenrather than undermine these local mechanisms. Anysystem that does not account for these local systems,is not likely to achieve the long-term objective ofconserving traditional knowledge and geneticresources.

Communities of the Potato Park, have a deep-rootedconcern and suspicion of the dominant legal system,in particular intellectual property rights regimes relatingto patents. Overcoming such suspicions will requiremore concerted efforts to address traditional knowledgeprotection in a holistic fashion with full participationof its custodians. In order to obtain the legitimacyrequired to effectively protect traditional knowledge,efforts will need to be undertaken to secure theconfidence of communities and overcome their strong

perception that the dominant legal order cannot berelied upon to protect their rights over traditionalknowledge. It is worth noting, however, that the PotatoPark communities, while continuing to viewintellectual property in the form of patents withsuspicion, have come to view certain intellectualproperty tools as potentially advantageous. Theseinclude, for instance, trademarks and geographicalindicators. They are also exploring the potential ofusing local community certificates of origin57 and haveestablished a local registry of traditional knowledge(based upon traditional recording practices of the Incas)as a means to protect their rights. Communities whichhave developed a clear understanding of the potentialand limitations of intellectual property and other legaltools as a means for traditional knowledge protection,are in a better position to adopt and/or developmodified versions of such tools in order to creativelybridge the gap between customary and positive lawsystems of governance.

At the local level, it is evident that it is conceptuallyimpossible to separate traditional knowledge andgenetic resources from the landscape and the Cosmo-vision in which they are embedded, developed andconserved. It is thus necessary for any effective effortaimed at the conservation of traditional knowledge, toaddress not only the need to conserve these particularresources, but also the complex systems in which theyare situated. This may be achieved where national lawrecognizes and respects the capacity of Andeancommunities to govern their local resources throughtraditional resource management practices, which arean integral facet of traditional knowledge in itself.

4.2.5 Participation, PIC, and legitimaterepresentation

Background research and interviews with policymakers and legal experts regarding opportunities forindigenous participation in the development of thenational traditional knowledge law, showed that thesehad been limited58. Despite positive intentions, thedesign of national traditional knowledge law was alargely top-down process beginning with thenegotiation of the CBD. Communities of the PotatoPark believe that, in order to ensure the legitimacy andeffectiveness of Peru’s traditional knowledge law, it isessential that indigenous peoples be given theopportunity to participate meaningfully in its review,adaptation and implementation, including in the

57 See for discussion of certificates of origin, Tobin et al. (2008)Certificates of Clarity or Confusion: The search for apractical, feasible and cost effective system for certifyingcompliance with PIC and MAT, UNU-IAS, Yokohama.

58 For a detailed discussion of the participative processassociated with the development of Peru’s TK law, see TobinB. and K. Swiderska, (2001) Speaking in Tongues: Indigenousparticipation in the development of a sui generis regime toprotect traditional knowledge in Peru, IIED. London.

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process for development of any necessary regulations.This implies the need for a more participative nationalprocess involving indigenous peoples and localcommunities across Peru - even if this meanssignificantly adapting the current legal framework.

Although the national sui generis regime andcustomary governance regimes are not as yet entirelycompatible, it is significant that they are neither staticnor inflexible. It is widely recognized by policy makersthat the level of indigenous involvement indevelopment in the Peruvian traditional knowledge lawwas minimal. It may, therefore, best be seen as a workin progress, recognizing that it will need to be modifiedover time as it is being implemented, in a process oftrial and error. Similarly, the very nature of customarylaw is a system of governance that is dynamic andchanges over time to adapt to new realities, bothinternal and external to the community. Thecommunities of the Potato Park recognize that it ispossible to benefit from outside opportunities and thatit is not to their benefit to remain in isolation.

Despite the adoption of the Peruvian traditionalknowledge law, communities of the Potato Park remainunconvinced of the commitment of policy makers tohear their voices, respect their rights and legal regimes,and to faithfully represent their interests and concerns.Where PIC procedures - regulated by localcommunities and indigenous peoples in accordancewith their own customary laws and practices - are fullyrecognized and enforced by national law, this will helpto build trust and serve as the basis for morecollaboration between national and customary legalmechanisms for protection of traditional knowledge.Article 14 of the Peruvian traditional knowledge lawprovides that indigenous peoples are to be representedby their “representative organizations,” with dueconsideration being given to their traditional forms oforganization. By granting decision making control to“representative organizations,” the regime assumes thatthese organizations, which are not defined under thelaw, are capable of representing the “indigenousperspective”. This does not account for the fact thatthere is not one “indigenous law,” but a diverse andsometimes competing series of “customary laws”across indigenous communities.

Through national legislation, Peru has imposed newforms of political authority to represent indigenouspeoples and local communities in their dealings withthe state. In some cases, these have replaced traditionaldecision making structures, while in others they existin parallel with – and, at times, in competition with -customary legal authorities. Indigenous peoples andlocal communities have also established a wide rangeof political organizations at the local, regional, andnational level, whose authority in decision making mustalso be considered. The reference to “representativeorganizations” in the traditional knowledge law isambiguous regarding which “representativeorganization” is deemed to hold the authority for

decision making. The communities of the Potato Parkhave stressed their opposition to any interpretation ofthe national traditional knowledge law which wouldgrant authority to externally-imposed institutions togrant PIC for access to or use of their resources orknowledge. They argue that such organizations do notadequately represent them, and that they do not feelcomfortable with organizations, imposed by nationallaw, making decisions on their behalf. The law requiresclarification, therefore, in order to avoid conflictsbetween and within indigenous peoples and localcommunities and “representative organizations” whichhave not been freely chosen by them to represent theirinterests, but have instead been imposed upon them bynational law.

4.2.6 Awareness and capacity building.There is a need for awareness and capacity buildingand intercultural exchange between those individualscreating policy and those who will be most affected byits impacts. It is evident that policy makers would bemore effective in their roles if they had a more vividand nuanced understanding of the reality and nature ofcommunities, and of what these communities have beendoing for millennia to govern and manage theirresources. A second benefit of establishing awarenessand capacity building processes, would be theeducation of policy makers, enforcement authorities,and administrative authorities, in order to supportrespect for customary law and more sensitive protectionof traditional knowledge. In particular it is importantfor policy makers to understand the complexity ofcommunity traditional resource management,knowledge sharing and development, as well as theimportance of customary law and practice inmaintaining traditional knowledge and traditionalknowledge systems as well as the diversity that sustainsthem.

Awareness and capacity building of communities isalso vital. There is a deep suspicion of outsiders’interest in community resources and knowledge, andwith regard to the intentions of national regulators inadopting Peru’s traditional knowledge law. Buildingimproved communication pathways and educationalsystems which respect and support traditionalknowledge development, may serve to reducesuspicions and open the way to greater collaborationon traditional knowledge management and protection.Although there is general suspicion of dominant legalinstitutions and tools, including intellectual propertyrights, with the Potato Park the communities haveshown a preparedness to adopt or adapt some toolssuch as trademarks, and local registers to meet theirown needs. Building greater understanding of otherWestern legal tools, their strengths and limitations andhow they could be utilized to support their interests andefforts will further empower communities to makemore informed decisions. At the same time, educationand capacity building efforts are required to enable

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communities to evaluate the opportunities andmodalities available at all levels to secure andstrengthen traditional governance mechanisms andsecure respect and enforcement of their rights inaccordance with customary law at the local, nationaland international, levels.

4.2.7 Lessons LearnedAnalysis of the experience of the Potato Park and itsrelationship to the development and implementation ofnational traditional knowledge legislation, highlightsthe need for new institutional and organizationalstructures to enable meaningful participation ofindigenous communities in decision-making processes.This is requisite if customary governance mechanismsare to become part of the institutional structure for theprotection of traditional knowledge in Peru.

