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The Role of Customary Law in Access and Benefit-sharing and Traditional Knowledge Governance: Perspectives from Andean and Pacific Island Countries

The Role of Customary Law in Access and Benefit-sharing and Traditional Knowledge Governance: Perspectives from Andean and Pacific Island Countries

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This paper provides an overview of the debate on customary laws and the outcomes of Andean and South Pacific workshops and provides some suggestions on the potential role for customary law in international governance of access and benefit sharing and traditional knowledge. Jointly produced by the World Intellectual Property Organization (WIPO) and the United Nations University (UNU).
This paper provides an overview of the debate on customary laws and the outcomes of Andean and South Pacific workshops and provides some suggestions on the potential role for customary law in international governance of access and benefit sharing and traditional knowledge. Jointly produced by the World Intellectual Property Organization (WIPO) and the United Nations University (UNU).

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01/08/2016

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There are a multiplicity of actors, themes and actions which influence indigenous peoples
and local communities in their decisions to maintain or adapt their own legal systems.
Analysis of the interrelationship between these various factors and the relationship between
different levels of decision-making is required to ensure a more informed debate of the role
and nature of customary law. Investigation of these issues should be carried out in an
integral fashion, viewing the issues from a number of different angles. Emphasis should be
placed on identifying general elements and underlying principles of customary law rather
than seeking in-depth analysis of its content. Considering the fact that customary laws are
currently in force in communities, such research should be bottom-up. In designing any
research program, it will be important to have clear guidelines on issues, such as the use of
research products, confidentiality of information, production, revision and approval of
publications, and diffusion of research results.

There is a need to examine the role of customary law in protection of TK from the
perspective of both positive and customary law in order to evaluate the interface between
these two systems of law. One means to approach analysis, in a bottom-up fashion, is
through information gathering and case studies examining the relationship between
customary law and positive law from the perspective of communities. Such studies should
be complemented by examination of the status of legal and actual recognition of customary
law and of traditional authorities under positive law. This will help demonstrate the extent of
legal pluralism in a country. Participants felt that attempts to assimilate customary law into
the positive law system is contrary to the notion of legal pluralism and should be resisted.

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