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Please note that corrections may take a couple of weeks to filter through the various RePEc services. Within the context of both Article 8 j and 10 c , such customary uses can be considered synonymous with the "knowledge, innovations and practices" referred to in Article 8 j , when these are relevant to or compatible with the conservation and sustainable use of biological resources.
The traditional knowledge, innovations and practices of most indigenous and local communities directly derives from customary use of biological resources, thereby emphasizing the need to read Article 10 c in conjunction with Article 8 j. Article Access to genetic resources and benefit sharing arising out of the use of genetic resources cannot be separated from the traditional knowledge of indigenous and local communities. Traditional knowledge can be highly valuable in identifying sources of new products derived from genetic resources, It is important that Article 8 j and Article 10 c are read in conjunction with Article Article 8 j indicates that the wider application of indigenous and local communities knowledge, innovation and practices should take place with the approval and involvement of its holders Article 17 provides for the exchange of information.
This allows for the same obligation and status as other technologies that can contribute to the conservation of biodiversity, and to subject them to the technology transfer obligations of Article 16 that ensure protection of the rights of knowledge holders.
This obligation complements the general Article 8 j promote the wider application of the knowledge, innovations and practices of indigenous and local communities , Article 12 research and training , Article 16 access to and transfer of technology , Article 17 exchange of information and Article 19 handling of biotechnology and distribution of its benefits Gender-related aspects The formal recognition of the role of indigenous and local communities and their womenfolk is occurring.
The Convention on Biological Diversity addresses the role of both women and local communities in the conservation and sustainable use of biological diversity. The principle of free, prior and informed consent before access to genetic resources pertains only to the State and not to the Indigenous and local communities.
This is a serious shortcoming in the CBD; hence, it should be extended to the indigenous and local communities. The ongoing negotiation for a centralized international and national data bases or biodiversity registers on traditional knowledge is dangerous and the international regime on ABS as it widens the scope for biopiracy before determining how effectively it would be managed, or how access would be determined, or who would control it.
In other words, there is a need for settling the rights of the indigenous peoples first. Moreover, suggesting a single model of such a regime defeats the very concept of sui generis for it should be adapted to the object it seeks to protect and to the context it is to be applied. Customary law is unique and is of its own kind and appropriate to our context and worldview.
Therefore, keeping in mind Article 10 c of the CBD, customary laws should be the basis for developing protective instruments and mechanisms for protecting traditional knowledge, innovation and practices. There are several inconsistencies and contradictions emerging in the negotiation in relation within the CBD and other UN bodies dealing with the indigenous peoples such as WIPO and WTO in relation to the protection of traditional knowledge, innovation and practices as well as customary use of resources.
The right of the indigenous and local communities on their natural resources and knowledge need to be recognized and addressed in a holistic manner. It means that our lands and territories must be restored to us as rightful owners and custodians of the natural resources within it.
Our participatory governance systems of natural resource management should be recognized as a viable and effective system of conservation that is unique to us. Our right to self-determination must be recognized for ensuring perpetuation, safeguarding and protection, and for further development of our heritage. To this effect, while the role of 8 j has been recognized as having substantial importance, 10 c has not been. It is vital that indigenous peoples put in substantial effort in making 10 c as effective as possible and push for recognition of customary law that continues to be treated as subservient to jurisprudential law and thereby rendering it irrelevant in modern governance systems.
Further, while 8 j and 10 c has the potential of forming the basis of negotiation within the CBD, we must focus on building on a strong synergy among the Articles cited above. Further, a more concrete exploration and elaboration of the international human rights instruments and the debate on PSNR needs to be carried out at the various fora that are available to the indigenous peoples. Without building on a strategic convergence, realization of the rights of indigenous peoples over their lands and territories, and natural resources would be difficult.
Furthermore, it calls for a consolidation of the struggles at the regional and national levels for the creation of a democratic space for the realization of the various provisions in relationship to the international instruments and provisions. Concrete inputs from the ground must form the basis of this. Your email address will not be published. This site uses Akismet to reduce spam. Learn how your comment data is processed. Introduction In this paper, I will begin the discussion by outlining the trends and discourses on the concepts and definitions of Indigenous Knowledge IK , and some of its key components to give an overview.
This will be followed by presentation on some of the relevant experiences of laws and policies in India. Keeping the key provisions under the Convention on Biological Diversity CBD on traditional knowledge in mind, I shall then discuss the processes and issues that are most relevant to indigenous peoples. In the final part of this paper, attempt would be made to understand how indigenous peoples could make use of the various local, national and international processes to further their interest in relationship to IK by outlining the key issues for a collective dialogue, especially in the context of the CBD.
However, the situation in this regard is changing as Kloppenburg and DeWalt and respectively quoted in Sillitoe , p. There is now a growing literature and processes showing that traditional knowledge are of more than just historical interest. For example, Article 8 j of the CBD states respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovation and practices.
