ABSTRACT
International law requires States to protect Indigenous Peoples and local communities’ rights over their traditional knowledge with due consideration for their customary laws and protocols. Due diligence provisions in national and regional law are passing on these obligations to users. This chapter analyses national and international recognition of customary law and its role in the protection of traditional knowledge, with particular attention to the experience of the European Community and the countries of the Andean community. It highlights the opportunities for States, Indigenous Peoples and local communities to adopt ‘hard’ and ‘soft law’ measures to help ensure customary law plays an effective role in the protection of traditional knowledge. It concludes that effective and culturally legitimate regulation of traditional knowledge can only be achieved and legal certainty secured with a system that gives due respect, recognition and consideration to customary law.
