James Anaya's Presentation in 18th Sessions of IGC

In the eighteenth session of IGC on May 9 2011, James Anaya, a UN Special Rapporteur on the rights of indigenous peoples did presentation relating to collective rights of indigenous peoples.

In this presentation, he said that international treaties, such as The United Nations Declaration on the Rights of Indigenous Peoples and Nagoya Protocol on access to genetic resources and benefit sharing (CBD), recognizes indigenous people’s collective rights. Some regional bodies, such as Inter-American institutions (Commission and Court) and the African Commission on Human and Peoples’ Rights, also recognize indigenous people’s collective rights.

He also mentioned that ‘the concept of collective rights generally: those rights that are enjoyed by particular groups of people in association with each other. Business corporations and research institutions are associations that acquire and control rights that are protected by law, including intellectual property rights’. Meanwhile, he pointed out that ‘the intergenerational and human rights foundations of indigenous collective rights distinguish them from the collective rights of business or other associations’.

Furthermore, he said that ‘there is acknowledgment of the relationship between human rights and collective rights of indigenous peoples, as manifested in the Declaration on the Rights of Indigenous Peoples’ although traditional view believes that human rights are individual.

Moreover, he mentioned there are issues of definition and representation of beneficiaries of collective rights in practical situation, such as ‘the granting of free, prior and informed consent for access or transferring of the rights, fair and equitable benefit sharing and invoking legal remedies’. He believed that the decisions about TK and TCEs shall 'defer to customary law, both as a practical matter and as a matter of principle', and he also thought that 'there needs to be active stakeholder cooperation toward pragmatic and creative solutions'.

Bolivia Proposes Law giving rights to 'Nature'

Bolivia has recently made 'TK headlines' due to the proposal of a new law, which apparently enshrines equal rights between humans and 'nature'. A summary of the recent law and its raison d'etre can be found in the Guardian here

The proposal of this law is said to be due in part to the prominence of members of the indigenous Aymara Indian community in Bolivia's democratically elected government. For instance, both the current President, Evo Morales, and the Foreign Minister, David Choquehuanca, are Aymara Indians. However, the details of the law have yet to be fully fleshed out and it is uncertain at this stage how 'nature' could be represented under the law. Nonethelss, it is possible that the law could provide a new, and highly original, way of discussing TK and indigenous rights, but until the details are fully published the proposal can perhaps be best seen as 'aspirational'.

Some further recent comments on 'indigenous thinking' made by Bolivian Foreign Minister David Choquehuanca are reported in the Guardian here

India approves free access to important portions of the Traditional Knowledge Digital Library

The EPO has noted that the Indian Traditional Knowledge Digital Library (TKDL) is a resource of immense importance with regard to patent claims and 'bio-piracy' in the India sub-continent. WIPO has also given much praise to the TKDL.

In a recent welcome development, the Science and Development Network reports that India has provisionally agreed to allow free access to a small portion of its traditional knowledge in order to support the battle to combat malaria, cholera and other diseases which threaten the lives of people in the developing world.

The Science and Development Network reports:

"So far, access to the TKDL has been restricted to agreed users — mainly patent offices worldwide — for fear of it being misused for commercial purposes, according to V. K. Gupta, the library's director. Now, there are plans to release a small part of the information, which focuses on diseases of the poor, into the public domain, said Samir Brahmachari, director-general of the Council for Scientific and Industrial Research (CSIR), where the project is hosted."

This development could give weight to the argument that the taking of measures to safeguard and protect TK should not necessarily prevent giving access to the TK for non-profit purposes.

More information on this important development can be found here

Landmark in China: Law on Intangible Cultural Heritages

On 25 February, 2011, China announced a law on intangible cultural heritages for the first time: Law of the People’s Republic of China on Intangible Cultural Heritages, which was regarded as a landmark in protection of intangible cultural heritages. This new law will come into force on 1 June, 2011. A word 'protection' was mentioned for dozens of times in this law. And it embraced a message of 'protection' from general rules to a concrete single article. This new law had several highlights.

