Cultural Rights as Human Rights (tbc) Jointly organized by the Academy of European Law (IUE) and the Nordic School in Human Rights Research (coordinated by Åbo Akademi) 28-29 October 2005 At the European University Institute (Cappella) - Presentation by Mattias Åhrén Introduction The background paper for the Conference declares that the starting point for our discussions is what some perceive to be an inherent problem in the notion of minorities – and in particular indigenous peoples – rights; If human rights are indeed universal, i.e. apply equally to all, how can it be that certain groups of human beings shall enjoy particular rights that apply solely to them? Or, in this context, how can cultural rights, who are undeniable universal in character, be reconciled with a right to be culturally diverse? The question is highly relevant when discussing rights to knowledge and cultural expressions springing from the traditions of indigenous peoples’ societies, subject matters that in an intellectual property rights (IPRs) context are normally referred to as traditional knowledge (TK) and traditional cultural expressions (TCEs)1.2 The topic of this paper is supposed to be “Intellectual Property Rights of indigenous peoples”.

It seems, however, necessary to expand the scope of the paper

somewhat beyond IPRs. The term IPRs lacks content in itself. An IPR is nothing more than what any national legislation at any given moment decides is human creativity worthy of protection. For example, if a legislator holds that paintings is worthy of protection, whereas

1 The term TCEs are in this paper used to denote the same subject matter as some label “folklore”. The term folklore is by many perceived as having a derogatory undertone, and the use of the term is thus being gradually outfaced in the UN system and elsewhere. 2 It is important to be absolutely clear on that the term “traditional” in TK and TCEs should not be understood to imply that such knowledge or cultural expressions must necessarily be old. Rather “traditional” refers to that the knowledge and cultural expressions are intrinsically connected to the particular indigenous people’s history, cultural and cultural and social identity. But TK and TCEs are also living – it is constantly recreated as indigenous artists and practitioners bring new perspective to their work. Tradition is not only about imitation and reproduction, it is also about innovation and creation – however always within the traditional framework.

songs are not, painters will have IPRs, but songwriters will not.3 Consequently, it is very simple to answer the question of what constitute indigenous peoples’ IPRs - Indigenous IPRs are merely the part of their knowledge and cultural expressions that the legislator in the country in which the indigenous people reside decides merits for IPR protection.4 To give a complete picture, one can thus not have IPRs as such as starting point for these discussions. Rather, one must start with the subject matter as such, i.e. the knowledge and cultural expressions that springs from indigenous peoples’ traditions, and investigate to what extent indigenous peoples hold rights to this subject matter, IPR or other forms of rights. Essentially, indigenous peoples can hold rights, including ownership or ownership similar rights, to elements of their culture either based on either i) civil property rights, including IPRs, or ii) human rights, including cultural rights.5 Less than ten years ago, hardly anyone had even heard of TK and TCEs, and even fewer had considered that indigenous peoples could actually hold rights to their cultural heritage. Today, people rush to investigate if to what extent such is the case. In the last few years, at least eleven UN system organizations and programmes have commenced addressing issues relating to indigenous TK and TCEs. Tere is no doubt, however that the main player so far when it comes to addressing indigenous TK and TCEs from a rights perspective, has been the World Intellectual Property Organization (WIPO). IPRs As just mentioned, indigenous peoples - per definition - only hold IPRs over elements of their culture to the extent the legislator in the country in which the indigenous There is thus no universal definition of what should constitute IPRs. Another matter is that substantial efforts have been made to harmonize domestic IPR-legislations, see further below. 4 One could perhaps argue, however, that if a legislator designs the domestic IPR-legislation in such a fashion that it strongly protects the individual creativeness springing out of the majority society, but fails to protect the more collective creativeness of the indigenous people, this constitute a violation of the human right to have one’s right to property respected. The right to property is essentially a nondiscrimination rule. All countries are free to determine to what extent they shall recognize private property rights, but to the extent they does so, all individuals and all groups within the state must have equal protection for their property. The Committee on the Elimination of all Forms of Racial Discrimination (the CERD Committee) has, it appears, argued in these lines when finding that states have violated indigenous peoples’ land and resource rights. The CERD Committee has found it to be unwarranted discrimination when a country recognizes private property right to land, but has failed to recognize property rights for indigenous peoples to land they have traditionally occupied. 5 Indigenous peoples sometimes claim that they hold rights to TK etc. based on other legal sources, such as e.g. the Convention on Biological Diversity (CBD) and the various conventions that UNESCO has adopted. This is probably not correct. The CBD addresses genetic resources and associated TK from a preservation perspective. The Convention does not establish rights for indigenous peoples over TK originating from their territories. Indeed, from an indigenous perspective, this is the biggest flaw with the CBD. Still, as will be touched upon below, one cannot completely disregard the CBD when addressing what rights indigenous peoples hold over their TK and TCEs. Similarly, UNESCO approaches TK and TCEs from a cultural diversity preservation context. 3