It is clear that indigenous peoples and localcommunities on their own, will not be able to protecttheir resources and traditional knowledge (other thantraditional knowledge held in secret) from threats suchas biopiracy. There is, therefore, a need forcollaboration on various levels with external actors inorder to have customary law enforced outside of itstraditional jurisdiction. One emerging possibility, willbe to link more closely with local and regionalgovernments which have been granted significant newpowers in an ambitious decentralization processcurrently under way in Peru. While concerns do existabout the reliability of local governments, they seemto generate a greater level of trust and understandingwith local communities than central governmentauthorities.

It is evident that the Peruvian traditional knowledgelaw’s reliance on “representative organizations” tomake decisions on behalf of indigenous communitiesis not popular with the communities of the Potato Park.At the same time, in order to minimize conflictsbetween communities sharing the same resources, andrecognizing that there is not one indigenous lawoperating in communities across Peru, it is necessarythat communities develop some way of communicating,collaborating and making collective decisionsregarding shared knowledge and resources. Where, asin the case of collective governance of the Potato Park,such collaboration and collective decision making isbased on customary legal principles, it is more likelyto find legitimacy among TK custodians. Ifcommunities are willing to work with the local andregional governments in this process, it may makesense for each region to develop an indigenousinstitution to support this function. Steps in thisdirection have been recently taken with the adoptionby the Cuzco region of local regulations on biopiracyand protection of traditional knowledge.59

The Cuzco regional law on biopiracy and protectionof traditional knowledge, makes access to traditionalknowledge dependent upon the prior informed consentof indigenous and local communities, sets outconditions for benefit-sharing and places limitationsupon the grant of patent rights over genetic resources.It also provides for the establishment of locallyproduced and controlled registers of traditionalknowledge.60 Although, it is as yet too early todetermine the full significance of the adoption of suchregional legislation, it has been welcomed as “a goodexample of how local governments can create theappropriate legal and institutional framework, as wellas the mechanisms to implement it, to ensure thatbiopiracy does not prey on the creativity of indigenouspeoples and local communities.”61 It is to be hoped theadoption and implementation of such regionallegislation will ensure that protection of traditionalknowledge will be more closely aligned to the realities,needs, interests and customary legal regimes oftraditional knowledge custodians, such as thecommunities of the Potato Park.

Recognizing the importance of community traditionalgovernance mechanisms, indigenous peoples and localcommunities may consider the benefits of developingcommunity protocols as collective statements abouthow requests for access to TK and genetic resourcesare to be made and processed. In order to protecttraditional knowledge once it travels beyond thejurisdiction of custodians the designers of communityprotocols will need to consider how they may beimplemented and enforced with the support of bothlocal government and national authorities.Communities may wish, individually at a local level oracross a region, to create their own protocols, definingconditions for access to genetic resources andtraditional knowledge. Local and regional governmentmay then play a role in linking with the state in theeffort to enforce these protocols.

Given the high degree of misunderstanding andsuspicion within the communities towards the state andstate institutions, securing meaningful participation ofindigenous peoples in the review, adaptation andimplementation of Peru’s traditional knowledge lawwill provide an extremely important opportunity forchanging perceptions and attitudes regarding state-community collaboration. In order for traditionalknowledge legislation to respect and correspond withcustomary governance mechanisms it is imperative thatthe pressures stemming from international agreementsare balanced with the needs, interests and conservationmethods of indigenous peoples and local communities.

59 O.R. Nº048-2008-CR/GRC

60 http://tkcommunity.blogspot.com/2009/01/cusco-law-on-indigenous-knowledge-and.html

61 Comments of Alejandro Argumedo, Director of AsociacionAndes on the adoption of the Cuzco law, http://tkcommunity.blogspot.com/2009/01/cusco-law-on-indigenous-knowledge-and.html

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A comparative analysis of the ICBG and Potato Parkcases, demonstrates the importance of pro-active effortsby indigenous peoples and local communities todevelop their own strategies and mechanisms forprotection of traditional knowledge, if they wish tosecure community control and a central role forcustomary law in traditional knowledge governance.They also show the influence such experiences canhave on the development of national and localgovernment regulations in this area. Furthermore, theyprovide evidence that indigenous peoples and localcommunities, when provided with the opportunity,resources, support and capacity, are able to negotiateand establish innovative agreements with private sector,research and international institutions which enhancetheir opportunities to benefit from and strengthen theirtraditional knowledge base.

Although, the ICBG bio-prospecting negotiations tookplace in the absence of national legislation on ABS andtraditional knowledge, the final agreements remain oneof the most precedent-setting examples of abioprospecting agreement conforming to the aims andprinciples of the CBD. Both sets of ICBG negotiationsand the agreements themselves, informed thedevelopment of the Peruvian sui generis law for theprotection of traditional knowledge, in effect providingthe model for the licensing regime upon which the lawis based. In a similar fashion, the communities of thePotato Park, through their development of local suigeneris mechanisms based on customary law,influenced the development of Cuzco’s regional law onbiopiracy and protection of traditional knowledge.

In the case of the ICBG negotiations, the Peruvian stateleft it up to the parties to negotiate on their own termsin an unregulated environment. Today, the Law for theProtection of Traditional Knowledge gives stateinstitutions a clear role to play in such negotiations, yetmany of the same questions still remain.

Questions such as:

• Who has the right to negotiate on behalf ofindigenous communities?

• Are bio-prospecting agreements likely to createconflict amongst indigenous and localcommunities sharing the same knowledge andresources?”

• How can customary law adapt to respond to newrealities facing indigenous and localcommunities?

• What changes are needed to ensure thatinternational and national laws on traditionalknowledge and ABS support, rather thanundermine, customary institutions, decision-making structures and laws of indigenouscommunities?

Section V: Comparative Analysis of Case StudiesBoth case studies demonstrated the problematic natureof determining who should represent indigenouscommunities when making collective decisionsregarding shared resources. A major source of conflictin the ICBG negotiations, was the lack of a unifieddecision making structure uniting Aguarunas. Whilemany Aguaruna communities do align themselves withlocal and regional representative organizations, thereis no one body that represents the Aguaruna people asa whole. This resulted in significant conflicts amongstcommunities, indigenous representative organizationsand even saw international NGOs taking sides in aninternal matter which should have been left to theAguarunas to decide. These conflicts overshadowedinformed debate of the ICBG project in Peru and stifledinformed analysis of the important lessons which canbe learned from both the strengths and weaknesses ofthe negotiation process and the agreements themselves.

The cases show that the potential for conflicts betweencommunities over rights to negotiate for access totraditional knowledge which existed before theadoption of the national traditional knowledge law, stillremains. The potential for conflict may indeed havebeen exacerbated by the law, which creates tensionsbetween collective cultural patrimony and individualeconomic interests and undermines customary law andtraditional decision making authorities.

In the first place, as a result of the diversity of interestswithin and between indigenous communities sharingtraditional knowledge and genetic resources, there isa real risk that any benefits received by communitiesmay be outweighed by conflicts over rights to enter intoagreements and the sharing of benefits betweencommunities. These problems may potentially beresolved, if indigenous peoples and local communitiesare given an opportunity to participate fully in arevision of the law and development of implementingregulations. In the absence of such opportunity, thecustodians of traditional knowledge may be advised todevelop collective community protocols to governissues of access to, and use of, shared genetic resourcesand traditional knowledge.

In the second place, the law on traditional knowledgeprovides that “representative organisations” rather thantraditional decision making authorities have the rightto enter into agreements for use of traditionalknowledge. Although this term may be open tointerpretation, in the absence of clearer definition itappears to empower decision-making structuresdeemed inadequate by local communities. Communitymembers of the Potato Park emphatically insisted that“representative organizations”, established by nationallegislation in Peru, do not have any legitimacy to makedecisions on access to and use of their traditionalknowledge and genetic resources. Should they attemptto do so, the communities have made clear that this

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would run counter to customary governance practicesand be unacceptable to them.

