The Protection of Traditional Knowledge Associated with Genetic Resources: The Role of Databases and Registers

"The Protection of Traditional Knowledge Associated with Genetic Resources: The Role of Databases and Registers" ABSTRACT Yovana Reyes Tagle The misappropriation of TK has sparked a search for national and international laws to govern the use of indigenous peoples knowledge and protection against its commercial exploitation. There is a widespread perception that biopiracy or illegal access to genetic resources and associated traditional knowledge (TK) continues despite national and regional efforts to address this concern. The purpose of this research is to address the question of how documentation of TK through databases and registers could protect TK, in light of indigenous peoples increasing demands to control their knowledge and benefit from its use. Throughout the international debate over the protection of TK, various options have been brought up and discussed. At its core, the discussion over the legal protection of TK comes down to these issues: 1) The doctrinal question: What is protection of TK? 2) The methodological question: How can protection of TK be achieved? 3) The legal question: What should be protected? And 4) The policy questions: Who has rights and how should they be implemented? What kind of rights should indigenous peoples have over their TK? What are the central concerns the TK databases want to solve? The acceptance of TK databases and registers may bring with it both opportunities and dangers. How can the rights of indigenous peoples over their documented knowledge be assured? Documentation of TK was envisaged as a means to protect TK, but there are concerns about how documented TK can be protected from misappropriation. The methodology used in this research seeks to contribute to the understanding of the protection of TK. The steps taken in this research attempt to describe and to explain a) what has been done to protect TK through databases and registers, b) how this protection is taking place, and c) why the establishment of TK databases can or cannot be useful for the protection of TK. The selected case studies (Peru and Venezuela) seek to illustrate the complexity and multidisciplinary nature of the establishment of TK databases, which entail not only legal but also political, socio-economic and cultural issues. The study offers some conclusions and recommendations that have emerged after reviewing the national experiences, international instruments, work of international organizations, and indigenous peoples perspectives. This thesis concludes that if TK is to be protected from disclosure and unauthorized use, confidential databases are required. Finally, the TK database strategy needs to be strengthened by the legal protection of the TK itself.

Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.

Despairing Justice and the Ethics of Legal Interpretation

This study discusses legal interpretation. The question is how legal texts, for instance laws, statutes and regulations, can and do have meaning. Language makes interpretation difficult as it holds no definite meanings. When the theoretical connection between semantics and legal meaning is loosened and we realise that language cannot be a means of justifying legal decisions, the responsibility inherent in legal interpretation can be seen in full. We are thus compelled to search for ways to analyse this responsibility. The main argument of the book is that the responsibility of legal interpretation contains a responsibility towards the text that is interpreted (and through the mediation of the text also towards the legal system), but not only this. It is not simply a responsibility to read and read well, but it transcends on a broader scale. It includes responsibility for the effects of the interpretation in a particular situation and with regard to the people whose case is decided. Ultimately, it is a responsibility to do justice. These two aspects of responsibility are conceptualised here as the two dimensions of the ethics of legal interpretation: the textual and the situational. The basic conception of language presented here is provided by Ludwig Wittgenstein s later philosophy, but the argument is not committed to only one philosophical tradition. Wittgenstein can be counterpointed in interesting ways by Jacques Derrida s ideas on language and meaning. Derrida s work also functions as a contrast to hermeneutic theories. It is argued that the seed to an answer to the question of meaning lies in the inter-personal and situated activity of interpretation and communication, an idea that can be discerned in different ways in the works of Wittgenstein, Derrida and Hans-Georg Gadamer. This way the question of meaning naturally leads us to think about ethics, which is approached here through the philosophy of Emmanuel Levinas. His thinking, focusing on topics such as otherness, friendship and hospitality, provides possibilities for answering some of the questions posed in this book. However, at the same time we move inside a normativity where ethics and politics come together in many ways. The responsibility of legal interpretation is connected to the political and this has to be acknowledged lest we forget that law always implies force. But it is argued here that the political can be explored in positive terms as it does not have to mean only power or violence.

Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

Dental identification and aspects of medico-legal investigations of the Finnish victims of the Sumatra-Andaman earthquake on 26 December 2004

Tsunami waves of the Sumatra-Andaman earthquake on 26 December 2004 claimed approximately 230 000 lives and started the biggest identification operation in Interpol's history. The aim of this study was to resolve methods of the identification and results received. The viewpoint is mainly that of forensic odontology, but also includes other means of identification and results of the medico-legal examination performed in Finland. Of the 5395 victims in Thailand, approximately 2 400 were foreigners from 36 nations including 177 Finnish nationals. Additionally, a Finnish woman perished in Sri Lanka and a severely injured man after the evacuation in a hospital. The final numbers of missing persons and dead bodies registered in the Information Management Centre in Phuket,Thailand, were 3 574 ante-mortem (AM) and 3 681 post-mortem (PM) files. The number of identifications by December 2006 was 3 271 or 89% of the victims registered. Of Finnish victims, 172 have been identified in Thailand and 163 repatriated to Finland. One adult and four children are still missing. For AM data, a list of Finnish missing persons including 178 names was published on 30 December 2004. By February 2005 all useful dental AM data were available. Five persons on the list living in Finland lacked records. Based on the AM database, for the children under age 18 years (n=60) dental identification could be established for 12 (20%). The estimated number for adults (n=112) was 96 (86%). The final identification rate, based on PM examinations in Finland, was 14 (25%) for children (n= 56) and 98 (90%) for adults (n= 109). The number of Finnish victims identified by dental methods, 112 (68%), was high compared to all examined in Thailand (43%). DNA was applied for 26 Finnish children and for 6 adults, fingerprints for 24 and 7, respectively. In 12 cases two methods were applied. Every victim (n=165) underwent in Finland a medico-legal investigation including an autopsy with sampling specimens for DNA, the toxicological and histological investigation. Digital radiographs and computed tomography were taken of the whole body to verify autopsy findings and bring out changes caused by trauma, autolysis, and sampling for DNA in Thailand. Data for identification purposes were also noted. Submersion was the cause of death for 101 of 109 adults (92.7%), and trauma for 8 (7.3%). Injuries were 33 times contributing factors for submersion and 3 times for trauma-based death. Submersion was the cause of death for 51 (92.7%) children and trauma for 4 (7.3%). Injuries were in 3 cases contributing factors in submersion and once in trauma-based death. The success of the dental identification of Finnish victims is mainly based on careful registration of dental records, and on an education program from 1999 in forensic odontology.

Cost and effectiveness of legal mandates for the practice of forestry on private land.

XVIII IUFRO World Congress, Ljubljana 1986.

Birth of the European individual : Outline of a theory of legal practice

The modern subject is what we can call a self-subjecting individual. This is someone in whose inner reality has been implanted a more permanent governability, a governability that works inside the agent. Michel Foucault s genealogy of the modern subject is the history of its constitution by power practices. By a flight of imagination, suppose that this history is not an evolving social structure or cultural phenomenon, but one of those insects (moth) whose life cycle consists of three stages or moments: crawling larva, encapsulated pupa, and flying adult. Foucault s history of power-practices presents the same kind of miracle of total metamorphosis. The main forces in the general field of power can be apprehended through a generalisation of three rationalities functioning side-by-side in the plurality of different practices of power: domination, normalisation and the law. Domination is a force functioning by the rationality of reason of state: the state s essence is power, power is firm domination over people, and people are the state s resource by which the state s strength is measured. Normalisation is a force that takes hold on people from the inside of society: it imposes society s own reality its empirical verity as a norm on people through silently working jurisdictional operations that exclude pathological individuals too far from the average of the population as a whole. The law is a counterforce to both domination and normalisation. Accounting for elements of legal practice as omnihistorical is not possible without a view of the general field of power. Without this view, and only in terms of the operations and tactical manoeuvres of the practice of law, nothing of the kind can be seen: the only thing that practice manifests is constant change itself. However, the backdrop of law s tacit dimension that is, the power-relations between law, domination and normalisation allows one to see more. In the general field of power, the function of law is exactly to maintain the constant possibility of change. Whereas domination and normalisation would stabilise society, the law makes it move. The European individual has a reality as a problem. What is a problem? A problem is something that allows entry into the field of thought, said Foucault. To be a problem, it is necessary for certain number of factors to have made it uncertain, to have made it lose familiarity, or to have provoked a certain number of difficulties around it . Entering the field of thought through problematisations of the European individual human forms, power and knowledge one is able to glimpse the historical backgrounds of our present being. These were produced, and then again buried, in intersections between practices of power and games of truth. In the problem of the European individual one has suitable circumstances that bring to light forces that have passed through the individual through centuries.

