Journal of Public Law & Policy

The UDHR and the Group:

Individual and Community Rights to Culture
Professor Johanna Gibson 1

The deliberate omission of minority rights from the Universal Declaration of

Human Rights (UDHR) is suggested to be the basis for the fundamental tension between

individual and group rights. This historical background is critical to contemporary

discussions of community rights to culture, particularly in the context of traditional

cultural expressions and knowledge, as well as in the context of genetic and natural

resources. With respect to traditional community knowledge and rights to culture, this

primacy of the individual is potentially limiting. This paper examines international

developments in the protection of traditional and indigenous knowledge, and the complex

and at times, discordant relationship between human rights protection and traditional

communities. It will consider the impact of that original omission in the UDHR in the

context of contemporary discussions of group rights and the right to culture, and the

protection of community knowledge as part of the conditions necessary for an individual

member of a minority to access that right. Indeed, perhaps the architecture for group

rights to culture is necessarily the prerequisite for an individual’s effective cultural

participation. Land and rights to land are necessarily relevant to community knowledge

not only directly, with respect to access and management of resources, but also indirectly

in terms of the knowledge embedded in the land and in the identity derived from the

1
Herchel Smith Professor of Intellectual Property Law, Queen Mary Intellectual Property Research
Institute. Centre for Commercial Law Studies, Queen Mary, University of London. Roy Goode House; 67-
69 Lincoln’s Inn Fields; London WC2A 3JB. Tel: +44 (0) 20 7882 8068; Email: [email protected]

Electronic copy available at: http://ssrn.com/abstract=1438551

Journal of Public Law & Policy

connection to land and nature. Indeed, legal frameworks governing native title claims and

rights to lands have been invoked as possible mechanisms for the protection of cultural

practices associated with the land. However, the success of such claims has been limited

to date.

While the need to facilitate access to land as a resource for food and agriculture is

clearer in international law, less attention is paid to land as a mechanism for the

transmission of knowledge including that of traditional cultural expressions. In this

respect, there may be some interaction between land rights and individual human rights to

cultural life, in that the land itself may emerge as a mechanism for realising individual’s

right to culture and to benefit from one’s creative output. 2 Indeed, the recent Sixth

Session 3 of the UN Permanent Forum on Indigenous Issues (PFII) took as its theme

‘Territories, Lands and Natural Resources’ with its recommendations identifying distinct

links between land and cultural rights:

Land is the foundation of the lives and cultures of indigenous peoples all
over the world. This is why the protection of their right to lands, territories
and natural resources is a key demand of the international indigenous
peoples’ movement and of indigenous peoples and organizations
everywhere. It is also clear that most local and national indigenous
peoples’ movements have emerged from struggles against policies and
actions that have undermined and discriminated against their customary
land tenure and resource management systems, expropriated their lands,
extracted their resources without their consent and led to their
displacement and dispossession from their territories. Without access to
and respect for their rights over their lands, territories and natural
resources, the survival of indigenous peoples’ particular distinct cultures is
threatened.
Land rights, access to land and control over it and its resources are central
to indigenous people throughout the world, and they depend on such rights
and access for their material and cultural survival. In order to survive as
2
Article 15.1(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
3
Permanent Forum on Indigenous Issues. Sixth Session. 14-25 May 2007.

Electronic copy available at: http://ssrn.com/abstract=1438551

Journal of Public Law & Policy

distinct people, indigenous people and their communities need to be able

to own, conserve and manage their territories, lands and resources. 4
The question is not that of whether tradition as such may be the subject matter of a

human right, but whether indigenous and traditional groups will be able to realise the

right to benefit in a culturally relevant and appropriate way if that mechanism of tradition

is not sustained. Interference with traditional practices relating to the land may be argued

as unjustifiable interference with individual human rights. In that traditional relationships

to knowledge and cultural expression generally speaking are articulated upon a

relationship to the land, land ownership or guardianship is thus instrumental in

recognising interests and achieving relevant and effective protection of traditional

cultural expression:

The image is associated with a place on Rirratjingu land called Yalangbara

(which is at Port Bradshaw south of Yirrkala) and represents the events
associated with the Djangkawu that took place there. My rights to use this
image arise by virtue of my membership of the land owning group. The
right to use the image is one of the incidents arising out of land ownership
… Aboriginal art allows our relationship with the land to be encoded, and
whether the production of artworks is for sale or ceremony, it is an
assertion of the rights that are held in the land. The place, Yalangbara, and
the particular story of the Djangkawu associated with it do not exist in
isolation. They are part of a complex or “dreaming track” stretching from
the sea off the east coast of Arnhem Land through Yalangbara, across the
land to the west of Ramingining and Milingimbi. 5

Stewardship of the land thus gives rise to the traditional right to knowledge, and the use

and dissemination of knowledge is characterised upon this relationship to the land.

Significantly, relevant access to the land appears to be tied to the fundamental right

4
Permanent Forum on Indigenous Issues. Report of the Sixth Session. 14-25 May 2007. E/2007/43; E/C.
19/2007/12. Pages 2-3.
5
Banduk Marika, Indigenous Australian artist, speaking about the painting, Djanda and the Sacred Water
Hole, quoted in Janke T (2003) Minding Culture: Case Studies on Intellectual Property and Traditional
Cultural Expressions, Geneva, WIPO: 11.

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Journal of Public Law & Policy

provided in Article 27 of the International Covenant on Civil and Political Rights

(ICCPR): “In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the other

members of their group, to enjoy their own culture, to profess and practise their own

religion, or to use their own language.” Land is a critical and contested zone in

interpretations of the right to self-determination and indeed in the meaningful realisation

of that right for indigenous people. 6 The recently adopted Declaration on the Rights of

Indigenous Peoples (the UN Declaration) 7 articulates this relationship between land and

knowledge as the mechanism by which to give effect to the right to self-determination –

not as alienable property but as cultural archive, narrating and preserving the historical

and cultural stories of the community through the land.

What is Traditional Community Knowledge?

