Since over thirty years, I work on the unclear legal situation of in which indigenous peoples find themselves today in the beginning mainly in the USA and later also in Canada, Australia and New Zealand. The status of indigenous people and native nations is characterized as a mixture of national and international law. Hypothesis/Purpose: To clarify the status of indigenous people it is necessary to analyze and interpret carefully hundreds of old treaties, international declarations and covenants, national statutes and jurisprudence, especially the old leading decisions of the US-Supreme Court. Such an analysis and interpretation should prove that indigenous people have the defensive right of self determination.
The study outlines the old decisions of the US-Supreme Court with its inherent contradictions which highly influenced the status of indigenous people in all other countries until now. It clarifies the important new developments in international law especially the non binding Declaration on the Rights of Indigenous Peoples and its effects on the interpretation of international and national law in regard to biopiracy. For this purpose it is necessary to use the methods of judgmental comparative law, historical and teleological interpretation.
By expressly stating that indigenous peoples have a right to self-determination, the Declaration on the Rights of Indigenous Peoples of 2007 complements the protection stipulated in the Charter and the Covenants of 1966. Although the declaration itself is not legally binding as it is a resolution of the UN General Assembly, it can serve as a blueprint to show the rights that indigenous peoples can derive from international law as well as rights which should ideally be granted to them by the states even though they are not yet binding customary or treaty law. Self-determination means exactly that, it is up to the bearers of the right to decide how they want to utilize this right and then work together with the state in which they live in defining a joint framework.'The Globalisation of Plant Variety Protection: Are Developing Countries Still Policy Takers?' by Graham Dutfield in Intellectual Property and Development: Understanding the Interfaces (Springer, 2019) 277-293 comments
Until recently, for developing and emerging economies intellectual property policy taking was the norm rather than policy making. What we mean is that the developed countries set the standards for other countries to follow. This may still be the general trend but developing nations are starting to devise their own policy approaches that other countries are imitating. This shift towards policy making is certainly noticeable. But it is not yet hugely significant. Conformity to the recommendations (and still in some cases the dictates) of developed countries, their industries, and experts from the Global North remains very common. The question arises of whether developing countries continue to be policy takers or have begun to develop their own counter-norms which are viable. As we will see there is evidence that some developing countries are indeed “translating” international obligations in some imaginative ways that may (or may not) promote their interests better. It may be that divergences between Europe and the United States in how innovations in plant science and agricultural biotechnology are protected inadvertently encourages the adoption of more flexible perspectives than would otherwise have been envisaged. However, there are massive policy challenges ahead especially due to the lack of empirical evidence on the effects of different intellectual property rules concerning plants on rural development and food security that could be used to shape law and policy. This goes far in explaining why only a handful of countries has sought alternative approaches. Further research is desperately needed.'Traditional Knowledge and the Public Domain in Intellectual Property' by Ruth L. Okediji at 249-275 in the same volume comments
The protection of traditional knowledge is among the most vexing and morally compelling issues in international intellectual property law today. As a matter of conventional IP law, many applications of traditional knowledge—its dizzying array of expressions, forms, and utilities—easily overlay the globally ubiquitous trade secret, patent, copyright, and trademark categories. But as a matter of political and economic organization, the epistemological core of traditional knowledge is based on the distinctiveness and cultural autonomy of indigenous groups and local communities. Amid the notable arguments against recognizing proprietary rights for traditional knowledge holders, the most provocative is the claim that such knowledge is already in the public domain. The claim that traditional knowledge consists principally of public domain material has significant implications for the welfare and development capacity of indigenous groups. It undermines treaties that already acknowledge or require protection for the rights of indigenous groups and, by extension, traditional knowledge holders. Moreover, it violates central obligations of the international IP framework such as non-discrimination and protection for non-economic interests associated with cultural goods. There is no meaningful basis for the argument that exclusive property rights for traditional knowledge are unavailing because of its unique characteristics. This article addresses public domain concerns in the context of ongoing efforts to secure an international regime of protection for traditional knowledge.It draws on her 'Negotiating the public domain in an international framework for the production of genetic resources, traditional knowledge and traditional cultural expressions' in Pedro Roffe et al (Eds), The WIPO intergovernmental committee negotiations: A history (Routledge, 2017).