Traditional Ecological Customary Law for Conservation and Sustainability in Biodiversity

Abstract

The Convention on Biological Diversity and the Nagoya Protocol have raised the issue of access and benefit sharing (ABS) and related traditional knowledge of genetic resources, particularly in the traditional knowledge conservation session. Additionally, the traditional customary law can play a significant impact. The author summarizes the concept, connotation, and nature of traditional ecological customary law, particularly that of genetic resources, and argues that it encompasses not only the common understanding of customary law for the conservation of plants and animals, but also the traditional knowledge necessary for effective classification, management, and promotion of genetic resources. Simultaneously, the author analyzes and discusses the rights recognized by traditional ecological customary law. Indigenous peoples and local communities should prioritize the establishment of their rights to genetic resources and related traditional knowledge, understand the fundamental principles of traditional ecological law and procedure, and enable them to be recognized and strengthened in international and national law, to ensure that common law and recognized rights are implemented in practice. Based on prospective progresses aforesaid, to boost the mainstreaming of traditional ecological customary law within the rule of law governing biodiversity conservation.

1. Introduction

The United Nations Biodiversity Conference (COP 15) took place in October 2021 and May 2022 in Kunming, Yunnan, China. As a signatory to both the Convention on Biological Diversity and the Nagoya Protocol, China has been compelled to create national law that meets the criteria of international conventions. China, on the other hand, continues to lack concrete legislative measures and implementation guidelines for the conservation of biological species resources and traditional knowledge, either at the national or local level [1]. The Convention on Biological Diversity provides a framework for the conservation of genetic resources and traditional knowledge. However, because China lacks a clear conservation policy, an effective legal and institutional system has not yet been established [2]. At the same time, due to the special property of traditional knowledge, it is difficult to protect it under the current intellectual property system [3]. Also, in the international arena, in regard to traditional national societies, there is an urgent need to establish special legal systems in the fields of genes, biological resources, and traditional knowledge to protect their rights, as well as the local traditional way of life and culture [4]. Therefore, all parties to the Convention on Biological Diversity, especially the resource-providing countries, have proposed that domestic laws and regulations should be formulated under the framework of the Convention on Biological Diversity, which is conducive to the conservation of biological diversity, biological genetic resources, and their traditional knowledge [5].

A common feature of current global biodiversity hotspots is that they are often rich in cultural diversity. As UNESCO states in the Convention on the Conservation and Promotion of the Diversity of Cultural Expressions, “Cultural diversity is a fundamental characteristic and a mutual heritage of all human beings, cultural diversity contributes to the creation of a colorful world” [6]. Clearly, biodiversity is the bedrock and critical component of this vibrant world, the conservation of biodiversity from cultural diversity is the guarantee for the continuous existence and development of this colorful world. Traditional laws and institutions can aid traditional ethnic societies in preserving the ecological environment, adapting to climate change, and utilizing natural resources, while also sustaining significant cultural values [7]. The value and function of traditional law and system on ecological resources should be recognized, cited, and utilized by modern national legal system; moreover, the mutual relationship between traditional legal culture and Western legal culture should be further discussed and finally brought into modern national legal system [8]. In China, traditional ecological culture, concepts, and local knowledge play an important role and significance in protecting the ecological environment and biodiversity in ethnic minority areas [9]. In particular, traditional knowledge associated with biodiversity is of great significance for the conservation and utilization of genetic resources and the realization of acquisition and the system for access and benefit sharing (ABS) [10]. In ethnic areas, a co-management mechanism of environmental governance can be formed based on ethnic customary laws such as township regulations and civil conventions on environmental conservation [11], maximize the positive impact of customary law on the ecological environment, and integrate it into the rule of law of ecological governance in ethnic minority areas and national laws [12]. Nowadays, China’s environmental conservation laws are not perfect, especially with the imperfect of local environmental conservation laws and environmental conservation measures, the effective environmental conservation experience in the minority customary law can be used to make up and correct the loopholes and deficiencies of the current environmental conservation laws and environmental conservation measures [13]. Different ethnic groups living in biodiversity hot spots have produced traditional ecological customary laws associated with biodiversity in the process of long-term interaction with local ecosystems and the natural environment. It also promotes the conservation of biodiversity and can further play an essential role in the conservation of biological species’ resources and their traditional knowledge [14].

