Slide

The protection of traditional
knowledge: an examination of the
provisions of the Nagoya Protocol on
access and benefit-sharing with
reference to relevant international
rules and processes
What is TK?Why to protect it?The legal basis for protection of TK in the Turmeric – first time a patent on TK was successfully Neem – patent revoked by EPOAyahuasca – patent upheld, eventually expiredHoodia - benefit-sharing arrangement reached National sovereignty over genetic resources Prior informed consent for access to genetic Fair and equitable sharing of benefits (Arts. 1, 8(j) and 15.7) - No mention of TK with regard to benefit- sharing in Arts. 1 and 15 Protection of TK in situ (Art. 8(j))  Pursuant to mutually agreed terms established following prior informed consent, benefits should be shared fairly and
equitably with all those who have been identified as having
contributed to the resource management, scientific and/or
commercial process. The latter may include
governmental,non-governmental or academic institutions
and indigenous and local communities. Benefits should
be directed in such a way as to promote conservation and
sustainable use of biological diversity (Para 48).
 Preamble includes references to: Article 8(j);  the interrelationship between genetic resources and TK and their inseparable  the diversity of circumstances in which TK is held or owned by indigenous and  the identification of the rightful holders of TK by the respective community;  the unique circumstances where TK is held in countries; the UN Declaration on the Rights of Indigenous Peoples; a note affirming that nothing in the Protocol shall be construed as diminishing or extinguishing the existing rights of indigenous and local communities.
 No reference of TK in the Objective (Article 1) BUT explicit reference in the provision on Scope (Article 3)  Article 3 (Scope): … This Protocol shall also apply to traditional knowledge associated with genetic resources within the scope of the Convention and to the benefits arising from the utilization of such knowledge  Fair and equitable sharing of benefits (Article 5) Para 5: “Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of traditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be on mutually agreed terms.”  Para 2: “Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms.  Access to genetic resources (Article 6) Para 2: “In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources.”  Para 3(f): “…each Party requiring prior informed consent shall take the necessary legislative, administrative or policy measures, as appropriate, to: … where applicable, and subject to domestic legislation, set out criteria and/or processes for obtaining prior informed consent or approval and involvement of indigenous and local communities for access to genetic resources.”  Access to TK associated with genetic resources (Article 7) “In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.”  Traditional knowledge (Article 12) It contains four paragraphs, which call upon Parties to: take into consideration indigenous and local communities’ customary laws, community protocols and procedures regarding TK associated with genetic resources;  establish mechanisms to inform potential users of TK about their obligations; endeavour to support the development of community protocols, minimum requirements for MAT and model contractual clauses for benefit-sharing by ILCs, including women within these communities;  and not restrict the customary use and exchange of genetic resources and associated TK within and amongst indigenous and local communities. Compliance  Article 16: It requires Parties to take appropriate measures to provide that TK utilized within their jurisdiction has been accessed in accordance with PIC and MAT as required by the domestic ABS legislation of the Party where the community is located.
 Article 18: It calls upon Parties to provide for legal mechanisms to ensure compliance with MAT.
 Multilateral mechanism (Article 10) and transboundary  Global multilateral benefit-sharing mechanism to be established and used where genetic resources and TK are in transboundary situations or when it is not possible to grant or obtain PIC – benefits to be used for conservation and sustainable use.
 Transboundary cooperation in cases of shared resources and TK.
 TK provisions an important part of the Protocol – they establish new obligations for Parties  Requirements for protection of TK in situ: National legislation on ABS – mechanisms and tools to ensure that benefits reach the local level  Capacity-building: Promotion of autonomy and capacity for  Autonomous development of community processes

Source: http://www.iddri.org/Evenements/Conferences-internationales/110203_presentation%20elsa%20tsioumani.pdf