Traditional knowledge systems, international law and national challenges: Marginalization or emancipation?

European Journal of International Law

Volumn 24, Issue 4, 2013, Pages 1205-1221

  Nijar, Gurdial Singh ^a  

^a UNIVERSITY OF MALAYA   (Malaysia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84890841263     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/cht077     Document Type: Article

References (65)

1. 'Traditional knowledge encapsulates spiritual experience and deep relationships with the land and its resources': Wyenberg, Schroeder, and Chennels, 'Introduction', in R. Wyenberg, D. Schroeder, and R. Chennels (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the Hoodia Case (2009), at 3, 6.
2. Rose, 'Property and Persuasion', in C. Rose, Essays on the History, Theory and Rhetoric of Ownership (1994), at 124.
3. T.O. Elias, The Nature of African Customary Law (1956), at 82-87.
4. Obreich, and Bosselman, 'The Linkage between Sustainable Development and Customary Law', in P. Obreich et al , The Role of Customary Law in Sustainable Development (2005), at 12, 16.
5. G.S. Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime (1996), at 1.
6. V. Shiva, Monocultures of the Mind (1993).
7. A. Gray, Between the Spice of Life and the Melting Pot: Biodiversity Conservation and its Impact on Indigenous Peoples, International Working Group for Indigenous Affairs (IWGIA) (1991), Doc. 70.
8. Kloppenburg Jr, 'No Hunting! Biodiversity, Indigenous Rights, and Scientific Poaching', Cultural Survival Q (1991) 15.
9. G. Moore and W. Tymowski, Explanatory Guide to the International Treaty on Plant Genetic Resources for Food and Agriculture (2005), at 1.
10. G.S. Nijar et al., Food Security and Access and Benefit-Sharing for Genetic Resources for Food and Agriculture (2011).
11. L. Sheleff, The Future of Tradition, Customary Law, Common Law and Legal Pluralism (2000).
12. Sax, 'The Limits of Private Rights in Public Waters', 19 Environmental L (1989) 473.
13. Agrawal, 'Dismantling the Divide Between Indigenous and Scientific Knowledge', 26 Development and Change (1995) 413.
14. Leach and Fairhead, 'Manners of Contestation: "Citizen Science" and "Indigenous Knowledge" in West Africa and the Caribbean', IV(3) Int'l Social Science J (2002) 299, at 301
15. C.H. Freese, Wild Species as Commodities: Managing Markets and Ecosystems for Sustainability (1998), at 133.
16. The first Rajah, Sir James Brooke, was 'handed' the Government of Sarawak in 1841.
17. J.C. Fong, Law on Native Customary Land in Sarawak (2011), at xiii.
18. Chomsky, 'How the Magna Carta became a Minor Carta', available at: www.guardian.co.uk/commentisfree/2012/jul/24/magna-carta-minor-carta-noam-chomsky/print (last accessed 7 Nov. 2013).
19. A 1997 amendment to the Sarawak Land Code empowers the state authority to lease land, over which natives have established ownership rights through customary law to a body corporate (usually a company) approved by the Minister: s. 18A(1), Land Code (Amendment) Ordinance 1997. The Sarawak Land Code Chapter 81, Percetakan Negara Malaysia Berhad, Kuching Sarawak, 1999, is available at: http://pengayau. files.wordpress.com/2012/04/sarawak-land-code-chapter-81-tmp.pdf (last accessed 7 Nov. 2013).
20. Mabo & Others v. Queensland (No. 2), (1992) 175 CLR 1.
21. S. 18A(1), Land Code (Amendment) Ordinance 1997 (Sarawak).
22. Maffi, 'Endangered Languages, Endangered Knowledge', LIV(3) Int'l Social Science J (2002) 385, at 386.
23. L. Maffi, On Biocultural Diversity: Linking Language, Knowledge and the Environment (2001).
24. G.S. Nijar, Patenting Life Forms: Law and Practice (2012), at 38.
25. Art. 15.2, CBD.
26. T. Greiber et al., An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing (2012), at 109.
27. J.B. Foster, The Ecological Revolution (2009), at 131.