Indigenous peoples and local communities possess rich biodiversity species resources, each ethnic minority has created a wealth of traditional knowledge for the conservation and utilization of biological species resources. Biological species resources and their associated traditional knowledge not only have great commercial and economic value, but also are of great significance to the sustainable life of indigenous peoples and local communities and of important cultural resources. Therefore, it is necessary to improve the rule of law for the conservation of biological species resources and improve the system of biosafety laws and regulations at the international and national levels. Involving the traditional ecological culture and customary law in the comprehensive management of biosafety risks. Ensure the biological species resources are legally protected, prevent the loss of biological species resources, promote the conservation and utilization of biological diversity, and safeguard the ecological rights of indigenous peoples and local communities.

2. Traditional ecological customary law: the concept, connotation, and property

Legal philosophers have identified three pillars of legal administration since the time of Aristotle in ancient Greece: natural law (universal moral principles), customary law (unwritten law that people bound by it believe binding), and positive law (written law, statutory law) [15]. A conventional social norm is customary law. To comprehend customary law, we must first comprehend the concept of a custom. According to the Osborne Concise Law Dictionary, a custom is a “norm of behavior, binding to those within its domain, established by repeated practice.” To be valid, these conventions must be old, well-established, and reasonable. Although it may deviate from the common law, it is required and does not contradict written law. There are two types of customs: general and specific [16]. Customary law is based on custom, and the Oxford Law Dictionary defines it as follows: “When some custom, custom, and common practice has been established in a significant part of the country, it is recognized and regarded as legally binding. They can rightfully be called customary law because they are based on written legislative rules” [17]. “Customs considered as legal requirements or required standards of behaviour,” according to Black’s Law Dictionary. This type of behavior and beliefs are recognized as law since they are such an important and integral aspect of the social and economic structure [18]. Traditional ecological customary law is a type of customary law and the guidelines formed in traditional national society for dealing with the relationship with the natural environment. This customary law is particularly significant in resource management and environmental preservation [19]. Traditional societies are not born with the ability to live in harmony with nature. According to anthropology, it is shaped by man’s close relationship with nature [20]. This relationship also involves sociocultural, religious, and belief aspects [21]. Customary law, which controls procedures for the interaction, conservation, conservation, and usage of natural resources, demonstrates these relationships [22]. Due to these qualities, traditional ecological customary law has increasingly attracted the attention of important international treaties, such as the United Nations Convention on Biological Diversity.

Currently, the international academic community does not seek a separate definition of traditional ecological customary law. Still, it conducts research on the concept of customary law or traditional knowledge as a whole. However, since such customary law has unique value and effect on protecting the ecological environment, it is necessary to define its concept clearly and clearly.

This article argues that traditional ecological customary laws governing biological diversity genetic resources encompass not only traditional beliefs and codes of conduct for the direct conservation of animals and plants, but also the classification, storage, efficient use, integrated management, promotion of genetic resources, and the development of traditional knowledge and technical techniques. In other words, traditional ecological customary law is not a single conservation norm for biodiversity genetic resources but a complex governance structure.

The connotation of traditional ecological customary law is twofold: one is the general level, that is, in the macro concept of ecological environmental conservation, traditional ecological customary law that can be valuable for ecosystem maintenance and natural resource conservation and sustainable use; the second is specific level, under the specific framework of the Convention on Biological Diversity, traditional ecological customary laws that play a role in the access and benefit sharing of genetic resources and their associated traditional knowledge.

When the broad scope of ecological conservation is combined with the specific context of the Convention on Biological Diversity, the nature of traditional ecological customary law takes on four dimensions. One is cultural characteristics. Traditional ecological customary law is a cultural phenomenon developed by traditional national societies according to their particular social history, beliefs, habits, and social norms, which is a dynamic cultural accumulation and development process. As a result, traditional ecological customary law will also adhere to traditional nationality. The cultural changes in society have evolved, and in response to the changes, new components have been updated and developed regularly. The second characteristic is ecological. Traditional ecological customary law is a collection of ecological knowledge systems developed through long-term interaction between traditional national societies and their natural environment and ecological system. It is a process of ecological knowledge accumulation. Similarly, traditional ecological customary law will alter in response to changes in the traditional ethnic society’s ecological system, natural environment, and climatic circumstances. It will actively adapt to these changes in the ecological environment. The final category is national characteristics. Certain traditional national societies refuse to recognize the concept of “customary law” derived from Western jurisprudence and legal system, believing that the term “customary law” and its related definitions in English may imply a degree of denigration of their own legal system and a transformation into a common law vassal state. Because the majority of these traditional national societies are located in Western countries’ former colonies, they believe that “customary law” is a legacy of Western countries’ colony and postcolonial legal systems, and they regard traditional national social cultures and legal systems as “primitive” in comparison to Western legal principles and therefore as illogical and unjust as common law subordination. Indeed, not all traditional national social laws are based on customary law; they may also be based on written, positive, or natural laws. The phrase “customary law” does not encompass all legal systems prevalent in traditional national societies. National social law in its traditional form is a “law of life,” including not only the exterior laws of life, but also the internal realities of existence. This legal system is based on the natural environment and ecosystem in which the traditional national society lives and develops into an integral part of its national culture and traditional knowledge, which in turn objectively protects the local natural environment and ecosystem, providing the traditional national society with the means to achieve sustainable life. The fourth is the right trait. Under the Convention on Biological Diversity’s purpose of “conservation of biological diversity, sustainable use of its components, and equitable and equitable sharing of benefits resulting from genetic resource usage.” In particular, under the Nagoya Protocol’s special requirement that each party shall consider indigenous peoples’ and local communities’ customary laws when implementing the Protocol, traditional ecological customary laws acquire the status of rights and transform into the traditional national society’s role in genetic resources and local communities. It is one of the critical mechanisms for safeguarding its own rights and interests in the process of access and benefit sharing (ABS) associated with traditional information, becoming an integral part of constructing a particular system for traditional knowledge.

