The Nagoya Protocol and Customary Law: The Paradox of Narratives in the Law

Abstract

The issue of protecting traditional knowledge and genetic resources is a textbook example of a legal problem in a world of hybrid legal spaces where a single problem, act or actor is regulated by multiple legal regimes. Unmistakingly, the Nagoya Protocol deserves credit for formally recognising community protocols and customary laws but this article argues that this recognition is not the end of the struggle for indigenous peoples to gain rights over their land and culture. Drawing parallels between access and benefit sharing agreements and native title claims allows for identification of the problems that can arise when Western jurisprudence translates customary laws cross-culturally. The challenges that indigenous peoples are facing in native title claims can show how Western law interprets traditional law and customs and can be used as a benchmark to anticipate the problems indigenous peoples and local communities will encounter when Article 12.1 of the Nagoya Protocol will be applied on the ground. From a theoretical point of view, this article argues that the exclusion or misinterpretation of customary law in Western courts is intrinsic to their legal processes and it draws upon the work of Margaret Davies to show that the psycho-analytical distinction between foreclosure and repression can offer a useful lens to further analyse the relationship between Euro-American and indigenous law within the context of the Nagoya Protocol.

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