The full title of this article is "ECONOMIC ASSETS VERSUS NON-ECONOMIC ASSETS– HOW HAVE WE ARRIVED HERE IN THE POLITICS OF TRADITIONAL KNOWLEDGE? (PART 1)"
Is Traditional Knowledge Non-Economic Assets?
First of all, Traditional Knowledge is one of the terms accepted to define indigenous cultural assets internationally. It is a term that is inserted in one of the most complex and sophisticated treaties, the Convention on Biological Diversity, article 8 (j) from 1992.[1] However, there is an infinity of other terms. For instance, cultural property, cultural heritage, movable cultural property, cultural heritage of humanity, common heritage, traditional artistic expectations, traditional medicine, ecological knowledge, traditional cultural expressions. Indigenous Knowledge, Traditional Knowledge, Traditional Ecological Knowledge, Indigenous Knowledge, Indigenous resources to count the most popular terminologies in the marketplace of ideas.
In 1990, J.W. Spellman presented a Report to the United Nations, Centre of Human Rights focused on Indian cultural and social experience.[2] J.W. Spellman observed that the deconstruction of an ancient culture to assimilate principles completely exogenous to the local population was bad policy. Defining Indigenous resources to illustrate structural discrimination towards a local culture, and to perpetuate the perception of inferiority of the local culture against acquired alien concepts divests their identity. He, in his Report, also stated that the Western colonialism almost deemed it necessary to assume that “cultures, ideas, and institutions of the people governed are inferior to their own ideas and institutions”.[3]
Prime Minister Nehru advocated for a Pan-Asian international set of principles to avoid such absence of identity, because he knew that after decades of colonisation in the region, there was a need for cultural identity around the world for peace to prosper after the Second World War.[4]
Are Traditional Knowledge and its other Denominations Describing the Same Thing?
Several expressions and terminologies have defined Traditional Knowledge on what appears to be the same thing. These terms define the same right from different angles, forums,[5] experts,[6] shaping perspectives and international agendas. The difference is that of a fragmented agenda that is composed of a detached number of policies managed by different and isolated agencies with mixed results. It created a polarised view of Indigenous Peoples rights depending on which United Nations organisation was invited to create or support an international instrument.
Where should one go?
Such proliferation of treaties, conventions, agreements and declarations, with a multiplicity of beneficiaries and decentralised norm-setting results in a scattered collection of international initiatives which States may choose to follow or to abstain participation. The dispersion creates bureaucratic instruments divorced from the implementation of Indigenous Peoples rights at the domestic level. One may consider that as a strategy to avoid dealing with self-determination, a right that has long been claimed as necessary for Indigenous Peoples.
The symbolism of having the principle of self-determination is not lost in international law. Self-determination is controversial for States to receive as a norm, because of its principle of separation for “cohesive national groups” inside a domestic jurisdiction, which could impair the total sovereignty from post-colonisation.[7] Relative sovereignty was accepted at the time of the creation of the United Nations because States surrendered their sovereignty to specialised agencies in exchange for political, economic and social benefits from a multilateral contract.[8] States would then abide by the rules in the international instrument for a Rousseau contract-style.[9]
The IBRD prefers “Indigenous Knowledge”, a terminology in use since at least 1998.[10] The Centre of Human Rights of the United Nations[11] favoured a political and social tool then “indigenous resources” from which “local knowledge” is a sub-classification.[12] For the United Nations Centre for Regional Development in Africa, it could be “indigenous local knowledge” used in 1989.[13] In 1992, the Convention on Biological Diversity, article 8 (j) established “traditional knowledge” in its treaty; finally, an end to the infinity of labels (or not quite).[14]
[1] Convention on Biological Diversity art. 8 (j), Jun. 5, 1992, 1760 U.N.T.S. 69, https://www.cbd.int/convention/articles/?a=cbd-08.
[2] J.W. Spellman, The United Nations Centre of Human Rights, Global Consultation on the Realization of the Right to Development as a Human Right, Geneva, 8-12 January 1990, Development through indigenous resources prepared for the United Nations Centre of Human Rights between 1986 and presented in the 1990, page 6.
[3] Id, at 7.
[4] D.P. Verma, Jawaharlal Nehru: Panchsheel and Indian’s Constitutional Vision of International Order, 45 INDIA Q, 303-310 (1989).
