Indigenous peoples' rights at the intersection of human rights and intellectual property rights.

• Author: Oguamanam, Chidi

INTRODUCTION I. INDIGENOUS PEOPLES' RIGHTS IN THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK A. BEYOND HUMAN RIGHTS B. THREE CONVENIENT FRAMEWORKS FOR INDIGENOUS RIGHTS 1. THE INTERNATIONAL BILL OF RIGHTS 2. SPECIFIC TREATY INSTRUMENTS 3. RECENT DEVELOPMENTS--UNDRIP II. HUMAN RIGHTS AND INTELLECTUAL PROPERTY RIGHTS III. MAPPING INDIGENOUS RIGHTS ONTO HRS-IPRS INTERFACE CONCLUSION INTRODUCTION

Dedicated exploration of the interface between human rights (HRs) and intellectual property rights (IPRs or IP) is a venture still in its gestational stage. Early outcomes of the conversations seem to agree on a few first impressions.

First, even though HRs and IPRs developed along different paths, the foundation of their underexplored intersection is historically rooted. (1) Second, the development of both legal domains is influenced by the same historical factors; such as the industrial revolution and the expansion of international trade, which were catalysts for social, political, and economic transformations. (2) Third, at no time has the empirical importance of the relationship between HRs and IPRs been more palpable than the period beginning in the mid-1990s, and symbolized by the coming into effect of the Trade-Related Agreement on Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). (3)

Fourth, as a conjecture, the normative outlook of the relationship between HRs and IPRs is clouded by complex paradoxes and are allergic to simple resolution. On the face of it, HRs cater to the optimal realization of human potential; while intellectual creativity, which is the concern of IP, is integral to realization of human capability and progress. Fifth, early enthusiasts of this important conversation have a historic opportunity to frame and influence the understanding of a subject matter that is developing at the pace of its equally growing relevance. (4) In that expectation, the mapping of indigenous peoples' rights onto the interface between HRs and IP is a critical aspect of the ongoing conversation. However, present attempts to explore the interface of broader HRs jurisprudence with its IPRs counterpart reveal apparent conceptual obfuscation in regard to how indigenous peoples' rights are implicated.

The extent to which indigenous peoples' rights are integrated into core HRs instruments, especially the international bill of rights (IBRs) (5) and other international or regional HRs instruments is not apparent; and is at best peripheral. Similarly, the status of indigenous peoples' rights--as "group" or "collective rights"--continues to pose normative challenges to HRs jurisprudence, which evolved, in part, as a counterpoise to group tyranny. (6) Perhaps, more important, as an aggregation of rights, indigenous peoples' rights constitute analogous misfits to any specific head of conventional HRs or IPRs. Put differently, as opposed to paralleling any specific class of HRs, indigenous peoples' rights are complementary components of virtually every conventional HR category; (7) the same is true, to some degree, in relation to conventional categories of IPRs.

Indigenous peoples' rights, especially those relating to their knowledge systems; continue to be treated with disdain under the conventional IP system. Indigenous peoples' attitude towards the IP system remains dialectical. As summarized by analysts, "[a]ssertions of rights by indigenous peoples in the context of intellectual property encompass two distinct and opposing elements--claims to intellectual property protection, and claims to be protected from intellectual property laws and institutions." (8) Given the inability of IPRs to account for indigenous knowledge, let alone indigenous peoples' rights, it is logical to look to HRs to fill the gaps in IPRs in these areas.

The evolution and details of indigenous peoples' rights within HRs theory remains a work in progress. Rather than being a fait accompli, indigenous peoples' rights are part of the inchoate, yet progressive elaboration of indigenous issues within HRs jurisprudence. Even if there is a merit in exploring indigenous peoples' rights from a HRs framework, as a process and a state of affair, those rights are sources of irritation on traditional HRs jurisprudence. Substantiating indigenous peoples' rights within the HRs paradigm remains an arduous task.

Finally, beyond the IBRs, the elements of indigenous peoples' rights are scattered in varying degree of emphasis and details across innumerable international legal instruments of varying juridical status. Within this complex and open-ended framework of indigenous peoples' rights, charting them onto conventional HRs categories remains problematic.