Both case studies indicate that traditional governancestructures and customary law remain vibrant, flexibleand dynamic mechanisms capable of responding to newrealities in the governance of traditional knowledge andbiodiversity. In the case of the ICBG negotiations,customary governance mechanisms of the Aguarunapeoples informed and inspired the IPAAMAMU whichprovided the basis for future negotiations. While, thecircumstances of negotiating a high profileinternational bio-prospecting agreement were entirelyunprecedented for the Aguaruna peoples, thenegotiations were given legitimacy through aparticipatory decision-making process based uponcenturies old practice adapted to meet presentchallenges. In the case of the Potato Park, theadaptation of Quechua customary governancemechanisms which guide daily life and resourcemanagement strategies of local communities, haveproven a firm basis upon which to develop acollaborative governance system based on customarylaw principles for the Park.

While the case studies indicate that customary law isflexible, dynamic and capable of responding to newrealities, a major problem evident in both cases is howto leverage these customary governance mechanismsto make collective decisions on behalf of a wide rangeof communities sharing similar traditional knowledgeand resources, and how to apply these mechanismsoutside of the community. The challenges posed bythe existence of a multiplicity of local organizationsand national representative organizations, with oftimescompeting interests and perspectives, demonstrates theneed for innovative and collaborative processes todevelop measures based on customary law which mayserve as the basis for internal regulation of sharedtraditional knowledge. At the same time, they mayserve to present a common framework for thoseapplying for access and use rights.

Where indigenous peoples and local communities makedecisions regarding biological resources and traditionalknowledge in a fragmented fashion, underminingcustomary governance mechanisms and marginalizingcommunities left out of the decision making process,the inevitable result will be conflict and a race to thebottom. The experience of the Potato Park provides anextremely useful example of how communities cancome together to develop new institutions and lawsbased on the fundamental principles of their customarylaw. In the years leading up to the formation of theagricultural collective that exists today, thecommunities of the Potato Park had experienced inter-community conflict and even violence. A veryimportant precedent is set by the ability of thesecommunities to draw upon the fundamental principlesthat they share in common, resulting from their sharedQuechua heritage. The experience of the Potato Park,indicates that it is possible for communities sharing a

similar Bio-Cultural Heritage to derive new collectivedecision-making structures from those fundamentalelements of customary law that they share. Likewise,Aguaruna communities reviewing the ICBGexperience, seven years on, were able to put asidedifferences regarding the agreements and draw upontheir collective experience to inform their considerationof Peru’s then draft traditional knowledge law.

The realities of the present international and nationallegal landscape require that indigenous and localcommunities in Peru develop new mechanisms to makedecisions collectively regarding the traditionalknowledge and resources that they share in common,and to find a way to build bridges so that thesecollective decisions can be applied outside of thecommunities. Both case studies, provide examples ofhow customary legal principles can be used to shapenew local approaches for governing traditionalknowledge that reflect changes in the national andinternational legal terrain. In the case of the ICBGagreement, customary legal principles were used toinform the process of negotiations, as well as tostrengthen opportunities for Aguarunas to applycustomary law to PIC procedures and control ofcollection activities, while ensuring to the greatestextent possible that community values would be upheldwith regard to access to and use of resources. In thecase of the Potato Park, Quechua customary legalprinciples and decision making processes have beenused to develop local sui generis mechanisms forgoverning traditional knowledge and genetic resourcesin the face of new threats and opportunities. Whilecommunities of the Potato Park for the most partremain quite suspicious of state intervention,community members expressed optimism about the useof certain Western legal tools such as communityregisters and trademarks as well as the possibility ofworking with local governments to protect theircustomary governance mechanisms.

The role of customary law and traditional decisionmaking authority, will be enhanced where indigenouspeoples and local communities define and apply, bothinternally and externally, clear policies and regulationson access to and use of their biological and geneticresources and traditional knowledge. Communityprotocols outlining such policies and regulations areseen as one of the most promising means forempowering indigenous peoples and localcommunities, and for redefining the debate on how torecognize and respect customary law. Communityprotocols allow communities to build upon localcapacities for the management of their traditionalknowledge, while at the same time maintainingdecision-making control firmly within the community.Efforts to create community protocols are important inorder to reduce the risk of conflict betweencommunities sharing similar knowledge and resources.As in the case of the Potato Park, it is possible thatefforts of Peruvian communities to establish

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community protocols may provide the added benefit ofreinvigorating discussions about the importance ofculture, traditional practices, and traditional governancemechanisms.

Development of community protocols can place theinitiative in the hands of indigenous peoples and localcommunities. The Potato Park demonstrates thepositive benefits of collaboration among a smallnumber of Quechua communities, who have been ableto agree on common principles for governing theirresources within the context of national andinternational law. This alliance would be greatlystrengthened in the event that resources and politicalwill could allow for the participatory development ofa Quechua- wide community protocol setting outminimum requirements for outsider use of Quechuashared resources. Development of similar protocols onan ethno-linguistic, ecosystem wide or regional basis,would place customary law at the heart of regulationof traditional knowledge.

In this vein, a cross border Bio-cultural protocolgoverning access and benefit sharing, relating to sharedbiological and genetic resources and traditionalknowledge held by Jivaro communities in both Peruand Ecuador, as has been proposed by the Aguaruna,could play an important part in helping to define therole of customary law in traditional knowledgegovernance at the national and international level.Rather than waiting for the development of nationaland international law, indigenous peoples couldthrough such action take the initiative and play a moreproactive role in defining mechanisms for PIC,contractual arrangements and benefit sharing.Protocols of this nature need not be complex and highlyworked out sets of rules, though they may indeed beso. They should however define a minimum process,identify who is entitled to provide PIC and negotiateaccess agreements and benefit sharing provisions, as

well as providing guidance and a link to an internalcommunity procedure for processing accessapplications.

In order to ensure complementarity between nationallaw and customary governance systems, it is importantfor indigenous and local peoples to be actively involvedin processes for the development and implementationof positive law. Both case studies identify the need forindigenous and local peoples to be involved in asignificant way in the development, revision andimplementation of Peru’s traditional knowledge lawand secondary regulations. Development ofmeaningful opportunities for participation, will requirecapacity building of indigenous peoples and localcommunities, as well as of state representatives,national authorities, NGOs, and scientific and privatesector actors. Planning of participatory processes, willneed to factor in the time and resources required toenable full informed participation of indigenouspeoples and local communities and must includecommitment of political support and funding. To makeany process meaningful, participation of indigenouspeoples and local communities must enable them toinfluence the outcome of relevant legislative andadministrative decision-making processes.

Despite a prolonged national debate on thedevelopment of Peru’s traditional knowledge law, bothcase studies demonstrate concerns by indigenouspeoples and local communities about a lack ofopportunities to influence the outcome of the process.The challenge for national authorities will now be toensure greater buy-in by custodians of traditionalknowledge in its future review, adoption ofimplementing regulations and development andmanagement of registries, as well as in thedevelopment of a more holistic approach to nationalprotection of traditional knowledge.