The impetus for the creation of artwork remains important in ceremony,
and the creation of artwork is an important step in the preservation of
important traditional customs. It is an activity which occupies the normal
part of the day-to-day activities of the members of my tribe and represents
an important part of the cultural continuity of the tribe. 8
Identification of knowledge holders depends upon a suitable concept of community as a

legal actor. A suitable mechanism by which to identify, negotiate with and return benefits

to the community is necessary notwithstanding the legal framework within which that

knowledge is being navigated. Of fundamental importance, interests of cultural and social

6
Land has been raised as one of the more controversial areas over two decades of negotiations toward the
Declaration on the Rights of Indigenous Peoples (GA Res 61/295), 13 September 2007. In an official fact
sheet, the United Nations Permanent Forum on Indigenous Issues refers to significance of the dialogue and
the long negotiations, identifying land as one of the areas of intense debate. See the PFII Frequently Asked
Questions: Declaration on the Rights of Indigenous Peoples
http://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf.
7
Declaration on the Rights of Indigenous Peoples. Adopted by General Assembly Resolution 61/295, 13
September 2007.
8
Indigenous artist Mr Bulun quoted in Golvan C (1989) “Aboriginal Art and Copyright: The Case for
Johnny Bulun Bulun” 11(10) European Intellectual Property Review 346: 348.

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Journal of Public Law & Policy

integrity and indeed dignity, cultural identity, and political and economic interests are

common throughout the groups involved. The relationship between the cultural diversity

and identity of the group, and the integrity of the knowledge and its management,

arguably underpins the entire body of development in the area of traditional knowledge. 9

Knowledge is produced and maintained, not as an end or a product in itself, but, rather, as

part of the cultural activity and sustainability of a particular traditional and indigenous

group.

A second unifying aspect for the communities involved is the actual exploitation

of the resources outside the community. This includes cases of actual removal (for

example: genetic resources and the bioprospecting for plants and related medicinal and

agricultural knowledge; removal of cultural artifacts) or removal through cultural

transformation (for example, the diminishing of cultural value in a symbol through

offensive use). Indeed, it is useful to recognise the practice of appropriation of resources

in the context of colonial imperialism. This historical context has been identified as

significant not only within legal practice but also by anthropologists and archaeologists

advising upon appropriate and effective mechanisms for negotiation with communities.

Finally, there are common issues in the creation of rights in harvested or

appropriated knowledge without reference to the context in which that knowledge was

obtained. In other words, the ethical context for appropriation can be relevant not only to

the creation of intellectual property rights (with international discussions considering

prior informed consent and disclosure of origin as mandatory criteria), but also in

9
Janke T (2001) “’Berne, Baby, Berne’: The Berne Convention, Moral Rights and Indigenous Peoples’
Cultural Rights” 5(6) Indigenous Law Bulletin 14.

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Journal of Public Law & Policy

recognising the autonomy of communities and achieving effective and successful

negotiation and mediation with communities to the benefit of all parties.

Communal ‘Ownership’ and Customary Principles of Access

The dominant discourse on traditional knowledge and its management is

inextricably bound to notions of self-determination, cultural diversity and cultural

identity: “Late twentieth-century cultural politics make it impossible to separate issues of

identity from claims to the ownership of resources.” 10 This includes arguments,

particularly in North America, for privacy as a property mechanism for the protection of

traditional and indigenous relationships to cultural resources. But the application of

privacy is quite limited in most circumstances. 11 More usually the concerns of indigenous

and traditional groups are framed as battles of self-determination, (a group self or

identity, as it were) constructed upon the issue of dominion over resources. 12 Therefore,

human rights doctrine continues to provide an oversight for the negotiation of community

knowledge through various legal frameworks and contexts.

The diversity of traditional and indigenous communal structures converges in the

importance of familial, kinship and initiatory ties with respect to resources.13 This is

distinct from proprietary relationships to resources, but certainly does not preclude the

10
Strathern M (1999) Property, Substance and Effect: Anthropological Essays on Persons and Things,
London, Athlone P: 134.
11
Brown MF (2003) Who Owns Native Culture? Cambridge MA, Harvard UP: 38.
12
See the Indigenous Peoples Council on Biocolonialism (IPCB) (2004) CBD’s International Regime:
Indigenous Activist Organizations Call for No Access Zones to Genetic Resources and Indigenous
Knowledge. Press Release. 4 February 2004.
13
Leach J (2004) “Land, Trees and History: Disputes Involving Boundaries and Identities in the Context of
Development” in Kalinoe L & Leach J (eds) Rationales of Ownership: Transactions and Claims to
Ownership in Contemporary Papua New Guinea, Wantage, Sean Kingston Publishing: 42-56. See further
the critique of property models in undertaken by Rosemary Coombe (1998) The Cultural Life of
Intellectual Properties: Authorship, Appropriation and the Law, Durham, Duke UP.

6
Journal of Public Law & Policy

relevance of commercialisation of resources for communities in ways compatible with

the customary management of those communities. In other words, commercialisation is

often relevant to such groups, but is in possible deference to earlier rights within

customary systems of managing that knowledge.

Furthermore, rejection of ‘ownership’ as such undermines community knowledge

claims in that it constructs such knowledge as natural, authorless, ownerless and part of

the common heritage, in ways comparable to scientific and colonial imperialism of the

eighteenth and nineteenth centuries. Therefore, the assumption of communal or shared

ownership on the part of traditional communities is often an inappropriate simplification

of customary systems and knowledge management. 14

Communal Principles of Identity

“The clan is like a cluster of trees which, when seen from afar, appear huddled together,
but which would be seen to stand individually when closely approached.” 15
The critical relationship between knowledge and community, and between

communalism and individual cultural identity, underpins arguments for specific treatment

of traditional knowledge outside the conventional intellectual property framework:

If one is by nature a social being, and not merely an atomized entity, then
the development of one’s full personality and identity can best be achieved
only within the framework of social relationships that are realizable within
a communal social system. That is to say, the conception and development
of an individual’s full personality and identity cannot be separated from
his or her role in the group. 16

14
See the critique of “communal rights” in the context of Papua New Guinean communities in Strathern M
(1999) Property, Substance and Effect: Anthropological Essays on Persons and Things, London, Athlone
P: 3.
15
Akan Proverb. Quoted in Gyekye K (1995) An Essay on African Philosophical Thought: The Akan
Conceptual Scheme, Revised ed, Philadelphia, Temple UP: 158.
16
Gyekye K (1995) An Essay on African Philosophical Thought: The Akan Conceptual Scheme, Revised
ed, Philadelphia, Temple UP: 161.

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Journal of Public Law & Policy

In this way, the traditional community management of knowledge, according to

customary systems, is intimately linked to issues of cultural diversity, individual dignity

and self-determination. In traditional and indigenous philosophies of communalism, as

discussed in the previous section, the individual dignity and identity is derived from

community membership. Indeed, this is one of the many reasons why suggestions of

incorporation and other systems of hierarchisings proprietary management are never

entirely relevant to the protection of community knowledge. A community is managed by

all its members, whereas a corporation displaces that engagement to nominated directors,

in defiance of the differentiated management beyond simple linear corporate streams.

