Intersections: Gender and Sexuality in Asia and the Pacific
Issue 33, December 2013


How Can the Theory of Legal Pluralism
Assist the Traditional Knowledge Debate?[1]


Miranda Forsyth
    Introduction
     
  1. The protection of traditional knowledge is an increasingly important site of legal development and debate at national and international levels. Although many different definitions of traditional knowledge have been advanced in the literature, it used in a broad sense in this paper to comprise traditional cultural expressions (such as songs, stories, oral traditions, visual and performing arts, ritual and cultural practices), and also biological knowledge, innovations and practices.[2] Traditional knowledge is embedded within the social, political and economic fabric of all communities, but today it has particular significance for indigenous communities, for whom it often continues to be a crucial daily resource and is directly implicated in their world view. The impetus to 'protect' traditional knowledge, and therefore the objectives of protection, come from a number of different directions. On the one hand, traditional knowledge has been subjected to numerous threats as a result of colonialism and globalisation, including knowledge loss, misappropriation, inappropriate commercialisation, and release into the public domain of secret or sacred knowledge. A number of highly publicised cases have demonstrated that at times intellectual property rights have been used to allow those in the West to profit from indigenous traditional knowledge, such as by obtaining patents for inventions based on traditional medicinal knowledge.[3] On the other hand, traditional knowledge is also being seen as an opportunity for indigenous people to obtain economic benefits. This in turn has been stimulated by the rapid global spread of the discourse of intellectual property rights, and the recent awareness of the importance of the knowledge economy and creative industries for economic development.
     
  2. Realisation of these pressures and opportunities, coupled with the increased political activism of indigenous peoples worldwide, has meant that the last two decades have seen enormous interest in seeking to protect traditional knowledge through statutory frameworks. It has been argued that western intellectual property rights are inappropriate for protecting traditional knowledge as they are focused on individuals, limited by time, and require works to exist in material form; whereas traditional knowledge is very often communally created, transmitted from one generation to the next and is often not recorded in material form. The solution has been to develop a range of international, regional and legal treaties and legislation that create specially crafted property rights over traditional knowledge that can (theoretically) be enforced through state and possibly international legal forums.[4] For example, in the Pacific Island countries, which are used as examples in this paper to anchor the general discussion, there has been considerable legislative activity concerning traditional knowledge, with three regional laws in existence and seven national laws in development.[5] This paper focusses on these approaches to the protection of traditional knowledge, and challenges the presumption that a western, state-based approach is necessarily the best or only option.
     
  3. The protection of traditional knowledge raises many different political, economic and even social considerations, many of which can only be touched upon in this paper. These different dimensions can be observed partly through a consideration of the different objectives of those seeking to 'protect' traditional knowledge—which range from a desire to prevent its misappropriation, to safeguard it as a crucial cultural resource, to facilitate indigenous development in the market economy based upon it and so on. In turn, many of these objectives are informed by fundamentally different views of what is meant by development—is it about pursuing economic growth based on liberal market relations and the centrality of property rights? Or is it about pursuing a more ecologically sustainable and culturally differentiated approach to achieving well-being? Is protection to be aimed at ensuring the local communities, life-styles and culture that gave rise to traditional knowledge in the first place are supported and that the traditional knowledge is handed down to following generations? Or should it be directed towards ensuring that rights over the production and use of traditional knowledge are given to those institutions that have the best chance of defending them against international misappropriation? Considerations of these different viewpoints, and whether choices need to be made between them, should foreground discussions about the regulatory mechanisms used to protect traditional knowledge. Legal norms and institutions are not value-neutral, but are a reflection of the values and ideologies of the political, economic, social and historical forces at play at the moment in which they are made. Indeed, over the past few decades, post-colonialist literature has helpfully exposed how the universalist claims made by western legal regimes in fact mask the extent to which they embody the ideologies of liberalism, possessive individualism, and the importance of the market economy.[6] These insights are particularly important in the context of traditional knowledge because of the divergence in many cases between western approaches to knowledge, ownership, authorship and property and many indigenous peoples' understandings about the role and function of knowledge and knowledge practices.[7]
     
  4. This article seeks to explore one way towards identifying an alternative approach to traditional knowledge, one that may escape a hegemonic western perspective and open up new regulatory spaces. It does so specifically by highlighting some relevant insights from the theory of legal pluralism, which may facilitate the co-operation of customary institutions in this space that is currently being claimed by the state.
     
  5. Sally Engle Merry defines legal pluralism as where 'two or more legal systems coexist in the same social field.'[8] John Griffiths, one of the key developers of the theory, further observes that a situation of legal pluralism is

      one in which law and legal institutions are not all subsumable within one 'system' but have their sources in the self-regulatory activities which may support, complement, ignore or frustrate one another, so that the 'law' which is actually effective on the 'ground floor' of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism and the like.[9]

    This theory has recently been found to be of enormous use to those working in the law and development field, often in countries just emerging from civil wars where state institutions are weak and, often, lacking in legitimacy.[10] In that context it has facilitated the development of conflict management systems that utilise existing experts and institutions in creative ways, regardless of whether these are state or non-state.[11]
     
  6. The protection of traditional knowledge would also appear to be a fertile field. In the case of traditional knowledge in Pacific island countries, for example, this involves customary leaders and institutions. The theory offers a radically different approach to the prevailing positivist orientation, by widening the field of enquiry from a sole focus on the state as a repository of regulatory power. A pluralist approach starts by examining which institutions are currently regulating the field, and in the case of traditional knowledge in Pacific island countries for example, this is overwhelmingly customary leaders and institutions. Moreover, viewing the regulation of traditional knowledge through a pluralist lens forces us to consider the nature of relationships between the different systems of law existing in this field; relationships that are often dynamic, as systems struggle to define themselves and also to employ the resources of the other. As Merry argues,

      Research in the 1980s emphasizes the way state law penetrates and restructures other normative orders through symbols and through direct coercion and, at the same time, the way non-state normative orders resist and circumvent penetration or even capture and use the symbolic capital of state law.[12]

    Using a pluralist lens also allows for a creative response to the problem of using western legal forms to protect non-western forms of knowledge and expression.
     
  7. To date there has been little engagement by those advocating the protection of traditional knowledge with the literature on legal pluralism. The starting point for discussions about protection of traditional knowledge has predominantly been the state, rather than any real investigation of the institutions and processes currently regulating traditional knowledge. Further, a number of problematic assumptions have been made about customary law and its regulatory possibilities in a modern national and international context by advocates of legal regimes to protect traditional knowledge. The first part of this article outlines three of these assumptions, giving examples of them in the Pacific islands region and more generally. It raises the question of whether the use of customary law is likely to discriminate against women in relation to their rights over traditional knowledge. The second part of the paper then sets outs six propositions that can be drawn from the body of literature concerning legal pluralism, and demonstrates how these can be usefully applied to the development of new forms of regulation over traditional knowledge. The term regulation is used here as it is broader than legal rules and includes factors such as persuasion and voluntary compliance, which often have as much or more effect than state laws, especially in developing countries.[13] In conducting this exercise, the article also draws upon Merry's insights into the relationship between law and social change to identify potential impacts that new regulatory structures may have on national and local politics, and vice-versa.[14]


