Accepted paper:

Intellectual Property, Customary Law and Protection of Traditional Knowledge : An unholy alliance or an unlikely path to self-determination


Brendan Tobin (Griffith Law School)

Paper short abstract:

International law requires recognition of indigenous peoples customary law in traditional knowledge governance. This paper examines the challenges and opportunities for securing such recognition and the role intellectual property may play in promoting compliance and indigenous self-determination.

Paper long abstract:

The Nagoya Protocol adopted in 2010 requires states to ensure that access to and use of traditional knowledge of indigenous peoples (ILCs) is subject to their prior informed consent (PIC). It also obliges states to give recognition to their customary laws and protocols. However it lacks a compliance mechanism. The result is weak implementation and continuing opportunities for biopiracy. This paper examines how draft EU legislation to implement the Protocol sidesteps obligations regarding PIC and customary law, legitimizing biopiracy and the denial of Indigenous peoples human rights. It goes on to discuss a European Parliament resolution of January 2013 that calls for early implementation of the Protocol in a manner that fully secures indigenous rights. It explores the challenges arising for recognition of customary law and the manner in which it may work together with intellectual property to provide a culturally appropriate and legally robust system for governance of indigenous traditional knowledge rights. It argues that all major commercial/research activities, with a potential to impact on indigenous rights, will in the future need to ensure compliance with relevant customary laws. It finds state reluctance to adopt measures to facilitate monitoring of compliance with customary law shortsighted and likely to lead to increased litigation and challenges before human rights bodies. In conclusion, it argues that good global governance must rest on a body of intercultural legal pluralism and draws attention to going negotiations on genetic resources and traditional knowledge at WIPO as the best opportunity to close the Nagoya compliance gap.

panel G46
State strategies for navigating plural legal orders (IUAES Commission on Legal Pluralism)