Therefore, at stake are not only the possible group rights of communities, but also the

individual rights to take part in cultural life and to benefit from creative output in the

context of communal expression. 17

Challenges for Human Rights Principles

The application of international human rights framework to community knowledge is not

necessarily seamless. Most importantly, the ability of human rights doctrine to deal with

cultural groups remains uncertain in this area of legal scholarship. Nevertheless, human

rights principles present significant potential for oversight of the negotiation of traditional

knowledge within various legal frameworks:

The imbalances in the intellectual property law system have been created
and are sustained by established mechanisms of accessing the modern
economic space and power. Indigenous and local people often experience
insecure resource tenure, are financially weak, and lack institutional
arrangements to safeguard their property rights. Thus, the issues extend to

17
Article 15.1(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

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Journal of Public Law & Policy

fundamental and more complex questions of human rights of the

peoples. 18
Criticism for neglecting the duty of respect for cultural diversity has been made

throughout the literature on the construction of culture within human rights discourse. 19

Whether articulated through minority rights or indigenous rights, respect for cultural

diversity is the fundamental obligation at the center of the discourse on genetic resources,

traditional knowledge and traditional cultural expressions. In this context, the varying

approaches to group rights are problematic, and the disjunction between individual

human rights and the interests of traditional and indigenous communities has genuine

impact.

(a) Minority Rights

Although some commentators argue that minority rights are indeed human

rights, 20 their development in international law is nevertheless built upon an original and

deliberate omission of minority rights from the UDHR. This omission is premised on the

notion that the right to ‘culture’ can be achieved by the individual and through individual

human rights. Indeed, this presumes a uniform community as ‘collective’ as distinct from

the highly differentiated groups involved, and potentially neglects the achievement of

individual rights to identity and dignity through membership of the community, as

discussed earlier.

18
Mugabe J (2001) Intellectual Property, Traditional Knowledge and Genetic Resources: Policy Options
for Developing Countries. WIPO & the National Intellectual Property Association of Bulgaria,
International Conference on Intellectual Property, the Internet, Electronic Commerce and Traditional
Knowledge. 29-31 May (WIPO/ECTK/SOF/01/3.1): 16.
19
Tully J (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge, Cambridge
UP.
20
Morsink J (1999) “Cultural genocide, the Universal Declaration, and minority rights” 21(4) Human
Rights Quarterly 1009: 1053-60.

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Journal of Public Law & Policy

Similarly, Article 27 of the ICCPR emphasizes the “individual” agent in human

rights law: “In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in community with the

other members of their group, to enjoy their own culture, to profess and practise their

own religion, or to use their own language.” 21 Although this provision appears to

acknowledge the cultural rights of a group; however, this is articulated through an

individual right.

The UN Declaration on the Rights of Persons Belonging to National or Ethnic,

Religious and Linguistic Minorities (Declaration on Minorities) 22 also maintains a similar

construction of rights as individual and not as group rights. The very title itself –

“Persons Belonging to” – makes clear that this Declaration concerns individual rights as

distinct from recognising any rights in minorities as groups. 23

It is therefore in the access to cultural rights as an individual within a minority

that may be relevant to community knowledge in this context. Article 2 of the

Declaration on Minorities provides for these individual rights to culture:

1. Persons belonging to national or ethnic, religious and linguistic

minorities (hereinafter referred to as persons belonging to minorities) have
the right to enjoy their own culture, to profess and practise their own
religion, and to use their own language, in private and in public, freely and
without interference or any form of discrimination.
2. Persons belonging to minorities have the right to participate effectively
in cultural, religious, social, economic and public life.

21
International Covenant on Civil and Political Rights (ICCPR) Article 27.
22
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities. Adopted by General Assembly resolution 47/135 of 18 December 1992.
23
See the discussion of the debate concerning the title in Steiner HJ & Alston P (eds) (1996) International
Human Rights in Context: Law, Politics, Morals (Oxford, Clarendon P): 1297.

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Journal of Public Law & Policy

Despite this emphasis on individual human rights, the State’s obligation to maintain the

circumstances necessary for an individual citizen to enjoy basic human rights may

necessitate the protection of community knowledge as part of the circumstance necessary

for an individual member of a minority to enjoy basic human rights to culture, as

provided in Article 4:

Article 4
1. States shall take measures where required to ensure that persons
belonging to minorities may exercise fully and effectively all their human
rights and fundamental freedoms without any discrimination and in full
equality before the law.
2. States shall take measures to create favourable conditions to enable
persons belonging to minorities to express their characteristics and to
develop their culture, language, religion, traditions and customs, except
where specific practices are in violation of national law and contrary to
international standards.
3. States should take appropriate measures so that, wherever possible,
persons belonging to minorities may have adequate opportunities to learn
their mother tongue or to have instruction in their mother tongue.
4. States should, where appropriate, take measures in the field of
education, in order to encourage knowledge of the history, traditions,
language and culture of the minorities existing within their territory.
Persons belonging to minorities should have adequate opportunities to
gain knowledge of the society as a whole.
5. States should consider appropriate measures so that persons belonging
to minorities may participate fully in the economic progress and
development in their country.
A further motivation for those striving for international consensus on protection within

the World Intellectual Property Organization, Intergovernmental Committee on

Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)

is arguably the vulnerability of minorities within international human rights discourse. In

particular, it is subject to ongoing debate whether there is any corresponding positive

duty toward cultural diversity in that process. However, most significantly, the question

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Journal of Public Law & Policy

of group rights is a persistent challenge for recognition of traditional community

‘authorship’ and management.

(b) Indigenous Rights as Group Rights

Arguments for group rights in the context of indigenous human rights have been

rejected as unnecessary (because individual human rights are sufficient) or simply outside

the framework of human rights (on the basis of their collective nature). 24 However, the

collective qualities of indigenous interests and rights continue to be emphasised by

indigenous people when it comes to the development of international standards with

respect to indigenous rights.

Notably, and in distinct contrast to the Declaration on Minorities, the recently

adopted UN Declaration (13 September 2007) 25 emphasises collective interests in its very

own name. As discussed previously, the use of “Persons Belonging to” in the full title of

the Declaration on Minorities establishes that such rights are recognised as rights of the

individual belonging to a minority, rather than minorities themselves. On the other hand,

the UN Declaration clearly establishes its scope as that of indigenous rights as individual,

group or collective rights. This emphasis on the collective nature of indigenous rights is

continued throughout the UN Declaration.