Victims of the White War or Rebellions of the Green Revolution? Bolivian Indigenous Women Prisoners' Position in the "War on Drugs" Explored through a Criminological Gaze

Tässä tutkielmassa tarkastellaan Bolivialaisten naisvankien (alkuperäisväestön) ja globaalin huumesodan ("War on Drugs") välistä yhteyttä. Keskustelu sijoitetaan laajemmin kokan viljelyn politiikkaan ja alkuperäisväestön kulttuuriin. Kokaa viljeleviä köyhiä maalaisia, joista huomattava osa on naisia, on vangittu Boliviassa kiihtyvää tahtia viime vuosikymmeninä. Moni naisista on kokan tuotannossa ja kaupassa mukana, sillä se on monesti ainoa keino taloudelliseen selviämiseen. Yleisesti ottaen naisvangit ja naisrikolliset ovat marginaalinen ilmiö. Kansainvälisesti tarkasteltuna naisvankien suhteellinen osuus koko vankilaväestöstä on noin 5,2 % (keskiarvo). Boliviassa osuus on vaihdellut 6,1 %:n ja 17,1 %:n välillä vuosina 2000-2008. Naisvankien määrä yleisesti ottaen on ollut rajussa kasvussa, suurin syy naisten vangitsemiseen on huumausaineisiin liittyvät rikokset. Näyttää myös siltä että vähemmistöt ja etnisen taustan omaavat henkilöt ovat yliedustettuina vankilaväestössä. Bolivia seuraa tätä kansainvälistä trendiä. Tämä tutkielma on rajattu kysymyksiin Bolivian intiaaniperäisten naisten osuudesta maan huumerikollisuudessa, sekä heidän suhteellisen korkeaa vangitsemisastetta selittäviin yhteiskunnallisiin tekijöihin. Kysymykset sukupuolesta, etnisyydestä ja kokan viljelyn politiikasta ovat keskiössä. Yleisiä kriminologisia teorioita peilataan kriittisesti suhteessa aineistoon ja Bolivian kontekstiin. Huumesodan ja Bolivian ankaran huumelainsäädännön seurauksista keskustellaan kriittisesti, sekä pohditaan köyhän alkuperäisväestön massavangitsemisen tarpeellisuutta. Tutkimuskysymykseni ovat: mitkä tekijät selittävät kohtuullisen korkean intiaaniperäisten naisvankien määrän Boliviassa, ja mikä on heidän asemansa globaalissa huumesodassa? Tutkielmassa on analysoitu kvantitatiivista ja kvalitatiivista aineistoa. Päälähteenä on ollut Bolivian tilastokeskuksen tuottamat rikostilastot. Tutkielman tärkeimpänä löydöksenä voidaan pitää havaintoa, että vastoin tiettyjä olettamuksia, intiaaniperäiset naiset ovat hyvinkin aktiivisia perinteisesti miehisiksi käsitetyillä aloilla kuten rikollisuudessa ja politiikassa. Tutkielmassa osoitetaan myös, että pidätysten määrät ovat moninkertaistuneet muutamassa vuosikymmenessä. Koska kokan viljelyssä on kyse pääasiallisesti taloudellisesta toimeentulosta, tämä tutkielma kysyy, onko hengissä pysyminen rikos?