First of all, this new law gave more specific scope of intangible cultural heritages in definition. Compared with that in previous regulations, this law specifically added some categories into the scope such as traditional medicine, traditional calendar, traditional sports and traditional carnivals, which were close with Chinese people’s lives but was ignored to protect in the past.

Secondly, this law requested to strictly manage investigations on intangible cultural heritages from oversea organizations and oversea individuals in China. Article 15 ruled:

'oversea organizations or oversea individuals shall be approved by cultural department of people’s government of provincial level or municipal level or autonomous level whenever investigation on intangible cultural heritages in China; if investigation in two or above provinces or autonomous regions or municipality cities, shall be approved by cultural department of the State Council; after investigation finished, shall submit investigation report and copies on materials and pictures of objects obtained in investigation to cultural department which approves investigation.'

And it also regulated that ‘oversea organizations shall cooperate with academic and research institutions of Chinese intangible cultural heritages when investigating in China’.

Thirdly, it can be found that all the social members are encouraged to participate in protection of intangible cultural heritages in this law. Not only the law regulated that governments shall play a main role in protection of intangible cultural heritages, but also encouraged citizens, legal persons and other organizations to attend protecting undertakings. Besides, this law requested to spread the protection department being from cultural department of governments and academic institutions to other public cultural departments and educational institutions such as schools.

Fourthly, this new law advocated reasonable utilization of representative project of intangible cultural heritages and exploitation of cultural products and cultural services with regional features, nationality features and potential market, under the effective protection. The highlight was ‘effective protection’. This law clearly demonstrated that the attitude of the state was that only if the intangible cultural heritages were effectively protected, the state could encourage the exploitation and industrialization. Besides, this law regulated that anyone ‘who exploits and utilizes representative projects of intangible cultural heritages shall support representative inheritors to hold succession activities and protect objects and places being component of the project’. If saying effective protection is a premise of exploitation representative projects of intangible cultural heritages, this regulation can be regarded as a continue condition in the process of exploitation. It means that the subject of exploitation shall have responsibility to support succession activities and avoid intangible cultural heritages destroyed after exploitation and utilization. Additionally, it regulated that the local government shall support units which reasonably utilize representative project of intangible cultural heritages. Meanwhile, these units shall enjoy tax preference.

At last, this law regulated to include protection expenses into financial budget, which achieved that there is a stable financial supports for protection of intangible cultural heritages. Additionally, this law had new cohesion rule referring to intellectual property, traditional medicine and traditional handicraft arts.

All in all, although this law still has some contents without specific rules, which may result some further issues in operation, this law has its milestone meaning in protection of intangible cultural heritages in China.

Climate Change and Food Security - Can TK play a part in preventing malnutrition?

A recent report by the United Nations Standing Committe on Nutrition notes the positives of encouraging the maintenance of communities' traditional food knowledge as a measure to aid communities in the struggle against malnutrition in the developing world, particular in the light of climate change and rising global food prices. The authors, Timothy Johns and Pablo Eyzaguirre, note:

"Researchers have documented ways in which populations with traditional life-styles (often populations identified as indigenous) satisfy their nutritional needsthrough unique human-environment relationships.For example, rice, pulses, and milk products provide a balance of amino acids for subsistence farmers in India. In situations where animal protein and fat are the primary energy sources, such as among Arctic hunters and dryland pastoralists, populations have adapted specialized preparation techniques and used wild plants to ensure that essential vitamins and minerals are consumed. Nutritional sciences can help determine whether these traditional systems can be adapted for use elsewhere. Coupled with knowledge about the role of nutrition in contemporary health problems, traditional knowledge and resources can guide environmental efforts to identify sustainable solutions."

The report makes the following useful and timely point - for TK communities, dealing with the challenges of the 21st century, such as climate change, do not necessarily require the abandonment of TK practices. Rather, the use of such practices can potentially aid TK communities in this regard.

A short summary of the report is available here