As its primary objective, this article attempts to contribute to an improved understanding of the complex nature of indigenous peoples' rights. It focuses on how the latter are implicated in the contemporary discourse on HRs and IPRs, and highlights conceptual and analytical challenges invoked by the concept of indigenous peoples' rights within the HRs-IPRs interface.

Indigenous peoples' rights, it is argued, constitute critical components of the HRs-IP interface. There is a need to unveil the conceptual obfuscation of indigenous peoples' rights in the context of contemporary interests in the articulation of the nature of the increasingly emergent interaction of HRs with IPRs. Hopefully, such an attempt will illuminate the complexly layered nature of this trilogy of rights, and assist all stakeholders to approach these subject matters with reflection. Without this kind of introspection, it is easy to perpetuate the historical marginalization of indigenous peoples' rights. To do so squanders the prospect for a rejuvenation of indigenous peoples' rights discourse now opportune by the current interest in HRs' relationship with IP.

Excluding the present introduction and the concluding outline, this article is divided into three parts. Part I explores the evolution and nature of indigenous peoples' rights within the core HRs instruments and highlights the extent of their marginalization under that framework. It also examines recent iterations of indigenous peoples' rights, identifies the pivotal elements of those rights and their implication for HRs-IPRs interface. Part II outlines the tenor of the discourse on the convergence of HRs and IPRs, and the peripheral treatment of indigenous peoples' rights in that context. It highlights fairly recent interpretive accommodation of aspects of indigenous rights in tertiary HRs instruments. Part III outlines elements of the peculiar status of indigenous peoples' rights, which constitute conceptual hurdles to framing indigenous rights at the intersection of HRs and IPRs.

1. INDIGENOUS PEOPLES' RIGHTS IN THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK

   The unhelpful but lingering definitional imbroglio around "indigenous peoples" will not detain us at this point. (9) Rather, it serves our present purpose to focus on the uncontested facts about the status of indigenous peoples. All over the world, indigenous peoples rank at the base of most human development indicators. They "are among the most economically destitute members of the human family and have frequently experienced adverse treatment, including forced assimilation, destruction of their cultures, racism, loss of land and resources to colonizers, governments and commercial entities." (10) In addition, most indigenous peoples are under continuing threat of cultural asphyxiation, necessitating the struggle to realize their right to self-determination and to negotiate the control of their resources, innovation, and knowledge systems. (11)

   The evolutionary history of indigenous peoples' rights has been articulated elsewhere. (12) However, it bears mentioning that the struggle for indigenous peoples' rights dates back to the earliest attempts to understand and resist the colonial experience by victims, adversaries, and actors within and outside the colonial process. (13)

   Symbolically, how to deal with indigenous peoples shaped the contestation between natural and positivist ideologies that characterize international law jurisprudence. The resurgence of naturalist thinking, beginning in the late nineteenth-century, forced a reconsideration of alternative political structures to the Westphalia state model favoured by the positivist ideology. This development gave a new understanding to tribal, kinship, and various decentralized political configurations through which indigenous peoples related to the colonial authorities via various forms of treaties. (14) In addition, it paved the way for modest accommodation of new actors in the international process outside the traditional nation state. (15) These new actors are mainly nongovernmental organizations (NGOs), intergovernmental organizations, and various civil society groups who opposed the degrading and inhuman treatment of indigenous peoples.

   The middle of the twentieth-century marked perhaps the most important transformation in the development of international law. Enshrined in the United Nations Charter, that transformation is anchored in the recognition of "peoples" as the bearers of inalienable HRs. (16) Those rights exist as a result of the humanity of peoples without regard to the nation state. The reconfiguration was necessitated, in part, by the horrors of Nazi Germany, after which citizens were no longer deemed to owe their HRs to the whims and caprice of the nation state. (17) Rather, the latter had both positive and negative obligations to prevent the violation of HRs of peoples.

   The controversy over the appropriate approach to dealing with indigenous peoples was instrumental to the evolution of international law, and international HRs jurisprudence in particular. (18) Ironically, however, international HRs instruments shied away from making prescriptions in regard to indigenous peoples in any direct sense, at least at the foundational stage under...