    Part 1. Assumptions about customary law
     
  8. While it is difficult to generalise about the broad range of legislative activity that has taken place with regard to traditional knowledge over the past two decades, some broad observations about a common approach can validly be made. The vast majority of the legislation, draft legislation and treaties produced to date have established a state-centred system for controlling the use of traditional knowledge. In the Pacific context, for example, this has mostly taken the form of the passage of legislation that sets out new forms of property rights and creates state 'cultural authorities' to liaise between putative users of traditional knowledge and local communities, although in some instances the state has declared itself the custodian of all traditional knowledge.[15] For example, Vanuatu's Traditional Knowledge and Traditional Cultural Expressions Bill 2012 gives the Vanuatu National Cultural Council the right to 'determine ownership and access, fair and equitable compensation' over traditional knowledge.[16] The property rights in such legislation are generally vested in groups variously designated as 'owners,' or 'holders.' Although these rights differ from classic intellectual property rights in that they are often stated to be inalienable and eternal, they nevertheless contain what Peter Drahos calls the 'core negative right to exclude others from the imitative production of the intangible.'[17]
     
  9. The regulation of traditional knowledge is thus currently proceeding in what legal pluralists would call a 'state-centric' direction, which has resulted in customary institutions being sidelined and supplanted by a new state regulatory apparatus and legal concepts with western origins. This is problematic for three main reasons. First, it ignores the fact that traditional knowledge is in most countries currently being regulated by customary norms and institutions, whose authority in this area will certainly be challenged if not undermined by the state system. Second, it ignores issues of the capacity constraints in Pacific island countries to effectively implement and enforce state legal regimes. Third, it raises the ideological problems outlined above, whereby western institutional forms are being used to regulate complex cultural matters, meaning the approach more closely resembles a western intellectual property rights one than to an indigenous one. The transformative power of legal discourse in turn means that there is a real risk that this may in turn affect how local people understand, use and claim rights over traditional knowledge. As Rosemary Coombe argues, 'Law is not simply an institutional forum or legitimating discourse to which social groups turn to have pre-existing differences recognized,' rather law provides 'many, if not most, of the very signifying forms that constitute socially salient distinctions, adjudicating their meanings and shaping the very practices through which such meanings are disrupted.'[18]
     
  10. One reason that there has been a relatively automatic turn to state law in this area may be because of a number of assumptions that have been made about customary institutions and actors in a modern context. These are similar to those that legal pluralists have spent a long time challenging in other fields of law, and this paper will now unpick three of them in the context of traditional knowledge.


      a. Customary law is too uncertain

     
  11. The first is that customary institutions and actors are assumed to be too local, too fluid and too uncertain to be used when dealing with new uses of traditional knowledge, and that a state institution can offer increased certainty. The validity of this assumption is seriously questioned by the emerging body of literature presenting the successful use of customary institutions in the area of criminal law.[19] This assumption is also problematic on a more general philosophical level, because the main reasons for the introduction of a legal framework are to address the sense of injustice of those in the Global South over the misappropriation of their traditional knowledge by the West, and also to preserve the rich diversity of knowledge that exists in communities throughout the world. Neither of these aims can be accomplished by denying the cultural foundation from which the particular knowledge originates, and in which access to it is currently regulated, even if this is no longer as strong or complete as it once was.[20] As Anthony Taubman argues, 'The recognition of customary law considerations may become a powerful factor in promoting cultural recognition and survival.'[21] Further, transferring control over traditional knowledge to state laws and institutions can have a very destabilising impact upon local communities in whom the traditional knowledge is currently embodied. Merry observes,

      As new systems of rules are introduced or new systems for enforcement are adopted, a gradual process of transformation takes place in which the force of the state is brought to bear on ordinary people to induce them to go along…. Thus law plays a critical cultural role in defining meanings and relationships, but it does so in the context of state power and violence.[22]

    Changes in regulatory authority therefore potentially could have a significant impact on the basis of customary authority in local communities more generally.
     
  12. Moreover, state institutions in many developing countries are often themselves sources of inefficiency and corruption,[23] and so do not necessarily present a solution to the potential difficulties of dealing with de-centralised institutions. They can also operate against the interests of holders of traditional knowledge. For example, in the Pacific region, government decision-making in the area of natural resources has often led to cataclysmic social and environmental consequences.[24] A Solomon Islands based NGO is currently campaigning in relation to a cobalt nickel mine where, as the leader of the organisation complained, 'The…Government is controlling all matters and Indigenous landowners are left to be bystanders.'[25]


      b. Customary law can be applied by state institutions

     
  13. Where references are made to customary law in state legislation and in the literature, the assumption is often made that customary law is a coherent body of legal norms that can be adopted and applied by state legal systems. For example, Paul Kuruk argues, 'Customary law would remain an effective method of protecting traditional knowledge only insofar as it is recognized and applied in national legal systems by the courts.'[26] He advocates attempts 'to recognize formally the legal status of customary law in the legal system and then to improve on the current methods of ascertaining and applying rules relating to traditional knowledge.'[27] Christoph Antons also observes that 'stronger recognition of customary law principles could be very helpful in resolving some of the issues surrounding traditional knowledge,' and then states, 'the big question is, however, how to integrate them into the state legal system.'[28]
     
  14. Customary law in most indigenous societies is, however, dynamic and driven by the needs of a particular dispute or event, rather than by concerns to lay down a prescriptive normative framework. It is therefore continually evolving/reactive and is in many ways an ongoing dialogue about the way things should be done in the community, mediated by the customary leaders.[29] Further, customary law varies considerably from community to community and therefore is not well-adapted to being applied in a uniform manner across the nation in the way that state law is applied. Doctrines such as relevance and precedent, which considerably limit the scope of both discussion and decision in western courts, do not exist (at least not in a similar form) in most customary systems, permitting a far more wide-ranging discourse and solutions. Although there are certainly many underlying principles in customary systems, such as the importance of restoration of relations and hopes for consensus, these are not often boiled down to specific legal rules to be impartially applied as is the case in western legal systems. Rather, justice is relative and localised.
     
  15. The issue of translating customary laws into a western legal framework is not a new one, and was often part of the colonial project.[30] However, the experiences of that period demonstrated that customary laws applied in state courts take on a very different form from when they are applied by customary authorities.[31] Thus Merry argues, 'The nature of law changed as it was reshaped from a subtle and adaptable system, often unwritten, to one of fixed, formal, and written rules enforced by native courts.'[32] Brendan Tobin similarly observes that the codification proposals that have arisen in a number of forums, including the World Intellectual Property Organizations' Intergovernmental Committee on Traditional Knowledge, 'would affect the flexibility of customary legal regimes and could have negative impacts for the long term protection of indigenous rights.'[33] The process of translating customary norms into the state system is also likely to be done by those with greatest access to state authorities, who are overwhelmingly likely to be the powerful men of a community. As a consequence, there is a high likelihood that certain minority groups in the community will be disenfranchised in the process of 'translation' from one legal system to another. Janine Ubink observes, 'A self-statement, as well as any other form of recording customary law, is not a mere technical exercise. It addresses the definition and crystallization of certain rights and interests as well as the articulation of desired changes in them, and thus invariably involves a power struggle.'[34] These insights all suggest that an exercise of devolving administration of customary law to state institutions such as Kuruk and Antons advocate is fraught with difficulty. The alternative approach, which is to have customary law applied by customary institutions, is discussed below.


      c. State-based property rights are consistent with customary law

     
  16. The third assumption is that the creation of state-based property rights is consistent with, or supportive of, customary regulation of traditional knowledge. For example the Pacific Traditional Knowledge Action Plan refers to 'non-legal measures such as that of customary and cultural practices…[that] will form part of a holistic approach to the development of frameworks of protection,'[35] and the Vanuatu Traditional Knowledge and Traditional Cultural Expressions Bill 2012 states that it gives 'due recognition and application of kastom and customary law and practice.'[36]. Both of these statements occur in the context of legislation that is based upon the creation by the state of property rights in traditional knowledge that are vested in 'owners' of those rights, be they a community or an individual.
     
