This situation places an emphasis on the setting up of the Nagoya Protocol as a forum, which must be open
and accessible to indigenous peoples for it to be of any relevance. Indigenous peoples must also imprint
human rights law, particularly the UNDRIP framework and monitoring mechanisms, on the meetings of the
Nagoya Protocol. The situation also places emphasis on national level legal, institutional and operational
mechanisms to implement the Nagoya Protocol. It is vital that indigenous peoples themselves lead and
complement national implementation processes by developing local access and benefit sharing tools arising
from their customary laws, as established in the Protocol. Biocultural protocols, built upon customary laws
and human rights safeguards, can assist in realizing these objectives and should be integrated into the
development of the internationally recognized certificate of compliance provided for in Article 17 of the
Nagoya Protocol.
The World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) has recognized that traditional knowledge is inseparable
from the traditional norms and practices of Indigenous Peoples (WIPO Information booklet), and should be
considered with due recognition and respect for customary laws (Tobin et al., forthcoming). As a result
of the strength and conviction of Indigenous voices, WIPO has been working on the development of a sui
generis system for TK protection that begins to recognize the customary norms of Indigenous Peoples as a
fundamental tool in maintaining and preserving the ecosystem elements that sustain knowledge systems and
ensure their intergenerational transmission.
5.2 The Peruvian Policy Context
The biological and cultural richness of Peru, as well as its legal framework on biodiversity, genetic resources,
traditional knowledge, and Indigenous rights, places the nation in a unique position to contribute to the current
debate on ABS. This diversity gives rise to a significant number of plants with medicinal value and a variety of
often globally significant crops, such as the more than 4,000 varieties of potato. This diversity is the result of
millennia of innovation by the Quechua people of the Andes.
Peru is one of the few countries that has adopted national sui generis legislation for the protection of TK,
and has ratified International Labour Organization (ILO) Convention 169, recognizing the inherent rights of
Indigenous Peoples. Peru’s Constitution upholds the right of Indigenous communities to use their customary
laws on their lands. Specifically, the biodiversity law7 recognizes traditional knowledge as the cultural heritage
of Indigenous communities (Art 12); states that Indigenous Peoples rights in this regard are ‘inalienable and
indefeasible’ (Art. 11) and that access to this knowledge requires the prior informed consent of Indigenous
Peoples (Art 6). It is regrettable however, that this protection does not extend to knowledge classed as ‘in
the public domain’, which leaves many past cases of ‘biopiracy’ unchallenged (Art 13). In addition to these
developments, the regional government of Cusco recently passed two ordinances: the Ordinance on Biopiracy
(Ordenanza Regional 048 - 2008 CR/GRC.CUSCO contra la biopiratería) and the ordinance that declares
Cusco as a transgenic-free zone (la Ordenanza Regional 010-2007- CR/GRC.CUSCO). These ordinances
provide a supplementary legal framework, through which the creative combination of customary and Western
laws can be realised in an innovative approach to community level conservation and sustainable use, including
access and benefit sharing.
Despite these innovative mechanisms, there are contradictions in the Peruvian framework, primarily as a
result of the country’s bilateral trade agreement with the United States. This contains stronger rights for
intellectual property rights holders than those required by international frameworks, such as those of the
World Trade Organization. It also undermines the rights of traditional knowledge holders and the custodians of
genetic resources, in contradiction of the regional legal framework established by Decision 486 of the Andean
Community of Nations (CAN), which provided for the invalidation of traditional knowledge derived or genetic
resource based patents in the absence of the required authorizations. As a result, Peru’s patent law (Law
29316) represents a clear setback, since it only provides for a penalty, but does not threaten to invalidate
patents, in the case of the inequitable and illegal use of traditional knowledge or the genetic or biological
resources of Indigenous Peoples.
7 Republic of Peru ‘Law No. 27811 of 24 July 2002 introducing a Protection Regime for the Collective Knowledge of Indigenous Peoples
Derived from Biological Resources’
Available at: http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=3420 (Last accessed 01.01.10)
And see also:
Republic of Peru ‘Law No. 28216 of April 30, 2004 on the Protection of Access to Peruvian Biological Diversity and the Collective
Knowledge of Indigenous Peoples’
Available at: http://www.wipo.int/clea/en/text_pdf.jsp?lang=ES&id=5752 (Last accessed 01.01.10)
Community Biocultural Protocols
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