*4.3.1 Traditional ecological customary law and informed prior permission*

The Convention on Biological Diversity establishes the ethical basis for requiring prior informed consent from indigenous and local communities to access and use their traditional knowledge, innovations, and practices relating to biological resources, i.e., the obligation to seek prior informed consent from indigenous and local communities as a condition of using genetic resources and acquiring traditional knowledge on their territory. Traditional ecological customary law can be instrumental in establishing the principle of prior informed consent (PIC). The rule of law for protecting biological diversity's genetic resources and associated traditional knowledge should effectively recognize, respect, and enforce customary law. At the same time, it is necessary to clarify which issues require PIC and what PIC subjects, principles, and regimes are established under customary law.

To begin, indigenous peoples and local communities have historically had customary laws that recognize the authority of local regimes, and this customary law must be followed today when establishing the principle of prior informed consent and developing it as part of traditional ecological customary law, thus, prior informed consent should be sought from the local community. Second, because genetic resources and accompanying traditional knowledge are typically owned collectively, PIC choices must be made by representative local communities, not by individual knowledge holders. Third, because genetic resources and accompanying traditional knowledge are frequently recognized as the cultural heritage of one or more peoples, prior informed permission should not be sought from a single community or individual but from a group of peoples.

### *Traditional Ecological Customary Law for Conservation and Sustainability in Biodiversity DOI: http://dx.doi.org/10.5772/intechopen.105918*

The PIC process may require consultation with local governments, communities, and individual owners in exceptional circumstances. For specialized knowledge such as traditional medical knowledge, local governments, communities, households, and individual owners all require PIC, thus requiring the establishment of multilevel PIC procedures and systems.

To sum up, the construction of the rule of law for the conservation of biological diversity genetic resources and related traditional knowledge should firstly establish a prior knowledge of the comprehensive participation and collective decision-making of various interest groups, including local governments, communities, and individuals, on the issue of access and benefit sharing.

#### *4.3.2 Traditional ecological customary law and access to genetic resources*

After establishing the prior informed consent system, under access and benefit sharing procedures, relevant regulations and special systems concerning access to genetic resources and their associated traditional knowledge should be further developed based on traditional ecological customary law, specifically including the following four parts.

The first step is to create and amend traditional ecological customary regulations that permit others to access genetic resources and indigenous knowledge. For some people, public knowledge and resources are accessible to everybody, and those with access to traditional knowledge connected with genetic resources are obligated to share it openly. In other words, customary law regulates access, requiring accessibility, which requires openness to access. Even for specialized traditional information, such as medicinal knowledge, is only accessible inside a single-family or clan, customary law imposes an obligation to ensure its transmission to future generations. However, open customary rules may jeopardize these peoples' rights when they conflict with external third parties who have access to traditional knowledge related to genetic resources. As a result, appropriate rules and special regimes should support indigenous peoples and communities in establishing and updating their customary laws to allow for free sharing in the presence of third parties.

The second is to permit and embrace traditional ecological customary rules that safeguard specific genetic resources and their associated traditional knowledge. Numerous peoples safeguard sacred biogenetic resources and traditional knowledge through beliefs, worship, and rituals, such as natural sacred locations, which confer religious importance on these biogenetic resources and information. These sacred genetic resources and their traditional knowledge are only accessible to individuals with special status in the community, such as monks, elders, or priests. They are obligated to maintain secrecy to preserve their sanctity if they are leaked or leaked in violation of customary law. They risk being punished by the gods for sharing, and other members of the community are likewise obligated to protect these genetic resources and traditional knowledge together. As a result, applicable policies and sui generis systems should permit communities to refuse access to other parties and respect traditional ecological customary laws prohibiting collecting, using, or transmitting secret genetic resources and traditional knowledge.

Thirdly, we must adhere to and maintain indigenous ecological customary laws which are governing reciprocal access and equitable exchanges. Indigenous peoples and communities have long-established ecological customary rules based on the ideas of reciprocal access and equal exchange. This customary law exists between

man and nature. Tibetan medicine, for example, considers the acquisition of Tibetan medicinal biological resources to be a form of borrowing from sacred mountains; at a given time, Tibetan medicine's biological resources need to be "repaid" to the sacred mountain, payment is made in the form of semi-wild medicinal plants planted on the collection site or in a comparable setting. Tibetan physicians can preserve their careers and benefit from the sacred mountain's medical resources collection. As a result, they must share earnings with the sacred mountain through offering sacrifices, burning incense at the temple, reciting texts, and turning the mountain for benefit sharing.