people reside so allows. Currently, most domestic IPR legislation leaves the substantial bulk of indigenous peoples’ knowledge and cultural expressions essentially without protection. Conventional IPR legislation generally demands that a creation – in order to be eligible for protection – meats the criteria of novelty, originality and inventive step. Some kind of “value” must be added to the bulk of TK and TCEs already readily known to the public, in order for that particular element of TK or TCEs to be subject for protection. Most indigenous TK, however, is not “new” in an IPR understanding, since it has normally already been disclosed to a wider group of persons. In IPR language, the TK and/or TCEs has already entered into the so called public domain. Public domain refers to that which is not claimed as private property or that which is commonly known or disclosed. What is categorized to be in the public domain can be accessed and freely used by anybody.6 Similarly, TK and TCEs evolve slowly. Elements of TK and TCEs build on a huge collective bulk of the indigenous people’s cultural heritage. Often, even if newly created, it does not contain enough new elements to be considered “original”, under conventional IPRs legislation. If one compares indigenous collected TK and TCEs with an iceberg, conventional IPR-legislation normally only protects the tip of that iceberg - the part of the indigenous people’s cultural heritage to which “value has been added” recently. That said, there are obviously several examples of indigenous artists, craftsmen etc. creating art, handicraft etc. inspired by their cultural background but that still distinguish itself from the cultural heritage to the extent that it is eligible for IPR protection. But the coin also has another side. Also non-members can establish IPRs over elements of an indigenous peoples’ culture. In an IPR context, anyone, also outside the indigenous group, can “add value” to indigenous TK and TCEs, and seek IPR protection for that particular element. In this way, IPRs sticks out among other legal systems pertaining to indigenous knowledge and resources, in that they constitute a double-edged sword and offer not only promises of protection, including through ownership rights, but also threats to create rights for others over parts of indigenous peoples’ cultural heritage. Even if existing IPR-mechanisms only protect the “tip of the ice-berg” of indigenous peoples’ cultural heritage, when investigating protection of indigenous TK and TCEs under IPRs, one cannot only discuss domestic legal systems that exist at the moment. One must further note that these legal systems are presently subject to rapid evolvement. IPR-legislations are amongst the most harmonized in the world.

And as previously

One should be aware that a substantial part of indigenous knowledge and cultural expressions that conventional IPR consider to be in the public domain were acquired from indigenous peoples without their free, prior and informed consent. Not surprisingly, indigenous peoples’ representatives have thus forcefully objected to the notion of public domain being applied to their cultural heritage, holding that his is a concept invented by others and never agreed to by the indigenous peoples themselves. 6

indicated, there is an enormous amount of activity going on at the moment seeking to harmonize domestic IPR legislation to better protect TK and TCEs.7 WIPO is currently looking at expanding the scope of TK and TCEs protection, either by a better, more efficient and/or imaginative applications of existing IPRmechanisms, or alternatively through IPR similar sui generis protection systems.

The

motivation for this drive is essentially an analogy from the reason behind conventional IPRs. The whole rationale behind IPRs is that it has been deemed that in order to inspire human creativity, individual authors, artists, inventors etc. must be allowed to reap the fruits of their creations. Such a protection is provided for by the author, artist, inventor etc. being awarded an IPR, which essentially is a monopoly right to utilize that particular creation. It is now argued that in principle there is no reason why the collective creativeness of a people or other groups, should deserve less protection. TK and TCEs are, it is argued, also potentially valuable resources, and creating a protection for it cater for its commercial utilization. For this reason, it is said that an increased protection for TK and TCEs could contribute to increased economic “development”8 in indigenous communities as well as in society as a whole. It could further be argued that it constitutes a discriminatory practice if a state only enacts conventional IPRs designed to respond to the needs of the colonizing people, whereas the collective creations of the indigenous people to a large extent is left without protection.9 That said, one should hardly expect WIPO to extend the protection for indigenous TK and TCEs so that it applies to all elements of indigenous peoples’ cultural heritage currently regarded to be in the public domain. We have above noted that one fundamental principle behind IPRs is the aspiration to inspire human creativeness by awarding the creator a monopoly right over his/her/its creations. Another fundamental principle behind IPRs is, however, that they should never be stronger than to achieve that end. IPRs are thus normally not absolute, nor indefinite. To the largest extent possible10 should other authors, artists, inventors etc. be allowed to borrow from, and be inspired by, previous works, since this too, will spur human creativity. IPRs are always designed to try to strike a balance between the interest of the individual creator, that wants to benefit from his/her/its work, and the interest by the general public, that wants to build on what has already been created. WIPO will try to strike a similar balance when expanding protection over TK and TCEs. It will seek to balance a wish to preserve traditional cultures with a One should further note that a few countries, particularly in Latin America, have already adopted IPR similar sui generis legislation to provide for an enhanced protection of indigenous peoples’ TK and TCEs. 8 Development should be understood in its conventional, and not necessarily “indigenous”, meaning. 9 Compare the argument above that it could be regarded as violation of the human right to property if a country designs its IPR legislation in a manner so that it protects only the individual creativeness of the majority society but not the collective cultural heritage of the indigenous people. 10 Possible in this context meaning without stifling individual creativity. 7