Monitoring Indigenous Tropical Montane Forests in the Taita Hills Using Airborne Digital Camera Imagery

The loss and degradation of forest cover is currently a globally recognised problem. The fragmentation of forests is further affecting the biodiversity and well-being of the ecosystems also in Kenya. This study focuses on two indigenous tropical montane forests in the Taita Hills in southeastern Kenya. The study is a part of the TAITA-project within the Department of Geography in the University of Helsinki. The study forests, Ngangao and Chawia, are studied by remote sensing and GIS methods. The main data includes black and white aerial photography from 1955 and true colour digital camera data from 2004. This data is used to produce aerial mosaics from the study areas. The land cover of these study areas is studied by visual interpretation, pixel-based supervised classification and object-oriented supervised classification. The change of the forest cover is studied with GIS methods using the visual interpretations from 1955 and 2004. Furthermore, the present state of the study forests is assessed with leaf area index and canopy closure parameters retrieved from hemispherical photographs as well as with additional, previously collected forest health monitoring data. The canopy parameters are also compared with textural parameters from digital aerial mosaics. This study concludes that the classification of forest areas by using true colour data is not an easy task although the digital aerial mosaics are proved to be very accurate. The best classifications are still achieved with visual interpretation methods as the accuracies of the pixel-based and object-oriented supervised classification methods are not satisfying. According to the change detection of the land cover in the study areas, the area of indigenous woodland in both forests has decreased in 1955 2004. However in Ngangao, the overall woodland area has grown mainly because of plantations of exotic species. In general, the land cover of both study areas is more fragmented in 2004 than in 1955. Although the forest area has decreased, forests seem to have a more optimistic future than before. This is due to the increasing appreciation of the forest areas.

An Analysis of the Concept of Citizenship: Legal, Political and Social Dimensions

The thesis aims at analyzing concept of citizenship in political philosophy. The concept of citizenship is a complex one: it does not have a definitive explication, but it nevertheless is a very important category in contemporary world. Citizenship is a powerful ideal, and often the way a person is treated depends on whether he or she has the status of a citizen. Citizenship includes protection of a person’s rights both at home and abroad. It entails legal, political and social dimension: the legal status as a full member of society, the recognition of that status by fellow citizens and acting as a member of society. The thesis discusses these three dimensions. Its objective is to show how all of them, despite being insufficient in some aspects, reach something important about the concept. The main sources of the thesis are Civic Republicanism by Iseult Honohan (Routledge 2002), Republicanism by Philip Pettit (Clarendon Press 1997), and Taking Rights Seriously by Ronald Dworkin (1997). In addition, the historical part of the thesis relies mainly on the works of Aristotle, Immanuel Kant, Adam Smith, Quentin Skinner, James Pocock and James Tully. The writings of Will Kymlicka, John Rawls, Chantal Mouffe, and Shane Phelan are referred to in the presentation and critique of the liberal tradition of thought. Hannah Arendt and Seyla Benhabib’s analysis of Arendt’s philosophy both address the problematic relations between human rights and nation-states as the main guarantors of rights. The chapter on group rights relies on Peter Jones’ account of corporate and collective rights, after which I continue to Seumas Miller’s essay on the (liberal) account of group rights and their relation to the concept of citizenship. Republicanism and Political Theory (2002) edited by Cécile Laborde and John Maynor is also references. David Miller and Maurizio Viroli represent the more “rooted” version of republicanism. The thesis argues that the full concept of citizenship should be seen as containing legal, political and social dimensions. The concept can be viewed from all of these three angles. The first means that citizenship is connected with certain rights, like the right to vote or stand for election, the right to property and so on. In most societies, the law guarantees these rights to every citizen. Then there is also the social dimension, which can be said to be as important as the legal one: the recognition of equality and identities of others. Finally, there is the political dimension, meaning the importance of citizens’ participation in the society, which is discussed in connection with the contemporary account of republicanism. All these issues are discussed from the point of view of groups demanding for group-specific rights and equal recognition. The challenge with these three aspects of citizenship is, however, that they are difficult to discuss under one heading. Different theories or discourses of citizenship each approach the subject from different starting points, which make reconciling them sometimes hard. The fundamental questions theories try to answer may differ radically depending on the theory. Nevertheless, in order to get the whole image of what the citizenship discourses are about all the aspects deserve to be taken into account.