3. Traditional ecological customary laws associated with biodiversity of ethnic groups in China

The diversity of ethnic groups in China enables the development of distinct economic and cultural types, cultural ecological zones, and livelihoods. Throughout history, whether it was a hunter-gatherer nation, an animal herder nation, or a farming nation, whether it is a nation engaged in slash-and-burn farming, a mountain-grazing nation, a mountain-hunting nation, or a hilly rice-cultivating nation, all played a role in preserving ecological balance, protecting traditional knowledge of the natural environment. Chinese ethnic groups have developed traditional ecological customary lanes in long-term production and life practice. This sort of ancient ecological customary rule maintains and enriches the genetic variety of the original varieties. Thus, the traditional ecological customary law of genetic diversity is mostly expressed in traditional subsistence techniques. In general, the traditional ecological customary law on crops and livestock in traditional livelihoods objectively protects the diversity of local biological genetic resources, making traditional livelihoods a “gene pool” for the conservation and utilization of biological diversity genetic resources, and this “gene pool” is evolving in a dynamic, constantly changing, and developing process.

3.1 Traditional ecological customary laws related to crop genetic diversity

The first is the traditional ecological customary law related to the genetic diversity of crops, which is of great value to the conservation, classification, management, and enrichment of the genetic diversity of crops. A more representative example is the rotation agriculture of the Jinuo people in Jinuo Mountain, Xishuangbanna Dai Autonomous Prefecture, Yunnan. These traditional ecological practices are valuable for conservation and sustainable utilization of crop genetic diversity. The customary law established through rotation farming encompasses selection, preservation, hybridization, and cultivation technology for indigenous upland rice varieties, which breed the abundant genetic variety of indigenous crops represented by upland rice germplasm resources. One may argue that the Jinuo people’s resources for traditional upland rice varieties are the outcome of their cultivation and breeding utilizing appropriate customary procedures. These kinds exemplify the practice and invention of the Jinuo people’s rotation agriculture’s traditional ecological customary ways, which accurately depict the traditional highland rice varieties. Genetic diversity, these various resources are inextricably linked to and simultaneously complementary to crop rotation agriculture’s traditional ecological customary rule.

On Jino Mountain, the laws governing the local Jino people’s usage of varied cultivated crops, particularly the land classification and use system, can be considered an integral aspect of the Jino people’s traditional ecological customary law. Jinuo People classify land into three distinct categories: Zhexiao, Zhejiao, and Dieta. In general, the first type of land, Zhexiao, is found at low elevations, the second type of land, Zhexiao, is found at moderate elevations, and the third type of land, Dieta, is found at high elevations. The Jinuo people cultivate food crops such as upland rice, corn, sorghum, millet; cash crops such as cotton, tea, tobacco leaves; oil crops such as peanut, suzi, sesame; there are cereals and vegetables such as sweet potatoes, potatoes, soybeans, taro, pumpkin, winter melon, cucumber, cantaloupe, eggplant, pepper, rice beans, green beans, green vegetables, cabbage, fennel, Chuanxiong, garlic, ginger, lemon grass, and a variety of grains and vegetables, including sweet potato, potato, soybean, taro, pumpkin, winter melon, cucumber, cantaloupe, eggplant, chili, rice beans, green beans, green vegetables, cabbage, fennel, Sichuan Qiong, garlic, ginger, and lemongrass, Soybeans, taro, pumpkin, winter melon, cucumber, cantaloupe, eggplant, chili, rice beans, green beans, green vegetables, cabbage, fennel, sichuan vault, garlic, ginger, vanilla. However, not all three types of land are conducive to cultivating all crops. Upland rice comes in a variety of cultivars that are ideal for growing on various types of land. Soybeans can be sown broadly; maize is grown exclusively on the first and second types of land, while cotton is cultivated only on the first type of land. Cotton fields are commonly referred to as “white treasure fields,” and they are frequently interplanted with a range of crops. For instance, in a sloping field, cotton and glutinous rice can be planted in the lower section with a little warmer environment, while cold-resistant upland rice variety can be grown in the slightly cooler upper section, then plant sorghum, corn, coix, beans, melons, and vegetables into the cotton and upland rice in the low places or on the edge of the ground; taro, yam, and potato in areas with a heavy soil layer of fire ash; plant perilla, soybean, and sesame in areas with barren soil and thin soil; plant pepper, eggplant, sunflower, and other crops adjacent to ant mounds; ginger and pumpkin are frequently planted on the ground’s edge. The photograph below shows many traditional upland rice varieties grown on diverse land types in Mount Jinuo (Figure 1).