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Customary law is closely tied to ethical, cultural andspiritual principles of indigenous and localcommunities and its application does not necessarilyfollow the logic of positive law. This makes it difficultto build functional bridges between systems with verydifferent objectives. It does not, however, make itimpossible and, with due care and full and informedparticipative processes, effective interfaces may bedeveloped between positive and customary lawsystems. Caution will need to be exercised in thecreation of institutions and mechanisms to implementcustomary law in order to avoid constraining customarylaw’s dynamic nature and potential to respond to newchallenges as they emerge. Respect for the form andnature of customary law, means that no pressure shouldbe brought to require its codification, which wouldinevitably undermine its flexibility, continuity andfuture legitimacy. However, relying on existing oralcustomary law alone will not provide the bridge neededto ensure respect for customary law by national andinternational law. Responding to these challenges mayrequire the development of new organizational andinstitutional structures, as well as the adoption of newmodalities and mechanisms for resource andknowledge management, as has taken place throughoutthe course of history as indigenous peoples and localcommunities adapt and respond to new realities. Thesenew structures and mechanisms will need to be basedupon, and express, customary legal principles if theyare to ensure the continuing legitimacy, adequacy anddynamism of community resource and knowledgemanagement practices.

Amongst the steps required to secure protection oftraditional knowledge, will be development ofmechanisms which secure greater indigenous and localcommunity participation in the adoption, review andimplementation of relevant law and policy; adoptionof a human rights approach to traditional knowledgeprotection; respect and recognition for the role ofcustomary law, as the foundation for traditionalknowledge regulation; establishment of functionalinterfaces between customary and positive law regimes;preparedness and capacity of national authorities tosecure enforcement of customary law; the need forcohesion amongst indigenous peoples and localcommunities in defence of their interests; and, finallya more holistic approach to traditional knowledgeprotection, which focuses on both protection andstrengthening of traditional knowledge and theknowledge systems from which it derives.

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

1. Peru’s traditional knowledge law as well as theCBD originate from a Western view of the

world, and are based upon legal systems aliento indigenous peoples and local communities.Customary governance mechanisms, originatefrom an entirely different cosmovision basedupon reciprocity in which the earth and itsnatural bounty are both provider and recipientof gifts to and from humankind. Traditionalresource and knowledge governance isdesigned to maintain balance between use,sharing and protection of biological diversity,traditional knowledge and the traditionalknowledge innovation systems upon whichthey depend. Securing effective protection oftraditional knowledge will, therefore, requirenational and international authorities to workclosely with indigenous peoples and localcommunities if national measures are toeffectively complement and build uponcustomary systems of traditional knowledgegovernance.

2. In order to achieve appropriate,comprehensive, effective and culturallysensitive protection of traditional knowledge itwill be necessary to ensure that customary lawand positive law work complementarily.Achieving this, will require commitment fromactors at all levels, including not only the Statebut also indigenous peoples and localcommunities themselves, who will need todevelop coherent and cohesive policies if theirinterests are to be fully secured. NGO, researchand private sector actors will also need to givedue respect and recognition to the rights ofindigenous peoples and local communities tomake decisions over their resources andknowledge, in accordance with their customarylaws and decision making authorities

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

3. Protection of traditional knowledge isinextricably linked to realization of indigenouspeoples’ and local communities’ human rights.These include rights to food, health andfreedom from hunger; to education, culture,land and traditional territories and biologicalresources; to development, human dignity; andperhaps most importantly to self-determination.Realization of these rights is both reliant upon,and necessary for, effective protection oftraditional knowledge.

4. Self-determination is crucial to securingcultural diversity and the effective realisationby indigenous and tribal peoples of the fullmeasure of their individual and collectivehuman rights. Respect and recognition for

CONCLUSIONS

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customary law is fundamental for securingrights to self-determination. Customary lawand traditional authorities should not, however,be used as a screen for systematic breaches ofindividual human rights, in particular the rightsof women.

5. Adoption of a human rights approach is vitalto ensure that national, regional andinternational measures for protection oftraditional knowledge are not subordinated totrade interests - whether of national elites, ofthe private sector or of dominant industrialnations. Particular care needs to be taken toensure that national and international law onprotection of traditional knowledge is notundermined by bilateral free trade agreements.To this end, the international communityshould approach the development of law andpolicy on traditional knowledge in a mannerwhich supports and helps to enforce countries’obligations to respect, protect, and fulfil thehuman rights of indigenous peoples and localcommunities.

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

6. The extent to which customary law andpractice will play a role in defining issues suchas prior informed consent, negotiation ofagreements, benefit sharing, contractenforcement and project monitoring, will beinfluenced by the extent to which it continuesto hold legitimacy among indigenous peoplesand local communities. In some cases, halfforgotten or lapsed customary practices may beunearthed, in others existing practices may becontinued or strengthened, while in other casespractices may draw upon both community andnational legal systems.

7. National law and policy should provide supportfor, and not undermine, customary legalregimes where subsisting. In particular there isa need to ensure that collective rights overcultural patrimony are not undermined bymeasures designed to facilitatecommoditization or access to traditionalknowledge and genetic resources.

8. To the greatest extent possible, traditionalknowledge law and policy should supportconflict resolution between and amongindigenous peoples and local communitieswhich share traditional knowledge, prior toaccess by third parties. Where this cannot beachieved, the state may need to intervene toensure protection of collective rights overcultural patrimony, and the fair and equitablebenefit-sharing between and withincommunities. Where this is required, decisions

on access and benefit sharing should as far aspossible be based upon the customary laws ofindigenous peoples and local communities.

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

9. Protection of traditional knowledge cannot beaddressed by customary governancemechanisms alone. For this reason, it isessential that functional interfaces beestablished to build bridges between customaryand positive legal regimes and their respectivedecision making authorities, at the local,national, regional and international levels.Links will also be required with judicial,dispute resolution and administrative bodies, aswell as with enforcement agencies. Animportant barometer of the adequacy of suchlinkages will be the ability to provideindigenous peoples and local communities withaccess to justice, including remedies forbreaches of contract and misappropriation, aswell as protection of intellectual property, suigeneris property rights and moral rights overtraditional knowledge.

10. Defining the mechanics for securing respectand recognition of customary law in ABS andtraditional knowledge regulation at the nationaland international level, will require expertisefrom indigenous peoples and localcommunities, legislators, legal practitioners,jurists and other specialists in a wide range ofareas. This includes, not only experts incustomary law, but also in areas such ascontract law, tort, international trade law,conflict of laws, and human rights.

11. Further research is required to determine themodalities and extent to which customary lawcan and may be enforced on third parties actingwithin and outside of the local jurisdiction ofindigenous peoples and local communities.

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

12. A central part of any ABS and traditionalknowledge regime, will be compliancemeasures to prevent unapproved anduncompensated access and use of geneticresources and traditional knowledge. Nationaland international judicial forums and conflictresolution mechanisms, will need the mandate,will and capacity to apply customary law asappropriate in the resolution of disputes. Thiswill require a sustained capacity developmentprogram at all levels to ensure that indigenous

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and local community claimants are providedwith access to remedies for breach of theirrights.

13. In order to ensure access to justice, it will benecessary to adopt measures to overcomeimpediments facing indigenous peoples andlocal communities including: opportunities,resources and capacity, to identify breaches ofrights; ability to secure a presence beforejudicial and other enforcement authorities;restrictions such as provision of visas; costs ofjudicial proceedings; and access to independentand adequate legal representation. Existingrules on the sources of law, evidence, standingbefore the courts and recognition of foreignjudgements will all need to be reviewed todetermine their ability and adequacy forsecuring respect and recognition of customarylaw in national and international proceedings.A specific study on customary law and its rolein the adjudication of cases of misappropriationis now required to future negotiations in thisarea.

14. Measures to ensure respect and recognition forcustomary law, will be required by states inwhich custodians of traditional knowledgetraditionally reside and by user countries intowhich traditional knowledge is imported forscientific or commercial use. Considerationwill also need to be given to the role ofcustomary law in international legalenforcement of any ABS or traditionalknowledge regime, including the status andweight it is to be given in judicial proceedingsand in alternative conflict resolution.Alternative dispute resolution mechanisms, areone of the most promising avenues fordevelopment of mechanisms to enhance accessto justice for indigenous peoples and localcommunities. National and internationalauthorities, will need to examine modalities forfunding alternative dispute resolution to ensurethat high costs do not serve as a barrier toaccess to justice.

f. 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.

