4.2 Why translate an agreement rooted in oral tradition into a written
document?
Customary laws of Indigenous communities are, by definition, unwritten. They are transmitted orally from
one generation to another, are adopted verbally and usually etched into the collective memory through
participatory ceremony. The Inter-community Agreement only applies among the Park communities and, in
principle, it should not be necessary to put it in writing; nevertheless, a decision was made to produce a
written version. The reason for this was a recognition of the need to communicate the concept and detail
of the agreement to an audience beyond the community of the Potato Park. The need to communicate was
identified based upon several objectives:
1. For the purposes of research, contributing to a deeper understanding of the dynamics of customary law
within a biocultural system, the nature of the agreements among the communities, and the similarities and
differences with agreements based on Western legal systems;
2. In order to share the experience with other communities and experts seeking to develop creative, just and
culturally sensitive schemes to define benefit sharing agreements with communities in different areas;
3. Recognising
that, internationally, we are, or should be, in a dialectical process (not a debate), to contribute
to a more constructive and practical discussion on the definition of sui generis systems for the protection
of traditional knowledge and the role of customary law in such schemes; and
4. To provide an example of a practical application of the biocultural systems approach.
It is clear that one of the great difficulties in applying norms beyond the community level is precisely their
unwritten nature, though customary law does achieve the same level of clarity and precision as systems of
positive law (Kuruk, 2002). One way to solve this problem is to incorporate customary norms into agreements
between communities and third parties.
4.3 Community Leadership in Development & Negotiation of the Agreement
8
The process for defining the Inter-community Agreement included an investigation to define its objectives,
followed by a process for identifying the common interests of the communities, and then the creation of an
inter-community committee. The role of this committee was to guide the negotiation process, creating a
foundation for the agreement and helping the communities to create the necessary institutional framework
for implementation.
After listening to the communities and understanding the dynamics of and principles derived from their
customary norms, the community researchers compiled the various methods of benefit sharing identified
and agreed upon by the six communities of the Potato Park, which resulted in a draft text. Subsequently, a
consultation process was conducted, as a precursor to negotiations among the communities, to review and
discuss the draft agreement. Preparation for these consultations included the development of materials in
Quechua explaining each possible clause of the agreement and compiling outstanding issues for discussion. At
the time of writing the agreement, the researchers identified a number of issues yet to be defined and adopted
by the communities, such as new instruments (like funds created for the administration and distribution
of benefits) and the role of the Association of the Potato Park (created by the six communities for the
administration of the Park) in the implementation of the agreement, which led to another round of consultation
and negotiation.
The consultation process was long and complex, making use of a variety of techniques including focus
groups, interviews, conceptual graphics, videos in Quechua, and participation in community assemblies.
Consultations based on the initial draft document, which began in 2007, brought to light a number of issues
that had not been anticipated during the definition phase of the agreement. Some of the difficulties identified
by the researchers were related to varying levels of ‘biculturalism’ and the different market links of the six
communities. As a result, the communities showed some differences in both outlook and expectation related
to the Park, as well as in the decision-making authority they were willing to delegate to the Association. This
is an example of how the Park is experiencing new challenges and opportunities as a result of its interaction
with Western society (e.g. sharing cultural values, generating new sources of income, and enhancing the
livelihoods of the communities). These challenges and opportunities may generate conflicts that require time
to understand and resolve, particularly since the communities are struggling to adopt agreements related to
intangible or future issues, such as benefits that are yet to reach the Park.
Protecting Community Rights over Traditional Knowledge: Implications of customary laws and practices