desire to stimulate tradition-based creativity as a contribution to economic development. The WIPO member states will try to answer when borrowing from a traditional culture is legitimate, and when it is inappropriate adaptation. In other words, WIPO will seek to answer – in an IPR context – the same question as this Conference; how can cultural rights be reconciled with a wish by others to have access to the world’s cultural diversity? In conclusion, indigenous peoples already hold IPRs to certain elements of their cultural heritage. A more active utilization of the IPRs-system would result in the scope of indigenous property rights over this subject matter being enlarged.

In

addition, the new IPR similar mechanisms that WIPO is currently considering, once agreed upon, could quite substantially enhance the protection of indigenous peoples’ TK and TCEs. Indigenous peoples would then hold IPRs to greater bulk of their cultural heritage than is presently the case. Notwithstanding, when discussing an enhanced protection over TK and TCEs, the WIPO member states will also consider what they perceive to be legitimate claims by the general public to be allowed to be stimulated and inspired by indigenous cultures. Consequently, it appears highly unlikely that any IPR protection systems will ever even com close to cover all the elements of indigenous peoples’ cultural heritage that is currently regarded to be in the so called public domain. Even though indigenous peoples could potentially hold IPRs rights to substantial parts of their cultures, other parts will remain unprotected. It is therefore necessary to investigate whether indigenous peoples’ could hold rights – including property rights - to elements of their cultures under other legal systems. The CBD The CBD predominantly addresses TK from a preservation perspective, and does not establish any property rights over TK. The CBD rationalizes the need to preserve TK with its importance to conserving biodiversity.

Still, the CBD’s demand that TK

necessary for the conservation of biodiversity shall be preserved could potentially indirectly protect indigenous TK. Indeed, an in situ preservation of TK in indigenous territories might on a grass-root level appear quite similar to the defensive kind of IPR protection that most indigenous peoples predominantly are calling for.11 Moreover, the CBD Ad Hoc Openended Inter-sessional Working Group on Article 8(j) and Related Provisions (the 8 (j) WG), has commenced developing elements for a sui generis systems for TK preservation that, in the For example, the Akwé: Kon Voluntary Guidelines, adopted by the 7th Conference of the Parties to the CBD (COP 7) provide guidance to governments on the incorporation of cultural, environmental and social considerations of indigenous and local communities into new or existing impact assessment procedures. The guidelines primarily address developments that are proposed to take place on, or are likely to impact on, sacred sites, but do apply to all lands and waters traditionally occupied or used by indigenous peoples. If implemented, the Akwé:Kon guidelines can prove very important for protecting indigenous TK, and thus serve as an excellent example on how the CBD through its preservation efforts can contribute to the protection of indigenous TK.

11

present draft, recognize the need to acknowledge indigenous customary law and rights. It will be interesting to see how the 8 (j) WG intends to address this task, however, since it at least appears to be beyond the CBD’s mandate to determine property rights over TK. It is consequently unlikely that the 8 (j) WG will produce any instrument that establishes property rights for indigenous peoples or persons – or any other private entity for that matter – over TK.12 Indeed, when it comes to property rights, the CBD takes more of a “socialist” approach. Such an approach could actually have fitted well with the cultures of indigenous peoples, who normally hold that their cultural heritage vest with the collective. However, the “collective” entity that the CBD – at least on a first reading – claims is the holder of TK within a country is not the different peoples within the state, but the state itself. CBD Art. 3, in pertinent parts, reads; “States have, in accordance with the Charter of United Nations and the principles of international law, the sovereign right to exploit their own resources…”

On appearance, the CBD thus builds on the presumption that states have

permanent sovereignty over natural resources within their borders.