Figure 1.

Traditional upland rice varieties farmed by the Jinuo people in Jinuoshan on various types of land.

The Jino people are primarily upland rice planters who practice crop rotation agriculture on Jinuo Mountain. According to the survey, more than 100 upland rice varieties in Jinuo Mountain before the 1950s. Despite the loss of over 30 traditional upland rice types, there are still 71 varieties remaining, including 16 early-maturing varieties, 35 medium-maturing varieties, 20 late-maturing varieties, and 25 glutinous rice varieties. The Baya upland rice types are the most numerous in the region, totaling 38. Along with allocating different crop varieties according to altitude and climate, Jino people’s traditional ecological customary law of crop and land allocation frequently set the cultivation ratio of early, middle, and late rice upon a piece of land, which can be avoided to a period of short supply and food scarcity occurs. And by utilizing a variety of varieties, different types of land, different years of planting with different varieties, according to local conditions, and crop rotation, the goal of making the best effort and ensuring the harvest may be accomplished. The following table summarizes the common regulations for upland rice varieties and land types used by Jino people, which reflect one component of their traditional ecological customary law for crop rotation agriculture (Tables 1–3) [23].

Crop rotation	Land type	Rice variety
Annual	Fruitful soil	Sticky rice
	Barren soil	Mengwang rice
Biennial	Fruitful soil	/
	Barren soil	Rot land rice
Triennium	Fruitful soil	Mengwang rice
	Barren soil	/
Quadrennium	Fruitful soil	Black joint rice
	Barren soil	/
Quinquennium	Fruitful soil	Rot land rice
	Barren soil	/

Table 1.

Diversity of upland rice and configuration of planting environment – Land type 1 (Zhexiao).

Crop rotation	Land type	Rice variety
		Fruitful soil	Barren soil
Annual	Sunny slope	Purple sticky rice; Yellow sticky rice	Rot land rice; Mengwang rice
	Shady slope	Purple sticky rice; Yellow sticky rice	Small red rice; Large red rice
Biennial	Sunny slope	Long grain rice	/
	Shady slope	Long grain rice; Long-haired rice	Small red rice; Thin white rice
Triennium	Sunny slope	Mengwang rice	Black hull rice
	Shady slope	Rot land rice	/
Quadrennium	Sunny slope	Rot land rice	/
	Shady slope	/	/
Quinquennium	Sunny slope	/	/
	Shady slope	/	/

Table 2.

Diversity of upland rice and configuration of planting environment – Land type 2 (Zhejiao).

Crop rotation	Land type	Rice variety
		Fruitful soil	Barren soil
Annual	Sunny slope	Black joint rice; Thin white rice	Rot land rice; Thin red rice
	Shady slope	Black joint rice; Black hull rice	Rot land rice; Small red rice
Biennial	Sunny slope	Long grain rice; Long-haired rice	/
	Shady slope	/	/
Triennium	Sunny slope	Rot land rice	Rot land rice
	Shady slope	/	/
Quadrennium	Sunny slope	/	/
	Shady slope	/	/
Quinquennium	Sunny slope	/	/
	Shady slope	/	/

Table 3.

Diversity of upland rice and configuration of planting environment – Land type 2 (Dieta).

In the villages of Jinuo Mountain, the variety of upland rice varieties and land type distribution regulations are significantly more varied than those represented in the table above. Because the soil is deep and fertile, even a tiny plot of land may support a variety of crops or variants of the same crop. There are other comparable incidents of the Jino people in Yunnan’s Xishuangbanna. For example, the traditional ecological customary law of the Honghe Hani people’s terraced agriculture protects and promotes rice variety genetic diversity. In contrast, the old ecological customary law of Diqing’s Tibetan plateau agriculture protects and develops the highland barley variety. Enhancement and enrichment of genetic variety, among other things.

