A Comment: Intellectual Property Rights in the International Forum

A Comment:

by Barbara Gray

Making Space for Indigenous Intellectual Property Rights Under Current International Environmental Law

Lauren Godshall’s, “Making Space for Indigenous Intellectual Property Rights Under Current International Environmental Law,” is well researched and thought provoking. Her article appears in the Georgetown International Environmental Law Review, Volume XV, Issue 3, Spring 2003. Godshall looks to the international forum for a way to protect the U’wa, an indigenous people of Columbia, South America, whose culture is in jeopardy of being destroyed by U.S. government backed corporate giants who seek to exploit oil found within U’wa territory.

Like the Haudenosaunee, the U’wa culture is intricately connected and dependent on a healthy environment for the society’s survival. The U’wa fear that oil explorations within their territory will lead to ecological and social destruction that will effectively destroy the environment and end the existence of the U’wa as a cohesive group. In addition to the spiritual death of the people, the oil pipes lines will make the U’wa targets of terrorism as Columbia oil pipelines are often targets of Revolutionaries and guerilla groups, which puts the U’wa and environment in further jeopardy. When the South American government failed to protect the U’wa, their attorneys decided to bring the grievances to the international forum.

Historically, Indigenous people have brought international claims based on the violation of their human rights, minority rights, self-determination rights, treaty rights, and/or sovereignty. In this law review article, the author seeks to extend the legal claims available to indigenous people by looking to intellectual property rights, which would be a tort, to protect the natural environment and indigenous people. She writes, “An intellectual property based claim would not adhere to any of the pre-existing conceptual structures of indigenous claims, and thus would chart new territory.” Such a claim is exciting because it would give all indigenous people, including American Indians, an additional legal strategy to use in the protection of the environment and their culture.

The author examines domestic and International law to support her argument that the destruction of an indigenous people’s environment, which the people are depended on culturally, is a violation of their intellectual property rights in that it a taking or destruction of the people’s traditional knowledge. If an intellectual property right exists there is a great potential to wholistically protect indigenous people, their legal rights, cultural practices, and the environment, which they are dependent upon.

In the article, the author brings the reader’s attention to international treaties that speak specifically to the recognition and importance of indigenous knowledge and practices as being necessary for the protection of indigenous people, their culture, and environment. She asserts that International environmental law is frequently used in the international forum to protect indigenous people because the link between environmental and indigenous cultural preservation is well understood by the International community.

A major difference between international law and common law is that in the international forum, international documents are relied upon rather than judge made law that is dependent on precedent. Therefore, in the international forum, treaties have more authority in a trial than they do in the United States because although treaties are supposed to be the supreme law of the land, common law interpretations have set precedence that often do not protect the rights of American Indians.

The United Nations International Covenant on Civil and Political Rights (Dec. 19, 1966), art. 27 999 U.N.T.S. 172, 179, is such an Covenant that is protective of Indigenous peoples and has been used within the International forum to protect a First Nation against Canada . Article 27 of the Covenant reads: “Members of ethnic, religious, or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” The First Nation people of the Lubicon Lake Band, when their needs were not being addressed by Canada brought a claim to the International forum. The United Nations Human Rights Committee found that the expropriation of Lubicon Lake lands by Canada for gas and oil exploration was a violation of Article 27 in that it “threatens the “indigenous `way of life’ and `culture’” of the First Nation people.

The author argues that such a holding could logically be extended to provide for the protection of intellectual rights in traditional knowledge linked to the land and culture.

Interestingly, Under International law as evidenced by Article 27, violations need not be actual harms. In other words, a violation could be found if the action might have “future harmful effects on cultural rights and practices or an indirect harm.” Such a finding is especially beneficial to American Indians because under American law, a violation usually does not occur until after there is actual harm. Thus, in the international forum, laws appear to be more preventative than reactive, which may provide indigenous people, the environment, and the cultural practices with more protection then American law does.

There are some caveats (dangers) in taking one’s claims to an international forum. For example, it can be costly, slow, and enforcing remedies may be problematic. Remedies in an international forum can vary and may consist of the ceasing of the violation, reparation, compensation, further investigation of the problem, or a combination of remedies. In addition, there may be a need to amend the laws of the violating State to prevent the violation from occurring again. These remedies are usually enforced through sanctions such as the loss of further aid or embargos on trade until the violation is ceased or remedied.

The author suggests that an intellectual property claim under international environmental law should be combined with other claims such as human rights, minority rights, self-determination rights, treaty rights, and/or sovereignty violations. She argues that although an intellectual property-based claim under international environmental law is as yet a relatively new and untried indigenous people should bring such claims to protect indigenous lands and culture from destruction and expropriation and to remedy past injustices.

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