Consequently, the

preservation approach that the CBD takes, without recognizing any rights to TK, seems to constitute a potential threat to indigenous peoples’ rights, including property rights. State sovereignty is, however, not unlimited, as evident also from the article itself. The UN Charter and other principles of international law – including human rights law - establish limits for the scope of the application of the principle of state sovereignty. Art. 103 of the UN Charter states that; “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international instrument, their obligations under the present Charter prevail”. Moreover, Art. 1 (3) of the UN Charter defines as one of the main tasks of the UN to “promoting and encouraging respect for human rights …”. Art. 55 and 56 of the Charter require UN system organizations to promote “universal respect for, and observance of human rights and fundamental freedoms for all …”. All international instruments, including the CBD, pertaining to address indigenous peoples’ cultural heritage, including TK, must be understood in accordance with the superior authority of the UN Charter as well as the Universal Declaration of Human Rights (UDHR), as an authoritative interpretation of the Charter. It should consequently not be possible for any state to claim rights over indigenous TK based on CBD Art. 3.

Neither can the article be used to suggest that

indigenous peoples should not have property rights over their GR and associated TK. Notwithstanding, probably through some kind of misunderstanding, CBD Art. 3 is often referred to in isolation by CBD member states to claim that the states is the owner of GR and 12 It could, and probably should, however, underline that indigenous peoples’ human and property rights – as determined by other bodies – should be respected by the CBD and its member states.

TK associated thereto within their territories. The principle of state sovereignty over natural resources is “spreading into” CBD documents, without legal basis.

The most notable

example is the Access and Benefit Sharing (ABS) regime currently being elaborated upon by the CBD’s ABS Working Group (ABSWG). The ABSWG elaborates an international regime on access to GR and the fair and equitable sharing of benefits deriving from the utilization thereof. The deliberations within the ABSWG can be said to deal with two relations. The first relation is essentially a “north-south” one. Put simply, countries from the south seek a greater share from the profits arising out of utilization of GR that originates from their territories. Industrialized countries, on the other hand, seek to secure continued access to GR from the south, which is rich in biodiversity. The second relation concerns the relationship between states – predominantly in the south - and sub-groups within those countries, most notably indigenous peoples. Indigenous peoples underline – essentially by invoking human rights13 - that they are the rightful holders of GR and related TK in their territories. States, on the other hand, claim that all GR and related TK vest with the state, if domestic legislation does not stipulate otherwise. They base this claim on references to the principle of state sovereignty over natural resources contained in CBD Art. 3. They thus aspire to full benefit-sharing in the relation north-south but do no want any benefit-sharing in the relation states-indigenous peoples. The CBD language on state sovereignty over natural resources is also spreading into processes outside the CBD. For example, the Draft Guidelines on Protection of TK that the WIPO IGC is currently elaborating is referring to the principle of state sovereignty over natural resources in isolation.

It appears that WIPO and its member states have just

borrowed this language from the CBD, without any real consideration being given to the complexity of the issue or to the fact that there are rights that out-triumph the principle of state sovereignty over natural resources. The ABS processes presently going on within the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (the IGC), the CBD and elsewhere14 are puzzling. At the moment, these processes produce language that run contrary to fundamental rights and principles within international law and even to the UN Charter. However, one should not necessarily view the discussions within the ABS processes as a sign of a shift in international law. The ABS WG and the WIPO IGC are extremely politicized bodies. These fora can almost be characterized as

As regards human rights over TK and TCES, see further below. Also the United Nations Food and Agriculture Organization (FAO) has commenced conducting work within ABS. 13 14