Simultaneously, this customary law exists between individuals, as seen by the trade of seeds and other crop varieties between farmers or villages. To exchange seeds and various resources, villagers simultaneously give each other their own seeds, which is a responsibility to exchange and breed resources, and villagers who obtain seeds and breeding resources are likewise obligated to do so. Both sides will adhere to the idea of equal exchange in order to maximize reciprocity. Similarly, this customary law applies to access to genetic resources and associated traditional knowledge. When communities of people provide access to genetic resources and associated traditional knowledge with external third parties, they expect the same level of access to resources and knowledge. Thus, appropriate legislation and special regimes should respect and embrace traditional ecological customary norms requiring reciprocal access and equal exchange for community-provided access, rather than focusing exclusively on monetary advantages and financial compensation.

The fourth objective is to draw upon and embrace traditional ecological customary norms that assure the proper use of genetic resources and their associated traditional knowledge. This customary law creates rules and standards to ensure that genetic resources (GR) and traditional knowledge (TK) are distributed and shared exclusively to those with legitimate interests in ensuring their proper use following access. For example, the transmission of Dai medicine knowledge in Xishuangbanna and Tibetan medicine knowledge in Diqing is frequently governed by strong customary norms and ethics. Monks and masters who master traditional knowledge frequently need to analyze apprentices' personal characteristics and learning motivations to ensure that traditional medicinal knowledge is used for the greater good of the community and not for selfish gain. To ensure proper use in the future, relevant regulations and special systems should draw on and adopt traditional ecological customary law, establish a special rating process to assess the personal behavior and motivations of third-party applicants, and make it clear that third-party applicants are also responsible for the public interest and community welfare. The appropriate utilization of genetic resources and indigenous knowledge.

#### *4.3.3 Benefit-sharing and traditional ecological customary law*

After establishing appropriate regulations and unique systems for accessing and using genetic resources and their associated traditional knowledge, it is necessary to ensure that the benefits obtained are shared fairly and equitably with all peoples and their communities as providers of resources and traditional ecological knowledge. Customary law establishes the groundwork for forming a just benefit-sharing system, encompassing three pillars: justice and equity, suitability and moderation, and consensus decision.

The first is justice and equity. Justice and equity are the guiding principles and ideals of customary law, serving as the foundation for the notions of equality and reciprocity. According to customary law, biological genetic resources and traditional

### *Traditional Ecological Customary Law for Conservation and Sustainability in Biodiversity DOI: http://dx.doi.org/10.5772/intechopen.105918*

knowledge are frequently recognized as communal property of a particular nation or community, and the free and ongoing sharing of resources and knowledge is a critical component of the development of traditional livelihoods. Thus, customary law emphasizes shared benefits within communities or between neighboring groups and between specific individuals or families to manage resources and knowledge more equally and effectively. Due to the realities of indigenous peoples and local communities, genetic resources and traditional knowledge can be freely exchanged across nearby communities of various peoples, where they can be jointly maintained and exploited. Benefits must be shared across communities of different nationalities in this context to maintain fairness and justice and to promote the concept of local ownership. As a result, this necessitates the establishment of inter-ethnic processes and policies for the conservation of genetic resources and traditional knowledge in shared areas through suitable rules and sui generis systems.

The second principle is suitability and moderation. Suitability and moderation concepts and norms are also principles and values of customary law. As previously stated, prior informed consent enables the equitable distribution of benefits among ethnic groupings. Simultaneously, through prior informed agreement, local communities can exert control over external third parties' access to genetic resources and traditional knowledge, ensuring fair and equitable benefit sharing today and future generations, thereby achieving intergenerational equity and benefit-sharing equity. As a result, appropriate legislation and special systems should incorporate the concepts and values of moderation and moderation found in customary law and construct an intergenerational equitable and just system of benefit sharing.

The third is collective decision-making. The concepts and rules of collective decision-making are also principles and values of customary law, and collective decision-making contributes to the fair and equitable sharing of benefits. It is worth noting that fairness and justice do not imply equality, but rather that there should be fair and equitable benefit sharing within communities or between communities and communities according to the degree of ownership of genetic resources and traditional knowledge, which requires stakeholders make collective decisions. In the future, relevant regulations and special systems should be based on the concept and rules of collective decision-making in customary law. A collective decision-making mechanism involving the participation of local governments, communities, and villagers should be established to achieve fair and just sharing of benefits.
