Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights
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...
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| Format: | Article |
| Language: | English |
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School of Oriental and African Studies
2013-09-01
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| Series: | Law, Environment and Development Journal |
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| Online Access: | http://lead-journal.org/content/13142.pdf |
| _version_ | 1818057052116746240 |
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| author | Brendan M. Tobin |
| author_facet | Brendan M. Tobin |
| author_sort | Brendan M. Tobin |
| collection | DOAJ |
| description | 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. |
| first_indexed | 2024-12-10T12:38:36Z |
| format | Article |
| id | doaj.art-28f72964f5084d329377d576dca61f90 |
| institution | Directory Open Access Journal |
| issn | 1746-5893 1746-5893 |
| language | English |
| last_indexed | 2024-12-10T12:38:36Z |
| publishDate | 2013-09-01 |
| publisher | School of Oriental and African Studies |
| record_format | Article |
| series | Law, Environment and Development Journal |
| spelling | doaj.art-28f72964f5084d329377d576dca61f902022-12-22T01:48:35ZengSchool of Oriental and African StudiesLaw, Environment and Development Journal1746-58931746-58932013-09-0192142162Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge RightsBrendan M. TobinThe 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.http://lead-journal.org/content/13142.pdfAccessbenefit sharingbiopiracycertificationcompliancecustomary lawdisclosuretraditional knowledge |
| spellingShingle | Brendan M. Tobin Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights Law, Environment and Development Journal Access benefit sharing biopiracy certification compliance customary law disclosure traditional knowledge |
| title | Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights |
| title_full | Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights |
| title_fullStr | Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights |
| title_full_unstemmed | Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights |
| title_short | Bridging the Nagoya Compliance Gap: The Fundamental Role of Customary Law in Protection of Indigenous Peoples’ Resource and Knowledge Rights |
| title_sort | bridging the nagoya compliance gap the fundamental role of customary law in protection of indigenous peoples resource and knowledge rights |
| topic | Access benefit sharing biopiracy certification compliance customary law disclosure traditional knowledge |
| url | http://lead-journal.org/content/13142.pdf |
| work_keys_str_mv | AT brendanmtobin bridgingthenagoyacompliancegapthefundamentalroleofcustomarylawinprotectionofindigenouspeoplesresourceandknowledgerights |