3.2 Traditional ecological customary laws related to the genetic diversity of livestock

Traditional ecological customary rules also contribute to the conservation of animal husbandry by classifying, managing, and enriching livestock breed genetic variety. For instance, in Deqin County, in Diqing Tibetan Autonomous Prefecture in northeastern Yunnan, ancient ecological customary regulations governing Tibetan animal husbandry are incredibly beneficial for the conservation and sustainable use of cattle genetic variety. The customary laws governing animal husbandry contain measures governing the foundation for selection, methods of conservation, breeding hybrids, and feeding procedures for indigenous livestock breeds, thereby preserving the genetic variety of indigenous livestock represented by cattle. It can be said that the resources of traditional livestock breeds are the product of breeding and selection conducted by Tibetan herders under applicable customary laws. These breeds exemplify the practice and creativity associated with traditional Tibetan animal husbandry’s traditional ecological customary regulations, accurately portraying the genetic diversity of traditional livestock breeds. Additionally, these breed resources are inextricably linked to and supplementary to animal husbandry’s ancient ecological customary rule.

The large livestock raised by indigenous Tibetan animal husbandry in Deqin consists primarily of cattle, sheep, pigs, horses, and mules, with cattle being the most important. Thus, traditional animal husbandry has developed a customary rule governing cattle breeds, the center of which is a categorization system for cattle. According to the general categorization, local cattle breeds are classified as yak, dzo, and cattle; In the local indigenous language, this classification system is more complicated, and the breed of cattle is classified into seven distinct types, i.e., Ra, a male yak; Nega is the female yak, Yong is the male yak, Ba is the female yak, the hybrid dzo between a male yak and a female ox is called Zong; Gele is the female dzo; the male dzo is called Nezu, which is a cross between a male yak and a female yak; the female dzo is referred to as Le; Ai is a cross between female Gele and male cattle; a cross between female Gele and male yak is referred to as Dele, and Ai hybridizes male cattle to obtain the Jimo (Figure 2).

Figure 2.

Classification system of cattle breeds by Tibetan herdsmen in Deqin.

According to the traditional ecological customary law of animal husbandry, the local herdsmen herd the seven types of different breeds of cattle on pastures at different altitudes (Table 4).

Cattle breeds			Pasture grazing environment
No.	Tibetan	Chinese	Temperature preferences	Property	Altitude
1	Ra; Nega	Yak	Low temperature	Hardy	High altitude
2	Yong; Ba	Cattle	Warm	Drought enduring	Low altitude
3	Zong; Gele	Dzo	Low temperature; Warm	Hardy; Drought enduring	Highaltitu; Medium altitude
					Low altitude
4	Nezu; Le		Low temperature	Hardy	High altitude
5	Ai		Low temperature; Warm	Hardy; Drought enduring	Highaltitude; Medium altitude
					Low altitude
6	Dele		Low temperature	Hardy	High altitude
7	jimo		Warm	Drought enduring	Low altitude

Table 4.

Diversity of cattle breeds and configuration rules of pasture grazing environment.

Local herders will also select, protect, breed, and cross the seven breeds of cattle according to customary law to adapt to the local natural environment, ecosystem, and climatic conditions as Yak, Nezu, Le, Ai are cold-hardy that like cold climates breeds, grazing in high-altitude alpine pastures all year round; Cattle and Jimo are cold-hardy varieties that favor warm climates and graze in low-altitude valley pastures all year round; while Zong, Gele, and Ai belong to both cold and warm climates breed, they are rotated and transferred between the three types of pastures. These traditional ecological customary laws based on animal husbandry objectively protect and enrich the genetic diversity of livestock breeds represented by cattle [24]. Similarly, there are many similar cases in other ethnic groups and regions in Yunnan, such as the conservation and promotion of the genetic diversity of livestock breeds through the traditional ecological custom by Dulong people in Nujiang for Dulong cattle and Dulong chicken and improvement and enrichment of the genetic diversity of camellia chicken breeds by Dai people’s traditional ecological habits in Xishuangbanna.