“battle-fields” in the constant struggle between north and south. Accidentally, indigenous peoples find themselves in the line of fire. In the heated debate between rich and poor, the underlying legal framework appears quite simply to be forgotten or perhaps sometimes ignored. Had then intention really been to change international law, such an aspiration would likely have been more clearly expressed. Because international law human rights law is quite clear on that indigenous peoples do have rights to substantial parts of their cultural heritage. Human rights We have thus seen that the IPR-system establishes property rights for indigenous peoples and/or persons over certain parts of their cultural heritage. We have further noted that the scope of IPR protection is likely to increase within a foreseeable future. Regardless of this development though, substantial parts of indigenous peoples’ cultural heritage will – from an IPR perspective, remain in the so-called public domain. That does not, however, necessarily mean that all elements of TK and TCEs that IPR-legislation regard to be in the public domain is unprotected today. A considerable part of indigenous peoples’ cultural heritage is already protected by human rights. Indigenous peoples are essentially seeking protection from others utilizing their GR, TK and TCEs, without their approval, in other words what in IPR language is referred to as a “defensive protection”. One can say that most indigenous peoples aspire to create a protecting “shield” around their cultures that do not exist today. No outsider should, they argue, be allowed to pass through this shield without the consent being given by the indigenous peoples concerned, in accordance with their own customary laws.15 To a much lesser extent are indigenous peoples aspiring to actively utilize IPR mechanisms themselves to promote the use of their TK and TCEs, what in IPR language is usually referred to as ”positive protection”. Not uncommonly, government representatives and IPR lawyers object to this indigenous peoples’ demand that a protective “shield” be created around their cultures. They point out that no culture exists in isolation. All cultures have borrowed elements from each other, to the benefit of humankind. These government representatives and IPR lawyers consequently question why indigenous cultures should constitute an exception, and enjoy a higher protection than other cultures in this regard. In other words, they are making the “universality of human rights argument”. The question appears legitimate, and the answer –

15 It is important to note the free, prior and informed consent aspect. Most indigenous peoples do not want to exist in isolation, and are quite happy to share their cultures with others. However, they want to do so on their own terms and conditions.

as noted by the background document for this Conference - can probably be regarded as being at the very core when discussing to what extent international law does protect indigenous peoples’ TK and TCEs, as well as when considering if indigenous peoples’ cultures are in need of an enhanced protection. As a starting point, indigenous cultures cannot enjoy a higher protection than other cultures.

As pointed out, that would violate the fundamental principle of the

universality of human rights. Equally undeniably is, however, the fact that indigenous peoples enjoy the same right as do other peoples to continue to exist as distinct societies, with their own distinct cultures. Most indigenous cultures are very vulnerable today, often as a result of past or even ongoing assimilation processes. Indigenous peoples are generally under a constant pressure from the surrounding society, struggling to remain as distinct peoples, and not to be engulfed by the majority. Under such circumstances, every utilization of elements of their culture by non-members may constitute a potential threat to their continued existence as a distinct ethnic group, even when seemingly harmless. That is so because utilization by an outsider of an element distinct for an indigenous people’s culture dilutes further the already thin borders that protects the indigenous people as a particular ethnic group. The particular situation that most indigenous peoples find themselves in, taken together with all peoples’ collective right to preserve and develop their distinct culture, might warrant that a “shield” is created around indigenous peoples’ cultures. The shield need not necessarily be absolute, but should be stronger than those surrounding stateconstituting peoples’ cultures. It should further be underlined that allowing unequal strong shields to protect different cultures need not necessarily be regarded as a violation of the principle of universality. It is firmly established in international law that the fundamental human right not to be subject to discrimination does not only require that equal cases be treated equally. It also demands that unequal cases be treated differently. A key feature of the American people’s culture is Coca-Cola. A key feature of the Saami people’s culture is their traditional dress, the gapta. Whereas it hardly hurt the American culture that other people walk around with Coca-Cola cans, it could proove detrimental to the Saami culture if non-Saami persons started wearing the Saami traditional dress. Acknowledging a stronger shield around the Saami culture than around the American counterpart is not necessarily the same thing as saying that the Saami people have “more” cultural rights than the American people. Rather, it is a correct application of the fundamental right not to be subject to racebased discrimination. Indigenous peoples are simply in need of a strong protection for elements of their cultures in order to be able to enjoy the same right to culture as other peoples. To the extent the protection is necessary for an indigenous people to be able to retain and develop its distinct culture, the right to protection is absolute. In addition to the

principal right to culture, indigenous peoples TK and TCEs might be protected under certain specific areas of human rights that are closely related to, overlapping, or even could be regarded as a part of, the general right to culture. International law firmly establishes that indigenous peoples have rights to the lands and waters they traditional inhabit, as well as to natural resources in those. See here e.g. the International Covenant on Civil and Political Rights (CCPR) Art. 27 and the Convention on the Rights of the Child (CRC) Art. 30. See further, and probably in particular, since these instruments establish property rights, the International Labour Organization’s (ILO) Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and also regional human rights instruments such as the European Convention on Human Rights and its American counterpart. Moreover, human rights law relating to indigenous peoples is still rapidly evolving. For example, the Draft Declaration on the Right of Indigenous Peoples (DRIP) underscores indigenous peoples’ right to own and control their natural resources, including GR, as well as their TK and TCEs. Another example is the Draft Guidelines on the Protection of Indigenous Peoples’ Cultural Heritage (GPIPCH), that are currently being elaborated under the auspices of the Working Group on Indigenous Populations (WGIP). The GPIPCH contain a fairly extensive and explicit set of rules aiming at protecting all elements of indigenous peoples’ cultural heritage, including TK and TCEs.16 That GR is protected under the instruments mentioned above is apparent, since natural resources naturally encompass GR. The link to TK and TCEs is less obvious. Still, most indigenous TK, as well as a substantial part of their TCEs, are intrinsically connected to indigenous peoples’ GR, or otherwise to their traditional territories. To the extent such is the case, it can be argued that indigenous peoples’ TK and TCEs are also protected under their land and resource rights. Further, the right to self-determination encompasses e.g. the right for all peoples, including indigenous peoples, to freely determine their cultural development and never to be deprived of their own means of subsistence. For example, the common Art. 1 of CCPR and the International Covenant on Economic, Social and Cultural Rights (CESCR) – as interpreted by the Human Rights Committee and the Committee on Economical, Social and Cultural Rights - underscore that the right to self-determination applies equally to