  17. However, anthropological work over the past century in the Pacific and elsewhere has demonstrated the immensely sophisticated role played by the regulation of knowledge and manifestations of culture in indigenous communities—a sophistication that is unlikely to be able to be replicated in a state-based property rights framework. For example, Rosemary Du Plessis and Peggy Fairbairn-Dunlop argue,

      The indigenous knowledge systems of the Pacific incorporate technical insights and detailed observations of natural, social and spiritual phenomena, which in turn are used to validate what is important in life.– what sustains people and what connects them to particular places and spaces, and is crucial to their identity…. In Pacific communities, knowledge is communally made, sanctioned, shared and used with the aim of achieving the good life for all members – however this is defined.[37]

  18. Moreover, there are different forms of knowledge with different sorts of constraints around their use (for example, secret, hereditary, public, ritual, restricted, alienable, inalienable), creating a situation that Branislav Hazucha and Toshiyuki Kono refer to as 'differential access.'[38] Some areas of traditional knowledge are also heavily gendered, for example traditional medicine in Samoa, and the making of baskets and mats by women in Vanuatu. These sorts of relationship between knowledge and users are not easily translated into western property rights discourse, partly because, as Marilyn Strathern has observed in Papua New Guinea (PNG), 'a right may be invested in the individual but the individual is embedded in relationships.'[39] In other words, these rights are exercised in specific contexts; pre-existing identities are not enough. For example, Strathern refers to 'the right of a mother to eat the bridewealth pig for a daughter may affect none of her claims over pigs until the occasion when that right is mobilised by the relationships brought into play at marriage.'[40] Jacob Simet also demonstrates the complexities of Tolai ownership of traditional knowledge, noting three different levels of ownership and observing that mechanisms of protection 'can only be developed from a clear understanding of indigenous systems of knowledge.'[41]
     
  19. These anthropological insights suggest that it is difficult, if not impossible, to reduce the multiple links and resonances that traditional knowledge has within the community of which it is a part to a single 'right' that is 'owned' by a clearly defined group of people or an individual, as almost all traditional knowledge legislation seeks to do. In addition, there can be all sorts of ramifications flowing from unauthorised access to traditional knowledge that can only be dealt with by community leaders. These observations suggest that it is unwise to equate customary entitlements to access to traditional knowledge with 'ownership.'[42]


      d. Customary law disadvantages women

     
  20. Finally I wish to address the question of whether utilising customary law and institutions to regulate traditional knowledge is likely to disadvantage women. Although there is a voluminous literature on post-independence gender, custom and human rights issues, there has been surprisingly little specific attention paid to gender in the context of discussions over the protection of traditional knowledge. Unlike the three assumptions above, therefore, there is no prevailing position on this issue, but the occasion of this volume and Merry's insights into gender and law make this an opportunity to examine the issue. The discourse on custom and gender generally has tended to be polarised around two positions, one viewing custom as facilitating the domination and subordination of women by traditional male leaders, and the other viewing international human rights as alien and unnecessary in societies where women have their own traditional roles with customary avenues of power and agency.[43] More recently, a middle view has emerged that sees the potential for custom to adapt to incorporate human rights norms of equal treatment for women. For example the New Zealand Law Commission in its Report into Custom and Human Rights in the Pacific concluded,
      Custom and human rights can be harmonised by looking to the shared, underlying values of both. Harmonisation will enhance custom by bringing it more into line with changing social conditions and ensuring that it continues to reflect the underlying values of Pacific communities. Far from threatening custom, human rights can help it to develop and therefore survive in a modern world.[44]

  21. A gender-aware approach to the protection of traditional knowledge requires asking whether state or non-state laws and institutions are currently able to protect women's rights to, and interests in, their traditional knowledge, and if not how could they best be encouraged to do so? As Merry reminds us, the law is 'a site of power, defined by its texts, its practices and its practitioners, available to those who are able to turn it to their purposes.'[45] Women and other disadvantaged groups often lack the knowledge, opportunity and/or bargaining power necessary to actualise their rights. This is true for both state law and customary law, in both of which the practitioners are overwhelmingly male. Moreover, there is considerable evidence in Melanesia that neither the state nor customary institutions have been performing well in protecting women's rights in the context of modern resource exploitation generally. The result of legislation over customary land in many places in the Pacific has been to consolidate ownership in the hands of men. For example, in relation to Vanuatu, Siobhan McDonnell (this issue) demonstrates how the identities manufactured by contemporary land legislation in Vanuatu, coupled with the social context in which they are situated, work to prevent ni-Vanuatu women from claiming, at least in most public contexts, their interests in land. Rebecca Monson found similarly in Solomon Islands that 'once contests over land enter the arenas established by the state, it is primarily male leaders who perform, endorse and reject claims to land as property.'[46] She comments,

      Soliciting the state's recognition of claims to land as property has become a vital avenue to economic and political power in contemporary Solomon Islands. The recursive constitution of property and authority tends to consolidate control over land in the hands of a small number of men, while reproducing state norms and institutions as a masculine domain.[47]

  22. In the context of intellectual property rights there are also indications that state legal institutions disempower women in developing countries. For example a study by the National Commission on Women in India argues that the Agreement on Trade Related Aspects of Intellectual Property (TRIPs), 'which recharacterized women's farming knowledge as 'raw materials' for corporations to appropriate, has reduced women's profits and led to a corresponding rise in violence against women.'[48] A recent example of the risks of misappropriation of traditional knowledge by the introduction of western intellectual property systems into the Pacific islands is the trademark application by Air Pacific in 2013 over 15 different masi (traditional paper cloth) motifs, all of which are based on 'the rich storehouse of designs within the iTaukei heritage arts.'[49] This has raised enormous public concern that it 'will give Air Pacific the exclusive ownership and use of the motifs and prevent masi makers, carvers, tattooists, artisans, craftspeople, fashion designers and artists from using these motifs without Air Pacific/Fiji Airways permission.'[50] Air Pacific argues that it commissioned the design of the motifs and they are all original designs and therefore it is entitled to use the trade marks. An opposition to the trade mark application has been lodged and there has been a dynamic public campaign against the registration, mostly orchestrated by Fijian women, who effectively used a variety of different social media to mobilise diverse support groups. While the outcomes of this case are not yet known, it demonstrates the problems inherent in introducing new property rights regimes. On a positive side, it also demonstrates the ability of local women to vocalise their concerns and to challenge what they see as inappropriate property claims.
     
  23. However, there is also much evidence that many customary institutions are failing to adequately support women's interests in their resources, especially in the context of the cash economy. A specific example of this in the context of traditional knowledge is the nagol or land dive in Vanuatu, a customary ritual that attracts considerable tourist revenue. Both Marc Tabani and Margaret Jolly have observed that 'conflicts arise from an unequal division of the profits. For example, people realize that not all the men get the same amount and that women get less.'[51]
     
  24. The experiences of tangible resource exploitation in the Pacific region suggest that at present both customary and state institutions have the potential to discriminate against women in regulating dealings in traditional knowledge in the modern context. It is almost inevitable that the introduction of a new legal regime over traditional knowledge will favour some interest groups and disenfranchise others. Moreover, in societies where there are existing and entrenched gendered divisions of power, women are most likely to be the ones to miss out on the opportunities to exploit or 'game' the new system. It is instructive that very soon after the new Vanuatu Intellectual Property Office was established, it was visited by a number of different men all wanting to 'register' their claim to ownership of the nagol.
     
