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Pdf of Camu Camu (Myrciaria Dubia) INITIATIVE parafor the la PREVENTION deof la BIOPIRACY RESEARCH DOCUMENTS Year IV No. 11 May 2009 Across the Great Divide: A case study of complementarity and conflict between customary law and TK protection legislation in Peru Prepared by: Brendan Tobin* Emily Taylor* SUMMARY OF CONTENT Introduction Introduction Section I: Traditional knowledge and customary law 1.1 Protection of traditional knowledge Indigenous peoples and local communities have 1.2 Customary law developed an expansive body of traditional knowledge Section II: International protection of traditional which plays a vital role in securing their cultural, knowledge and customary law spiritual, social, economic and environmental well- 2.1 International protection of indigenous peoples’ being. Protected, enhanced and transmitted over human rights centuries, traditional knowledge forms part of and at 2.2 International regulation of traditional knowledge the same time regulates and controls indigenous and 2.3 Andean Community Legislation on traditional local community knowledge systems as they serve knowledge present needs and respond to new challenges and Section III Customary law and protection of traditional knowledge in Peru opportunities. 3.1 Customary Law in Peru All cultures, it has been said, possess systematic 3.2 Regulation of traditional knowledge in Peru knowledge of the plants, animals and natural Section IV: Case studies: ICBG and the Potato Park phenomena in their direct surroundings (Brush, 1996). 4.1 Contracting into custom: The Case of the Peruvian ICBG Project Among indigenous peoples and local communities this 4.2 Beyond Traditional Resource Management: Case of knowledge forms an important part of their collective the Potato Park traditional knowledge. Knowledge which is Section V: Comparative Analysis of Case Studies increasingly seen as having an invaluable role to play Conclusions in securing the health of the planet and capacity of the ANNEX I global community to respond to present and future Examples of Articles on traditional knowledge protection challenges in food and health security, environmental drawn from national legislation quality and sustainable development. Its importance is ANNEX II now recognized by a wide range of actors including Excerpts from Regional Model Laws for Protection of national governments eager to protect national and traditional knowledge cultural patrimony; the scientific and commercial ANNEX III sectors desirous of finding new avenues for their Excerpt on customary law from the WG ABS negotiating text for an International Regime on Access and Benefit- research and development activities; international Sharing Bibliography * Emily Taylor works for the Evaluation Unit at the International Development Research Centre (IDRC) in Ottawa, Canada. * Brendan Tobin, (Ashoka Fellow) is a Consultant on Her research in Peru was generously supported by the International Environmental Law and Human Rights. His Innovation, Technology and Society (ITS) program initiative participation in the preparation of this report was made at IDRC. She has an undergraduate degree in Biology and possible through the support of the Peruvian Environmental Psychology from Union College in Schenectady, New York, Law Society and the Irish Center for Human Rights, National and a master’s degree in International Development Studies University of Ireland, Galway. E-mail at: [email protected] from Saint Mary’s University in Halifax, Nova Scotia. RESEARCH DOCUMENTS agencies such as Convention on Biological Diversity Based on this background analysis the paper explores (CBD), Convention to Combat Desertification (CCD), the complementarity and conflicts between national Food and Agriculture Organization of the United traditional knowledge legislation and customary Nations (FAO), United Nations Conference on Trade governance practices and makes recommendations for and Development (UNCTAD), United National, future research and the adoption and implementation Educational, Scientific and Cultural Organization of measures to protect traditional knowledge at local, (UNESCO), United Nations Permanent Forum on national and international levels. Indigenous Issues (UNPFII), World Intellectual Property Organization (WIPO) and World Trade The paper concludes that development of effective Organization (WTO) World Health Organization national, regional and international law and policy (WHO), and the World Bank, who now appreciate its for protection of traditional knowledge will depend importance for their programmatic and planning upon: activities; as well as NGO’s, aid agencies and others • The full and informed participation of indigenous promoting sustainable development and protection of peoples in the design, development, adoption, and human rights. implementation of traditional knowledge law and As awareness of traditional knowledge’s intrinsic, policy, cultural, social, spiritual, environmental and economic • Commitment to securing the realization by value has grown, so too have concerns to develop indigenous peoples of their human rights, and in necessary law and policy to protect rights over it. particular their right to self-determination, Efforts are now ongoing in various international forums to develop law and policy in this area, while • Adoption of law and policy which respects, at the regional and national level a range of measures recognizes and builds upon customary law and have been adopted or are under development. practice, Indigenous peoples and local communities have • Establishment of functional interfaces between consistently argued that that their traditional decision making authorities of indigenous peoples knowledge should be protected in accordance with and local communities and the national judiciary their own legal regimes, commonly referred to as their and administrative bodies, customary laws and practices. This position has received a fairly positive response at the national, • Preparedness and capacity to provide access to regional and international levels. However, there is justice including remedies for breaches of contract still a large gap in understanding the modalities and and misappropriation of traditional knowledge in mechanism which will be necessary for securing its national and foreign jurisdictions, central role in regulation of traditional knowledge when it leaves the immediate control of its traditional • Traditional or other legitimate decision-making custodians. authorities at the level of indigenous peoples and local communities with the capacity to secure the Peru has over the past decade been home to some of effective implementation of their own systems of the most innovative and precedent- setting experiences customary law and practices, and in the development of measures to protect traditional knowledge. These have included local community • Holistic protection of traditional knowledge initiatives to protect a diversity of traditional crop and grounded upon indigenous peoples’ cosmovision, medicinal plant species; customary law based contracts commitment to strengthening of traditional for repatriation of traditional crop varieties (Argumedo, knowledge systems and development policies which n.d.); agreements for licensing traditional knowledge nurture and promote continued use of traditional know-how for research and development of new knowledge by indigenous peoples and local pharmaceutical products (Lewis & Ramani, 2008); and communities. adoption of national legislation on collective The paper is set out in six sections. Section I, provides knowledge of indigenous peoples relating to an overview of traditional knowledge and customary biodiversity. In all cases, a desire to recognize and law. Section II, examines the role of customary law in respect customary law has proved influential. protection of traditional knowledge at the international This paper draws upon the Peruvian experience in level, with a focus on international human rights, and order to examine the current and potential role of international regulation of ABS, traditional knowledge customary law in national and international regulation and intellectual property. Section III, analyses the status of traditional knowledge. It is informed by analysis of customary law and its role in traditional knowledge of international law relating to access and benefit- protection in Peru. Section IV, presents the results of sharing(ABS), traditional knowledge and indigenous two case studies of indigenous peoples’ efforts to peoples human rights, as well as by in-depth case protect their traditional knowledge rights. The first case studies of measures taken by indigenous peoples in study examines the negotiation, within the framework Peru to protect their knowledge and resource rights. of the International Collaborative Biodiversity Group 2 RESEARCH DOCUMENTS (ICBG) Program,1 of a bioprospecting agreement biocultural protected area (Potato Park); an agreement between organizations representing Aguaruna they entered into with the International Potato Centre; communities of the northern Peruvian Amazon, three and their own internal community benefit sharing US and Peruvian universities, Washington University, agreement. Section V, includes a comparative analysis Universidad Peruano Cayetano Heredia and San of the case studies and their significance for analysis Marcos Museo de Historia Natural, and a US of complementarity and conflicts between Peru’s pharmaceutical company, Searle & Co. The second national sui generis regulation and traditional case study,
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