After Nagoya : Who Owns Native Culture Brendan TobinWarwick University June 17
Peru ICBG 1994-96• No national legislation• No government oversight of conditions• Use of genetic resources made conditional on licence to use TK• All TK treated as know how whether or not in the public domain• Control of use of TK very difficult• Conflicts – politics of indigenous organizations• Most benefits stayed in the North
Whose Knowledge Whose Laws• Brown – dangers of removing TK from the public domain• Barsh – property rights are the easy way –break the bond between land, knowledge and people.• Daes – guidelines and principles – protection should be based on customary law• Rosa Brooks – Human rights and rule of law – New Imperialism• Carpenter et. Al. redefining notions of property
Int’l law Obligations• Convention 169 – Duty to consult – Recognition of land rights – Rights to customs and institutions• UNDRIP – Right to self-determination – Rts to lands, territories and resources - knowledge – due recognition of customary law – Rights of access to justice
Peru Ley 27811• Requires licence for use of TK• Creates indigenous fund• Fixes unilateral royalty rates• Recognizes TK as cultural patrimony• Requires state to defend indigenous rights• May undermines collective management and rts
Nagoya’s take on community rights• Each Party to take measures with the aim of ensuring : – PIC for access to ILC’s genetic resources – Fair and equitable benefit sharing arising from utilization of genetic resources – PIC for access to TK – Fair and equitable benefit sharing re use of TK – Implementation in accordance with ILC’s customary law and protocols
What it hasn’t done• Regulate pre-CBD and pre-Protocol uses of TK• Set up functional enforcement mechanisms• Dealt with misappropriation• Include TK within monitoring system• Provide support for ILC’s to monitor use of TK• Promote strengthening of TK systems through multilateral fund
What is Custom• Greeks & Romans Natural, Customary and Positive law• Medieval Europe – End of middle ages began codification• Britain – • General custom, local custom and court custom• International – Customary int’l law, Leymarchant• Indigenous Peoples – Indigenous common law - custom – Tribal statute – written – applying custom
Rights to lands and resources• HRC - Lanesman cases – – cultural rights to traditional economic practices• CERD – Art 27ICCPR interpreted as source of State obligations to protect the traditional land tenure of indigenous peoples• Saramaka - Awas Tingni – Without them, the very physical and cultural survival of such peoples is at stake
Customary law as a source of law• Native title to lands – Mabo, - exhaustion of rights – Canada – Justification test• To resources – Blue Mud Bay• To knowledge – Based on knowledge sharing spaces?
Customary solutions• NAGPRA – US – – museums to repatriate human remains, sacred and funerary objects – Customary law to determine cultural patrimony• Sacred sites – – government always wins – – need positive measures to promote compliance.• Proposal for stewardship – – using customary concepts in positive property regime.
Nagoya - What it might be• Provide recognition of basic rights• basis for an international monitoring system• Respect ILC’s human rights• Basis for provider country collective action• Promote gender equity• Testing ground for customary law and legal pluralism
Role of Customary law• Inform participatory process to define implementation mechanisms• Provide legal solutions• Identify cultural patrimony• Define sui generis rights• Provide basis for community PIC Protocols• Inform and guide dispute resolution• Guides Tribal courts
Compliance and custom• Compliance mechanisms – access to justice – Issues of proof of custom• Name and shame process – Form of Human rights Treaty body• Need for impartiality • ombudsman• Capacity building – private sector, government, courts
Interface with positive law• Multicultural approach confines CL to internal regulation of indigenous peoples• Intercultural approach seeks to combine principles from a variety of legal traditions• Protection of TK takes CL beyond local and national jurisdiction.• Raises many practical and legal questions – access to justice – recognition of foreign judgments – rules of evidence
Intercultural Equity• Equitable system requires equitable compliance mechanism balancing customary and positive law• This requires construction of flexible interfaces between disparate systems• Requires intercultural legal pluralism drawing upon a variety of legal traditions• With a human rights dispute resolution mechanism based upon a body of intercultural principles of Equity.
Conclusion• Equity is a process not a destination• Nagoya adds an imprint of international concern and possibility of legal consequences of failing to comply with CBD objective.• Riddled with ambiguities and unmet potential Nagoya reflects the conservative process of international legal development.• Intercultural equity requires a more expansive and flexible legal vision