28. States enacting national biodiversity laws have required the PIC of ILCs at various stages prior to: the grant of access, the commencement of the activity, or the entering of the benefit-sharing agreement, or before the application for access is made: see G.S. Nijar et al., Food Security and Access and Benefit-sharing for Genetic Resources for Food and Agriculture (2011), at 86.
29. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits arising out of their Utilization, available at: www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf (last accessed 7 Nov. 2013). These Guidelines were enacted in 2002 under the CBD to assist countries to implement their national biodiversity laws focusing on access and benefit sharing.
30. An example is Decision V/16: Art. 8(j) and related provisions, Annex I. 4, in Secretariat of the Convention on Biological Diversity, Handbook of the Convention on Biological Diversity (2nd edn, 2003), at 597, 601.
31. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilisation to the Convention on Biological Diversity, available at: http://treaties.un.org/ doc/source/signature/2010/CN782E.pdf (last accessed 7 Nov. 2013).
32. Nijar, 'The Nagoya ABS Protocol -Identifying Implementation Challenges: an Asian Developing Country View', in E. Morgera, M. Buck, and E. Tsioumani (eds). The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges (2013), at 247-248.
33. Art. 7.
34. Art. 12(1).
35. Art. 12(3).
36. 'Public domain' is a concept that relates to one element for the grant of a patent, namely novelty or prior art. This expression appears in the ITPGRFA which deals with access and benefit sharing of specified plant genetic resources for food and agriculture. The Treaty excludes from the multilateral system of exchange crops that are not in the 'public domain' by an explicit provision: Art. 11(2). It is commonly agreed that this expression 'public domain' refers to materials which are not protected by IPRs: G. Moore and W. Tymowski, Explanantory Guide to the International Treaty on Plant Genetic Resources for Food and Agriculture (2005), at 84.
37. Art. 5(5).
38. See Art. 5(5) (if TK is utilized then benefit sharing must ensue); and Art. 7 (parties' measures relate to requiring the PIC and MAT of TK held by ILCs).
39. This was the approach of the countries constituting the African Group during the negotiations for the Nagoya Protocol.
40. India's Biodiversity Act 2002 assumes that the interests of the state equate to the interests of the people: Ramdas, 'Whose Access and Whose Benefits? Securing Customary Rights in India', in H. Ashley, N. Kenton, and A. Milligan (eds). Biodiversity and Culture: Exploring Community Protocols, Rights and Consent (2012), at 55, 56.
41. India requires the competent authority to consult with the local body concerned when considering and making a decision on an application for genetic resources and associated TK: Biodiversity Rules, 2004, Rule 14.3, available at: http://nbaindia.org/uploaded/Biodiversityindia/Legal/33.%20Biological%20 Diversity%20Rules,%202004.pdf (last accessed 7 Nov. 2013).
42. The Sabah Biodiversity Enactment 7 of 2000 establishes a Biodiversity Centre with the purpose of, inter alia, 'establishing or caused to be established a system for the protection of biological resources so that the indigenous and local communities shall, at all times and in perpetuity, be the legitimate creators, users and custodians of such knowledge, and shall collectively benefit from the use of such knowledge': s. 9(1) (j).
43. Draft Access to Biological Resources and Benefit Sharing Act 2012 (restricted circulation).
44. Art. 74(2), Malaysian Federal Constitution.
45. Art. 76(1)(a), Malaysian Federal Constitution.
46. Commonwealth v. Tasmania ('The Tasmanian Dam Case') 158 CLR (1985) 1. The HC of Australia cited an example: if the rapid depletion of the world's forests were to threaten life on earth and the UN were to request nations to preserve their remaining forests, then the federal parliament should be able to comply using its external affairs power