Although the UN Declaration is not legally binding, its recent adoption by the

General Assembly is nevertheless a significant influence in international standard-setting

with respect to indigenous rights. Most importantly, Resolution 143 of the 42nd General

Assembly (1987), “Human Rights in the Administration of Justice,” establishes an

24
Thornberry P (2002) Indigenous Peoples and Human Rights, Manchester, Manchester UP: 3-6.
25
Declaration on the Rights of Indigenous Peoples. Adopted by General Assembly Resolution 61/295, 13
September 2007.

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Journal of Public Law & Policy

overarching commitment to human rights principles in the establishment of standards.

This has been interpreted as an intention to harmonise standard setting in international

fora, such that the preparation and adoption of any instrument in one forum of the UN

must necessarily give effect to human rights instruments in the UN system. The

intergovernmental committee discussions currently underway within the World

Intellectual Property Organisation (WIPO), as a UN specialised agency, are therefore

interpreted as necessarily bound by the principles of the recently adopted UN

Declaration.

Furthermore, the negotiation of the UN Declaration is part of the historic

significance of this instrument, being a genuine negotiation between the states and the

beneficiaries of the instrument. Indigenous people were direct participants in the process

and a pre-condition of its adoption by the UN General Assembly was its acceptance by a

united indigenous peoples’ caucus. The general agreement was that states would not pass

a document that was not supported by the indigenous peoples themselves:

Kofi Annan, UN Secretary General, has made a point of his mission in the
last two terms, to ‘democratize’ the way the UN goes about its work. That
is, leadership is firmly in the hands of the member states, as represented
by their delegations, and that other voices - non-governmental voices,
specialist voices, indigenous voices - also contribute valuable information
in the fora of this institution. Here, in the development of this Declaration,
is a case in point. We can all use this process as a model. 26

(c) Right to Self-Determination

The principle of self-determination first appeared in the Charter of the United
Nations, 27 and subsequently in both the International Covenant on Civil and Political

26
Mokhiber C, Officer in Charge, New York Office of the High Commissioner for Human Rights. Panel on
the United Nations Declaration on the Rights of Indigenous Peoples. 4 November 2006.
27
UN Charter Article 1(2), and Article 55.

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Journal of Public Law & Policy

Rights (ICCPR) 28 and in the International Covenant on Economic, Social and Cultural
Rights (ICESCR) 29 and in several other international instruments. 30 Despite this
controversy and dissensus on group rights, the right to self-determination remains
particularly relevant to community knowledge and is emphasised by indigenous peoples.
Nevertheless, the right to self-determination is inconsistent in international human rights
law and scholarship. 31 However, the United Nations bodies regularly recognise the right
on the part of existing states, adding weight to the right as a principle of international
customary law. 32 Indeed, these provisions of the UN Declaration were emphasised at the
recent intergovernmental committee meeting in Geneva in the last week of February
2008. 33

The relevance of the right to indigenous peoples is evident in its emphasis in the
UN Declaration, but the right is not necessarily effective in the protection of community
knowledge if the traditional management of resources is seen as challenging national
interests. 34 Given that the link between international trade and intellectual property is one
of the driving pressures on the work of the WIPO IGC, 35 it is unclear whether self-

28
International Covenant on Civil and Political Rights (ICCPR) Article 1.
29
International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 1.
30
The Declaration on the Granting of Independence to Colonial Countries and Peoples, Articles 1, 2, 4, and
7. Adopted by General Assembly Resolution 1514(XV); Declaration on Principles of International Law
Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the
United Nations, Articles 1 and 3. Adopted by General Assembly Resolution 2625(XXV), 24 October 1970,
confirmed in 2003 in “Promotion of peace as a vital requirement for the full enjoyment of all human rights
by all,” Commission on Human Rights Resolution 2003/61, adopted 24 April 2003.
31
Falk R (1997) “The Right of Self-Determination Under International Law: The Coherence of Doctrine
Versus the Coherence of Experience,” in Danspeckgruber W & Watts A (eds), Self-Determination and Self-
Administration 47: 55 at 61.
32
The Commission on Human Rights has voted in favour of the Palestinian people’s right to self-
determination, granting significant acknowledgement to the right within the United Nations system. See,
for example, the adoption of resolution E/CN.4/2004/L.8 at the 44th meeting of the Commission on Human
Rights, 8 April 2004.
33
The complete documents from the 12th Session of the WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, are available at
http://www.wipo.int/meetings/en/details.jsp?meeting_id=14802.
34
Wright S (2001) International Human Rights, Decolonisation and Globalisation: Becoming Human,
London, Routledge: 153-54.
35
WIPO/RT/LDC/1/14 (September 29, 1999): Paragraph 10. See also WIPO/GRTKF/IC/4/8 (30
September 2002): 9.

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Journal of Public Law & Policy

determination would be subjugated to questions of trade in the context of community

knowledge. 36

Notwithstanding these provisions for the right to self-determination, the problems

of identifying those entitled to self-determination and indeed the nature of the principle
itself persist, particularly in the context of traditional and indigenous communities.
Again, the historical background clarifies its application, with some arguing that the right
is applicable only in the context of decolonisation and is thus diminishing in relevance. 37

The UN Declaration 38 explicitly rejects this distinction. The recent adoption of the UN by
the United Nations 61st General Assembly 39 comes more than twenty years after its
production was first agreed in 1985 at the 4th Session of the WGIP. A working paper was
tabled at the 6th Session of the WGIP, in 1988, with the final text agreed in the 11th
Session, 1993. The draft was adopted by the Sub-Commission on Prevention of
Discrimination and Protection of Minorities the following year and submitted to the
Commission on Human Rights, 40 remaining in draft form until 2007.

Although its recent adoption 41 by the General Assembly is encouraging, as

already mentioned the instrument is nevertheless non-binding and may have little
immediate impact at the national level, given the historically almost uniform reluctance
to adopt the text for fourteen years. Indeed, this could be in part attributed to persistent
‘colonial’ suspicions of secession based upon the discourse of colonisation and race. 42
These anxieties regarding the recognition of self-determination can be seen in the
interventions of those states voting against adoption: Australia, Canada, New Zealand

36
Kirgis F, Jr (1994) “The Degrees of Self-Determination in the United Nations Era” 88 American Journal
of International Law 304.
37
Charlesworth H & Chinkin C (2000) The Boundaries of International Law: A Feminist Analysis,
Manchester, Juris-Manchester UP: 152.
38
Document 61/295, Adopted by the 61st Session of the General Assembly, 13 September 2007.
39
Four countries voted against its adoption: Australia, New Zealand, Canada and the United States.
40
Resolution 1994/45, 26 August 1994.
41
61st General Assembly, A/Res/61/295.
42
Wright S (2001) International Human Rights, Decolonisation and Globalisation: Becoming Human,
London, Routledge: 137-38.

