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AYASA DID NOT VIOLATE INDIGENOUS PEOPLES RIGHTS THROUGH THE USE OF PLANT

I. Both states have permanent sovereignty over their natural resources


a. UN Charter and Int’l Law
i. Right to exploit
ii. Right to be free from external interference
iii. Provided there is no violation of legitimate rights
b. Corfu Chanel Case and Lotus Principle
- Duty to refrain from intervention in
i. Internal affairs
ii. External affairs
- Exercise sovereignty in any way
- Provided int’l law does not prohibit that act
II. Sovereignty may be lawfully subordinated to the interest of society
a. Parties must cooperate beyond their national jurisdiction to:
i. Complement activities
ii. Strengthen ecosystem
b. To this view, LRRSPA Annex 20, prevent:
1. Destruction
2. Vandalism
3. Unlawful taking of flora and fauna
III. P20- Grafting as an act of sovereignty is lawful to improve efficacy
i. Comports with CBD, PHR and Int’l Law
ii. Does not negatively impact other states beyond its jurisdiction
a. PHRA Art 20- Methods of harvesting
i. Shall be chosen by the elders
ii. Traditional preparation
iii. Unless other methods create a more effective version maybe
- only the method of harvesting is required
- Ayasa respected traditional preparation
- P22- Only resorted to grafting to get a more effective version.
- P20- Omeloi’s allowed Ayasan people and machines to enter and harvest
b. With this in mind, Incorporation of new techniques give long term benefit to the community
- Every human being has the right to enjoy the highest attainable standards of health and
benefit sharing
i. UN Declaration on Bio Ethics and Human Rights adapted the acclamation of
ii. UNESCO General Conference
- If Indigenous Communities can incorporate modern technique such as P22-grafting to
become
i. Economically
ii. Politically
iii. Culturally empowered
IV. No violation of Customary International law
a. No CIL obligation governing the method for harvesting Puruhuaca
- Elements
1. State practice- consistent and uniform practice
2. Opinion juris - such practice is required by law
- Omeloi’s cannot satisfy the element
- Ramigo cannot create a legal and binding obligation of
i. Harvesting
ii. Smoking
- Absence uniform method, Omeloi’s cannot impose upon Ayasa to follow the 7
days huacasera ritual P10- involving
i. Steam bath and prayers of cleansing for the harvester
ii. Cutting limited number of trees to get the taproot
iii. The 3-5th day, drying and smoking of the taproot with the bark and
flowers where the Elders and priest drink 2 cups of mixture
iv. Where the brew drinking causes elders a trance-like state which
allows them to see visions and assist them in decision making.
- The alleged CIL is assessed in terms of
1. Generality
2. Duration
3. Consistency
4. Opinio juris

1
- the State asserting the presence of a CIL must show that a general, long- standing,
consistent law has emerged from States practicing in a way they feel legally
obligated to.
b. No ILO violation
i. Ayasa is not a signatory of ILO
ii. ICJ in North Sea Continental Shelf Case
- when a State signs but does not ratify a treaty, not contractually bound by it.
- ICJ reasoned that Germany did not intend to be bound
1. “at all times fully able and entitled” to ratify the Geneva Convention,
2. chose not to
- There was no violation of indigenous peoples cultural heritage and tradition
- Yet Ayasa still respected Omelois
c. No ICCPR and ICESCR violation
- Ramigo was never subjected to
i. arbitrary interference
ii. unlawful attack on honour and reputation
- P19- Council of Elders who violated Article 9 (1) of the ICCPR which prohibits
unlawful and arbitrary detention when it detained one of the Rylov researchers until
dawn.
V. Cultural Practices cannot prevail over public emergency
a. Wrong to invoke cultural identity to prevent individuals from receiving exact and adequate information on
the
i. Causes of their illness
ii. Obtaining effective treatment during PHEIC
b. PHEIC
- Extraordinary event
- Constitute public health risk to other states through international spread
- Require coordinated response
i. PHRA
- Provides for methods of harvest
- Assure medical services and attention
- Creates a more potent version of the drug
ii. Ayasans have the right to high quality health care
c. Constitute a fundamental change in the situation
i. Rebus sic stantibus
- Party may be freed from its obligations where the circumstances
leading to the conclusions of a treaty has changed
1. Fisheries jurisdiction case
2. Article 62 VCLT
ii. Foundation of PHRA, Art 20
- Methods of harvesting
- Processing
- Traditional method will be preferred
- Also provides:
1. When situation demands it may resort to other
methods
2. P16,20, 32,34- reoccurrence and severity of Limara
outbreaks
3. Ramigo remained passive
- Ayasa could not allow this to continue
d. Complied with the principles of the CBD
- Countries have different levels and kinds of responsibility in dealing with international
environmental issues
- Limara disease due to Fersila’s extreme whether condition
P12- Limara causes
1. High fever
2. Vomiting
3. Diarrhea
4. Liver and brain damage in one week
P15- July
i. August 2015, limara outbreak during rainy season
ii. 20,000 cases
P20- Negotiation pf PHRA
100,000 cases
10,000 deaths
P32- Elders burnt puruhuaca