16 One could argue that indigenous land and resource rights, clearly applying only to indigenous peoples, constitute yet another exception from the principle of the universality of human rights. Again, however, indigenous peoples’ particular rights to their traditional lands should probably rather be regarded as an adaptation of the general right to culture to the specific character of indigenous cultures and societies.

indigenous peoples.17 Moreover, also in this context can a reference be made to evolving international law. The DRIP Art. 3 confirms that the right to self-determination applies also to indigenous peoples. It has so far not been possible to reach an agreement on the DRIP. Still, no government delegation that participates in the negotiations on DRIP objects to the existence of a right to self-determination for indigenous peoples.

To the extent an

indigenous group constitutes a people and thus is entitled to the right to self-determination, this right quite clearly encompasses a right to decide over TK and TCEs.

Indigenous

peoples’ TK and TCEs constitute fundamental parts of their cultures and much of the TK and TCEs are also vital to indigenous peoples’ means of subsistence. A fundamental element of a self-determining society is its legal system. All societies need, and have, developed norms to govern their internal relationship. Indigenous peoples are no different in this regard. Indigenous peoples have their own customary legal systems; social, economical and political systems which define their relationships to their territories, resources and the natural world, including to their GR, TK and TCEs. These laws predate the laws and legal systems of the colonial and post-colonial nation-states and have sustained indigenous peoples over centuries. Indigenous peoples’ customary legal systems are normally not codified, but this is in itself no reason for them being less respected than non-indigenous peoples’ codified norms. As a fundamental element of indigenous peoples’ right to self-determination, as well as of their cultures, indigenous peoples have the right to have their legal systems acknowledged to the same extent as other peoples. This obviously includes customary norms pertaining to TK and TCEs. It is thus not only TK and TCEs as subject matter that is protected, but also cultural legal practices associated with the TK and TCEs. In conclusion, international law provides that all peoples have the right preserve and develop their distinct culture and societies.

Given the vulnerability of

indigenous societies, this right is particularly important to indigenous peoples. Moreover, indigenous peoples’ cultures are also protected under their land and resource rights as well as under their right to self-determination. These rights – taken together, and if implemented – probably provide a quite substantial protection for indigenous peoples’ TK, TCEs and other elements of their cultures. It is thus not necessarily correct, as has often been the case, to state that the lack of protection for indigenous TK and TCEs is mainly due to gaps in the UN system organizations activities relating to these knowledge and resources. Certainly, such gaps exist, and could be further analyzed. However, these “gap- analysis” discussions have been allowed to take up to much space in the UN and other activities addressing GR, 17 Obviously, the right to self-determination only applies to indigenous groups that do constitute “peoples” under international law. Not all indigenous groups that refer to themselves as “indigenous peoples” are truly “peoples” under international law. What indigenous groups that indeed constitute peoples has to be determined on a case-to-case basis.

TK and TCEs. Most likely, the main underlying problem with regard to lack of protection of elements of indigenous peoples’ TK, TCEs etc. is not predominantly gaps in the UN system activities, but rather a failure to implement the human rights that pertains to such knowledge and resources. The “enforceability hierarchy” So why does the real world correspond so badly with the theoretical background outlined in this paper? Even though protected in theory, in practice elements of indigenous peoples’ cultures enjoy very limited protection today. Indigenous knowledge about plants etc. is patented by multinationals and utilized without remuneration. Indigenous peoples’ art is copied onto carpets, clothes and greeting cards and is also otherwise utilized by the tourist industry, often without any recognition of who’s culture is being exploited. Their handicrafts are copied and sold as authentic. Indigenous songs are being fused with techno-house dance rhythms to produce million selling “world-music” albums, without anyone ever being made aware of who is the real “composer” of the tune. Indigenous words are being trade-marketed for commercial purposes. Their traditional patterns are being used in tattoo-shops. The examples go on and on. As described above, IPRs can to some extent already today be utilized to protect indigenous TK and TCEs.