  25. As a result, those designing new intellectual property and traditional knowledge policies need to pay explicit attention to how women are likely to be able to use any new regulatory system to ensure that they are not disenfranchised and that they do not lose agency over their traditional knowledge. Institutional safeguards should be introduced to prevent privileging male claims over traditional knowledge, and to ensure equal access to benefit sharing agreements. Although such mechanisms may not be strictly 'traditional' and hence resisted by some in a customary setting, experience from other areas of the law suggest that such accommodations can be made without fracturing the authenticity and legitimacy of customary systems. For example, Merry's work on human rights and gender violence demonstrates that there are opportunities for translating human rights 'into local terms and situat[ing them] within local contexts of power and meaning.'[52] The New Zealand Law Commission report referred to above also discusses potential ways forward for customary institutions to incorporate respect for human rights norms. A concrete example of deliberate normative change in customary institutions is provided by Ubink. She describes a process of writing down and reforming customary law concerning the traditional practice of dispossessing widows of their land in northern Namibia undertaken by the customary authorities themselves. She found that this had a significant impact upon reducing the practice, far greater than in other African countries where changes were only made in state law.[53]
     
  26. Adopting a pluralist approach to the regulation of traditional knowledge is also one way to build in such a safeguard. This is because if there is a multiplicity of regulators with agency, there is less risk of men dominating completely and more hope of women being able to find avenues to have their rights acknowledged.


    Part 2: Useful insights from the theory of legal pluralism
     
  27. Given the problems with the state-centric direction in which the regulation of traditional knowledge is currently proceeding, the following insights from the study of legal pluralism may provide a fruitful way to advance the development of a new regulatory approach.


      a. Customary laws and institutions belong together

     
  28. The first insight is that customary law works best, and arguably only at all, when it is implemented by customary institutions. Experiences in the region and further afield have repeatedly demonstrated that statutory provisions enabling state courts to apply customary law do not produce the forms of new indigenous jurisprudence that many post-colonial countries aspire towards.[54] However, there is increasing evidence that customary institutions can and do perform a range of legal tasks using customary law. For example an International Development Law Organisation (IDLO) report states,

      The involvement of local people and their local normative systems enhance sustainable development. Local communities have a tradition of living close to nature and can thus provide insights into resource allocation, development and management that would not be exploited if a purely state-centric approach were adopted. In addition, the study of common pool resources management argues that customary, communal and natural resource management systems are more efficient and effective than their private or state alternatives.[55]

    Further, as Jane Anderson argues,

      Indigenous peoples have argued consistently that if indigenous knowledge is to be respected and protected then attention needs to be given to the manifold indigenous laws and governing structures that historically and contemporarily exist for regulating knowledge use. That is, indigenous laws need to be treated as legitimate and given appropriate authority, rather than dismissed and/or supplanted with national or international laws.[56]

  29. This insight means that in most circumstances customary norms should not be inserted into state legislation, with the intention that they operate within a foreign procedural framework. Such a transplantation operation is often doomed to failure. Instead, wherever possible, links should be made between state and customary institutions, such as chiefs and other traditional leaders, which are best placed to apply customary norms. The creation of linkages can have a number of advantages over subordination of customary norms to state processes. It responds to the idea of harnessing voluntary and legitimate social ordering and only resorting to state sanctions when this fails.[57] It also recognises that state forms of ordering themselves need to be subjected to oversight by other social institutions, and thus in a healthy regulatory system, mutual monitoring is both necessary and legitimate. Linkages can also facilitate a more efficient sharing of resources between institutions and actors, whilst leaving space for each to perform the role that it does best. Finally, linkages can promote dialogue about existing or potential conflicts of agenda in a non-hierarchical way, leaving more room for creative compromises than if a top-down approach is adopted.[58] Of course, devising linkages and implementing them is likely to vary enormously depending upon the context, and will depend largely upon the nature of the individuals and institutions currently regulating traditional knowledge. They may include 'soft' linkages, such as development of usage protocols by state officials in collaboration with customary institutions and leaders, and possibly also 'hard' linkages, such as legislative mandating of customary forums for reaching determinations over use of traditional knowledge.
     
  30. Another type of linkage is suggested by Anderson.

      Building frameworks to enhance the authority and legitimacy of indigenous laws must be central to any developments in this area. Over time, it may be possible to identify and synthesise key dimensions of knowledge management across communities, but this is a long-term goal. The short-term strategy starts with recognising the existence of local knowledge management strategies, and building frameworks that actively support and endorse these even when they may offer alternatives to the current intellectual property regime.[59]


      b. State and non-state laws and institutions can regulate at different levels

     
  31. This insight is that there is no need for either state or non-state institutions to monopolise all aspects of a regulatory framework for traditional knowledge. Customary law and institutions can be used to deal with certain types of disputes over use of traditional knowledge, and can feed into other networks operated by the state where necessary. For example, in Vanuatu the customary norms concerning entitlement to make sand drawings, a particularly beautiful form of traditional cultural expression, are still strong. One respondent reported that he had discovered that a tourist venue was employing a person to perform sand drawings for tourists who was from an island that had no right to make sand drawings. The chief from an island which did have the right to make such drawings went to talk to the owners and the person in question was swapped with another from an island traditionally associated with sand drawings. Customary law thus worked well at a local level. However, there are also many regulatory roles the state is best positioned to manage, especially in regard to mediating between its citizens and outsiders, such as international pharmaceutical companies, who wish to use their traditional knowledge, or international arrangements such as those led by the United Nations Educational Scientific and Cultural Organisation (UNESCO). Even in dealings with outsiders, there may well need to be different forums for resolving internal questions (for example who benefits, how are profits to be distributed, what limitations on access should there be) and external questions (for example how can the benefit-sharing agreement be monitored and enforced).


      c. Many different actors and institutions can be co-opted into a particular regulatory project

     
  32. A multi-stranded approach is likely to work well when various resources are shared across a range of actors and institutions, as will often be the case when dealing with traditional knowledge. Principles of responsive regulation suggest that the aim should be to devolve regulatory responsibility to the institution that has the most information about the problem and the most capacity to act, subject to the constraint that they are likely to act fairly.[60] For example, devolving intra-community traditional knowledge disputes to the local level may satisfy the first constraint, but may not satisfy the second if the local dispute resolution forum has become corrupted. In such a situation, the state may have to consider a hybrid institution as discussed below, or may be able to work with the customary institution to better develop its capacity, as also discussed below. Various other institutions that may be co-opted into the regulatory matrix are:

      i. Research councils that may control the type of research that is conducted in a country, for example through a research permit scheme. These should be supported through immigration departments to either refuse permission to enter the country or refuse to allow samples to be removed from the country. In Vanuatu for example researchers wishing to conduct scientific research have to pay the costs of an official from the department of natural resources to accompany them on their fieldtrip, as this is best way their activities can be effectively monitored.

      ii. Customs departments that can be tasked with ensuring that any imported handicraft is marked with its country of origin in an indelible marker so as to protect local markets from imported counterfeits.

      iii. Non-government organisations may be involved in highlighting potential cases of misappropriation and using their networks to bring adverse publicity to pressurise putative misappropriators to stop their activities. In some instances this is likely to be just as, if not more, effective than a court action, and considerably less costly and more timely. For example, in 2011 a Taiwanese researcher was forced to withdraw a US patent application that was based on genetic material obtained from blood samples taken from Solomon Islanders without their prior informed consent.[61] The patent application was unearthed by a Canadian academic who then contacted a Solomon Islands NGO through an international NGO. Together they worked with the Solomon Islands government to put pressure on the Taiwanese government to force the researcher to withdraw the application in early April 2011. A further example was the successful online campaign in 2013 to force Nike to remove from the market a new type of leggings that resembled Samoan tattoo designs and were criticised as being culturally exploitative.[62]

