A Handbook of Contemporary Research
Edited by Matthew Rimmer
Chapter 24: Traditional knowledge sovereignty: the fundamental role of customary law in the protection of traditional knowledge
Indigenous peoples’ struggle for recognition and protection of their rights over their traditional knowledge is intimately linked to their primary struggle for recognition of their rights to self-determination and to govern their affairs in accordance with their own laws, customs and traditions. These rights encompass the right to control access and use of their traditional knowledge in accordance with their own laws, customs and traditions. These rights are now clearly recognised under international instruments that require states to give due respect, due recognition, due regard, and/or to ‘take into consideration’ the customary laws of Indigenous peoples. The challenge now facing legislators and Indigenous peoples alike is to secure the implementation and enforcement of these obligations in practice. The current chapter seeks to throw some light on these issues through analysis of national, regional and international regulation of traditional knowledge, with particular attention to the experiences of Peru and the European Union. Following a brief introduction, section 1 examines the rights of Indigenous peoples to self-determination and their own customary legal regimes. Section 2 discusses Indigenous peoples’ mistrust of intellectual property regimes and the search for sui generis (of its own kind) systems for protection of traditional knowledge. Section 3 provides an overview of the treatment of customary law in international regulation of traditional knowledge. Section 4 considers regional experiences in traditional knowledge governance from Latin America, Africa and Oceania.
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