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i. 7 day-fire
ii. 10% lusewa rainforest destroyed
iii. 20% frog population disseminated in blaze allowed mosquito to grow
faster
iv. March
- 400,000 cases
- 10,000 death
- Developing countries environmental obligations must be taken into account
VI. Wrongfulness is precluded by necessity
a. Failure of the Omeloi’s to participate on issues affecting them
- No violation of P25 Art 20 when Ayasa cut 75 more trees
- Valid for 1 year
- Allowed to extract when need arose
b. Organization for animal health
- Outbreaks is a global public health concern
- States cannot afford to miss the early signals Despite Ramigo’s knowledge of
i. P13
- Dr. Chae-jin and Dr Nadajo’s Research
- Smoking ritual drove away mosquitoes
- Puruhuaca has malaria-treating capabilities
- It can cure any suffering
ii. Ramigo did not enter into any agreement which may have prevented the
outbreak
iii. Violation of Art 15 CBD
- necessitate Ramigo to share the benefit in a fair and equitable
way the results of research and development
c. Justified under the doctrine of necessity
- Gabcikovo-Nagymaros Project, state necessity exist
1. must have been occasioned by an P12,15,30,32- threatening increase in number of the
‘essential interest’ of the acting state; infected citizens of the limara outbreak
2. that interest must have been For a peril to be grave and imminent,
threatened by a ‘grave and - it must have been a threat to the interest at
imminent peril,’ the time the measures were taken.
- it must have been a threat to the interest at
the actual time.
It started in 2011 until 2017
3. the act being challenged “must P5- despite its knowledge of the need to formulate a
have been the ‘only means’ of cure , Ramigo failed to implement measures to address
safeguarding that interest. the spread of infection.
P34- Ayasa had no option but to unilaterally act to the
best of its ability to protect its citizens
4. the state must not have ‘contributed P12- The 2015 and 2018 outbreaks due to Fersila island’s
to the occurrence of the state of extreme weather condition
necessity. - a finding not contested by Ramigo.
- situation of necessity is thus attributable to
Ramigo, not to Ayasa.

AYASA RIGHTFULLY ACQUIRED INTELLECTUAL PROPERTY RIGHTS OVER THE PLANT.

I. Met all the criteria of Patentability


- a government authority or license conferring a right or title for a set period, especially the
sole right to exclude others from making, using, or selling an invention.
- Patents are territorial and must be filed in each country where protection is sought.

new - difficult to prove for Indigenous Peoples


- cultural knowledge is passed down from generation to generation.
P29- Omeloi’s claim that Drug was patented without recognition of tribes
contribution to its development and process
- it cannot be denied that there is yet any printed publication regarding
the smoking process of the puruhuaca.

3
Non- - to advance the state of useful arts by limiting the issuance of patents.
obvious
Diamond v. Chakrabarty,
- allowed pharmaceutical and agrochemical companies to appropriate
Indigenous Peoples’ plants
- by taking them back to the laboratory and extracting the “active”
ingredient and claiming it as their own invention.

P23- Chief Elder protested when he saw the grafting process:


1. against tribal custom to graft plants
2. make the original plant unclean.

- P23- shows that the art of grafting in making the plant more potent has
never been done by the Omeloi’s
- the best evidence
a. P26 UNESCO as a World Heritage Site due to its
“outstanding universal value from the point of view of
science or conservation.
- Grant of a patent shall not be refused and invalidated on the ground
that it was obtained by means of a process which is subject to restrictions
or limitations of domestic law.

If invention belongs to Omeloi


- Article 30 of TRIPS Compulsory licenses are allowed in situations where
i. there are overriding political or social objective that require
a compulsory license.
useful - situation of national emergency.
- Declaration on the TRIPS Agreement and Public Health
i. Right of states to determine what constitutes a national
emergency.
ii. Limara, is an “epidemic,”
- spreads rapidly
- extensively by infection
- affects many individuals in an area or population at
the same time.

II. Art 4 Paris Convention


- Inventors have the right to be names
- Omeloi’s are not the inventors of the huacaxin drug, moreso, the plant

III. No biopiracy
- The appropriation of plants and cultural knowledge is called biopiracy.
- Huacaxin
i. Treats Limara Disease
ii. did not incorporate Huacasera Ritual.
iii. Rylov’s patent of Huacaxin through the grafted Purahuaca trees
- rightfully recognized as an unknown invention at
the time of patentability.
- inventions receive protection only when disclosed,
- disclosure dedicates that it was not claimed to the public.
- Grant of a patent shall not be refused and invalidated on the ground that it was obtained
by means of a process which is subject to restrictions or limitations of domestic law.
IV. Ramigo has the burden of showing that Ayasa infringes the former’s inexistent patent.
- An alleged infringer is not required to go forward with evidence
- Burden of proof rests upon Ramigo