15. Indigenous peoples and local communitiesdesirous of protecting traditional knowledge, inparticular those wishing to benefit fromcommercial use of their knowledge and geneticresources, will need to be aware that users willwant legal certainty regarding PIC procedures,rights of use, penalties for breaches etc. To thisend, and to ensure customary law andtraditional decision making authority arerespected, they will need to define clear policy

to regulate access to and use of their biologicaland genetic resources and traditionalknowledge.

16. Development of community protocols, is oneway for indigenous peoples and localcommunities to take the initiative in order toinfluence and redefine the debate on how torecognize and respect customary law andpractice. What is required, is a horizontalbridge linking indigenous peoples sharingsimilar Bio-Cultural Heritage, as well as avertical bridge linking indigenous groups withnational and international law in a way thatrespects and builds upon customary practices.This, it is argued, can best be done through theadoption of community protocols which clearlyenunciate the processes which must befollowed to seek access and negotiate use ofresources and knowledge.

g) Holistic protection of traditional knowledgegrounded upon indigenous peoples’ cosmovision,commitment to strengthening of traditionalknowledge systems and development policieswhich nurture and promote continued use oftraditional knowledge by indigenous peoples andlocal communities.

17. At the local level, it is often conceptuallyimpossible to separate traditional knowledgeand genetic resources from the landscape andthe Cosmo-vision in which they are embedded,developed and conserved. It is thus necessary,for any effective effort for the conservation oftraditional knowledge, to address not only theneed to conserve in-situ biological and geneticresources but also the ecosystems and complexgovernance systems which have beenresponsible for their conservation anddevelopment. This can only be achievedthrough respect, encouragement and protectionof the ability of local and indigenouscommunities to govern their traditionalknowledge. National and internationalprotection of traditional knowledge will,therefore, require provision of legal, technicaland economic support to enable indigenouspeoples and local communities to continue toprotect local ecosystems and their traditionalresource management practices, as well as theircustomary law systems and traditional decisionmaking practices.

18. In the development of national and internatio-nal law for protection of traditional knowledge,consideration should be given to existingregulatory experiences at the national andregional level. Any analysis should give dueregard, not only to legislation adopted, but alsoto the nature of the debate leading to itsadoption, as well as to early drafts andproposals by indigenous peoples, civil society

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organizations etc. This will provide a moreinformed view of a wider range of ideas, legalconcepts drawn from both positive andcustomary law, and their moral, ethical andcultural underpinnings, than may be reflectedin legislation which has been adopted. Thelessons which may be drawn from examinationof such experiences are valuable not only forthe success they demonstrate. They are equallyimportant for their exposure of the inability ofnational law and policy, contracts, registers,and customary law and practice to provideprotection for traditional knowledge inisolation.

In the final analysis, the adequacy of traditionalknowledge law and policy depends not upon its intent,but upon the buy-in of all actors and their commitmentto be bound by its provisions. From this perspective,

international law and the international community is nodifferent from customary law and any indigenouspeople, where community buy-in defines the legitimacyand effectiveness of their own norms. Getting globalbuy-in will require respect, recognition andcommitment, on all sides, to finding a functional andappropriate system for protection of traditionalknowledge.

A system which builds upon and is guided byfundamental principles of human rights, customarylegal regimes and existing law and policies, will in theend, prove most likely to lend itself to equitable andeffective governance of traditional knowledge.Achieving this end will in itself be an important steptowards returning customary law to its rightful placetogether with natural law and positive as the basis forsound and sustainable national and international legalgovernance.

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Bangladesh,(Draft) Biodiversity and Community KnowledgeProtection Act, 29 September 1998

Article 2

1. The general objectives of this Act shall be:

a) to protect the sovereign rights of the Communitiesthat have knowledge of biodiversity, and havemanaged, maintained, conserved, reproduced andenhanced biodiversity, genetic resources andtraditional knowledge, culture and various forms ofpractice related to these resources and which arealways held in common.

b) to create the legal and institutional environment sothat the Communities, realizing the full potential ofits benefits, can contribute and continue enhancingbiodiversity through innovation, culturalinternalization and expressions for a qualitativelyrich and sustainable life.

c) to strengthen the informal knowledge system andthe collective innovation of the Communities thatprohibit claim for private ownership, privateintellectual property rights or privileges that do notexist now, and that are against the moral,intellectual and cultural values of the Communities.

Article 3

3. Regulation of biological resources “….shall notapply to the traditional use and exchange of biologicaland genetic resources as well as related knowledge,culture and practices carried out by and betweenCommunities based upon their customary andtraditional practices,

Article 6 -

1. All the biological and genetic resources within theterritory of Bangladesh, or originated in Bangladesh,as well as all related intellectual and culturalknowledge and practices among the people of thecountry, either existing in tangible forms or in variousintangible forms and expressions, belong in perpetuityto the people of Bangladesh and is held for past,present and future members of the country.

4. The State will, nevertheless, recognize the originalrights of indigenous and local communities, farmingand fishing communities, and other communities thatare directly linked through their livelihood practices toparticular ecosystems and to the related knowledge,innovation and culture specific to that livelihood. Theserights will be considered inviolable ….

Article 7

4. The biological and genetic resources and theintellectual and cultural knowledge and practices aswell as any innovations arising from these shall not besold, assigned transferred or dealt in any mannerwithout explicit Prior Informed Consent and effectiveparticipation of the Communities concerned. TheCommunities will always have the right to refusetransaction based on gainful intent or any commercialutilization, exploitation and exchange.

Costa RicaLaw 7788 - Biodiversity Law.62

Article 4. - Exclusions

The law does not apply to the exchange of biochemicalor genetic resources among the indigenous people andlocal communities, nor to the associated knowledgeresulting from their non-profit making practices, usesor customs

Article 10 – Objectives,

Objectives of the Act include:

6. - To recognise and provide compensation for theknowledge, practices and innovations of indigenouspeoples and local communities in the conservation andsustainable ecological use of the components ofbiodiversity.

Article 66. - Right to cultural objection

The right of local communities and indigenous peoplesto oppose any access to their resources and associatedknowledge, be it for cultural, spiritual, social, economicor other motives, is recognised.

Article 82- Sui generis community intellectual rights.

The State expressly recognises and protects, under thecommon denomination of sui generis communityintellectual rights, the knowledge, practices andinnovations of indigenous peoples and localcommunities related to the use of components ofbiodiversity and associated knowledge. This right existsand is legally recognised by the mere existence of thecultural practice or knowledge related to geneticresources and biochemicals; it does not require priordeclaration, explicit recognition nor official

ANNEX I

Examples of Articles on traditional knowledge protectiondrawn from national legislation

62 Unofficial translation prepared by Bernard Mulcahy with theassistance of GRAIN, June 1999

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registration; therefore it can include practices which inthe future acquire such status…

Article 101- Incentives for community participation.The participation of communities in the conservationand sustainable use of the biological diversity shall bepromoted by means of technical assistance and specialincentives in this law and its regulation, especially inareas harboring species which are rare, endemic or indanger of extinction.

Article 104- Promotion of traditional breeding.The Ministry of Environment and Energy, and otherpublic authorities, will promote the conservation andsustainable use of biological and genetic resources thathave been the subject of breeding or selection by localcommunities or indigenous peoples, especially thosewhich are threatened or are in danger of extinction andneed to be restored, recuperated or rehabilitated. TheMinistry will give the technical assistance or financenecessary to fulfill this obligation.

