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Thailand Law Journal 2009 Spring Issue 1 Volume 12

International recognition and protection of traditional cultures and the rights of indigenous peoples are gradually becoming apparent. Despite this, international law has not yet been able to finalise a regime protecting the rights of indigenous peoples.40 This is because some issues of indigenous’ rights are rather sensitive in international politics, for instance, the rights of self-determination41 and the rights of territory.

The definitions of traditional and indigenous knowledge discussed above reflect the implicit and explicit recognition of the rights of indigenous peoples in an international context. Whether an agreed definition of traditional knowledge and indigenous knowledge emerges or not, there is nevertheless area of common view. The common categories of knowledge include religions, folklores, agriculture, ecologies, medicines, biodiversities, performances (i.e. music, dance, song), artworks (i.e. handicrafts and designs), scientific works (scientific inventions and discoveries) and any innovations and practices of peoples in the communities which are embodied in their lifestyles from generation to generation. In addition, traditional knowledge in some contexts includes names, symbols and geographical indications.

In conclusion, the definition given by the United Nations Special Rapporteur, Martinez Cobo stressed the political view rather than economic or geographical observations in the ILO and the World Bank definitions. Common themes prevail in the various definitions mentioned above. These are the cultures of indigenous peoples, such as language, religion, particular customs and traditions, specific territories and resources.42

2 Local Communities
Just as, the terms traditional knowledge and indigenous knowledge may be interchangeable,43 likewise the meaning of indigenous peoples and local communities, in some cases, are also inextricably linked and interchangeable. The working group on indigenous populations of the International Institute for Environment and Development (IIED) had defined the meaning of local communities as:

The human population in a distinct ecological area who depend directly on its biodiversity and ecosystem goods and services for all or part of their livelihoods and who have developed or acquired traditional knowledge as a result of this dependence, including farmers, fisherfolk, pastoralists, forest dwellers and others.44

Indigenous peoples45 and local communities are group of peoples living in the localities. They might share features such as common interests, religions, languages, environment. In this sense, indigenous peoples and local communities are not different groups of peoples. The WIPO uses the term traditional knowledge holders for referring to all persons who create, develop and practice traditional knowledge in a traditional setting and context. WIPO affirms that ‘indigenous communities, peoples and nations are traditional knowledge holders, but not all traditional knowledge holders are indigenous’.46

Some scholars refer to the meaning of the word community, as it stands for something physical but is denied effective legal and social autonomy in its own right. The term community would merely suggest a geographically, culturally, and historically fixed collective.47

Wikipedia Encyclopedia suggests the following definition:
A community usually refers to a group of people who interact and share certain things as a group, but it can refer to various collections of organisms sharing an environment, plant or animal. This article focuses on human communities, in which intent, belief, resources, preferences, needs, risks and a number of other conditions may be present and common, affecting the identity of the participants and their degree of adhesion.48

40. Stoll and Hahn, above n 25, 8. See also Rudiger Wolfrum, ‘The Protection of Indigenous Peoples in International Law’ (1999) 59 Heidelberg Journal of International Law 369, 369.

41. The right of ‘self-determination’ is not the same as ‘self-identification’. Self-identification is the right of a person to identify himself or herself as belonging to this group or people, or the group considers itself to be indigenous or tribal under the Convention. In relation to the rights of ‘self-determination’ the ILO avoids mentioning directly that ‘the ILO’s mandate is social and economic rights’. It is outside its competence to interpret the political concept of self-determination. However, Convention No.169 does not place any limitations on the right to self-determination. It is compatible with any future international instruments which may establish or define such a right. What Convention No.169 does provide for is self-management, and the right of indigenous and tribal peoples to decide their own priorities. Convention No. 169 uses the term ‘peoples’. It was decided during the negotiations leading to the adoption of Convention No.169 that this term was the only one which could be used to describe indigenous and tribal peoples. The International Labour Organization (ILO) No.169 Article 1(2) states: ‘Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply’. See A Guide to ILO No.169, <http://www.oit.org/public/english/standards/norm/egalite/itpp/convention/index.htm> at 26 January 2007.

42. Stoll and Hahn, above n 25, 11.

43. WIPO Report, above n 16, 24.

44. Working Group on Indigenous Populations, ‘Protection of Traditional Knowledge and Cultural Heritage the Concept of “Collective Bio-Cultural Heritage”’ (Working Papers of the 23rd Session, The International Institute for Environment and Development: IIED, 2005) 4.
<www.iied.org/nr/agbioliv/bio_liv_documents/BCheritageJune05.pdf> at 27th December 2006.

45. Such as American Indians, the Nordic Sami or Inuit, the Masai of Africa, the Ainu in Japan, the Aborigines in Australia or the Maori in New Zealand. See Stoll and Hahn, above n 25, 8.

46. See WIPO Report, above n 16, 26.

47. Johanna Gibson, Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge (2005) 31.

48. The word community comes from the Latin communis, meaning ‘common, public, shared by all or many’. The Latin term ‘communitatus’ from which the English word ‘community’ comes, is comprised of three elements: ‘Com’, a Latin prefix meaning with or together, ‘Munis’, ultimately Proto-Indo-European in origin, it has been suggested that it means ‘the changes or exchanges that link’ (both municipal and monetary take their meaning here), and ‘tatus’ a Latin suffix suggesting diminutive, small, intimate or local. See Wikipedia Encyclopedia, above n 1. <http://en.wikipedia.org/wiki/Community> at 15 January 2007. See also Google, Define: Community (2007) <http://www.google.com.au/search?hl=en&lr=&client=firefox-a&rls=org.mozilla:enUS:official&hs=oAG&defl=en&q=define:community&sa=X&oi=glossary_definition&ct=title> at 15 January 2007.
Definitions of community:
   * a group of people living in a particular local area;
   * a group of people having ethnic or cultural or religious characteristics in common;
   * common ownership; "they shared a community of possessions"
   * a group of nations having common interests;
   * profession: the body of people in a learned occupation;
   * agreement as to goals; 
   * residential district: a district where people live;
   * (ecology) a group of interdependent organisms inhabiting the same region and interacting with each other. (for more details please see www.wordnet.princeton.edu/per/webwn)

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.

 

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