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Journal of Public Law & Policy

and the United States. For example, Robert Hill (Australia) was reported as stating the
following:

Regarding the nature of the Declaration, he said it was the clear intention
of all States that it be an aspirational Declaration with political and moral
force, but not legal force … The Australian Government had long
expressed its dissatisfaction with the references to self-determination in
the Declaration, he said. Self-determination applied to situations of
decolonization and the break-up of States into smaller states with clearly
defined population groups. It also applied where a particular group with a
defined territory was disenfranchised and was denied political or civil
rights. The Government supported and encouraged the full engagement of
indigenous peoples in the democratic decision-making process, but did not
support a concept that could be construed as encouraging action that
would impair, even in part, the territorial and political integrity of a State
within a system of democratic representative Government.
On lands and resources, he said the Declaration’s provisions could be read
to require recognition of indigenous rights to lands without regard to other
legal rights existing in land, both indigenous and non-indigenous. 43
Arguably, however, the development of the concept of self-determination has continued

beyond its foundations in nationalism and territorial capacity. Indeed, the notion of

cultural self-determination is particularly relevant in the context of community

knowledge and with respect to current developments in rights to culture and cultural

diversity.

(d) Right to Cultural Self-Determination

Developments in minority rights to culture and participation has led to development of

the concept of so-called third-generation rights to self-determination – the rights of

internal cultural self-determination. Arguably, cultural self-determination will be

somewhat more significant in the context of community knowledge in that it is

specifically dealing with the rights of participation and culture fundamentally related to

43
United Nations 61st General Assembly. Plenary 13 September 2007. GA/10612

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Journal of Public Law & Policy

questions of traditional cultural expression and knowledge. 44 Internal self-determination

is explained as “forms of self-government and separateness within a state rather than

separation (so called ‘external’ self-determination) from the state”.45 International self-

determination therefore indicates customary self-government within the nation-state

according to the general political structure of that state.

The Declaration on Minorities 46 is relevant to internal self-determination, despite

no explicit reference to self-determination in the text. Nevertheless, it sets out the

principles underlying internal self-determination. However, again, the most significant

and relevant text is that of the recently adopted UN Declaration, which emphasises and

clarifies the right to internal self-determination regardless of the loss of territory and

other pressures on the displacement and disenfranchisement of groups. 47

(e) Cultural Relativism

Calls for sui generis protection on cultural bases have also been criticised as

problematic cultural relativism. 48 Indeed, the history of cultural relativism is largely

borne out of a rejection of the universalising tendencies of human rights discourse. 49 It is

44
Carlos Correa notes that the protection of traditional knowledge is compatible with accessing the right to
self-determination, where such protection gives the community control over resources: Correa C (2002)
Protection and Promotion of Traditional Medicine: Implications for Public Health in Developing
Countries, South Centre-Department of Essential Drugs and Medicines Policy of the World Health
Organization (WHO). Correa suggests, “Such control may be an element of self-determination and
collective cultural sovereignty” (45).
45
Steiner HJ & Alston P (eds) (1996) International Human Rights in Context: Law, Politics, Morals
(Oxford, Clarendon P): 1249.
46
Adopted by General Assembly Resolution 47/135, 18 December 1992.
47
See further the discussion in Foster CE (2001) “Articulating Self-Determination in the Draft Declaration
on the Rights of Indigenous Peoples” 12(1) European Journal of International Law 141.
48
Steiner HJ & Alston P (eds) (1996) International Human Rights in Context: Law, Politics, Morals
(Oxford, Clarendon P): 366-68. See further Thornberry P (2002) Indigenous Peoples and Human Rights,
Manchester, Manchester UP: 7.
49
Cowan JK et al (2001), “Setting Universal Rights” in Cowan JK et al (eds) Culture and Rights:
Anthropological Perspectives, Cambridge, Cambridge UP: 27.

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Journal of Public Law & Policy

this universalist momentum which is similarly criticised by indigenous and traditional

groups when examining the impact of intellectual property standards and frameworks

upon traditional knowledge and cultural expressions. These same groups have reiterated

the need for sui generis approaches if the spirit of the UN Declaration is to be realised

and the right to self-determination of indigenous groups to be realistically fulfilled.

Article 4 of the Declaration on Minorities 50 is especially relevant in the context of

community knowledge, encompassing the relationship of knowledge to the facilitation of

the circumstances in which the cultural values and practices pertaining to that knowledge

are possible.

1. States shall take measures where required to ensure that persons

belonging to minorities may exercise fully and effectively all their
human rights and fundamental freedoms without any discrimination
and in full equality before the law.
2. States shall take measures to create favourable conditions to enable
persons belonging to minorities to express their characteristics and to
develop their culture, language, religion, traditions and customs,
except where specific practices are in violation of national law and
contrary to international standards.
3. States should take appropriate measures so that, wherever possible,
persons belonging to minorities may have adequate opportunities to
learn their mother tongue or to have instruction in their mother tongue.
4. States should, where appropriate, take measures in the field of
education, in order to encourage knowledge of the history, traditions,
language and culture of the minorities existing within their territory.
Persons belonging to minorities should have adequate opportunities to
gain knowledge of the society as a whole.
5. States should consider appropriate measures so that persons belonging
to minorities may participate fully in the economic progress and
development in their country.

Nevertheless, Article 4.2 provides that the obligation does not arise where the

expression of cultural characteristics would be contrary to national law and international

50
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities. Adopted by General Assembly resolution 47/135 of 18 December 1992.

18
Journal of Public Law & Policy

standards. In this sense, the nature of the qualification of culture is especially important.

This is particularly relevant when considering gross violations of human rights, where an

extreme form of cultural relativism may suggest that interference with such violations

would be unwarranted. What is important is an appreciation of the culture at stake not as

an undifferentiated product, but a dynamic and social process. Cultural characteristics,

cultural values and cultural practices thereby articulate aspects of the overarching

achievement of the expression of culture.

