Thailand Law Journal 2010 Spring Issue 1 Volume 13

Thus the concept of intellectual property protection has been in existence in' the UDHR since 1948. Although the theme of the UDHR is not directly aimed at protecting intellectual property for traditional knowledge and indigenous resources, at least it is a strong support for the protection of traditional knowledge and indigenous resources in other international frameworks.

B The International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR is one of the human rights instruments relevant to the protection of intellectual property. The relevant part in Article 15 states:

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 and scientific, literary or artistic production of which he is 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 contracts and co-operation in the scientific and cultural fields.⁴³

The most relevant part of this Article is indicated in 1(C) 'to benefit from the protection of the moral and material interests resulting from and scientific, literary or artistic production of which he is author.' It is similar to the UDHR Article 27 (2) for the protection of moral and material interests. Thus, while UDHR is legally non-binding and customary international law, the ICESCR is part of international treaty law.⁴⁴

C The International Covenant on Civil and Political Rights (ICCPR)

The. ICCPR is one of the significant human rights instruments particularly in the context of traditional knowledge and indigenous resources. The relevant provision is Article 27:

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.⁴⁵

This article mentions the rights to minorities' who live in states. Minorities could mean indigenous peoples and local communities. Peoples who live in states, whatever they are called (minorities, indigenous peoples or local communities), deserve the fundamental rights of being a member of the world's society.

It is strongly believed that this article of the ICCPR reflects the rights and protection of traditional knowledge. In addition, Article 1(2) and Article 47 of the ICCPR state:

Article 1(2)
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be. deprived of its own means of subsistence.⁴⁶

Article 47
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.⁴⁷

Those Articles mention the rights of natural resources of all peoples. Even though such Articles do not directly use the words indigenous peoples, there is no reason that indigenous peoples are not covered under the words all peoples. In other words, all peoples mean indigenous peoples as well. In this respect, the meaning of all peoples in both the ICCPR and the ICESCR sections concerned with the protection of indigenous resources, are clearly indicated to include indigenous peoples.

D The International Labour Organization (ILO)

Some scholars claim that the ILO Convention is the only legally binding instrument of international law with respect to indigenous peoples.⁴⁸ The protection of indigenous peoples is clearly mentioned in ILO Convention No.169.⁴⁹ The protection of indigenous peoples is clearly stated in Article 5(a) `The social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals'.

Article 3(1) of this Convention also states that:
Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples.⁵⁰

At this stage, there is no doubt that the meaning of peoples as mentioned in human rights instruments apply to indigenous peoples as well.

Moreover, Article 15 of this Convention also mentioned rights in natural resources:
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.⁵¹

Traditional knowledge is not explicitly referred in this Convention.⁵² This is because the definition of traditional knowledge is still controversial. Nevertheless, ILO Convention No.169 has been ratified by 17 states⁵³ and is legally binding as treaties international law. It is considered to be the first international instrument which recognises self-identification of indigenous and tribal peoples as a fundamental criterion.⁵⁴

43. P.R. Ghandhi, above n 38, 85. See also Stoll and Hahn, above n 25, 17-8. See also International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted and opened for signature of 16 December 1966, by General Assembly resolution 2200A (XXI), art.15 (entered into force 3 January 1976). Available at <http://www.unhchr.ch/htmUrnenu3/b/a cescr.htm> at 26 January 2007.

44. Stoll and Hahn, above n 25, 18.

45. P.R. Ghandhi, above n 38, 70. See also Stoll and Hahn, above n 25 of Part I, 19-20. and International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession of 16 December 1966, by General Aisembly resolution 2200A (XXI), art. 27 (entered into force 23 March 1976). Available at <http:/lwww.ohchr.org/english/law/ccpr.htm> at 26 January 2007.

46. Article 1(2) of the ICESCR is also codified the same as Article 1(2) of the ICCPR. See Stoll and Hahn, above n 25 of Part I, 19.

47. International Covenant on Civil and Political Rights (ICCPR), Article 47. See also Article 25 of the ICESCR stated in the same words. See Stoll and Hahn, above n 25 of Part I, 19.

48. Stoll and Hahn, above n 25 of Part, 20-1.

49. Ibid. See also The International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in Independent Countries, Adopted on 27 June 1989 by the General Conference of the Intetnational Labour Organization at its seventy-sixth session, (entered into force 5 September 1991), available at < http:l/vhvw.unhchr.ch/html/menu3/b/62.htm> at 26 January 2007.

50. Ibid. Article 3(1)

51. Ibid. Article 15

52. Stoll and Hahn, above n 25 of Part I, 22.

53. The 17 states are Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark. Guatemala, The Netherlands, Fiji, Ecuador, Argentina, Venezuela, Dominican and Brazil. See A Guide to ILO Convention No.169 < http://www.oit.org/public/english/standards/norm/egalite/itpp/convention/index.htm> at 26 January 2007.

54. Ibid. The ILO Convention No. 169 Article 1(1).