Power Relations in the Traditional Knowledge Debate: A Critical Analysis of Forums

2011 ◽  
Vol 18 (2) ◽  
pp. 143-178 ◽  
Author(s):  
Charles Kamau Maina
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Policy Outcomes ◽  
United Nations General ◽  
The World ◽  
International Decade

AbstractAn ongoing debate on the protection of traditional knowledge was prompted by the United Nations General Assembly declaration of the International Decade of the World's Indigenous Peoples in 1995 and the declaration of the Second International Decade in 2004. These two declarations challenged governments and the international community to address, nationally and internationally, issues that affect indigenous communities. One such issue is the protection of traditional knowledge. The three key international multilateral forums that are debating traditional knowledge issues are the World Intellectual Property Organization, the World Trade Organization, and the Convention on Biological Diversity. Using a political economy framework, this study analyzes the policymaking processes and mandates of the three multilateral forums in order to highlight stakeholders' levels of involvement in these processes. The study found that the multilateral forums' power structures, mandates, and decision-making processes disadvantage indigenous peoples and hinder their full participation in the forums' processes. The study recommends establishing a forum that would take into account indigenous peoples' worldviews; otherwise policy outcomes from these discussions will probably disadvantage indigenous peoples.

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

scholarly journals The Rooibos Benefit Sharing Agreement–Breaking New Ground with Respect, Honesty, Fairness, and Care

2019 ◽  
Vol 29 (2) ◽  
pp. 285-301
Author(s):  
DORIS SCHROEDER ◽  
ROGER CHENNELLS ◽  
COLLIN LOUW ◽  
LEANA SNYDERS ◽  
TIMOTHY HODGES
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Global Policy ◽  
Nagoya Protocol ◽  
Major Benefit ◽  
Government Leadership

AbstractThe 1992 Convention on Biological Diversity (CBD) and its 2010 Nagoya Protocol brought about a breakthrough in global policy making. They combined a concern for the environment with a commitment to resolving longstanding human injustices regarding access to, and use of biological resources. In particular, the traditional knowledge of indigenous communities was no longer going to be exploited without fair benefit sharing. Yet, for 25 years after the adoption of the CBD, there were no major benefit sharing agreements that led to significant funding streams for indigenous communities. This changed with the signing of the Rooibos Benefit Sharing Agreement in South Africa, described in this paper. As the authors report, the Rooibos Agreement is a superlative in two respects. It is the biggest benefit sharing agreement between industry and indigenous peoples to date. It is also the first industry-wide agreement to be formed in accordance with biodiversity legislation. This article is a co-production between traditional knowledge holders, the lawyer who represented their interests, the Co-Chair of the Nagoya Protocol negotiations, and an ethicist who analyzed the major challenges of this historic agreement. With no precedent in the benefit sharing world, the agreement stands as a concrete example of the ‘art of the possible.’ Although the rooibos case is unique in a number of aspects, the experience offers many transferable insights, including: patience; incrementalism; honesty; trust; genuine dialogue; strong legal support; a shared recognition that a fair, win-win deal is possible; government leadership; and unity amongst indigenous peoples. Such ingredients of success can apply well beyond southern Africa.

Protecting Traditional Knowledge Holders' Interests and Preventing Misappropriation—Traditional Knowledge Commons and Biocultural Protocols: Necessary but Not Sufficient?

2012 ◽  
Vol 19 (3) ◽  
pp. 401-422 ◽  
Author(s):  
Krishna Ravi Srinivas
Keyword(s):  
Informed Consent ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Prior Informed Consent ◽  
Knowledge Commons

AbstractThe experience of the indigenous communities regarding access and benefit sharing under the national regimes based on provisions of Convention on Biological Diversity and Bonn Guidelines has not been satisfactory. The communities expect that noncommercial values should be respected and misappropriation should be prevented. Some academics and civil society groups have suggested that traditional knowledge commons and biocultural protocols will be useful in ensuring that while noncommercial values are respected, access and benefit sharing takes place on conditions that are acceptable to the communities. This proposal is examined in this context in the larger context of access and benefit sharing under the Convention on Biological Diversity and implementing prior informed consent principles in access and benefit sharing. This article examines knowledge commons, provides examples from constructed commons in different sectors and situates traditional knowledge commons in the context of debates on commons and public domain. The major shortcomings of traditional commons and bicultural protocol are pointed out, and it is suggested that these are significant initiatives that can be combined with the Nagoya Protocol to fulfill the expectations of indigenous communities.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

Overcoming epistemic injustices in the biomedical study of ayahuasca: Towards ethical and sustainable regulation

2022 ◽  
pp. 136346152110629
Author(s):  
Eduardo Ekman Schenberg ◽  
Konstantin Gerber
Keyword(s):  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Therapeutic Potential ◽  
Indigenous Rights ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Epistemic Authority ◽  
Double Blind