However, many indigenous peoples keep a hostile

attitude towards the IPRs-system.

They deem that the commercial nature of IPRs

corresponds badly with their cosmovision, and the reason why they want their cultural heritage protected.18 One should note, though, that the commercial element is in no way inherent in the IPRs-system. It is normally basically up to the person that has been granted an IPR to determine whether to use this right for commercial purposes. Still, undeniably IPRs are generally crafted to promote conventional economic development through commercialization and trade.

Indigenous peoples’ scepticism towards IPRs is therefore

likely to linger for quite some time, resulting in them not utilizing the IPR-system to the extent possible.

A second reason for why IPRs are not more widely used to protect

indigenous TK and TCEs is a lack of capacity and resources.

Utilizing IPRs is often

complicated and presupposes at least certain knowledge about a legal system that many indigenous peoples are completely unfamiliar with.

Indeed, not uncommonly the

indigenous people is not even aware that an IPR-system that could serve their purposes exist. When indigenous peoples do try to utilize IPRs, it often proves to be very costly. To register a patent on a medical use of a plant can amount to million of dollars. Even though lack of capacity and resources substantially contribute to indigenous TK and TCEs not being 18 As described above, indigenous peoples do not normally seek protection for their TK and TCEs driven by a wish to commercially exploit such knowledge and cultural expressions themselves.

protected by IPRs to the extent possible, these problems can quite easily be remedied through capacity–building and through financial resources being provided to indigenous peoples. To realize indigenous peoples’ human rights over their cultural heritage is probably more complicated. Here, the major problem is the enforceability hierarchy. There are a number of legal systems that contain norms that regulate, or at least touch on, management of indigenous peoples’ cultural heritage. To a substantial extent, these legal systems overlap. Not uncommonly, they even contradict each other. And when the legal systems pertaining to indigenous TK and TCEs do conflict, the rules that are most detailed or that indigenous peoples otherwise find most adequately address their knowledge and resources, have proven very difficult to implement. In comparison, legal systems that have not been designed to address indigenous TK and TCEs, but still impact on such knowledge and cultural expressions through regulations most indigenous peoples do not desire, are easily enforced. Firstly, indigenous peoples have their own customary legal systems governing how elements of their cultural heritage can be used and exposed. Obviously, these legal systems have been designed for that particular purpose, and are the most relevant to indigenous peoples themselves. They are often very detailed and elaborated. However, it is very difficult for indigenous peoples to enforce these regulations in relationship with nonmembers. National legislation and domestic courts normally fail to recognize the indigenous people’s customary laws pertaining to their TK and TCEs.19

Furthermore, indigenous

peoples’ customary legal systems are today often distorted, since individual members of the indigenous group might be tempted to utilize other legal systems pertaining to TK and TCEs, systems that have been superimposed upon them through colonization. Secondly, international human rights standards do, as outlined above, contain a set of provisions that read together provide for a fairly extensive protection of indigenous cultures, designed in a manner that most indigenous peoples desire. These rights can be said to have been “implemented” to a certain degree, in that many countries demonstrate a certain degree of respect for the indigenous peoples residing within their borders’ right to retain and develop their culture, including a respect for tangible and intangible expressions of their culture. Still, as stated above, the substantial bulk of indigenous peoples’ TK and TCEs continues to be misappropriated, bio-prospected or otherwise misused, due to lack of implementation of existing human rights standards. To some extent, this can be attributed to 19 Obviously, the problem with implementation escalates if the TK or TCEs are being utilized in another jurisdiction. Today, a lot of indigenous peoples’ TK and TCEs have been transported across borders, into countries others than the knowledge or resource originates from. Naturally, it is even more difficult for indigenous peoples to have their customary legal norms acknowledged in foreign jurisdictions.

the fact that the human rights standards protecting indigenous TK and TCEs, are quite general in their formulations. They do not speak specifically about TK and TCEs. Rather, they underline in broad language the right to culture, the right to self-determination and the land and resource rights.