  33. Possibilities of sharing regulatory authority with non-state institutions raise a host of issues concerning sovereignty and legitimacy which are beyond the scope of this paper to deal with in full. Legitimacy can be understood in the legal-rational Weberian sense of where it is based upon a belief in the legality of normative rules and the right to those in authority to issue commands under those rules.[63] However, it can also be used in a broader sense to refer to the belief of the citizens of a country that a particular institution has the right to exercise the sort of power that it claims. In post-colonial contexts, issues of legitimacy and authority are generally murky, with continual competition between newer state-based institutions and those institutions that claim roots in the pre-colonial past. Indigenous and introduced religious institutions can also have significant influence on questions of legitimacy, and all of these claims to legitimacy have difference purchase with different sectors of society. Thus the destabilising effects of colonialism, combined with the changes and challenges brought about by globalisation, mean that legitimacy is constantly being claimed and contested in a variety of governance and legal settings in the developing world. Issues of legitimacy are particularly important for a state when it has limited administrative capacity to exercise its authority through coercive means. It should therefore be a key consideration when a new system is being introduced, as in the case of systems to regulate traditional knowledge. One critical factor for establishing state legitimacy is what Catherine Warrick calls 'cultural appropriateness.'[64] Indeed, the readiness of states in the Pacific region to take up the challenge of protecting traditional knowledge is clearly designed to enhance their cultural appropriateness. This paper suggests, however, that doing this in a legally pluralist manner is more likely to achieve such an outcome, as the competing legitimacy claims of existing customary institutions can be co-opted to jointly envisioned ends.


      d. Attention should be paid to the linkages between the different regulatory systems

     
  34. One of the inevitable consequences of having many institutions working in the same field is that this gives rise to the opportunity for forum shopping. There is a tension in the legal pluralism literature between those who embrace forum shopping as a form of empowerment, and those who view it as problematic and destabilising for all institutions involved. As I have demonstrated in another study (in the context of criminal law) where there are two competing sources of authority (for example, state and customary) there is a great temptation for litigants to attempt to avoid the authority of each by using one to criticise the legitimacy of the other.[65] Tobin similarly observes,

      Customary law and practice may be undermined by adoption of culturally insensitive national laws. Similarly traditional authority is being eroded as those unhappy with their decisions seek recourse to alternative decision-making authorities, or judicial review, both a cause and a symptom of the break down of community social structures.[66]

    The worst possible outcome would be where the new state structures aid the disappearance of existing regulatory structures, but due to the weakness of the state that characterises many developing countries, no effective replacement systems are instituted in practice.
     
  35. One way to completely avoid forum shopping, of course, is to introduce a very clear hierarchy of institution, but this would almost inevitably favour the state and hence undermine many of the benefits of pluralism. However, a different solution presents itself if we remain committed to the pluralist ideal of refusing to prioritise the state merely because it is the state. The 'solution' is to find a way to facilitate dialogue between the different institutions and actors engaged in the area, to allow them to devise pathways and allocate areas of responsibility between themselves. For example, if customary institutions are to be tasked by the state with determining questions of intra-community ownership, they need to be consulted about this, and work out procedures for the transfer of cases and recognition of decision making, rather than merely being allocated this role, as has for example occurred in the Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture.[67] Clear exit and entry points into the different systems should also be established through a process of mutual dialogue, and the possibility for appeal limited to the extent constitutionally possible, to limit both forum shopping and the undermining effect of appeals on non-state authorities. Another way forward is to explore ways in which the insights of viewpoints from the customary system can inform the state in this area. For example, customary leaders may be invited to sit as advisors to judges in intellectual property cases that raise issues of traditional knowledge, and they may also be invited to provide real input into the development of national policies. This will, of course, necessitate their participation from the very beginning and not just to provide feedback on models that have already been already developed, as is the current standard practice.
     
  36. There are many benefits to this approach, including the opportunity that it allows different institutions to consider how they can work more effectively together, given their differing resources and priorities. It also invites the engendering of creative pathways between the different institutions, ideally ones that are as mutually supportive as possible. This approach encourages finding solutions that are perhaps 'good enough' rather than perfect, temporary rather than fixed in legislative 'stone,' and able to respond to the operational reality of the present rather than based on an idealised future system that may never actually eventuate. These arrangements may be formalised as written protocols, memorandums of understanding or even oral agreements depending on the context. For example, during fieldwork in Vanuatu I once saw a notice nailed to the door of the local police station that advised all complainants that they could only lodge a complaint after having first attempted to resolve the matter with their community chief. Public awareness of such arrangements is crucial for increasing the legitimacy of all institutions involved, helping to ensure their effectiveness by holding the institutions accountable, and also alerting the public that efforts to play off one system against the other are not going to be regarded kindly. This approach will not completely eradicate the difficulties associated with forum shopping, and there is no doubt that powerful players will still manage to manipulate both systems. However, consciously focusing on the intersections of the different regulatory institutions in operation will highlight the ways in which the systems are being used to undermine each other. Support from this approach can also be taken from Paul Berman's arguments about taking pluralism seriously on a global level. He argues,

      Athough people may never reach agreement on norms, they may at least acquiesce in procedural mechanisms, institutions, or practices that take hybridity seriously, rather than ignoring it through assertions of territorially based power or dissolving it through universalist imperatives. Processes for managing hybridity seek to preserve the spaces of opportunity for contestation and local variation.[68]


      e. Customary laws and institutions benefit from assistance

     
  37. Many customary institutions, in the Pacific region and elsewhere, have problems with enforcement of their decisions given the state monopoly on the legitimate use of force. However, this is not necessarily a reason to discard them altogether. Rather, if customary institutions are given responsibility by the state to decide issues under state legislation, they should also be supported with the necessary resources to allow them to carry out their additional responsibilities. This may mean supporting customary decision-makers to collectively brainstorm problems and solutions raised by these new issues (such as occurs in judicial conferences), providing mechanisms to ensure that parties attend meetings when required to do so, mandating customary institutions as the sole forum for resolving such disputes and providing support for the finality of decisions at a customary level. Customary institutions can also be encouraged to learn from certain state processes, such as those that guarantee procedural fairness, just as the state can learn from the customary emphasis on restorative and holistic solutions to disputes. One of the advantages of working in a pluralistic regulatory framework is the potential for improvement of all systems by cross-fertilisation of ideas which can raise standards and legitimacy on all sides, and that both frameworks are considered equal.[69]


      f. The hybrid option

     
  38. Hybrid political and legal institutions are increasingly being proposed as a way to overcome the problems of lack of state capacity in developing and post-conflict states.[70] The term 'hybrid' refers to a blending together of two pure elements to create a third element combining characteristics of both. However, the term hybrid order or system is often used in development literature generally to refer the recognition of non-state systems as potential sources of order, authority and service provision.[71] There are a number of conceptual problems with the use of this term in such a loose way, in particular because no legal system is ever 'pure' but is always a blend of many influences, and also because it blurs over questions of the nature of the relationship between its constitutive systems. The term 'hybrid system' is of use however, in describing a specific form of legal institution, namely one that has been created from scratch and deliberately aims to blend components of state and non-state systems, such as the village courts in PNG.[72] As already discussed, customary institutions have a number of inherent advantages over such hybrid institutions in the regulation of traditional knowledge, in so far as they have an established legitimacy and set of operating norms, and they are well placed to understand the context, power dynamics and most importantly, the complex web of relationships in which they operate. However, in some instances customary authorities are unable to satisfactorily perform legal tasks for a variety of reasons, such as lack of capacity or de-legitimacy as a result of corruption, or use of violence or a previous history of being co-opted by powerful elites. In such situations there is merit in considering a hybrid system to deal with traditional knowledge.
     
