Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples' Resource and Knowledge Rights
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Author(s)
Tobin, Brendan
Griffith University Author(s)
Year published
2013
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The Nagoya Protocol requires states to ensure that access to and use of genetic resources and traditional knowledge of Indigenous peoples and local communities is subject to their prior informed consent (PIC). It also requires states to take into consideration their customary laws. However, it lacks effective compliance mechanisms, a gap exposed in draft European legislation that sidesteps the Nagoya Protocol's obligations regarding PIC and customary law, leaving traditional knowledge largely unprotected. This article examines the status of customary law under international, regional and national law, and the challenges and ...
View more >The Nagoya Protocol requires states to ensure that access to and use of genetic resources and traditional knowledge of Indigenous peoples and local communities is subject to their prior informed consent (PIC). It also requires states to take into consideration their customary laws. However, it lacks effective compliance mechanisms, a gap exposed in draft European legislation that sidesteps the Nagoya Protocol's obligations regarding PIC and customary law, leaving traditional knowledge largely unprotected. This article examines the status of customary law under international, regional and national law, and the challenges and opportunities for securing recognition of its role in the protection of traditional knowledge. The article contends that all commercial and development activities with the potential to impact on Nagoya Protocol rights will in the future need to ensure compliance with relevant customary law. It finds state reluctance to adopt measures to ensure consideration of customary law shortsighted and likely to lead to increased litigation. It concludes that customary law has a key role to play in closing the Nagoya compliance gap but to do so it will need to be supported by enforcement mechanisms such as disclosure of origin regimes in intellectual property law.
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View more >The Nagoya Protocol requires states to ensure that access to and use of genetic resources and traditional knowledge of Indigenous peoples and local communities is subject to their prior informed consent (PIC). It also requires states to take into consideration their customary laws. However, it lacks effective compliance mechanisms, a gap exposed in draft European legislation that sidesteps the Nagoya Protocol's obligations regarding PIC and customary law, leaving traditional knowledge largely unprotected. This article examines the status of customary law under international, regional and national law, and the challenges and opportunities for securing recognition of its role in the protection of traditional knowledge. The article contends that all commercial and development activities with the potential to impact on Nagoya Protocol rights will in the future need to ensure compliance with relevant customary law. It finds state reluctance to adopt measures to ensure consideration of customary law shortsighted and likely to lead to increased litigation. It concludes that customary law has a key role to play in closing the Nagoya compliance gap but to do so it will need to be supported by enforcement mechanisms such as disclosure of origin regimes in intellectual property law.
View less >
Journal Title
Law Environment and Development Journal
Volume
9
Issue
2
Publisher URI
Copyright Statement
© The Author(s) 2013. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 3.0 AU) License (http://creativecommons.org/licenses/by-nc-sa/3.0/) which permits unrestricted, non-commercial use, distribution and reproduction in any medium, providing that the work is properly cited. If you alter, transform, or build upon this work, you may distribute the resulting work only under a licence identical to this one.
Subject
Environmental and Natural Resources Law
Law