[5] Forum is a meeting or medium where ideas are exchanged for the advancement of topics, Indigenous Peoples’ human rights, social and economic issues have been addressed in many opportunities in the international arena. There are many conferences, committees, resolutions, working groups created for the sole purpose of Indigenous Peoples inclusion in our society as any other human being has a long story of shortcomings and intentions left on intentions. See, United Nations, Charter of the United Nations, 1 UNTS XVI (Oct. 24, 1945), https://www.un.org/en/charter-united-nations/; see also UN Commission on Human Rights, Report of the Working Group on Indigenous Populations of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/RES/1996/40 (Apr. 19, 1996), https://digitallibrary.un.org/record/145115?ln=en; see also The Inter-American Commission on Human Rights, OAS, https://www.oas.org/en/iachr/ (last visited Mar. 10, 2021); see also International NGO Conference on Discrimination Against Indigenous populations in the Americas, Statements and Final Documents, (Sept. 20-23, 1977), https://documentacao.socioambiental.org/documentos/I5D00024.pdf; see also World Council of Indigenous Peoples, https://eric.ed.gov/?q=racial+AND+descrimination&id=ED147068 (last visited Mar. 10, 2021); see also The United Nations Committee on the Elimination of Racial Discrimination (CERD), https://www.ohchr.org/en/hrbodies/cerd/pages/cerdindex.aspx (Mar. 10, 2021); see also James Anaya (Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People), A/HRC/12/34 (Jul. 15, 2009), https://digitallibrary.un.org/record/665137?ln=en; see also Indian Council of South-America, UIA, https://uia.org/s/or/en/1100046832 (last visited Mar. 11, 2021); see also The United Nations Commission on Human Rights, https://www.ohchr.org/en/hrbodies/chr/pages/commissiononhumanrights.aspx (last visited Mar. 11, 2021); see also UN Commission on Human Rights, World Conference on Human Rights, E/CN.4/RES/1994/95 (March 9, 1994); see also The United Nations Human Rights Committee, https://www.ohchr.org/en/hrbodies/ccpr/pages/ccprindex.aspx (last visited Mar. 10, 2021); see also African Commission on Human and People’s Rights, https://www.achpr.org/ (last visited Mar. 11, 2021); see also Special Commission on Indigenous Affairs of the state parties to the Amazonian Cooperation Treaty, https://www.oas.org/dsd/Events/english/PastEvents/Salvador_Bahia/Documents/Amazonannexes.pdf (last visited Mar. 11, 2021); see also American Indian Movement, http://www.aimovement.org/ (last visited Mar. 11, 2021); see also Association of Indigenous Peoples of the North Siberia and Far East of the Russian Federation, https://www.uarctic.org/member-profiles/russia/8638/raipon (last visited Mar. 11, 2021); The United Nations Working Group on Indigenous Populations, https://www.un.org/development/desa/indigenouspeoples/about-us.html (last visited Mar. 11, 2021).
[6] S.J. Anaya, Indigenous Peoples in International Law, Oxford University Press (2004); see also Erica-Irene A. Daes, Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fifth session (1993).
[7] I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 595 (Oxford University Press, 4th ed. 1990). (Brownlie mentions that there are choices for self-determination, however, he observed that the principle had no legal content but a concept of policy and morality)
[8] J. ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSE 99-100 (Orion Publishing Group, 1993).
[9] Rousseau, supra note v.
[10] P.C. Mohan, Indigenous Knowledge for Development, THE WORLD BANK GROUP, OPEN KNOWLEDGE REPOSITORY (2001-2011), https://openknowledge.worldbank.org/handle/10986/9792.
[12] Supra note 2, at 7.
[13] O.D. Atte et al., Indigenous local knowledge as a key to local-level development: possibilities, constraints and planning issues in the context of Africa, The United Nations Digital Library (1989), https://digitallibrary.un.org/record/209297?ln=en.
[14] Convention on Biological Diversity art. 8 (j), Jun. 5, 1992, 1760 U.N.T.S. 69, https://www.cbd.int/convention/articles/?a=cbd-08.
This article has been authored by Dr. Shambhu Prasad Chakrabarty, Head and Research Fellow, NUJS Centre For Regulatory Studies, Governance and Public Policy and Dr. Ana Penteado, Adjunct Associate Professor, the University of Notre Dame, Australia. They were assisted by Ms. Malveka Nautiyal, a student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues. Read the second part of this article here.