After decades of biomedical research on ayahuasca's molecular compounds and their physiological effects, recent clinical trials show evidence of therapeutic potential for depression. However, indigenous peoples have been using ayahuasca therapeutically for a very long time, and thus we question the epistemic authority attributed to scientific studies, proposing that epistemic injustices were committed with practical, cultural, social, and legal consequences. We question epistemic authority based on the double-blind design, the molecularization discourse, and contextual issues about safety. We propose a new approach to foster epistemically fair research, outlining how to enforce indigenous rights, considering the Brazilian, Peruvian, and Colombian cases. Indigenous peoples have the right to maintain, control, protect, and develop their biocultural heritage, traditional knowledge, and cultural expressions, including traditional medicine practices. New regulations about ayahuasca must respect the free, prior, and informed consent of indigenous peoples according to the International Labor Organization Indigenous and Tribal Peoples Convention no. 169. The declaration of the ayahuasca complex as a national cultural heritage may prevent patenting from third parties, fostering the development of traditional medicine. When involving isolated compounds derived from traditional knowledge, benefit-sharing agreements are mandatory according to the United Nations’ Convention on Biological Diversity. Considering the extremely high demand to treat millions of depressed patients, the medicalization of ayahuasca without adequate regulation respectful of indigenous rights can be detrimental to indigenous peoples and their management of local environments, potentially harming the sustainability of the plants and of the Amazon itself, which is approaching its dieback tipping point.

scholarly journals Indigenous Protected and Conserved Areas (IPCAs), Aichi Target 11 and Canada’s Pathway to Target 1: Focusing Conservation on Reconciliation

Land ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 10 ◽  
Author(s):  
Melanie Zurba ◽  
Karen Beazley ◽  
Emilie English ◽  
Johanna Buchmann-Duck
Keyword(s):  
Protected Areas ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Convention On Biological Diversity ◽  
Colonial History ◽  
The Past ◽  
Nation States ◽  
Different Types ◽  
Aichi Biodiversity Targets

This article provides analysis of the issues relating to movement towards new models for Indigenous-led conservation in light of Canada’s initiatives for greater protected areas representation through Target 1. We provide a background on Canada’s Pathway to Target 1, which is based on Target 11 from the Aichi Biodiversity Targets set forth by the Convention on Biological Diversity (CBD). We contemplate the past, present and future of colonization and reconciliation in Canada, and consider the influence of international declarations, programs and initiatives on the potential for the formation of Indigenous Protected and Conserved Areas (IPCAs). We then provide an analysis of “wicked problems” that Indigenous communities, governments, and other stakeholders in protected areas will need to navigate towards implementing the IPCA approach in Canada. We outline the different types of Indigenous involvement in protected areas and how they potentially fit within the principles for the development of IPCAs. We then turn our discussion to the need to refocus conservation on reconciliation by restoring nation-to-nation relationships and relationships between the land and peoples. The lessons we draw have potential parallels for other nation states, particularly those signatory to the CBD and with a colonial history, aiming for biodiversity conservation and reconciliation with Indigenous peoples through IPCAs.

scholarly journals Indigenous Participation and the Incorporation of Indigenous Knowledge and Perspectives in Global Environmental Governance Forums: a Systematic Review

2021 ◽  
Author(s):  
Melanie Zurba ◽  
Anastasia Papadopoulos
Keyword(s):  
Systematic Review ◽  
Indigenous Peoples ◽  
Environmental Governance ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Convention On Biological Diversity ◽  
Future Research ◽  
Global Environmental Governance ◽  
Global Environmental ◽  
Indigenous Participation

AbstractGlobal environmental governance (GEG) forums, such as those convened through the United Nations, result in the development of monumental guiding frameworks such as the Sustainable Development Goals (SDGs) and the Convention on Biological Diversity (CBD) Conference of Parties (COPs) Aichi and post-2020 targets. The ratification of policy frameworks by member and/or signatory states can result in major shifts in environmental policy and decision-making and has major implications for Indigenous communities. In this article, we present systematic review of the peer-reviewed literature on Indigenous participation in GEG forums, and focus on the specific questions: (1) what GEG forums include Indigenous participation and (2) how do Indigenous peoples participate in GEG forums, including how their perspectives and knowledges are framed and/or included/excluded within governance discussions, decisions, and negotiations. We provide a bibliometric analysis of the articles and derive seven inductively determined themes from our review: (1) Critical governance forums and decisions; (2) inclusion and exclusion of Indigenous voices and knowledge in GEG forums; (3) capacity barriers; (4) knowledge hierarchies: inclusion, integration, and bridging; (5) representation and grouping of Indigenous peoples in GEG; (6) need for networks among and between Indigenous peoples and other governance actors; and (7) Indigenous peoples influence on GEG decisions and processes. Our findings can be used to improve GEG forums by contributing to the development strategies that address the barriers and inequities to meaningful and beneficial Indigenous participation and can contribute to future research that is focused on understanding the experiences of Indigenous peoples within GEG forums.

