1 / 19

Framing A Rights Trilogy:

Framing A Rights Trilogy:. Indigenous Peoples Rights within HRs-IPRs Discourse Chidi Oguamanam Feb. 21, 2013. Ind. P. Rights. TK. Indigenous Peoples Rights: Conceptual Obfuscation Lack of clarity on Ind. P. Rights in IBRs.

amable
Download Presentation

Framing A Rights Trilogy:

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Framing A Rights Trilogy: Indigenous Peoples Rights within HRs-IPRs Discourse Chidi Oguamanam Feb. 21, 2013

  2. Ind. P. Rights TK (c)oguamanam 2013

  3. Indigenous Peoples Rights: Conceptual Obfuscation • Lack of clarity on Ind. P. Rights in IBRs. • Ind. P. Rights: Analogous misfit to any head of conventional HRs and IPRs. • Ind. P. Rights: Source or irritation to both HRs and IPRs. –e.g. Individual vs. collective/group • Ind. P: Mixed signals on IPRs: ‘Claims to IP Protection’ vs. ‘Claims to be protected from IP’ (c)oguamanam 2013

  4. Why map Ind. Rights in HRs-IPRs? • Unveil the root of indigenous peoples disadvantage in both legal domains ... ‘victims of discrimination and exclusion and outliers in western legal tradition’ • Opportunity to rejuvenate indigenous peoples rights discourse … with some sense of reflection as opposed to presumptions (c)oguamanam 2013

  5. Why Map • Not all Ind. claims are IPR-related or are HRs, but a combination of both provides a bigger picture … HRs can fill some IPRs. gaps. • HRs-IP intersection: Mirror for viewing the progress of HRs and, to some extent, IPRs. • Assist to address fundamental disadvantages of indigenous peoples/rights (c)oguamanam 2013

  6. Three Frameworks 1. The IBRs: • CCPR: Ind. expectations less problematic, save for right to self-determination, ‘peopleness’ of ind. people, etc. • CESCR: No special accommodation for Ind. peoples save ref. to diverse categories of discrimination (race, religion, birth, social origin, servitude, forced labour, etc.) • “density of rights under the CESCR implicate a corresponding concentration of indigenous claims” (c)oguamanam 2013

  7. 2. Specific Treaty Instruments • From ILO Convention # 107 on Indigenous and Tribal Populations (1957) to Convention #169, Indigenous and Tribal Peoples Convention • Fixation on external self-determination • UNESCO –A player in both HRs and Ind. Peoples rights … associated with seven important treaties dealing with different aspects of culture, indigenous knowledge and self-determination, equity in diffusion of global cultural diversity (c)oguamanam 2013

  8. WIPO (IGC+ relevant treaties) shifting view of I/TK from narrow lens of IPRs to equitable diffusion of benefits with implications for HRs. • The Environmental Platform: CBD+ other ‘Rio Instruments’, ABS processes (including the Nagoya Protocol) and ITPGRFA … • Others Convention: Racial Discrimination, Discrimination Against Women, Rights of the Child, etc. (c)oguamanam 2013

  9. 3. UNDRIPs • Elaborates on applications of HRs. in “in the specific cultural, historical, social and economic circumstances of indigenous peoples” (Anaya) • Proactive on IPRs: Article 31 • Lays to rest lingering reservations over the Right to self-determination • Links self-det’n. (HRs), Ind. P. Rights and IPRs. (c)oguamanam 2013

  10. HRs-IPRs: Shifting Ind. P. Interests • Linking of IP with trade (TRIPS(+)): Indigenous Peoples vulnerable to expanding and tightening global IP regime • Indigenous peoples rights, also part of pivotal sites for counteracting IP expansionism … beneficiary of regime complexity in IP … (c)oguamanam 2013

  11. HRs-IPRs: Induction of Ind. Rights • CESCR: 2001: Human Rights and IP “Identify some of the key human rights principles deriving from the Covenant that are required to be taken into account in the development, interpretation and implementation of contemporary intellectual property regimes” *universality, *indivisibility,*interdependence, *general/core legal obligations, *equality, *participation, *non-discrimination, int’l cooperation/assistance. (c)oguamanam 2013

  12. CESCR 2005 GC No 17 (Article 15(1)(c) • Authors, beyond natural persons to groups • Moral rights beyond natural persons to groups and communities • IP rights of legal entities (corporations) not human rights • Group rights vs. corporate rights (c)oguamanam 2013

  13. “Scientific, literary and artistic production” includes “knowledge innovations and practices of indigenous and local communities”. • Endorse alternative means for protection or moral rights (c)oguamanam 2013

  14. State obligation to ensure protection of indigenous interest in knowledge production • Indigenous preferences • Registration, anti-appropriation measures • Individual or collective authorship • Free prior or informed consent • Collective administration of rights • Equitable access through cost reducing measures • Scientific and technical progress to serve human rights (c)oguamanam 2013

  15. Reflections • CESCR interest in HRs and IPRs, belated • Previous (pre-2001) GCs: 12&13 (Right to adequate food and right to education) were issued (1999) outside the 2001 principles • Food and education are sites for indigenous innovation and creativity pursuant to “scientific, literary and artistic production” (c)oguamanam 2013

  16. Reflections • In contrast, post 2001 GCs reflect the Committee’s proactive engagement with HRs and IPRs pursuant to the ‘2001 Principles’ • E.g.: GCs 17&21 (right to benefit from moral and martial interests and right to take part in cultural life) (2005 & 2009) (c)oguamanam 2013

  17. Concluding Observations • Core Int’l HRs instruments make no direct reference to Ind. peoples’ rights • Accommodation of Ind. peoples rights appear mainly in secondary interpretative instruments of weak juridical status • After 2001: Growing recognition of Ind. peoples rights as group rights requiring special protection (c)oguamanam 2013

  18. Concluding ... • Key instruments encourage protection of TK within exiting IPRs paradigm • However, their approach to protectable subject matter recognize that Ind. peoples rights transcend IP and activate diverse HRs concerns and hence require pragmatic responses • IP is a problem as well as a potential solution to realization of Ind. P. rights. (c)oguamanam 2013

  19. Concluding ... • HRs encounter with IP can be measured meaningfully by focusing on its ramification for indigenous peoples as “the most vulnerable members of the human family” (Helfer & Austin 2011). After all, “[t]he realization of human rights must be judged according to the level of implementation among the most disadvantaged” (Cullet 2007) (c)oguamanam 2013

More Related