This is precisely the position taken by the Special Rapporteur to the Sub-

Commission on Prevention of Discrimination and Protection of Minorities at the 51st

Session. On the impact of traditional practices on the health of women and female

children, the Third Report stated: “The Special Rapporteur feels it is essential to act with

tact and patience, bringing the communities concerned to understand that their cultural

values are not to be confused with cultural practices, and that the practices can be

changed without adversely affecting the values as such.” 51

In this regard, current scholarship on cultural identity and cultural diversity is

immediately pertinent not only to the clarification of group rights in respect of

knowledge, but also with respect to the nature of “culture” within key human rights

documents themselves. As Patrick Thornberry, member of the UN Committee on the

Elimination of Racial Discrimination (CERD), explains, it is not always possible to

partition values and practices in this way: “If a particular practice is bound up intimately

with a language, view of the world, creation myth, religious observance and social

51
Sub-Commission on Prevention of Discrimination and Protection of Minorities. 51st Session. The
Implementation of the Human Rights of Women: Traditional Practices Affecting the Health of Women and
the Girl Child. E/CN.4/Sub.2/1999/14: page 17.

19
Journal of Public Law & Policy

practice, it cannot easily be ‘detached’ or ‘severed’ from ‘the body politic’.” 52 An

understanding of the mechanics of cultural diversity within human rights law is therefore

an essential part of community knowledge frameworks.

Cultural Diversity and Cultural Rights

Article 15.1 of the ICESCR obliges the State to recognise the right of every

person “to take part in cultural life” as well as a right on the part of each person “to

benefit from the protection of the moral and material interests resulting from any

scientific, literary or artistic production of which he is the author” (right to benefit).53 In a

sense, the complete text of Article 15 encompasses not only the contribution to culture on

the part of the individual, but also the sense of participation and “benefit” flowing back to

the individual:

1. The States Parties to the present Covenant recognize the right of

everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production
of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for
the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the
freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be
derived from the encouragement and development of international
contacts and co-operation in the scientific and cultural fields.

52
Thornberry P (2002) Indigenous Peoples and Human Rights, Manchester, Manchester UP: 424.
53
International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into
force 3 January 1976, in accordance with article 27.

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Journal of Public Law & Policy

In this sense, intellectual property rights provide the mechanism by which individuals

access their right to benefit. However, whether such rights are relevant in the context of

community knowledge holders is an important aspect of the impact of this provision on

developments in other international arenas, including the WIPO IGC.

In the Preamble to the 2001 UNESCO 54 Universal Declaration on Cultural

Diversity, 55 ‘culture’ is defined as “the set of distinctive spiritual, material, intellectual

and emotional features of society or a social group,” encompassing “in addition to art and

literature, lifestyles, ways of living together, value systems, traditions and beliefs.” The

reference to ‘distinctive’ indicates observable characteristics, values and practices which

distinguish the individual or group, 56 both marking out membership and facilitating

membership through recognition. Further, the 2001 Declaration notes that culture is

intrinsically linked to questions of “identity and social cohesion, and the development of

a knowledge-based economy.” From this, the importance of cultural diversity is clear,

with diversity being valuable in and of itself to the broader society. Article 1 affirms

cultural diversity as “the common heritage of humanity”: “As a source of exchange,

innovation and creativity, cultural diversity is as necessary for humankind as biodiversity

54
United Nations Educational, Scientific and Cultural Organization. UNESCO is one of the original
specialised agencies of the United Nations, established by its Constitution adopted in London, 16
November 1945. The purpose of the agency, as set out in the Constitution is “to contribute to peace and
security by promoting collaboration among the nations through education, science and culture in order to further
universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are
affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the
United Nations.”
55
UNESCO (2001). Universal Declaration on Cultural Diversity. Adopted by the 31st Session of the
General Conference of UNESCO, Paris, 2 November 2001.
56
Thornberry P (2002) Indigenous Peoples and Human Rights, Manchester, Manchester UP: 195.

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Journal of Public Law & Policy

is for nature. In this sense, it is the common heritage of humanity and should be

recognized and affirmed for the benefit of present and future generations.” 57

Returning to the discussion of Article 15, the UN Committee on Economic, Social

and Cultural Rights 19th Session appears to emphasise cultural diversity as a value in and

of itself: “Article 15 of the Covenant could serve as an important antidote to the tendency

to homogenize and iron out differences and diversity.” 58

In this context, the value of that diversity is translated into real conditions of

societal benefit. In the general discussion of the right to education, one speaker drew

explicit links between cultural diversity and the right to education (Article13):

Mr. Meyer-Bisch stressed that if a country did not enjoy the necessary
financial resources to implement the right to education for all, it had the
obligation to accept assistance from partners. He emphasized, though, that
it was mainly the political price of the right to education for all, rather than
resource mobilization, that frightened many Governments, since
implementing the right to education presumed the provision of other,
concomitant cultural rights, such as linguistic freedom, minority rights,
cultural identity and access to cultural properties. The right to education
could not be ensured without taking into consideration its important
cultural dimensions. The right to education could be implemented more
efficiently only by adopting more complex approaches than was currently
the case, based on the recognition of all cultural rights.59

57
UNESCO (2001). Universal Declaration on Cultural Diversity. Article 1.
58
Committee on Economic, Social and Cultural Rights. Report on the Eighteenth and Nineteenth Sessions.
27 April-15 May 1998; 16 November-4 December 1998. Economic and Social Council. E/1999/22;
E/C.12/1998/26. 4 December 1998: para 483.
59
Committee on Economic, Social and Cultural Rights. Report on the Eighteenth and Nineteenth Sessions.
27 April-15 May 1998; 16 November-4 December 1998. Economic and Social Council. E/1999/22;
E/C.12/1998/26. 4 December 1998: para 482. See further, the Report by the Committee on Conventions
and Recommendations, 162nd Session, 162/EX/53 Rev, 10 October 2001. On Item 5.3 (on the synthesis of
State Reports as part of the permanent system of reporting on education):
A number of Member States emphasized that, in light of the present world situation and the recent
events of 11 September, education for peace, human rights and democracy and the elimination of
racism and prejudice is of utmost importance as it concerns directly the future of our societies, and
should be at the very heart of the discussions during the 31st session of the General Conference.

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Journal of Public Law & Policy

In other words, relevant and meaningful access to cultural rights on the part of all

citizens (and thus, the consequent diversity in cultural expression) provides the

fundamental circumstances for aspects of human development, including effective and

successful education. Thus, cultural diversity has a genuine economic dimension. 60

In this regard, current scholarship on cultural identity and cultural diversity is

immediately pertinent not only to the clarification of group rights in respect of

knowledge, but also with respect to the nature of “culture” within key human rights

documents themselves. As Patrick Thornberry explains, it is not always possible to

partition values and practices in this way: “If a particular practice is bound up intimately

with a language, view of the world, creation myth, religious observance and social

practice, it cannot easily be ‘detached’ or ‘severed’ from ‘the body politic’.” 61 An

understanding of the mechanics of cultural diversity within human rights law is therefore

an essential part of prospective community knowledge frameworks.