scholarly journals Traditional medicinal knowledge, recognition and regulation

2021 ◽  
Author(s):  
Nicole Aylwin
Keyword(s):  
Intellectual Property ◽  
Political Institutions ◽  
Biological Diversity ◽  
World Intellectual Property Organization ◽  
World Health ◽  
Convention On Biological Diversity ◽  
The Social ◽  
The World ◽  
Health Organization ◽  
Key Questions

As a number of global legal and political institutions grapple with ways to recognize and integrate TMK into their institutional frameworks, how traditional practices are 'recognized', and what work 'recognition's being asked to do become key questions. Three international frameworks that play a key role in recognizing TMK in the international arena are the Convention on Biological Diversity, the World Intellectual Property Organization and the World Health Organization. By examining the way in which these three bodies have recognized and integrated TMK into their respective regimes, while and drawing on the scholarship of anthropologists, critical legal scholars, intellectual property experts and legal and policy literature, I will argue that the recognition of TMK in the international legal and political arena has led to the creation of complex legal and political spaces where recognizing traditional medicinal knowledge has fragmented it, siphoning off the social, cultural and spiritual aspects of it that remain incompatible with the current neoliberal paradigms. Simultaneously, recognition and integration have been used to co-opt traditional knowledge in order to extend governance regimes that integrate TMK and its holders without challenging the basic, outdated and highly unequal and unethical power relations on discourses of recognition are based.

scholarly journals RECOGNITION OF INDIGENOUS PEOPLES IN ACCESS AND BENEFIT SHARING (ABS) LEGISLATION AND POLICIES OF THE PARTIES TO THE NAGOYA PROTOCOL

2018 ◽  
Vol 5 (3) ◽  
pp. 86-113
Author(s):  
H. Arjjumend
Keyword(s):  
Informed Consent ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Free Access ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Prior Informed Consent

The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of indigenous peoples and local communities (ILCs) in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). States Parties are obliged to take legislative, administrative and technical measures to recognize, respect and support/ensure the prior informed consent of indigenous communities and their effective involvement in preparing mutually agreed terms before accessing genetic resources and associated traditional knowledge or utilizing them. Within the ambit of contemporary debates encompassing indigenous peoples’ right to self-determination, this paper examines the effectiveness of the percolation of the legal intent of international law into existing or evolving domestic laws, policies or administrative measures of the Parties on access and benefit sharing. Through an opinion survey of indigenous organizations and the competent national authorities of the Parties to the Convention on Biological Diversity (CBD), the findings indicate that the space, recognition and respect created in existing or evolving domestic ABS measures for the rights of indigenous communities are too inadequate to effectively implement the statutory provisions related to prior informed consent, mutually agreed terms and indigenous peoples’ free access to biological resources as envisaged in the Nagoya Protocol. As these bio-cultural rights of indigenous peoples are key to the conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation to be sufficiently effective in translating the spirit of international ABS law and policies.

scholarly journals Traditional medicinal knowledge, recognition and regulation

2021 ◽  
Author(s):  
Nicole Aylwin
Keyword(s):  
Intellectual Property ◽  
Political Institutions ◽  
Biological Diversity ◽  
World Intellectual Property Organization ◽  
World Health ◽  
Convention On Biological Diversity ◽  
The Social ◽  
The World ◽  
Health Organization ◽  
Key Questions

As a number of global legal and political institutions grapple with ways to recognize and integrate TMK into their institutional frameworks, how traditional practices are 'recognized', and what work 'recognition's being asked to do become key questions. Three international frameworks that play a key role in recognizing TMK in the international arena are the Convention on Biological Diversity, the World Intellectual Property Organization and the World Health Organization. By examining the way in which these three bodies have recognized and integrated TMK into their respective regimes, while and drawing on the scholarship of anthropologists, critical legal scholars, intellectual property experts and legal and policy literature, I will argue that the recognition of TMK in the international legal and political arena has led to the creation of complex legal and political spaces where recognizing traditional medicinal knowledge has fragmented it, siphoning off the social, cultural and spiritual aspects of it that remain incompatible with the current neoliberal paradigms. Simultaneously, recognition and integration have been used to co-opt traditional knowledge in order to extend governance regimes that integrate TMK and its holders without challenging the basic, outdated and highly unequal and unethical power relations on discourses of recognition are based.

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