  39. In a recent study of hybrid institutions in Melanesia, Daniel Evans, Michael Goddard and Don Paterson observe that such institutions 'represent an intermediate path.'[73] They further explain that they 'straddle the divide between state and custom: their legislative foundation provides a degree of certainty and oversight, while an incorporation of custom, mediation, and informal decision-making means that they can be responsive to, and accommodating of, local values and mores.'[74] There is therefore potential for hybrid institutions in the area of traditional knowledge regulation, especially given the competing requirements for certainty for putative users and the need to be sensitive to local context and concerns. This is one reason, for example, that the Samoan Land and Titles Court is currently being considered as a possible venue for resolving disputes over traditional knowledge in Samoa.[75] However, experiences with hybrid courts in the Pacific islands region demonstrate that such courts also face significant challenges, including questions of appeal, problems of finality of judgment, problems with adequate training of decision-makers, and finding a good balance between state formality and customary flexibility. These all need to be dealt with if hybrid institutions are to be effectively used to regulate access to traditional knowledge, in addition to the over-arching questions of costs and accessibility.


    Conclusion
     
  40. This paper has sought to challenge the current state-centric approach to the protection of traditional knowledge. It has shown that there is broad agreement in the literature and amongst advocates that western intellectual property laws may not be the right vehicle for protecting traditional knowledge. However, the dominant approach to protection today reflects a belief that the general framework of western intellectual property rights can still be used in this domain, once it has been tweaked and amended. As a result, the laws that are being established are in general based on models from elsewhere, are drafted by foreign consultants, and loosely follow a western intellectual property rights structure with its emphasis on legislation, international treaties, the creation of state authorities and possessive ownership. It is therefore inevitable that such new state-based structures will in themselves have a distorting effect upon the way in which traditional knowledge is currently understood, categorised, accessed, possessed, generated and alienated.
     
  41. This paper therefore suggests an alternative approach to regulation in this area, namely through using the theory of legal pluralism. This theory suggests a new methodological approach to regulation, one that welcomes and creates partnerships with existing and even newly created non-state institutions and norms that regulate the production and use of traditional knowledge. This approach can be thought of as spinning a web of interconnected regulations—some formal and some informal—not all of which could be covered in this paper.[76] There are numerous advantages to a multi-stranded approach over a monolithic state-centric one. One is that it can respond differently to in-country as opposed to external questions of access to traditional knowledge. Another is that in countries where states are weak or corrupt, there are alternative pathways in place where the state cannot or will not act. Most importantly, however, grounding customary law and customary institutions in the regulatory framework respects the extent to which traditional knowledge is embedded in the social and cultural fabric of the community that has created it.


    Notes

    [1] This article is based on a paper presented at the at the Jubilee Congress of the Commission on Legal Pluralism, Cape Town, South Africa, 8–10 September 2011. Many thanks to Margaret Jolly and Siobhan McDonnell and to the two anonymous reviewers on their excellent suggestions on a draft of this paper.

    [2] There are many definitions of Traditional Knowledge in the academic and grey literature and draft legislation; see for example Anton's summary of the different definitions in Christoph Antons, 'Introduction,' in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, ed. Christoph Antons, Alphen aan den Rijn: Kluwer Law International, 2009, pp. 1–36, pp. 1–4.

    [3] See Daniel Robinson, Confronting Biopiracy: Challenges, Cases and International Debates, London: Earthscan, 2010.

    [4] For example there are currently two draft international treaties by the World Intellectual Property's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and a raft of regional and national legislation, the most recent of which is South Africa's Intellectual Property Laws Amendment Act 2011, online: http://www.ip-watch.org/weblog/wp-content/uploads/2011/10/So-Africa-TK-Bill-Sept-2011.pdf, accessed 25 November 2013.

    [5] At a Pacific Islands regional level, there are three relevant pieces of legislation: the Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (2002) (Regional Framework), adopted by the Forum Trade Ministers in 2003, online: http://www.forumsec.org.fj/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTK andExprssnsofCulture20021.pdf, accessed 25 November 2013; the Traditional Biological Knowledge, Innovations and Practices Model Law (Model Law), adopted by the Forum Trade Ministers in 2008, copy of file with author; and the Melanesian Spearhead Group's draft Treaty on Traditional Knowledge 2011 (Treaty) that has been approved in principle by its members in April 2011, but not as yet signed by all of them. At a national level, since 2010 seven countries in the region have started to draft legislation to protect traditional knowledge and expressions of culture under the Pacific Island Forum's Traditional Knowledge Implementation Action Plan, 2009, Pacific Islands Forum Secretariat, online: http://www.forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf, accessed 25 November 2013.

    [6] See for example, Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality, Cambridge: Cambridge University Press, 2011; Eve Darian-Smith and Peter Fitzpatrick (eds), Laws of the Postcolonial, Ann Arbor: The University of Michigan Press, 1999.

    [7] Jane Anderson, 'Indigenous traditional knowledge and intellectual property,' Duke University School of Law Centre for the Study of the Public Domain, Issues Paper, 2010, online: http://web.law.duke.edu/cspd/pdf/ip_indigenous-traditionalknowledge.pdf, site accessed 14 February 2013, p. 1.

    [8] Sally Engle Merry, 'Legal pluralism,' in Law and Society Review, vol. 22, no. 5 (1988): 869–96, p. 870.

    [9] John Griffiths, 'What is legal pluralism?' in Journal of Legal Pluralism, vol. 24 (1986):1󈟏, pp. 1, 39.

    [10] See for example World Bank, 'World Development Report 2011: Conflict, Security and Development,' World Development Reports, Washington, DC: The World Bank, 2011, online: http://web.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTWDRS/0,, contentMDK:23252415~pagePK:478093~piPK:477627~theSitePK:477624,00.html, accessed 25 November 2013.

    [11] See for example Peter Albrecht and Helene Kyed, 'Justice and security: when the state isn't the main provider,' Danish Institute for International Studies (DIIS) Policy Brief, 2010, online: http://www.diis.dk, accessed 19 November 2013; Peter Albrecht et al., Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform, Rome: International Development Law Organisation (IDLO), 2011, online: http://www.idlo.org, accessed 2 February 2013.

    [12] Merry, 'Legal pluralism,' p. 881.

    [13] Christine Parker and John Braithwaite, 'Regulation,' in The Oxford Handbook of Legal Studies, ed. Peter Cane and Mark Tushnet, Oxford: Oxford University Press, 2003, pp.119–45.

    [14] Merry, 'Legal pluralism'; Sally Engle Merry, Colonizing Hawai'i, Princeton: Princeton University Press, 2000; Sally Engle Merry, Human Rights and Gender Violence, Chicago: the University of Chicago Press, 2006.

    [15] See A Bill for an Act to establish a sui generis system for the protection and promotion of Traditional Knowledge and Expressions of Culture for the people of the Republic of Palau, , 2005, online: http://www.palauoek.net/senate/legislation/sb/sb_7-3.pdfs, site accessed 12 July 2012. I can't get this URL to work. DO you have an alternative?

    [16] Traditional Knowledge and Traditional Cultural Expressions Bill, 2012, Vanuatu, Section 20.

    [17] Peter Drahos, 'An alternative framework for the global regulation of intellectual property rights,' Working Paper: October 2005, Centre for Governance of Knowledge and Development, the Australian National University. online: https://www.anu.edu.au/fellows/pdrahos/articles/pdfs/2005analternativeframework.pdf, site accessed 14 November 2012, p. 3.

    [18] Rosemary Coombe, The Cultural Life of Intellectual Properties, Durham and London: Duke University Press, 1998, p. 28.