Community and Customary Law

Customary law may be understood as the cohering organisation of community

and a necessary mechanism for the sustainability of cultural integrity and identity,

They stressed that today culture and cultural diversity should be taken into account when
reinforcing education for peace, human rights and democracy.
This link is reinforced by the decision in 2001 of the 162nd Session Executive Board of UNESCO to
establish the Joint Expert Group UNESCO (CR) / ECOSOC (CESCR) on the monitoring of the right to
education. Paris, 27 November 2001. 162 EX/Decisions.
60
This link between cultural diversity and economic and other conditions of value is also set out in the
2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Article 2, ‘Guiding Principles’, states “Since culture is one of the mainsprings of development, the cultural
aspects of development are as important as its economic aspects” (Paragraph 5: Principle of the
complementarity of economic and cultural aspects of development). Further, in Paragraph 6 (Principle of
sustainable development): “Cultural diversity is a rich asset for individuals and societies. The protection,
promotion and maintenance of cultural diversity are an essential requirement for sustainable development
for the benefit of present and future generations.”
61
Thornberry P (2002) Indigenous Peoples and Human Rights, Manchester, Manchester UP: 424.

23
Journal of Public Law & Policy

cultural diversity and the participation in cultural life. The governance of resources

according to traditional customary laws embodies the responsibility to tradition described

earlier.

Customary law is the inviolable and integral law of a community established over

the history of that community, critical to its identity, binding members of a community,

and therefore also identifying and cohering community: “Customary laws and protocols

are central to the very identity of many Indigenous, local and other traditional

communities.” 62 Indeed, the legitimacy of the community inheres in its responsibility to

custom and tradition as realised in the observation and practice of its laws: “Maintaining

customary laws and protocols can therefore be crucial for the continuing vitality of the

intellectual, cultural and spiritual life and heritage of many communities.” 63

Literally, customary law narrates tradition. The appropriation and reproduction of

knowledge in ways contrary to traditional forms of governance and management will be

contrary to pre-existing customary law. Therefore, there is a potential conflict of laws

between customary law and other legal systems that may form the basis for limits to the

exercise of the latter in certain circumstances.

This is related to what has been termed the principle of locality, explained by the

Chairperson-Rapporteur of the WGIP, Dr Erica-Irene A. Daes, as meaning “every

62
World Intellectual Property Organisation (WIPO). Issues Paper (Unofficial Draft Version 3.0).
Customary Law and the Intellectual Property System in the Protection of Traditional Cultural Expressions
and Knowledge: page 5.
63
World Intellectual Property Organisation (WIPO). Issues Paper (Unofficial Draft Version 3.0).
Customary Law and the Intellectual Property System in the Protection of Traditional Cultural Expressions
and Knowledge: page 5.

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Journal of Public Law & Policy

people’s territory is unique and has its own laws”. 64 In other words, national governments

cannot legislate with respect to traditional and indigenous knowledge, but must give

effect to and enforce local customary laws. Dr. Daes suggests the basis for this principle

can be found in the International Labour Organization (ILO) Convention No 169 and in

the Convention on Biological Diversity (CBD). However, it can be seen that it is strongly

linked to cultural self-determination and to the rights to culture and participation.

Public Domain and Community-Based Documentation

The management of knowledge according to customary principles is directly

relevant to concerns regarding the concept of the “public domain.” This contested

principle is not only relevant to the character of traditional knowledge within intellectual

property frameworks, but also, it is in and of itself, a site of negotiation over the very

different and often conflicting approaches to knowledge. The “public domain” is not

irrelevant in a traditional context and indeed customary systems of managing knowledge

often incorporate mechanisms which might be identified as a type of “public domain,”

further demonstrating the important role of customary law in identifying appropriate

framework for traditional knowledge protection.

As well as a site of conflict, the ideology and legal concept of the ‘public domain’

is of particular significance for community knowledge in that much of the effort for

protection within intellectual property systems has relied upon defensive protection and

utilisation of the public domain. However, this trend toward defensive protection has

been criticised by indigenous and traditional groups, not only as an unnecessary delivery

64
Daes EA (2000) “Defending Indigenous Peoples’ Heritage.” Protecting Knowledge: Traditional
Resource Rights in the New Millenium. Keynote Address. Union of British Columbia Indian Chiefs. 23-26
February: 5.

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Journal of Public Law & Policy

of community knowledge out of the management of the community, but also as a concept

contrary to pre-existing community laws with respect to the governance of that

knowledge:

There is no public domain in traditional knowledge … Even knowledge

shared and used widely does not fall into the public domain. When
knowledge is shared, it is shared among those who are trusted to know
their roles and responsibilities in using the knowledge … Misuse, even
when used by others outside of the tribe, or by tribal members who are
outside of the control of customary authority, can cause severe physical or
spiritual harm to the individual caretakers of the knowledge or their entire
tribe from their failure to ensure that the Creator’s gifts are properly used.
For this reason, misappropriation and misuse is not simply a violation of
“moral rights” leading to a collective offense, but a matter of cultural
survival for many Indigenous peoples. 65
Therefore, intentional documentation and publication of community knowledge is not

without weakness, not the least of which is the actual conflict with the needs and interests

of community knowledge holders. 66 In this way, mechanisms to ensure the status of

community knowledge as knowledge in the public domain (such as prior art databases, 67

digital libraries, 68 and the concept of domaine public payant 69 ) continued to be

65
Tulalip Tribes (2003) Statement by the Tulalip Tribes of Washgton on Folklore, Indigenous Knowledge,
and the Public Domain. 9 July. WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore. Fifth Session. Geneva, 5-17 July.
66
Nevertheless, defensive protection has emerged as the dominant mechanism within the IGC, in the
context of dissensus on the need for sui generis rights.
67
For example, note the Traditional Ecological Knowledge Prior Art Database of AAAS which has met
much criticism. See also the discussion of traditional knowledge as prior art in Ruiz M (2002) The
International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and Options for
Developing Countries. Trade-Related Agenda, Development and Equity (TRADE) Occasional Papers.
Paper No 9. Geneva, South Centre.
68
For example, the Traditional Knowledge Digital Library (TKDL) for Indian systems of medicine has met
both positive (see Sen N (2002) “TKDL: A Safeguard for Indian Traditional Knowledge.” 82(9) Current
Science 1070) and negative receptions (see Sharma D (2002) “Digital Library Another Tool for Biopiracy.”
Mindfully.org. 29 May and Jayaraman KS (2002) “Biopiracy Fears Cloud Indian Database.” Science and
Development Network. 5 December). For more on the TKDL see CIPR (2002) Commission on Intellectual
Property Rights. Integrating Intellectual Property Rights and Development Policy, London: 81. See the
extensive report on databases and registers undertaken for the UNU-IAS in Alexander M et al (2003) The
Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative Analysis.
Report. Tokyo, UNU-IAS. See also the concerns regarding documentation and misappropriation in Tauli-
Corpuz V. (2005). “Biodiversity, Traditional Knowledge and Rights of Indigenous Peoples.” IPRs Series