4. Indigenous peoples and local communities biodiversity conservation and traditional ecological customary law

Indigenous peoples and local communities are frequently the world’s most prosperous regions in terms of biodiversity and genetic resources. Each person has a close relationship with the genetic resources of biodiversity, having developed unique traditional knowledge, innovation, and customary law systems. Today, this knowledge is considered a critical resource for commercial and industrial research and development in various fields, including pharmaceuticals, agriculture, veterinary medicine, jewelry, fashion, and cosmetics, and is gradually demonstrating significant commercial value and non-monetary benefits. This has, however, resulted in the reckless use of genetic resources and related traditional knowledge. Numerous incidents demonstrate that industrialized countries rely on their superior biotechnology advantages without the authorization or consent of resource owners, disregarding the possession and conservation of natural resources.

Bio-piracy has led to the leakage of indigenous peoples’ and local communities’ genetic resources and the loss of traditional knowledge, jeopardizing indigenous peoples’ and local communities’ bio-security and sustainable development. The complexity of protecting genetic resources and related traditional knowledge under the rule of law requires not only statutory law but also the mutual support of statutory and customary law, particularly where bio-piracy occurs among indigenous peoples and local communities with abundant biodiversity. Therefore, traditional ecological customary law plays a significant role and has enormous potential value.

As a result of the previous, it is necessary to explore unique paths and specialized systems of the rule of law for the conservation of biodiversity genetic resources and related traditional knowledge based on indigenous peoples’ and local communities’ traditional ecological customary laws within the framework of the Convention on Biological Diversity. In the process of developing the rule of law and enacting legislation to protect biological diversity genetic resources and related traditional knowledge, indigenous peoples and local communities’ traditional ecological customary laws should be respected, as these traditional ecological customary laws reflect the perspectives of various ethnic groups on genetic resources and related traditions. While the perspectives and stances of knowledge conservation are not legally binding, they frequently exert significant influence and act as a deterrent. As a result, the incorporation, reference, and recognition of traditional ecological customary law in the legislative process are critical for protecting and utilizing biological diversity genetic resources and associated traditional knowledge and serving as the primary manifestation of their value.

4.1 Customary law in the convention on biological diversity

Among the subjects on traditional knowledge in the Convention on Biological Diversity, customary rules relating to the conservation of biological species resources and their associated traditional knowledge have been mentioned numerous times. Particularly at the Conference of the Parties to the Convention on Biological Diversity’s eighth, ninth, and tenth meetings, the distinctive systems, including traditional and customary laws, have become discussion issues and were highly regarded by the parties. Under relevant articles and issues of the Convention on Biological Diversity, traditional national societies have the right to own, utilize, and access genetic resources and associated traditional knowledge. Thus, parties may consider protecting genetic resources and associated traditional knowledge in accordance with traditional customary law. Conventional wisdom, relevant CBD rulings, interventions, and submissions to the Working Group’s negotiations illustrate that customary law can contribute significantly to the effectiveness of access and benefit sharing measures. In this vein, the work program under Article 8(j) of the CBD, dealing with the safeguarding of traditional knowledge, calls for “a holistic approach that is consistent with the spiritual and cultural values and customs of indigenous peoples and local communities” [25]. The preamble to the Convention on Biological Diversity’s terms VI/10 formally recognizes that indigenous peoples and local communities have their own mechanisms for protecting and disseminating traditional knowledge as part of their customary law. Notably, VI/10 asks Parties and governments to “create and execute policies for the conservation of traditional knowledge, innovations, and practices, using suitable techniques and adhering to customary law” [26]. Biological Diversity Convention Articles 8(j) and 10(c) call on Parties to “protect and promote traditional cultural uses of biological resources.” When acquiring appropriate knowledge, it is necessary to adhere to the traditional and customary laws set by the local community.

In October 2002, the Ad Hoc Open-ended Working Group reached an agreement on Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of Their Utilization, the Bonn Guidelines. After that, COP 6 convened in The Hague, Netherlands in April 2002. The Bonn Guidelines state that prior informed consent shall in accordance with the traditional practices of indigenous and local communities,” which includes customary law [27]. In October 2010, the Working Group on ABS drew The Protocol on access to genetic resources and benefit sharing, also known as the Nagoya Protocol, on the COP 10 held in Nagoya, Japan. Article 12 of the Nagoya Protocol formally recognizes traditional customary law directly in the text and clearly states that full recognition of customary law is critical issue that parties need to pay attention to [28].

The definition of customary law in the articles mentioned above, guidelines and protocols of the Convention on Biological Diversity provides a legislative basis for indigenous peoples and local communities to formulate regulations and systems for biodiversity conservation and utilization based on traditional ecological customary law in the future.