47. Nijar, 'The Bakun Dam Case: A Critique', [1997] MLJ ccxxix, at ccxliii.
48. This is the approach of Australia, which also has a federal constitution: Nationally Consistent Approach for Access to and the Utilisation of Australia's Native Genetic and Biochemical Resources (NCA), available at: www.environment.gov.au/biodiversity/science/access/nca/index.html (last accessed 7 Nov. 2013).
49. Queensland: Biodiscovery Act 2004 (Act 19), available at: https://www.legislation.qld.gov.au/LEGISLTN/ CURRENT/B/BiodiscovA04.pdf (last accessed 7 Nov. 2013).
50. Northern Territory of Australia: Biological Resources Act 2006 available at: www.wipo.int/wipolex/en/details.jsp?id=6048 (last accessed 7 Nov. 2013).
51. Kerajaan Negeri Johor v. Adong bin Kuwou & Ors [1988] 2 MLJ 158 (Malaysian CA
52. Kerajaan Negeri Selangor & Ors v. Sagong bin Tasi & Ors [2005] 6 MLJ 289 (Malaysian CA)
53. Gray, 'Complexities of Informed Consent', The Annals of the Am Academy of Political and Social Sciences (1978), 437, available at: http://ann.sagepub.com/content/437/1/37 (last accessed 7 Nov. 2013), at 37, 41.
54. D.A. Posey and G. Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Traditional Communities, .. (1996), ch. 4, available at: http://web.idrc.ca/openebooks/799-x/ (last accessed 7 Nov. 2013).
55. Schroeder, 'Informed Consent: from Medical Research to Traditional Knowledge', in R. Wynberg et al, Indigenous Peoples, Consent and Benefit Sharing: Lessons from the Hoodia case (2009), at 27, 39.
56. The Declaration incorporates the approaches in other previous international instruments primarily relating to human rights, such as the Draft General Recommendations under the 1967 UN Committee on the Elimination of Racial Discrimination, the 1992 Rio Declaration on Environment and Development (Principle 22), and the 1995 Copenhagen World Summit for Social Development.
57. The UNDRIP was adopted on 13 Sept. 2007 by 144 countries, with 11 abstentions and four countries voting against it. These four countries were Canada, the USA, New Zealand, and Australia. Since 2009 Australia and New Zealand have reversed their positions and now support the Declaration, while the US and Canada have announced that they will revise their positions: see http://indigenousfoundations.arts. ubc.ca/?id=1097 (accessed 9 Sept. 2012).
58. the enactment in Malaysia of the Wildlife Conservation Act 2010: '[t]he Orang Asli were not consulted when the amendments were being drafted and the majority of them are still unaware of this new law. Such has become the fate of the Orang Asli. They are the last to know of any development or policies that affect them. And the first to be victims of programmes and policies foisted on them': C. Nicholas, J. Engi, and Y.P. The, The Orang Asli and the UNDRIP: from Rhetoric to Recognition (2010), at v.
59. CBD, Art. 8(j).
60. Nijar, 'The Application of International Norms in National Adjudication of Fundamental Rights', in Malaysian Bar Council, Proceedings of the 12th Malaysian Law Conference (2005), at 52.
61. Morgera and Tsioumani, 'The Evolution of Benefit Sharing: Linking Biodiversity and Community Livelihoods', 19 Rev EC and Int'l L (2010) 150, at 171.
62. Veitayaki, 'Taking Advantage of Indigenous Knowledge: The Fiji Case', LIV(3) Int'l Social Science J (2002) 395, at 401.
63. Similarly protocols developed by communities for the grant of PIC for access to their land, resources, or TK may be irrelevant or undermined where there is no recognition of customary law establishing these rights: M.R. Muller, The Protection of Traditional Knowledge: Policy and Legal Advances in Latin America (2006), at 158.
64. M. Torten and J. Anderson, Intellectual Property and the Safeguarding of Traditional Cultures (2010), at 76.
65. This was the thrust of the view of the ELBA group of countries (comprising Ecuador, Venezuela, Cuba, and Bolivia), at the plenary session which adopted the Nagoya Protocol in Oct. 2010.