Domestic legislators and courts, as well as UN system

organizations such as WIPO and the CBD, appear to have difficulties understanding how these general human rights provisions more specifically pertain to TK and TCEs. But even when it should be evident that a particular element of TK or TCEs is protected as a human right, the right is often not implemented, due to lack of international enforcement mechanisms. In addition, human rights have normally not been incorporated into domestic legislation, at least not in more than a general manner. Thirdly, domestic IPR legislation regulates elements of indigenous peoples’ cultural heritage. Contrary to relevant customary laws, domestic legislation has, with few exceptions, not been designed to particularly address indigenous peoples’ TK and TCEs. Consequently, it often fails to provide an adequate protection for such knowledge and resources. To the extent domestic IPR-legislation do apply to TK and TCEs, in most cases, it does not, or does only to a limited extent, take into account indigenous peoples’ customary laws, the collective aspect of TK and TCEs or otherwise indigenous peoples’ needs and aspirations with regard to how their GR, TK and TCEs should be managed.20 Domestic laws, regardless of how irrelevant or even damaging to indigenous TK, TCEs and GR, is obviously easily enforceable through the courts and administrative authorities in the particular country. One reason why domestic legislation pertaining to indigenous GR, TK and TCEs might be outright harmful to indigenous peoples is that it has been harmonized to comply with the World Trade Organization’s (WTO) standards. The international trade related legal system is a fourth legal system that pertains to indigenous cultures. The WTO

Trade-Related Aspects of the Intellectual Property Rights Agreement (the TRIPS-agreement) obligates WTO member states to change their IPRs laws to conform to these standards. The WTO is empowered to impose sanctions on members if they fail to adhere to the TRIPSAgreement. Non-compliance with the agreement could result in trade sanctions through WTO’s dispute settlement system.

National laws are consequently being amended to

comply with TRIPS standards and obligations.

The TRIPS minimum standards are

essentially derived from the legislation of highly industrialized countries.

Since

conventional IPRs regard most indigenous TK and TCEs to be in the so called public domain, the general result is that WTO member states must accept conventional IPR-regimes that facilitate trade with indigenous peoples’ TK and TCEs, without their consent. In order not to become subject to the WTO’s trade sanctions, WTO members facilitate such trade with 20

There are some exceptions, particular in Latin America.

elements of indigenous peoples’ cultures even when these elements are protected under indigenous peoples’ cultural rights, their right to self-determination and/or their land and resource rights. The enforcement mechanisms that the WTO possesses are so strong that they effectively declare human rights agreements void.21 That is so, even though the human rights standards formally should take precedent over the trade and IPR agreements.22 In conclusion, the human rights system contains a set or rules that, taken together, provide for protection of a substantial part of indigenous peoples’ collected GR, TK and TCEs, in a way indigenous peoples generally desire. These human rights standards are complemented by indigenous peoples own customary laws often provide for an elaborated and detailed legal system, governing how indigenous knowledge and resources should be managed. Respecting such human rights pertaining to indigenous peoples does not violate the principle of universality of human rights. It is merely a correct interpretation of all peoples’ right to retain and develop their culture, taken together with the fundamental right to non-discrimination. Moreover, respecting these human rights would cater for a fairly extensive protection of indigenous peoples often very vulnerable societies.

However,

domestic legislation, harmonized through activities in e.g. the WTO and WIPO, often run contrary to these human rights and indigenous customary legal systems. And since trade and IPR-norms have been provided with strong enforcement mechanisms, these rules prevail, even though under the hierarchy of law, they should formally be out-triumphed by human rights.

As outlined above, IPRs aspire to strike a balance between the interest of an individual creator to benefit from his/her/its creativeness, and the interest of the broader public to be inspired by and borrow from previous creativeness. However, when the IPR system does not recognize human rights, the balance gets flawed. To strike the correct balance, one must first “take out” all elements already protected human rights. Only then can one decide, for IPR purposes, what is the best balance between protection for creativeness and the wish that artists etc. shall be allowed to draw from indigenous cultures in their work. The second decision is merely a political one. 22 The trade-related agreements elaborated under the auspices of e.g. WIPO and WTO also indirectly create problems for indigenous peoples, even when not contradicting human rights. The regulations coming out of WIPO, WTO etc. are often rather technical in nature. They deal with issues such as creating databases. Such proposals do not in themselves constitute problems for indigenous peoples, provided a right to opt out of such registers. However, there are several examples of international processes that in their outset, quite strongly emphasizes general principles such as respect for indigenous peoples’ rights. However, as the process goes on, the body in question often gets bogged down in technical discussions on how e.g. databases etc. should be structured. When going into these kinds of issues, member states often tend to forget the underlying criteria, such as respect for human rights. With time, the technical issues promoted by the trade and IPR related bodies come to completely dominate the debate, and the fora once promising to secure indigenous peoples’ rights, gradually loose relevance for indigenous peoples. 21