4.2 The rights of traditional ecological customary law

As mentioned previously, indigenous peoples and local communities have developed a comprehensive traditional ecological customary law governing the development, utilization, conservation, and development of biological diversity genetic resources and related traditional knowledge over time through long-term production and life practices. As a result, these traditional ecological customary regulations must be obeyed in the process of protecting and utilizing genetic resources and their associated traditional knowledge. Only in this manner can the interests of all ethnic groups as providers of genetic resources and associated traditional knowledge and their interests in appeals and expectations of applicable rights and interests be preserved to the fullest extent possible. Simultaneously, for external acquirers of genetic resources and associated traditional knowledge, understanding, respecting, and adhering to these traditional ecological customary laws will assist them in obtaining genetic resources and associated traditional knowledge from various peoples legally or ethically, establishing and enhancing long-term mutual trust between acquirers and providers, and laying the groundwork for future cooperation between the two parties. Out of this consideration, the core of the rule of law development and legislation for the conservation of biological diversity genetic resources and their associated traditional knowledge should be to respect and recognize the genetic resources and their associated traditional knowledge rights in traditional ecological customary laws. These rights include two parts: the customary right of biological genetic resources and the customary right of traditional knowledge.

4.2.1 Customary rights in biological genetic resources

For many indigenous peoples and local communities, customary rights are collectively owned, meaning that the associated rights and obligations are collectively shared and undertaken. The traditional faith of many ethnic minorities reckons gods exist in every part of the natural world and the ownership of species and ecosystems containing biological genetic resources belongs to these gods. Misappropriation and exploitation of biological genetic resources have a detrimental effect on minorities economically and culturally and spiritually. Thus, the process of accessing, using, and protecting biological genetic resources is determined by these peoples’ distinctive cultures, traditional beliefs, and spiritual values, which are inextricably linked to customary rights regarding biological genetic resources and are defined in customary law. Customary rights relating to the use of biological genetic resources are frequently protected by customary laws such as specialized codes of ethics, ethical standards, and sanctions that help guarantee that persons adhere to the customary rights’ rights and obligations. The customary rights of peoples with regard to biological genetic resources have strong spiritual characteristics and are closely linked to the belief systems related to natural resources and ecosystems—the basic values of nature safeguard social justice and the public interest. For example, in the sacred mountain belief of the Tibetan people in Yunnan, China. Human beings, plants and animals have become part of the world with the sacred mountain as the core, and they are jointly protected and punished by the sacred mountain. In the context of this symbiotic belief, Tibetan medicine has formed an understanding of the utilization of biological resources of Tibetan medicine, that is, the use of biological resources of Tibetan medicine and its benefits are premised on the permission of the sacred mountain. Therefore, the collection and utilization of Tibetan medicinal biological resources must be informed to the mountain in advance through religious beliefs such as live incense, chanting, Buddhist divination, etc., and pray for and obtain the consent of the mountain.

When Tibetan doctors ask the sacred mountain for permission to collect their medical biological resources, they must inform the sacred mountain through religious ceremonies and discuss the conditions for allowing the collection with the sacred mountain. Tibetan medicine believes that the mountain will accept their conditions in general, and all they have to do is fulfill their obligations.

4.2.2 Customary rights to traditional knowledge

As an important part of national culture, traditional knowledge is passed down from generation to generation among indigenous peoples and local communities and has formed corresponding rights and obligations. Since this traditional knowledge is also divided into different types, the rights and obligations under the corresponding customary rights are also different. According to the rights and obligations, the traditional knowledge of various ethnic groups can be roughly divided into three categories: (1) knowledge in the common or public domain that can be shared publicly; (2) expertise limited to families, clans, or relatives, such as traditional medical knowledge; (3) sacred knowledge that is kept secretly among the whole group, such as elders or priests. But in general, in many ethnic societies, traditional knowledge is seen as the collective heritage of a community or nation, even if the accumulation of knowledge is individual. As a result, individuals cannot assert ownership or property rights over traditional knowledge. Numerous ethnic groups collectively own their customary rights to traditional knowledge, these forms of jointly ownership and administration are critical for preserving and developing traditional knowledge. For example, traditional knowledge about the genetic diversity of crops grown by the Dai and other ethnic groups in Yunnan, China, must be transferred and disseminated within and between villages in order to meet the needs of seed exchange and crop variety renewal. To ensure that villages have access to diverse and higher-quality crop germplasm resources that will help them grow their livelihoods, their customary rights contain a collective solid component.

Similarly, traditional medicinal knowledge is openly shared and practiced within and between villages for the benefit of the community’s health and well-being. Even classified information is fundamentally motivated by the goal of helping the ill, not profit. At the moment, in light of economic progress and modern intellectual property rights, some individual knowledge holders are beginning to regard their traditional knowledge as their own property rather than as part of the community. As a result, it is critical to reestablish and reinforce customary communal rights to indigenous knowledge.

