Thailand Law Journal 2010 Spring Issue 1 Volume 13

E The United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples⁵⁵ is the latest and the most relevant instrument that recognised the rights of indigenous peoples. The rights include; the rights of self-determination,⁵⁶ the individual and collective rights,⁵⁷ the rights to practise and vitalize the cultural traditions and customs⁵⁸ rights in education and labour,⁵⁹ rights concerning

political, economic and social systems,⁶⁰ and rights in health and traditional medicines.⁶¹ The important rights of indigenous peoples in this context are the rights to resources or traditional resources and the protection of those rights.⁶²

Traditional knowledge. traditional cultural expression, cultural heritage genetic resources and medicines are explicitly mentioned in Article 31(1):
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.⁶³

The significant element is the rights of intellectual property over cultural heritage, traditional knowledge, and traditional cultural expressions. This is an explicitly accepted of intellectual property rights system for protection of those resources.

Finally, traditional knowledge and indigenous resources are explicitly protected under this Declaration. However, the Declaration is legally non-binding (as is the UDHR) but it is one of the important supports for the protection cf traditional knowledge and indigenous resources under the intellectual property rights system. The patent would, in principle, be compatible with indigenous knowledge.⁶⁴

V CONCLUSION

Human rights standards for the protection of intellectual property, particularly in traditional knowledge and indigenous resources have been raised in UDHR since 1948. Intellectual property rights have been recognised as a part of human rights since before the 1886 Berne Convention for the Protection of Literary and Artistic Works⁶⁵ and the 1883 Paris Convention for the Protection of Industrial Property.⁶⁶

Although the human rights laws emphasise dignity, equality and inalienable rights of human beings, intellectual property rights are not completely ignored.

Unfortunately, for several reasons, the WIPO⁶⁷ and WTO⁶⁸ have not implemented the intellectual property rights regime for the protection of traditional knowledge and indigenous resources yet.

In fact. the human rights regime is also one of the eurocentric regimes. Traditional knowledge and indigenous resources have been with human beings for time immemorial, but they have not been protected yet. If the world can accept the protection of contemporary inventions under the intellectual property rights regime, what appropriate reasons are there to refuse the protection of inventions created in the past?

Human rights standards alone, do not adequately protect traditional knowledge and indigenous resources. However, we do hope that the other relevant international instruments may take the initiative of protection in their human rights regimes.

Remarks:
The citation in this paper is based on the 'Australian Guide to Legal Citation' (Second Edition, 2002.). Published and distributed by the Melbourne University Law Review Association Inc, Melbourne, Australia.

55. This Declaration was drafted by the Working Group on Indigenous Populations, established by ECOSOC Resolution 1982134. Finally, the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly resolution 2006/2 of 29 June 2006 (adopted by a recorded vote of 30 votes to 2. with 12 abstentions). Seealso the Office of the United Nations High Commissioner for Human Rights (2006) <http://www.ohchr.org/englishfissues/iiindigenous/groupstgroups-02.htm> at 26 January 2007.

56. Ibid Article 3.

57. Ibid Article 7.

58. Ibid Article 11, 12 and 13.

59. Ibid Article 14 and 17.

60. Ibid Article 20 and 21.

61. Ibid Article 23, 24 and 25.

62. Ibid Article 26, 27 and 29. This Declaration uses the words 'traditional ownership' and 'resources. including those which were traditionally owned or otherwise occupied or used.'

63. Ibid. Article 31.

64. Ikechi Mgbeoji, 'Sustainable Development, Agriculture, and the Challenge of Genetically Modified Organism: Patent Regime Part of the Solution to the Scourge of Biopiracy?' (2001) 9 Indiana Journal of Global Legal Studies 163, 184. Some scholars may recommend geographical indications and trademarks to create market incentives for local and indigenous communities.

65. The 1886 Berne Convention for the Protection of Literary and Artistic Works is the first international convention on copyright. It was finalised and signed by ten nations (Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia and the United Kingdom). See Rocque Reynolds and Natalie P Stoianoff, Intellectual Property: Text and Essential Cases (Second edition, 2005) 12. Presently, the Convention has 162 contracting member countries. See also Wikipedia, the free encyclopedia (2007) <http://en.wikipedia.org/wiki/ Paris-Convention-for-the-Protection-of-industrial Property> at 27 January 2007.

66. The 1883 Paris Convention for the Protection of Industrial Property was first signed in 1883 by eleven countries (Belgium, Brazil, France, Guatemala, Italy. the Netherlands, Portugal, Salvador, Serbia, Spain and Switzerland). Entered into force on April 26 or May 19, 1970. See also Article 20. Presently, the Convention has 170 contracting member countries. See Sam Ricketson and Megan Richardson, Intellectual Property: Cases, Materials and Commentary (Third edition, 2005) 1.3. 9.42. See also Wikipedia, the free encyclopedia (2007) < http://en.wikipedia.org/wiki/Paris Convention for the Protection of_Industrial Property> at 27 January 2007.

67. WIPO is still working on consideration of the draft objectives and principles for the protection of traditional knowledge in a range of international, regional and national contexts. The Committee is invited to consider an appropriate process to develop a draft outcome at the tenth session, in view of the possibility of a draft outcome or decision being presented to the WIPO General Assembly in September 2007. (WIPO/GRTKF/IC/10/5, Date: October 2, 2006). The delegation of Finland, on behalf of European Communities and their Member States and the Acceding States Bulgaria and Romania, reiterated their support for further work towards the development of international sui generis models and they also reiterated that the final decisicn on the protection of traditional knowledge should be left to the individual contracting party. (WIPO/GRTKF/IC/1017 Pro., Date: January 26, 2007).

68. In the WTO/TRIPs Agreement, there is nothirg that specifically prevents countries from developing systems to protect traditional knowledge at the national level. Developing countries have made a number of proposals to incorporate provisions related to the protection of traditional knowledge and advance of misappropriation in the TRIPs Agreement. Developed countries do not, in general, contest the rights of countries to protect traditional knowledge. The Ministerial Declaration of the WTO's fourth Ministerial Conference (Doha Declaration, 9-14 November 2001), emphasised the importance of traditional knowledge, especially the amendment of paragraph 19 which expanded the review to a review of Article 27 and the rest of the TRIPs Agreement to include the relationship between the TRIPs Agreement and the UN Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore. This is an issue of intensive ongoing international debate. At the recent TRIPs Council Meeticg, 5-7 March 2002, these positions were reiterated. Some developed countries, such as USA, EU, Japan and Norway said that the discussion in the TRIPs Council should wait for the results of work being done in the various international forums, such as WIPO. See Department of Commerce, Government o` India, 'Protecting Traditional
Knowledge: Why it is Important' (2002) 4 No.4 India & The WTO, A Monthly Newsletter of the Ministry of Commerce and Industry 1, 17.