A Human Rights Paradigm for Indigenous Intellectual Property

Abstract

This dissertation investigates the use of established international human rights law in the protection of traditional knowledge. Traditional knowledge is not only deeply embedded in indigenous culture and beliefs, but it is essential to the fabric of indigenous society. However, because of inadequacies in existing Western intellectual property jurisprudence, the current framework of international intellectual property law is insufficient to provide indigenous communities with the safeguards necessary to protect the integrity of their traditional knowledge. Accordingly, a new approach to indigenous intellectual property rights is required, and in my dissertation, I demonstrate how the existing body of international human rights law provides an appropriate mechanism for the protection of traditional knowledge. Indeed, the past decade has seen an increased interest in the protection of indigenous rights and accordingly international institutions and judicial bodies have reinterpreted current human rights law and applied it to situations particular to indigenous peoples. As such, the InterAmerican Court of Human Rights has held that the right to property in international law also applies to indigenous peoples, both individually and collectively. Similarly, the Committee for the Elimination of All Forms of Discrimination has held that the lack of consideration for indigenous customary legal systems is discriminatory and against international law and established jurisprudence. Accordingly, the proposed legal framework for this protection is based on the right of selfdetermination and the principle of non-discrimination, as well as existing law specifically protecting indigenous knowledge. I further argue that the application of human rights law to the protection of traditional knowledge is consistent with the expansion in scope of human rights jurisprudence over the past decade.