4.3 Access and benefit-sharing system based on traditional ecological customary law

Based on system for access and benefit sharing (ABS), a critical component of recognizing and protecting indigenous peoples’ and local communities’ customary rights to their biological genetic resources and associated traditional knowledge is the construction of a just and equitable access and benefit-sharing mechanism, which customary law provides for. The three essential ideas and ideals embodied are instructive. The three guiding concepts are as follows: 1. Reciprocity: emphasizes that what is acquired must be returned with the same standard, contains the principle of fairness, and lays the foundation for communication and exchange between humans and between humans and the ecological environment. 2. Duality: emphasizes that everything has an antithesis and complements each other; no action can be individualistic in order to be accepted by others. 3. Balance: refers to the balance and harmony between nature and society, such as respecting nature and ecosystems; the principle of balance can resolve conflicts between man and nature and restore harmony between nature and society. The principle of balance needs to be observed in the application of customary law, as all customary law essentially derives from this principle [29]. The CBD, particularly the Nagoya Protocol, addresses access to genetic resources and their related traditional knowledge under the influence of three essential elements of customary law, namely the idea of prior informed consent, mutually agreed terms, and equitable benefit sharing. Numerous principles and parts of the benefit-sharing system emerge from customary law, particularly traditional ecological customary law governing access to and consent to the use of genetic resources and associated traditional knowledge. Thus, in the future, the fundamental content of the rule of law for the conservation of biological diversity’s genetic resources and related traditional knowledge can also be based on traditional ecological customary law, in accordance with access and benefit-sharing procedures, to investigate the establishment of prior informed consent, access to genetic resources and related traditional knowledge, equitable benefit sharing, and other systems.

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.

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 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.

5. Mainstreaming of traditional ecological customary law in the rule of biodiversity conservation law

The role of traditional ecological customary law in the rule of law in biodiversity conservation, especially whether it is influential in protecting genetic resources and its associated traditional knowledge, depends to some extent on the degree of recognition of customary law in the formal legal system. Legal systems that recognize the legal status of customary law and develop specific implementing regulations are vital to protecting genetic resources and their associated traditional knowledge. As mentioned above, traditional ecological customary law is often regarded only as an informal custom because it has no record and no statute law. Even if it is regarded as a formal legal system source, it cannot change its weak status. Although, in practice, customary law is subordinate to statutory law, especially when there is a conflict between the two, customary law is often ignored.

Across the world, an increasing number of countries that are parties to the Convention on Biological Diversity have increasingly recognized the role of customary law in access to genetic resources and their associated traditional knowledge and benefit sharing and thus have recognized customary law. At present, relevant countries, including India, Brazil, South Africa, Malaysia, and the Andean Community, have formulated laws and systems for biological species resources and their related traditional knowledge, and have gradually begun to protect, manage, and control biological species resources and their related traditional knowledge. In addition, sustainable use and other aspects recognize and accept the traditional ecological customary laws and systems of traditional ethnic societies such as indigenous peoples, long-term inhabitants, indigenous peoples, and local communities and integrate them into the modern environmental legal system.

Based on the experience of the countries mentioned above, the international community and governments of various countries should explore the mainstreaming of traditional ecological customary law in the rule of law in biodiversity conservation and must carefully review the status of customary law in the construction of the rule of law in biodiversity conservation and discuss strengthening customary law, way, and method. To create traditional ecological customary law status, indigenous peoples and local communities must first establish their rights to genetic resources and associated traditional knowledge. Customary law can only be recognized if it respects the right of indigenous peoples and local communities to decide whether and how to use genetic resources and their associated traditional knowledge and under what conditions. Therefore, customary rights in traditional ecological law are at the core of protecting biodiversity genetic resources and their associated traditional knowledge. At the same time, recognizing the status of traditional ecological customary law requires understanding its basic principles and procedures. It needs to be recognized and strengthened in formal laws to ensure that customary laws and rights are recognized in practice by the formal legal system.

In conclusion, for the conservation and use of biodiversity, establishing a system of access and benefit sharing based on the recognition of customary law for genetic resources and their associated traditional knowledge is critical. It not only promotes biodiversity and ecosystem sustainability but also lays the groundwork for the conservation and use of biological diversity and its associated traditional knowledge. The endogeneity of conventional knowledge can shape the effective conservation and sustainable use of indigenous peoples and local communities’ biodiversity in turn.

Funding

This research supported by the “Research project on Traditional Ecological Knowledge of Southwest Ethnic Minorities to Cope with Climate Change” of the 2022 Yunnan Philosophy and Social Science Innovation Team (2022cx04).