IndiaThe Patents (Amendment) Act, 5 April 2005

Excludes patentability where:

Article 25 (k) - … the invention so far as claimed inany claim of the complete specification is anticipatedhaving regard to the knowledge, oral or otherwise,available within any local or indigenous community inIndia or elsewhere,.

PhilippinesRepublic Act No. 8371, 28 July 1997. An Act toRecognize, Protect and Promote the Rights ofIndigenous Cultural Communities/ Indigenous Peoples,Creating a National Commission on IndigenousPeoples, Establishing Implementing Mechanisms,Appropriating Funds Therefor, and for other Purposes

SEC. 13. Self-Governance.The State recognizes the inherent right of [IndigenousCultural Communities/ Indigenous Peoples (ICCs/IPs)]to self-governance and self-determination and respectsthe integrity of their values, practices and institutions.Consequently, the State shall guarantee the right ofICCs/IPs to freely pursue their economic, social andcultural development.

SEC. 15. Justice System, Conflict ResolutionInstitutions, and Peace Building Processes. … (ICCs/IPs) shall have the right to use their owncommonly accepted justice systems, conflict resolutioninstitutions, peace building processes or mechanismsand other customary laws and practices within theirrespective communities and as may be compatible withthe national legal system and with internationallyrecognized human rights.

SEC. 32. Community Intellectual Rights.–

ICCs/IPs have the right to practice and revitalize theirown cultural traditions and customs. The State shallpresence, protect and develop the past, present andfuture manifestations of their cultures as well as theright to the restitution of cultural, intellectual, religious,and spiritual property taken without their free and priorinformed consent or in violation of their laws, traditionsand customs.

SEC. 34. Right to Indigenous Knowledge Systems andPractices and to Develop own

Sciences and Technologies.–

ICCs/IPs are entitled to the recognition of the fullownership and control and protection of their culturaland intellectual rights. They shall have the right tospecial measures to control, develop and protect theirsciences, technologies and cultural manifestations,including human and other genetic resources, seeds,including derivatives of these resources, traditionalmedicines and hearth practices, vital medicinal plants,animals and minerals, indigenous knowledge systemsand practices, knowledge of the properties of fauna andflora, oral traditions, literature, designs, and visual andperforming arts.

SEC. 35. Access to Biological and Genetic Resources.–

Access to biological and genetic resources and toindigenous knowledge related to the conservation,utilization and enhancement of these resources, shallbe allowed within ancestral lands and domains of theICCs/IPs only with a free and prior informed consentof such communities, obtained in accordance withcustomary laws of the concerned community.

SEC. 65. Primacy of Customary Laws and Practices.–

When disputes involve ICCs/IPs, customary laws andpractices shall be used to resolve the dispute.

SEC. 3 Definition of terms

f) Customary Laws - refer to a body of written and/orunwritten rules, usages, customs and practicestraditionally and continually recognized, accepted andobserved by respective ICCs/IPs.

PortugalDecree-Law No. 118/2002, April 20, 2002

Article 3. Traditional Knowledge

(1) Traditional knowledge comprises all intangibleelements associated with the commercial or industrialutilization of local varieties and other autochthonousmaterial developed in a non-systematic manner by localpopulations, either collectively or individually, whichform part of the cultural and spiritual traditions of thosepopulations. That includes, but is not limited to,knowledge of methods, processes, products anddesignations with applications in agriculture, food and

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industrial activities in general, including traditionalcrafts, commerce and services, informally associatedwith the use and preservation of local varieties andother spontaneously occurring autochthonous materialcovered by this Decree.

(2) That knowledge shall be protected againstreproduction or commercial or industrial use or bothas long as the following conditions of protection aremet:

(a) the traditional knowledge shall be identified,described and registered in the Register of PlantGenetic Resources (RRGV)…

(3) The owners of the traditional knowledge maychoose to keep it confidential, in which case theregulations shall provide for publication in theregistration bulletin … which shall be limited todisclosure of the existence of the knowledge and

identification of the varieties to which it relates, withthe protection conferred by registration being limitedto cases in which it is unfairly acquired by third parties.

(4) The registration of traditional knowledge that untilit is requested has not been used in industrial activitiesor is not publicly known outside the population or localcommunity in which it originated shall afford itsowners the right to:

(i) object to its direct or indirect reproduction, imitationand/or use by unauthorized third parties for commercialpurposes;

(ii) assign, transfer or license the rights in thetraditional knowledge, including transfer by succession;

(iii) exclude from protection any traditional knowledgethat may be covered by specific industrial propertyregistrations.

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ANNEX II

Excerpts from Regional Model Laws for Protection ofTraditional Knowledge

Organization of African UnityAfrican Model Legislation for the Protection of TheRights of Local Communities, Farmers and Breeders,and for the Regulation of Access to BiologicalResources

The specific objectives of this legislation include to:

a) recognize, protect and support the inalienable rightsof local communities including farming communitiesover their biological resources, knowledge andtechnologies;

e) ensure the effective participation of concernedcommunities, with a particular focus on women, inmaking decisions as regards the distribution of benefitswhich may derive from the use of their biologicalresources, knowledge and technologies;

Art 2.2 This legislation shall not affect the following:

i) The traditional systems of access, use orexchange of biological resources;

ii) Access, use and exchange of knowledge andtechnologies by and between localcommunities;

Article 5.

1) Any access to biological resources, knowledge andor technologies of local communities shall be subjectto the written prior informed consent of:

i) the National Competent Authority; as well asthat of

ii) the concerned local communities, ensuring thatwomen are also involved in decision making.

2) Any access carried out without the prior informedconsent of the State and the concerned local communityor communities shall be deemed to be invalid

Article 8.

1) [Any] agreement [to access traditional knowledge]shall contain commitments undertaken or to beundertaken by the collector, as follows:

ii) to guarantee to deposit … records ofcommunity innovation, practice, knowledge ortechnology collected with the duly designatedgovernmental agencies and, if so required, withlocal community organizations;

iii) to inform immediately the National CompetentAuthority and the concerned local communityor communities of all findings from researchand development on the resource;

iv) not to transfer the biological resource or anyof its derivatives or the community innovation,practice, knowledge or technology to any thirdparty without the authorization of the NationalCompetent Authority and the concerned localcommunity or communities;

v) not to apply for any form of intellectual propertyprotection over the biological resource or partsor derivatives thereof and not to apply forintellectual property rights protection over acommunity innovation, practice, knowledge ortechnology without the prior informed consentof the original providers;

vi) to provide for the sharing of benefits;vii) access shall be conditioned upon a commitment

to contribute economically to the efforts of theState and concerned local community orcommunities in the regeneration andconservation of the biological resource, and themaintenance of the innovation, practice,knowledge or technology to which access issought;

Article 9.

1) Patents over life forms and biological processes arenot recognized and cannot be applied for.

2) The collector shall, therefore, not apply for patentsover life forms and biological processes under thislegislation or under any other legislation relevant to theregulation of access and use of a biological resource,community innovation, practice, knowledge andtechnology, and the protection of rights therein.

Article 16.

The State recognizes the rights of communities overthe following:

i) their biological resources;ii) the right to collectively benefit from the use of

their biological resources;iii) their innovations, practices, knowledge and

technologies acquired through generations;iv) the right to collectively benefit from the

utilisation of their innovations, practices,knowledge and technologies;

v) their rights to use their innovations, practices,knowledge and technologies in theconservation and sustainable use of biologicaldiversity;

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vi) the exercise of collective rights as legitimatecustodians and users of their biologicalresources;

Article 17.

The State recognizes and protects the community rightsthat are specified in Article 16 as they are enshrinedand protected under the norms, practices and customarylaw found in, and recognized by, the concerned localand indigenous communities, whether such law iswritten or not

Article 19.

