Where custom is the law

State and user obligations to ‘take into consideration’ customary law governing traditional knowledge and genetic resources

Authored by: Brendan Tobin

Routledge Handbook of Biodiversity and the Law

Print publication date:  December  2017
Online publication date:  November  2017

Print ISBN: 9781138693302
eBook ISBN: 9781315530857
Adobe ISBN:

10.4324/9781315530857-19

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Abstract

International law requires States to protect Indigenous Peoples and local communities’ rights over their traditional knowledge with due consideration for their customary laws and protocols. Due diligence provisions in national and regional law are passing on these obligations to users. This chapter analyses national and international recognition of customary law and its role in the protection of traditional knowledge, with particular attention to the experience of the European Community and the countries of the Andean community. It highlights the opportunities for States, Indigenous Peoples and local communities to adopt ‘hard’ and ‘soft law’ measures to help ensure customary law plays an effective role in the protection of traditional knowledge. It concludes that effective and culturally legitimate regulation of traditional knowledge can only be achieved and legal certainty secured with a system that gives due respect, recognition and consideration to customary law.

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