Microsoft Word overview Customary Law doc
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overview customary law
Understanding customary law and strengthening its community role A key priority is to learn from the diverse experiences and concerns of indigenous peoples and local communities that have developed customary laws and practices. This is clearly an important step in understanding the status and potential role of such laws and practices. Such an approach underwrote the original fact-finding consultations with the holders of TK and TCEs in 1998 and 1999 16 . It is also consistent with the IGC’s approach in commencing its sessions with presentations by a panel of representatives of indigenous peoples and local communities. 17 For the purposes of this paper, it may be useful to underscore the continuing value of learning from indigenous peoples and local communities about the nature of customary law and practices, and their role in defining rights, responsibilities and ways of maintaining, disseminating and using TK and TCEs. Participants in the debate have also stressed the need to consolidate and strengthen, as appropriate, the recognition and maintenance of customary laws and practices. Some have reported that it can be difficult to sustain and promote customary laws and practices, particularly during times of social changes, relocation, and external and internal stresses on indigenous peoples and local communities. Thus, the approach taken in many cases is to document or record the customary laws and practices of indigenous peoples and local communities, and to extend their application in the context of formal interactions with the wider legal and policy environment. Recognition, promotion and protection of customary laws and practices is increasingly an element of national, regional and international policies and programs concerning the interests of indigenous peoples and local communities, including policies and programs promoting the appropriate use and protection of TK and 15 WIPO/GRTKF/IC/6/4, paragraph 5. 16 See WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998- 1999) “Intellectual Property Needs and Expectations of Traditional Knowledge Holders” (WIPO publication no. 768(E)). 17 See WIPO’s website http://www.wipo.int/tk/en/ngoparticipation/ind_loc_com/index.html. 10 TCEs as an element of sustainable development of indigenous peoples and local communities. The appropriate protection of TK and TCEs against misuse and misappropriation has a practical and capacity-building component – so that indigenous peoples and local communities have sufficient actual capacity to identify and defend their interests by the full range of available legal measures. Similarly, strengthened recognition, promotion and wider understanding of customary law and practices among indigenous peoples and within local communities may also depend in part on appropriate capacity-building initiatives and the availability of resources and other forms of support. The social context of customary law One of the challenges in recognizing customary law beyond the traditional context is that it is a form of law that can be deeply embedded in the way of life and social values of what may be a relatively small community, in which personal relationships may be the most important form of disseminating and enforcing acceptable standards of behaviour. For example, according to one account, “Kiowa law developed and functioned within a small scale society in which individuals were in intense interaction and often dependent upon each other for successful exploitation of the environment. This social situation shaped both the goals of the legal system and its mechanisms of social control. The goal of the system was to maintain peace in the community and heal breaches in the social fabric, rather than to right wrongs. The usual mechanisms of social control consisted of ridicule, loss of prestige and ostracism. These mechanisms were effective within a community of small size in which individuals generally knew each other and many of whom were also linked by ties of kinship and personal obligation.” 18 According to a recent report regarding the Northern Territory of Australia, Aboriginal customary law is a fact of life for most Aboriginal people in the Northern Territory, not just those in Aboriginal communities. This is because it defines a person’s rights and responsibilities, and it defines a person’s relationships to everybody else in the world.” 19 Download 303.69 Kb. Do'stlaringiz bilan baham: |
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