    [19] For a summary, see Miranda Forsyth, A Bird that Flies with Two Wings, Canberra, ANU E Press, 2007, 201–47. See also Luc Huyse and Mark Salter (eds), Traditional Justice and Reconciliation after Violent Conflict, Stockholm: International Institute for Democracy and Electoral Assistance, 2008; Kyed et al., 'Justice and security'; Brian Tamanaha, Caroline Sage and Brian Woolcock, Legal Pluralism and Development: Scholars and Practitioners in Dialogue, Cambridge: Cambridge University Press, 2012.

    [20] Some additional problems with sidelining customary institutions in favour of the state are discussed in Miranda Forsyth, 'The traditional knowledge movement in the Pacific Island countries: the challenge of localism,' in Prometheus, vol. 29, no. 3 (2011): 269–86.

    [21] Anthony Taubman, 'Saving the village: conserving jurisprudential diversity in the international protection of traditional knowledge,' in International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime, ed. Keith Maskus, and J. Reichman, Cambridge: Cambridge University Press, 2005, pp. 521–64, p. 554.

    [22] Merry, Colonizing Hawai'i, p. 17.

    [23] See Peter Larmour, 'Corruption and governance in the South Pacific,' Discussion Paper 97/5, State, Society and Governance in Melanesia, Canberra: the Australian National University, Research School of Pacific and Asian Studies, 1997.

    [24] For example in relation to Bougainville see Colin Filer, 'The Bougainville rebellion, the mining industry and the process of social disintegration in Papua New Guinea,' in Canberra Anthropology, vol. 13, no. 1 (1990): 1–39, and in relation to the Fly region of PNG see John Burton, 'Knowing about culture: the handling of social issues at resource projects in Papua New Guinea,' in Culture and Sustainable Development in the Pacific, ed. Anthony Hooper, Canberra, ANU E Press, 2005, pp. 98–110, online: http://epress.anu.edu.au?p=99101, accessed 25 November 2013.

    [25] Personal communication with anonymous correspondent, August 2011.

    [26] Paul Kuruk, 'The role of customary law under sui generis frameworks of intellectual property rights in traditional and indigenous knowledge,' in Indiana International and Comparative Law Review, vol. 17 (2007): 67–118, pp. 101–102.

    [27] Kuruk, 'The role of customary law,' p.116.

    [28] Christoph Antons, 'The international debate about traditional knowledge and approaches in the Asia-Pacific region,' in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, ed. Christoph Antons, Alphen aan den Rijn, Kluwer Law International, 2009, pp. 39–66, p. 49.

    [29] For a more complete elucidation of this argument see Miranda Forsyth, 'Do you want it giftwrapped? Protecting traditional knowledge in the Pacific Island countries,' in Indigenous Peoples' Innovation: IP Pathways to Development, ed. Peter Drahos and Susy Frankel, Canberra, ANU E Press, 2012, pp. 189–214, online: http://epress.anu.edu.au?p=154251, accessed 25 November 2013.

    [30] See for example Kelly's discussion of this in the context of Fiji. John Kelly, 'Gordon was no amateur: imperial legal strategies in the colonization of Fiji,' in Law & Empire in the Pacific, ed. Sally Engle Merry and Donald Brenneis, Santa Fe: School of American Research Press, 2003, pp. 61–100.

    [31] For an in-depth discussion of this issue see Janine Ubink, Traditional Justice: Practitoners' Perspectives, Working Paper Number 8, 2011, pp. 3-9, online: http://www.idlo.int/Publications/WP2UBinkFinal.pdf, site accessed 4 February 2013.

    [32] Sally Engle Merry, 'Law and colonialism,' in Law and Society Review, vol. 25, no. 4 (1991): 889–922, p. 867.

    [33] Brendan Tobin, 'Customary law as the basis for prior informed consent of local and indigenous communities,' United Nations University, Institute of Advanced Studies, undated, online: http://www.polisproject.org/PDFs/ABS%20Mexico%20Report.pdf#page=209, accessed 25 November 2013.

    [34] Ubink, Traditional Justice, p. 22.

    [35] Pacific Island Forum's Traditional Knowledge Implementation Action Plan, 2009 3.

    [36] Vanuatu, Traditional Knowledge and Traditional Cultural Expressions Bill, 2012, 5(g).

    [37] Rosemary Du Plessis and Peggy Fairbairn-Dunlop, 'The ethics of knowledge production – Pacific challenges,' UNESCO, Oxford and Malden: Blackwell Publishing Ltd., 2009, also available International Social Science Journal, vol. 60, no. 195 (2009): pp. 109–114, pp. 110–11, online: http://ir.canterbury.ac.nz/bitstream/10092/5552/1/12622733_Ethics_of_Knowledge_UNESCO.pdf, accessed 25 November 2013.

    [38] Branislav Hazucha and Toshiyuki Kono, 'Conceptualization of community as a holder of intangible cultural heritage,' in Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development, ed. Toshiyuki Kono, Intersentia, 2009, pp. 145–58, p. 151.

    [39] Marilyn Strathern, 'Multiple perspectives on intellectual property,' in Protection of Intellectual, Biological and Cultural Property in Papua New Guinea, ed. Kathy Whimp and Mark Busse, Canberra: Asia Pacific Press, 2000, pp. 47–61, pp. 55–56.

    [40] Strathern, 'Multiple perspectives,' p. 56.

    [41] Jacob Simet, 'Copyrighting traditional Tolai knowledge?' in Protection of Intellectual, Biological and Cultural Property in Papua New Guinea, ed Kathy Whimp and Mark Busse, Canberra: Asia Pacific Press, 2000, pp. 62–80, p. 64.

    [42] This point is convincingly made in Kalinoe's excellent paper on Traditional Knowledge in PNG. See Lawrence Kalinoe, 'Ascertaining the nature of indigenous intellectual and cultural property and traditional knowledge & the search for legal options in regulating access in Papua New Guinea,' Melanesian Law Journal, vol. 27 (2000): 1–22, pp. 6–7.

    [43] For a good summary of the two views see Claire Slatter, 'Gender and custom in the South Pacific,' in Yearbook of New Zealand Jurisprudence, Tuhonohono: Custom and State, vols 13 and 14, 2010 and 2011, pp. 89–111.

    [44] New Zealand Law Commission, Converging Currents: Custom and Human Rights in the Pacific, Wellington: New Zealand Law Commission, (NZLC), NZLC SP17, 2006, p. 13, online: http://www.lawcom.govt.nz/project/custom-and-human-rights-pacific?quicktabs_23=study_paper, accessed 25 November 2013.

    [45] Merry, Colonizing Hawai'i, p. 265.

    [46] Rebecca Monson, 'Hu Nao Save Tok? Women, men and land: negotiating property and authority in Solomon Islands,' Ph.D. thesis, the Australian National University, 2012, p. i.

    [47] Monson, 'Hu Nao Save Tok?' p. i.

    [48] Madhavi Sunder, 'The invention of traditional knowledge,' UC Davis Legal Studies Research Paper No. 75, 2006, pp. 1–29, p. 26, online: Social Science Research Network (SSRN), http://ssrn.com/abstract=890657, accessed 13 February 2013.

    [49] Cresantia Frances Koya Vaka'uta, 'Anthropological evidence of the 15 intended iTaukei Tapa cloth designs,' Google docs, 2013, online: https://docs.google.com/file/d/0B0fYC2m4wjFqcHlBc2xSQjVmMG8/edit?usp=sharing&pli=1, accessed 5 November 2013.