Local communities have the right to refuse access totheir biological resources, innovations, practices,knowledge and technologies where such access will bedetrimental to the integrity of their natural or culturalheritage

Article 21.

1) Local communities shall exercise their inalienableright to access, use, exchange or share their biologicalresources in sustaining their livelihood systems asregulated by their customary practices and laws.

2) No legal barriers shall be placed on the traditionalexchange system of the local communities in theexercise of their rights as provided for in paragraph (1)above and in other rights that may be provided by thecustomary practices and laws of the concerned localcommunities.

Article 23.

1) The Community Intellectual Rights of the localcommunities, including traditional professional groups,particularly traditional practitioners, shall at all timesremain inalienable, and shall be further protected underthe mechanism established by this legislation.

2) An item of community innovation, practice,knowledge or technology, or a particular use of abiological or any other natural resource shall beidentified, interpreted and ascertained by the localcommunities concerned themselves under theircustomary practice and law, whether such law is writtenor not.

3) Non-registration of any community innovations,practices, knowledge or technologies, is not to meanthat these are not protected by Community IntellectualRights.

4) The publication of a written or oral description of abiological resource and its associated knowledge andinformation, or the presence of these resources in agenebank or any other collection, or its local use, shallnot preclude the local community from exercising itscommunity intellectual rights in relation to thoseresources.

South Pacific Island States(draft) Model Law

Article 6 - Proof of ownership

(1) Upon a claimant declaring or acknowledging in aform or manner valid by its customs or practices thatit has been using and is the owner of traditionalecological knowledge, an innovation or a practice, andproviding proof of such usage, the claimant shall beconsidered to be the owner of such knowledge,innovation or practice.

8 Nature of ownership right

(1) The ownership right over knowledge, an innovationor a practice:

(a) is inalienable and non-transferable and is inaddition to any other rights available underexisting intellectual property laws but wherethere is an inconsistency with intellectualproperty laws, the intellectual property lawsshall, to the extent of the inconsistency, be void;

9 Register of traditional ecological knowledge,innovations and practices

(1) An individual, entity or group may register itstraditional ecological knowledge, innovations andpractices in a national register, or where the knowledge,innovations or practices are or may be owned by 2 ormore countries or by the Pacific region as a whole, ina regional register.

(2) Each national government in respect of a nationalregister, and the Regional Coordinator in respect of aregional register, must put in place rules to establishand maintain a register and to provide forconfidentiality.

(3) The fact of non-registration does not affect anindividual’s, entity’s or group’s ownership of itsknowledge, innovations and practices.

10 Commercial use

(1) Any person using or proposing to use traditionalecological knowledge, or an innovation or any part ofsuch innovation, or a practice for commercial use must:

(a) seek the prior informed consent of the owner,where there is one, or co-owners where thereare several, of the knowledge, innovation orpractice; and

(b) enter into an access and benefit sharingagreement with the owner or co-owners.

11 Non-commercial uses

(1) An owner or a co-owner, may in accordance withtheir customs and practices and such other conditionsas they consider appropriate, allow use of theirtraditional ecological knowledge, innovations andpractices by a group or an individual belonging to agroup so long as such knowledge, innovations andpractices are not acquired for or do not subsequentlybecome the subject of commercial use.

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UNEP/CBD/WG-ABS/7/8

C. COMPLIANCE

4) Measures to ensure compliance with customarylaw and local systems of protection

[Noting that customary law provides a sub-set ofexisting rules related to access and benefit-sharing of[genetic resources][biological resources], and measuresto comply with such rules {preambular paragraph}]

[Recognizing that customary law functions within aspecific belief system, is dynamic and includesmechanisms to preserve its underlying values andprinciples {preambular paragraph}]

[1. Contracting Parties [shall][should]:

(a) Take necessary policy, administrative [regulatory]and legislative measures to recognize the rights ofindigenous peoples and local communities to [geneticresources][biological resources][, their derivatives][and products] and/or associated traditional knowledge.Until, and to the extent such policies, administrativeand legislative measures have not been put in place,the State shall nonetheless uphold obligations withrespect to indigenous peoples’ and local communities’rights to [genetic resources][biological resources][,their derivatives][ and products] and/or traditionalknowledge under international law;

(b) With the full and effective participation of theindigenous and local communities concerned supportand facilitate local, national and/or regional communityprotocols regulating access to traditional knowledgetaking into consideration the relevant customary lawsand ecological values of indigenous and localcommunities in order to prevent the misappropriationof their associated traditional knowledge and to ensurethe fair and equitable sharing of benefits arising fromthe utilization of such associated traditional knowledge;

(c) Ensure that any acquisition, appropriation orutilization of traditional knowledge in contravention ofthe relevant community protocols constitutes an act ofmisappropriation;

ANNEX III

Excerpt on customary law from the WG ABS negotiating textfor an International Regime on Access and Benefit-Sharing

(d) Ensure that the application, interpretation andenforcement of protection against misappropriation oftraditional knowledge, including determination ofequitable sharing and distribution of benefits,[shall][should] be guided, as far as possible andappropriate, by respect for the ecological values,customary norms, laws and understandings of theholders of the knowledge;

(e) Encourage and support the development ofcommunity protocols that [shall][should] providepotential users of traditional knowledge with clear andtransparent rules for access to traditional knowledgewhere associated traditional knowledge is sharedbetween: (i) indigenous and local communities spreadacross national boundaries; and (ii) between indigenousand local communities with different values, customarynorms, laws and understandings;

(f) Where such community protocols are developedwith the full and effective participation of indigenousand local communities, give effect to such communityprotocols through an appropriate legal framework;

(g) Community protocols in their efforts to preventmisappropriation of associated traditional knowledgeand ensure fair and equitable benefit-sharing must alsomake efforts to respect, preserve and maintain relationswithin and between indigenous and local communitiesthat generate and sustain the traditional knowledge byensuring the continued availability of traditionalknowledge for the customary practice, use andtransmission;

(h) Consider relevant customary law and its potentialapplication to access and benefit-sharing transactionsin taking measures to raise awareness of access andbenefit-sharing issues.

[2. Parties are encouraged to provide information onthe indigenous community which has the responsibilityto identify the appropriate customary law expertrelevant to an access and benefit-sharing transaction.]

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List of Acronyms

ADN Asociación para la Defensa de los Derechos NaturalesAIDESEP La Asociación Interétnica de Desarrollo de la Selva PeruanaABS Access and Benefit-SharingANDES Asociación para la Naturaleza y el Desarrollo SostenibleCAF Corporación Andina de FomentaCAN Andean Community of NationsCBD Convention on Biological DiversityCONAP Confederación de Nacionalidades Amazónicas del PeruanaUNDRIP United Nations Declaration on the Rights of Indigenous PeoplesFAD Federación de Comunidades Aguarunas del Río DominguzaFAO Food and Agriculture Organization of the United NationsFECONARIN Federación de Comunidades Nativas del Río NievaFECORSA Federación de las Comunidades Cambizas del Río SantiagoFEMAAM Federación de Mujeres Aguarunas del Alto MarañonFPIC Free prior informed consentGTZ Deutsche Gesellschaft fur Technische ZusammenarbeitICBG International Biodiversity Group ProgramIGC Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional

Knowledge and FolkloreIIED International Institute for Environment and DevelopmentILO Internacional Labour OrganizationINDECOPI Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad

IntelectualIP Intellectual propertyIPR Intellectual Property RightsIUCN International Union for the Conservation of NatureNGO Non-governmental organisationOAAM Organización Aguaruna Alto MayoOCCAAM Organización Central de Comunidades Aguarunas del Alto MarañonPIC Prior informed consentSPDA Peruvian Environmental Law SocietyTK Traditional knowledgeTCE Traditional cultural expressionsTRIPS Agreement on Trade Related Intellectual PropertyUNCTAD United Nations Conference on Trade and DevelopmentUNEP United Nations Environment ProgramUNESCO United Nations Educational, Scientific and Cultural OrganizationUNU United Nations UniversityUNPFII United Nations Permanent Forum on Indigenous IssuesWG ABS Ad Hoc Working Group on Access and Benefit-sharingWG 8(j) Ad Hoc Working Group on Article 8 (j) and related provisionsWHO World Health Organization

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INTRODUCTION

SECTION I: Traditional knowledge andcustomary law

1.1.Protection of traditional knowledge1.1.1 Land and marine tenure1.1.2 Language, culture and traditional

transmission of traditional knowledge1.1.3 Collective and individual responsibility for

traditional knowledge protection1.2 Customary law

1.2.1 Definition of customary law1.2.2 Nature and characteristics of customary law1.2.3 The interrelationship between customary law

and positive law1.2.4 Distinctions between customary law and

positive law1.2.5 Towards functional interfaces between legal

regimes1.2.6 Customary law and gender equality and

equity

SECTION II: International protection oftraditional knowledge andcustomary law

2.1. International protection of indigenous peoples’human rights

2.1.1 U.N Covenants and self –determination2.1.2 ILO Convention 169 and rights to culture,

land and traditional territories2.1.3 United Nations Declaration on the Rights of

Indigenous Peoples2.2 International regulation of traditional knowledge

2.2.1 Convention on Biological Diversity (CBD)2.2.2 WIPO - IGC2.2.3 WTO

2.3 Andean Community Legislation on traditionalknowledge

SECTION III: Customary law and protection oftraditional knowledge in Peru

3.1. Customary Law in Peru3.1.1 Constitutional recognition of indigenous

peoples and customary law3.2. Regulation of traditional knowledge in Peru

3.2.1 Development of biodiversity and traditionalknowledge law and policy

3.2.2 Peruvian Law 278113.2.3 Traditional knowledge and the public

domain3.2.4 Peru and international regulation of

traditional knowledge3.2.5 The US- Peruvian Free Trade Agreement –

Diluting traditional knowledge rights3.2.6 Peruvian and other models for traditional

knowledge law and policy4.1 Contracting into custom: The Case of the

Peruvian ICBG Project4.1.1 Community representation4.1.2 Prior informed consent4.1.3 ICBG Contracts4.1.4 ICBG agreements and national traditional

knowledge regulation4.1.5 Lessons Learned

4.2 Beyond Traditional Resource Management: Caseof the Potato Park

4.2.1 Quechua community governancemechanisms

4.2.2 Community Governance of the Potato Park4.2.3 Customary Governance and Peru’s sui

generis traditional knowledge law4.2.4 Objectives, nature and form of protection4.2.5 Participation, PIC, and legitimate

representation4.2.6 Awareness and capacity building.4.2.7 Lessons Learned

SECTION V: Comparative Analysis of CaseStudies

CONCLUSIONS

ANNEX IExamples of Articles on traditional knowledgeprotection drawn from national legislation

ANNEX IIExcerpts from Regional Model Laws for Protectionof traditional knowledge

ANNEX IIIExcerpt on customary law from the WG ABSnegotiating text for an International Regime onAccess and Benefit-Sharing

BIBLIOGRAPHY

Content

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The Peruvian Society for Environmental Law (SPDA) is a non-profit organization founded in 1986, working in theareas of Environmental Law and Policy. The SPDA is organized in five programs: International Affairs andBiodiversity; Environmental Policy and Management; Forestry; Conservation, and Public Interest Defense. It providestechnical/legal assistance and consultancy services, carries out specific projects and promotes Environmental Lawthrough its information centre and capacity building activities.The Andean-Amazon Initiative for the Prevention of Biopiracy of the Peruvian Society for Environmental Law is atwo year project, currently in its second phase, supported by the International Development Research Centre (IDRC)of Canada. The website of the Initiative is: http://www.bioprateria.orgThe project objective is to prevent biopiracy with regard to biological resources and traditional knowledge in the

region. A series of national and international activities have been already undertaken. These include:strengthening the National Commission for the Prevention of Biopiracy in Peru; undertaking research (ResearchDocuments); organizing regional meetings with different actors, including intellectual property offices in order to

evaluate measures to confront biopiracy; coordinate actions and strategies between member institutions incountries; coordinate actions with the Amazon Cooperation Treaty Organization, among others.

The Peruvian Society for Environmental Law wishes to thank the International Development Research Centre(IDRC) for supporting this Initiative.Sociedad Peruana de Derecho Ambiental

President: Jorge Caillaux Executive Director: Manuel Pulgar VidalInitiative Coordinators:

Manuel Ruiz Muller, Co Director of the Program for International Affairs and Biodiversity of SPDA, [email protected];Isabel Lapeña, Co Director of the Program for International Affairs and Biodiversity of SPDA, [email protected]

Prolongación Arenales 437, San Isidro, Lima 27 http://www.spda.org.pePhones: (511) 422 2720 / 441 9171 Fax: (511) 442 4365

©2009 Sociedad Peruana de Derecho AmbientalThe copy editor of this publication was: Michael Tobin, EcoHR Editors, Galway, Eire

Sociedad Peruana de Derecho Ambiental

AcknowledgementsThe authors would like to acknowledge the Aguarunapeople, in particular the communities andrepresentatives of OCCAAM, FAD, FECONARIN andOAAM for their confidence, support and inspirationover many years. The research which informs this studywould not have been possible without the support andguidance of CONAP and its long time president CesarSarasara and their dedicated lawyer MercedezManrique. Thanks go too to the representatives ofcommunities and members of FECORSA and CAH,especially, Evaristo Nungkuag and Shapion Noningo,as well as Wrays Perez and all the people at AIDESEP,whose opinions, suggestions and sometime criticismmake for a more balanced and informed analysis ofthe ICBG experience.

In the same way, we wish to thank the communities ofthe Potato Park for their welcome, wit, good food andtheir willingness to share their experience in the hopethat it may serve as an example for indigenous peoplesof Peru and beyond. Thanks also go to AlejandroArgumedo and Cesar Argumedo, Coral Calvo andMilton Gamarra and all the people at ANDES whohelped to make us feel so welcome in Cuzco anunselfishly shared their knowledge and helped tofacilitate our research.

Special thanks are due to Manuel Ruiz of the SPDA,whose support was vital for preparation of this study.We would also like to thank all those who haveprovided comments, suggestions, materials and other

input, enriching our analysis and helped to bring thisstudy to a close. This includes Preston Hardison andSaskia Vermeylen who freely shared their knowledgeand work. Most particularly we wish to thank FlaviaNoejovich and Krystyna Swiderska whose detailed andpertinent comments on an earlier version of this paperhave been of immense assistance in its revision. Thepreparation of the Aguaruna case study has benefitedgreatly from the involvement of Kelly Bannister andLeslie Villapolo and the tireless support of Jo Renderwho made so much of it possible. Others who havegenerously shared their knowledge and experience withus include Begoña Venero, who guided development ofPeru’s law on traditional knowledge and Maria Luisadel Rio, for many years Peru’s national focal point forthe CBD. That said the authors take responsibilityalone for the opinions and conclusions containedherein

Finally, we wish to thank Michael Tobin and the peopleat EcoHR Editors for their careful and hard work incopy editing this paper under a tight and pressuredtime frame.

We would like to dedicate this work to all those, whoseefforts to protect traditional knowledge have informedits preparation and hope it will prove a useful additionto the literature in this area.

Brendan TobinEmily Taylor May 28th 2009

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