The Role of Customary Law in Access and Benefit-sharing and Traditional Knowledge Governance: Perspectives from Andean and Pacific Island Countries
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Abstract
Despite an ever increasing awareness of the importance and multiple values of TK, it is still largely unprotected by national and international law. Ongoing negotiations at WIPO may significantly change this scenario. The negotiations have tended to focus primarily on development of legal measures to control unapproved and uncompensated use of TK by the scientific and commercial sectors. While such control is necessary, indigenous peoples and local communities have expressed concern that such a limited approach fails to address many of the more pernicious threats to TK including globalization, inappropriate development policies, loss of languages and failure to protect their human rights. They have called for a more holistic approach to protection grounded on their rights to self-determination over their lands, traditional territories, resources, knowledge, and cultures; strengthening of TK systems; and, respect and recognition of their own institutions, customs and customary laws and practices.
This paper examines the relationships between customary law, national and international regulation of TK and access to GRs and benefit sharing, and human rights. The paper is based upon a desk-top analysis of these issues and the deliberations and conclusions of a series of regional and sub-regional workshops held in Andean and South Pacific Island countries between 2003 and 2006.
Section I provides an overview of issues relating to protection of TK and recognition of customary law. Section II addresses international recognition of customary law, focusing on the work of the CBD and the IGC. Section III examines the protection of rights of TK holders under international human rights law. Section IV reviews the status of customary law in Andean and Pacific Island countries. Section V provides an overview of the debates and conclusions of the various workshops. Section VI presents the conclusions of the study and proposals for future action.
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Intellectual Property Law