However, the differences of these terms are matter of degree and not of kind. Some writers contrast indigenous knowledge with scientific knowledge, sometime implying that it applies only to non-Western knowledge Sillitoe Further, according to Warren et al. As we can see, the usage of the terms is subject to confusions and it cannot be easily harmonized. Sillitoe , p. Hence, we need a conceptual model that better reflects equal relations and offers the potential to allow all a fair voice Smith In the meantime, what one needs to be cautious of is as Sillitoe , p.
According to Mugabe , p. According to Hun , p. But others see tradition and change to be contradictory concepts Berkes , as tradition is understood to be fixed and frozen in time. He Berkes , p. The other aspect of the usage of the term indigenous knowledge for some authors is not only with reference to the indigenous peoples but in a wider context as well. It is used to refer to the knowledge of all local communities. In Europe, indigenous knowledge is equated with or referred to as citizen science Sillitoe Sometimes its philosophical roots are traced to dominant religions and knowledge systems of Asia such as Hinduism and Tao knowledge, or to concepts like Brahmin1 such as in the work of Sillitoe Sillitoe Though simplistic, Mugabe , p.
According to him indigenous knowledge…is that knowledge that is held and used by a people who identify themselves as indigenous of a place based on a combination of cultural distinctiveness and prior territorial occupancy relative to a more recently-arrived population with its own distinct and subsequently dominant culture.
Indigenous knowledge fits neatly in the traditional knowledge category but all traditional knowledge is not necessarily indigenous. Having examined some of the problems in relation to the usage of terminologies and wide variety of definitions as presented above makes us see not only how nascent the subject is within the academia but also of the interest that is growing outside of the indigenous peoples. To enquire a little deeper, let us see how Berkes , p.
His definition positively attributes indigenous knowledge with the historical continuity in resource use of a society on a particular land. Further, Svanberg and Tunon , p. Knowledge is part of their heritage that is regarded as an integrated, interdependent whole, which cannot be separated into component parts Tauli-Corpuz Indigenous knowledge includes their creative production of human thought and craftsmanship, language, and cultural expressions which are created, acquired and inspired, such as songs, dances, stories, ceremonies, symbols, poetry, artworks, scientific, agricultural, technical, and ecological knowledge and the skills required to implement this knowledge and technologies ibid.
The term ecological knowledge is also often used when one talks of indigenous knowledge but as Berkes cautions us that we must be aware of the definitional problem associated with it. As Berkes , p. Hence, if the term ecology is merely used, it would only reflect the meaning of Western science and not that of indigenous knowledge.
Often and rightly, spirituality has been placed at the heart of indigenous knowledge, but on the other hand, there is an inherent tendency to characterize it as being too local and too special, rendering it to be almost or totally irrelevant outside its specific location. It could also help in leveling the hierarchical relationship between the so-called scientific knowledge and indigenous knowledge.
My argument is that the fragmentation of indigenous knowledge, breaking down in their customary laws and other social institutions that produces knowledge, and regulates the use and transmit the same would result in the disruption of the continuity of their knowledge systems. Let us now examine the concepts and definitions on indigenous customary law as presented from various quarters.
Indigenous peoples throughout the world live within state systems but many of them, at varying degrees, still continue to regulate their social and cultural practices through customary law Roy However, as we shall see, there are several problems in relation to the understanding and definition of customary law within the academia. To the indigenous peoples, customary laws and traditional institutions of governance not only constitute the basis of biodiversity conservation, sustainable use and preservation; and development of indigenous knowledge Bijoy , but other broader social, cultural and political functions as well.
This aspect shall be examined further below. There is no universally accepted definition of customary law. On the other hand, conceptually, it has been fundamentally viewed by those in the state as formless, without structure and unfitted to meet the needs of the modern nation state Brown A more concrete definition has been attempted by Bekker quoted in Roy , p. The problem with this definition is that it does not see customary law as a living law that is capable of adapting and developing.
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Hence, it was destined to a slow death without any future. Further, according to Roy , p. What we see from the above is that indigenous customary laws have always been considered inferior to the legal positivism of the day Boast and this has been hardly challenged. Some of the studies on customary laws show that the attitude towards it has hardly changed since the last several decades.get link
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Most definitions and interpretation of customary laws amounts to the denial of progression of a history of a people with any sense of direction. As we can see from how Hegel explains the intimate relationship between law and history hegel : history is always of great importance for a people; since by means of that it becomes conscious of the path of development taken by its own spirit which expresses it self in laws, manners, customs and deeds. Nonetheless, there are scholars who do see customary law in much more concrete sense and as being rooted in the concrete history of a people.
In , he wrote a long essay for the Jacob Joseph Scholarship at Victoria University from which the article we are referring to is reprinted from the first two chapters. These two chapters are considered of particular jurisprudential and historical interest; for it is here that Acheson challenges the intellectually ascendant legal positivism of the day.