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Journal of Public Law & Policy

emphasized as effective and logical mechanisms for protecting community knowledge.70

This defensive approach has been rejected by indigenous and traditional groups as

contrary to opportunities for relevant self-governance and self-determination with respect

to that knowledge. In a recent Joint Statement to the 23rd session of the Working Group

on Indigenous Populations, 71 the Indigenous World Association and Indigenous Media

Network raised several concerns about the concept of the public domain and about the

articulation of protection through the application of public and private databases:

[W]e stress that there are striking similarities between seizing our
territories and the taking of our knowledge by defining it as part of the
public domain. Both are based on the notion that they constitute res
nullius, the property of no one, and can be treated as such. Placing our
knowledge into the public domain turns it into a freely available resource
for commercial utilization. Thus, it also creates the pre-condition for using
non-indigenous Intellectual Property Rights (IPR) regimes to patent
“inventions” based upon our knowledge …We therefore strongly reject
the application of the public domain concept to any aspect that relates to
our cultures and identities, including human and other genetic information
originating from our lands and waters. 72

No 5. International Workshop on Traditional Knowledge. 21-23 September. UN Department of Economic

and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on
Indigenous Issues. PFII/2005/WS.TK/5.
69
The domaine public payant (a paying public domain) involves the collection of funds from those seeking
access to the knowledge within. Such funds would ordinarily be used towards programs within the
communities of the traditional knowledge holders involved. See the discussion in Gervais D (2001)
“Traditional Knowledge: A Challenge to the International Intellectual Property System.” Fordham
University Conference on International Intellectual Property Law & Policy. New York City, 20 April: 13.
See also Dutfield G. (2002). Protection Traditional Knowledge and Folklore: A Review of Progress in
Diplomacy and Policy Formulation. UNCTAD/ICTSD Capacity Building Project on Intellectual Property
Rights and Sustainable Development. October: 34.
70
Downes D (1997). “Using Intellectual Property as a Tool to Protect Traditional Knowledge:
Recommendations for Next Steps.” CIEL Discussion Paper. November; See also the discussion in
Chapman AR (2001) “Approaching Intellectual Property as a Human Right” 35(3) Copyright Bulletin 4.
71
Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights,
Working Group on Indigenous Populations.
72
Indigenous World Association and Indigenous Media Network. (2005). Joint Statement. Commission on
Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on
Indigenous Populations. 23rd Session, 18-22 July 2005. Review of Developments Pertaining to the
Promotion and Protection of the Rights of Indigenous Peoples, Including Their Human Rights and
Fundamental Freedoms: Principle Theme, “Indigenous Peoples and the International and Domestic

27
Journal of Public Law & Policy

Once again, the links between contemporary community knowledge debates and

colonialism are relevant to the question of the legitimacy (or lack of legitimacy) for such

approaches. While defensive approaches are an aspect of mechanisms of protection, they

risk an ongoing paternalism and persistent historicising of the value of knowledge.

Conclusion: Local Customary Law and International Frameworks

Indigenous and traditional groups have called for sui generis protection that

recognizes the customary laws of communities: “Our existing protection systems are

legitimate on their own right and any new mechanisms for protection, preservation and

maintenance of traditional knowledge and associated biological resources must respect

and be complementary to existing systems and not undermine or replace them.” 73 At the

12th Session of the WIPO IGC in February 2008, advocates for sui generis protection

argued that the passage of the UN Declaration is significant support and foundation for

this approach.

The basis for the recognition of customary law can be found in several

international instruments and sources with respect to distinct issues, 74 resulting in a

multilateral justification for the deference to customary law with respect to community

Protection of Traditional Knowledge.” Item 4(b) of the provisional agenda. 13 July 2005.
E/CN.4/Sub.2/AC.4/2005/CRP. 3.
73
Indigenous Peoples Council on Biocolonialism (IPCB) (2004b) Collective Statement of Indigenous
Peoples on the Protection of Indigenous Knowledge. Agenda item 49(e): Culture. UN Permanent Forum on
Indigenous Issues (PFII). Third Session, New York, 10-21 May 2004.
74
Regard for customary law is set out in several international instruments, including: the International
Labour Organization (ILO) Convention No 169, Article 8; which refers explicitly to customary law, and
builds upon the ILO Convention No 107 on Indigenous and Tribal Populations, which makes similar
provisions in Article 7. The Right to Self-Determination, examined in more detail in Chapter 8 in this
context, is provided for in the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 1 of each instrument,
the Declaration on the Right to Development in the Preamble, and Articles 1 and 5; the Vienna Declaration
on Human Rights and Programme of Action in Article 2. The United Nations Draft Declaration on the
Rights of Indigenous Peoples is explicit in Article 9.

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Journal of Public Law & Policy

knowledge as identified in those separate and operable issues. Although this amounts to

recognition of customary law in each case, these disparate approaches may undermine the

potential for cooperation within the WIPO IGC in the form of sui generis protection.

Significantly, however, the creation and exercise of conventional intellectual

property rights may be subject to pre-existing customary laws and communal rights of the

relevant community. Such rights may indeed impact the exercise of intellectual property

rights (including the exclusion of non-traditional use) with repercussions for failure to

observe these pre-existing laws. Indeed, membership of various intellectual property

conventions does not oblige an intellectual property holder to act contrary to other laws.

For example, Article 17 of the Berne Convention, the IGC notes that “in the event that

customary laws were to be recognized for this purpose by a country’s laws, copyright

does not entitle or oblige a traditional artist to act contrary to his or her customary

responsibilities.” 75 Nevertheless, the relevance of such provisions necessarily rests upon

the national government’s recognition of customary laws, which is in doubt given the

history of the troubled passage of the UN Declaration. Indeed, it rests upon the

significance vested in the principle of locality and its current development within

international law.

75
WIPO/GRTKF/IC/4/3 (20 October 2002): 23.

29