    [50] Pax Viti, 'Petition to Prime Minister Voreqe Bainimarama: Appeal to stop Air Pacific trademarking 15 distinct masi motifs,' change.org, 2013, online: https://www.change.org/petitions/prime-minister-voreqe-bainimarama-appeal-to-stop-air-pacific-trademarking-15-distinct-masi-motifs?utm_campaign=friend_inviter_modal&utm_medium=facebook&utm_source=share_petition&utm_term=permissions_dialog_false, accessed 22 November 2013.

    [51] Margaret Jolly, 'Kastom as commodity: the land dive as indigenous rite spectacle in Vanuatu,' in Culture, Kastom, Tradition: Developing Cultural Policy in Melanesia, ed. Lamont Lindstrom and Geoffrey White, Suva; Institute of Pacific Studies/University of the South Pacific, 1994, pp. 131–46, p. 144; Marc Tabani, 'The carnival of custom: land dives, millenarian parades and other spectacular ritualizations in Vanuatu,' Oceania, vol. 80, no. 3 (2011): 309–28, p. 315.

    [52] Merry, Human Rights, p. 1.

    [53] Ubink, Traditional Justice, pp.17–19.

    [54] See, for example, Richard Scaglion, Customary Law in Papua New Guinea: A Melanesian View, Port Moresby, Law Reform Commission of Papua New Guinea, 1983; Guy Powles, 'The common law at bay? The scope and status of customary law regimes in the Pacific,' Journal of Pacific Studies, vol. 21 (1997): 61–82; Brian Ottley and Jean Zorn, 'Criminal law in Papua New Guinea: code, custom and courts in conflict,' American Journal of Comparative Law (1983): 251; Mark Findlay, 'Crime, community penalty and integration with legal formalism in the South Pacific,' The Journal of Pacific Studies, vol. 21 (1997): 145–60; M. Ntumy, 'The dream of a Melanesian jurisprudence: the purpose and limits of law reform,' in Custom at the Crossroads, ed. Jonathan Aleck and Jackson Rannells, Port Moresby, University of Papua New Guinea, 1995, 7–19, p. 7 ; Jennifer Corrin Care, 'Customary law in conflict: the status of customary law and introduced law in post-colonial Solomon Islands,' University of Queensland Law Journal, vol. 21, no. 2, (2001): 167–77; Ken Brown, 'Criminal law and custom in Solomon Islands,' Queensland Institute of Technology Law Journal, vol. 2, (1986): 133–45; Jennifer Corrin Care and Jean Zorn, 'Legislating pluralism: statutory “developments” in Melanesian customary law,' Journal of Legal Pluralism, vol. 46 (2001): 49–101.

    [55] Janine Ubink, Research and Policy Note: Customary Justice Sector Reform, Rome: International Development Law Organisation (IDLO), 2011, online: http://www.idlo.int/DOCCalendar/Customary%20Final%20Report%20%20-%20with%20TOC.pdf, site accessed 12 February 2013.

    [56] Anderson, 'Indigenous knowledge,' p. 33.

    [57] John Braithwaite, Restorative Justice and Responsive Regulation, Oxford: Oxford University Press, 2002, p. 29.

    [58] See Miranda Forsyth, 'Spinning a conflict management web in Vanuatu: creating and strengthening links between state and non-state legal institutions,' Journal of legal Pluralism and Unofficial Law, vol. 63 (2011): 179–205.

    [59] Anderson, 'Indigenous traditional knowledge and intellectual property,' p. 33.

    [60] Braithwaite, Restorative Justice and Responsive Regulation.

    [61] See 'NIP urges Taiwan to stop researchers' biopiracy,' Solomon Star, 16 May 2011, online: http://www.solomonstarnews.com/news/national/10809-nip-urges-taiwan-to-stop-researchers-biopiracy, accessed 13 February 2013.

    [62] Bianca London, 'Nike forced to pull 'culturally explotative' leggings after garment sparks outrage amongst Polynesians,' Mail Online, 19 August 2013, online: http://www.dailymail.co.uk/femail/article-2397036/Nike-forced-pull-culturally-exploitative-leggings-garment-sparks-outrage.html, accessed 22 November 2013.

    [63] This idea is also discussed in A. Reagan, 'Constitutionalism, legitimacy and the judiciary,' in Legal Issues in a Developing Society : 1990 Law Conference on 'The Supreme Court in the Eighties': commemorating Sir Buri Kidu's 10 years in office, ed. R.W. James and I. Fraser, Port Moresby: Faculty of Law, University of Papua New Guinea, 1992, pp. 12–36, p. 17.

    [64] Catherine Warrick, Law in the Service of Legitimacy: Gender and Politics in Jordan, Farnham: Ashgate Publishing Limited, 2009, p. 4.

    [65] Forsyth, A Bird that Flies with Two Wings.

    [66] Tobin, 'Customary law,' p. 6.

    [67] Regional framework for the Protection of Traditional Knowledge and Expressions of Culture.

    [68] Paul Berman, 'Global legal pluralism,' Cadernos da Escola de Direito e Relacoes Internacionais, Curitiba, vol. 12, no. 1 (2007): 118–73, p. 125.

    [69] Bruce Baker, 'Linking state and non-state security and justice,' in Development Policy Review, vol. 28 (2010): 597–616, p. 609; Forsyth, A Bird that Flies with Two Wings, pp. 225–38.

    [70] On the concept of hybrid political orders see in more detail Kevin Clements, Volker Boege, Anne Brown, Wendy Foley and Anna Nolan, 'State building reconsidered: the role of hybridity in the formation of political order,' Political Science, vol. 59, no. 1 (2007): 45–56; Volker Boege, Anne Brown, Kevin Clements and Anna Nolan, On Hybrid Political Orders and Emerging States: State Formation in the Context of “Fragility”, Berlin: Bergoff Research Centre for Constructive Conflict Management, 2008, online: http://www.berghof-handbook.net/documents/publications/boege_etal_handbook.pdf, site accessed 18 February 2013; Volker Boege, Anne Brown, Kevin Clements and Anna Nolan, 'States emerging from hybrid political orders – Pacific experiences,' Australian Centre for Peace and Conflict Studies (ACPACS), Occasional Paper No. 11, 2008, online: http://espace.library.uq.edu.au/view/UQ:164904, accessed 18 February 2013.

    [71] Kate Meagher, 'Non-state security and hybrid governance in Africa,' Development and Change, vol. 43 no. 5 (2012): 1073–101, pp. 1074–75

    [72] Hybrid structures thus involve just one system, with one source of authority, which is almost always the state. In contrast, a plural structure involves a number of different autochthonous systems, each with their own source of authority (customary, state, religious, other). Of course, a plural structure may also incorporate a hybrid structure as one of its elements.

    [73] Daniel Evans, Michael Goddard and Don Paterson, The Hybrid Courts of Melanesia: A Comparative Analysis of Village Courts of Papua New Guinea, Island Courts of Vanuatu and Local Courts of Solomon Islands, Washington: Justice and Development working paper series, the World Bank, 2011, online: http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/HybridCourts.pdf, site accessed 18 February 2013.

    [74] Evans, The Hybrid Courts of Melanesia.

    [75] Samoa Law Reform Commission, The Protection of Samoa's Traditional Knowledge and Expressions of Culture, Samoa: Issues Paper IP 08/10, 2010.

    [76] For a description of a complete regulatory 'toolbox' in this area, see Miranda Forsyth, 'How can traditional knowledge best be regulated? Comparing a proprietary rights approach with a regulatory toolbox approach,’ The Contemporary Pacific, vol. 25, no. 1 (2013): 1–31.

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Published with the support of Gender and Cultural Studies, School of Culture, History and Language, College of Asia and the Pacific, The Australian National University.
URL: http://intersections.anu.edu.au/issue33/forsyth.htm
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