[...] Human Rights for the Protection of Indigenous Knowledge and Natural Resources from Biopiracy
| Author | Giada Girelli |
Exploring New Territories: The Adoption of Human Rights
for the Protection of Indigenous Knowledge and Natural
Resources from Biopiracy
Gianda Girelli
Human rights, a fairly recent experiment, have undergone rapid expansion while facing virtually
unrivalled opposition and criticism. This article aims to assess the ‘state of health’ of human rights
by investigating the system’s evolutionary capabilities to respond to contemporary challenges,
specifically in the interests of indigenous peoples in their struggle to protect their traditional
knowledge and associated natural resources from biopiracy. This will begin by establishing a
working definition of biopiracy and ‘indigenous peoples’, and briefly retracing these communities’
growing participation and recognition at the international level. Specific attention will then be
devoted to the regime of intellectual property, which, while recognised as one of the root causes of
this problem, is also often proposed as a potential solution. The article reconstructs its cultural
foundations and ideological tenets, from which emerge this system’s inherent inability to protect
the interests of indigenous peoples, which have a radically different approach to science and the
natural world. Subsequently, the human rights framework will be considered: firstly, the article
evaluates its ideological similarities with the regime of intellectual property and its consequent
limitations, which support criticism that this system, much like intellectual property, is a tool of
neo-colonialism. The article then examines the expanding, context-sensitive approach developed
by the Inter-American Court of Human Rights in relation to indigenous land rights, arguing for
the possibility of extending such interpretation (by continuing on a path led by the Court) to the
protection of natural resources as well as related indigenous knowledge, notwithstanding an
apparent separation and structural differences between the two.
INTRODUCTION
Human rights as a body is still a young creature. Although its ideological foundations can be
found in the 18th Century,
1
this corpus developed in the aftermath of World War II. Self-
proclaimed ‘civilized’ nations, then recovering from the regime of the ‘quintessential savage’,
2
began to develop a supra-national system for the protection of the individual and the
advancement of a peaceful international order.
3
In less than a century, this field has developed
extensively, extending its reach to areas that were once inconceivable; it has become a
dominant discourse that is fiercely defended and fervently criticised. For some, it has even
reached its end-times – at least as an internationally dominated, quasi-religious movement.
4
Amongst the areas of expansion, one of the most interesting has been the recognition and
protection of indigenous peoples, even though their peculiar, alternative conception of order
arguably threatens the current system of international law that is built around nation -states
and individual rights.
Biopiracy stands at the crossroads of several areas into which human rights are expanding,
including science, business, and development. Much has been written and proposed about
this hard-to-define phenomenon, and both international and local organisations around the
world have made (and continue to strive toward) significant advances against biopiracy. In
many cases, intellectual property rights, while recognised as one of the root causes of this
problem, are also proposed as a potential solution, sometimes in coordination with other
instruments. On the contrary, fewer actors value human rights as a valuable tool for
confronting this issue.
This article does not aim to reconstruct or evaluate the many international, regional, and local
mechanisms relevant to this matter, which have already been extensively analysed in the
literature.
5
Rather, it considers whether human rights can be a useful instrument (as an
alternative to, or alongside others) for the protection of the traditional knowledge of
indigenous communities and the natural resources to which such knowledge is inherently
1
Ilias Bantekas & Lutz Oette, International Human Rights Law and Practice (CUP 2013) 11.
2
Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2008) 15.
3
Bantekas (n 1) 19.
4
Doutje Lettinga & Lars van Troost (eds), Debating the Endtimes of Human Rights: Activism and Institutions in a Neo-Westphalian World
(AI 2014) 8.
5
Among others, see Tzen Wong & Graham Dutfield, Intellectual Property and Human Development: Current Trends and Future Scenarios
(CUP 2011) 143.
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