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  • Dr. Shambhu Prasad Chakrabarty & Malveka Nautiyal

Economic Assets v. Non-economic Assets - Arriving in the Politics of Traditional Knowledge (Part 2)

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 2)"


How Have We Arrived Here in the Politics of Traditional Knowledge?

Controversies

However, what is Traditional Knowledge is surrounded by controversy in some corners of the world. While some may find the discussion pedantic or a question of semantics, the quest for a term to be validated by all stakeholders involved in protecting or exploring Traditional Knowledge or Indigenous Knowledge is far from over. The adoption of one term over another term hides a social stigma and a background history for the use of a definition. It is crucial to acknowledge further that a connection between a description of a phenomenon and an accepted term by decolonised nations exists.


For most legal practitioners and the public at large, the use of interchangeable terms may be confusing.  One hypothesis for a preference on a working term is the ethos and mission of the agency that depends on a multilateral agreement ratified by all its members. For instance, organisations and multilateral agencies act with an independent mandate inside the United Nations system, with separate budgets and projects. To understand how this works, let us imagine a wall storage unit with pigeonholes. The advantage of such a design is to leave items stored separately. In this case, The United Nations system may be compared with a wall unit with pigeonholes represented by the separated agencies, some with more space than others.


Take the example of two multilateral organisations with mandates in the economic and environmental agenda. The World Bank Group, a multilateral agency belonging to the United Nations system, prefers to use Indigenous Knowledge since 2001 in its development programmes[i], whereas the United Nations Environment Programme, another UN agency, adopted Traditional Knowledge in its projects and reports. Now compare with the United Nations Framework Convention on Climate Change, a treaty, that adopted “Local, Indigenous and Traditional Knowledge and Practices”, which suggests that local is not Indigenous and Traditional Knowledge does not include practices, in an apparent contradiction with the Convention on Biological Diversity, article 8 (j) that defines Traditional Knowledge as “knowledge, innovation and practices”.[ii]  In short, it is suggested that the adoption of a particular working term distinctive of other well-established terms to refer to the same thing involves convenience, political and ethical issues relevant to their missions. Nevertheless, that does not detract from the fact that all these working terms describe a bundle of rights belonging to Indigenous Peoples’ way of living and cultural survival (via their verbal communication to their communities and via pictorial and visual art, which they pass on to young generations). Having this in mind, we will use “Indigenous Knowledge” as one of the terms used by scholars and “Traditional Knowledge” for international treaties.[iii]


Something to think about

Therefore, Indigenous Knowledge is a way of living and culture for the first inhabitants of the land. For most of our past centuries, ignorance of indigenous assets or dismissal of an economic value for Indigenous People’s creations, knowledge and products were undisturbed. This fact existed because the concept of monetary exchange was not a part of the Indigenous Peoples’ culture (in a brief assessment of economics, the price of a commodity generally depends on the supply and demand of consumers, whilst consumption for Indigenous products is circumstantial). In short, there is not a cycle of trade for Indigenous Peoples, but an exchange of resources when there is a necessity for the entire community.


It appears that a transfer of such knowledge to other stakeholders meant giving a cultural asset to become a commodity, which is wrong. Indigenous Peoples had no economic value to offer to a post-war society unless as a working force.


Indigenous Peoples’ products and innovative practices were once a representation of “primitive” culture by outsiders, an economic commodity (that may have been an asset of strange economic value).


The World Wars resulted in an economic separation between capitalism and socialist states. During the Cold War, trade and employment for a post-Second World War population were deemed more important than the abstract value of sustainable human practices associated with flora and fauna devoid of price and economic value, being a non-commodity.


Among post-colonial countries, Brazil and India were among many jurisdictions with significant Indigenous and tribal Peoples, respectively, disenfranchised from trade and employment suffering from consistent poverty.


India, for instance, was under two years of independence (with a legacy of Mahatma Gandhi’s assassination and a relatively new Nehru administration) when policies to integrate local communities was first introduced.[iv] Coincidentally Brazil and India had a wealth of precious metals and other natural resources, often in abundance and under custody in regions where these local communities traditionally lived.


Still today, these peoples were considered “backwards” or “primitive” groups of peoples by most dominant academic discourse, even by their native scholars.[v]


How much suffering should be endured?

With such little exposure to the plight of Indigenous Peoples living on the fringes of poverty and exclusion, it was a complex situation to tackle in the post-war period. [vi]


Many Indigenous Peoples became farmer workers (some daily labourers) and part of the economic cycle. That explains the global movement for Indigenous Peoples’ rights, especially those who lived between Indigenous Peoples’ traditional ways of living and assimilated culture.  It is worth mentioning that the Indigenous Peoples movement brought awareness to poor labour conditions and ascertain human rights for Indigenous Peoples. Two multilateral treaties of importance are The Indigenous and Tribal Peoples Convention 1989, ILO C-169[vii] and the Convention on Biological Diversity of 1992[viii], which recognised their cultural knowledge protection by stating their Traditional Knowledge as a working term. Nonetheless, it falls well short of self-determination advocacy.[ix]


Other multilateral organisations and inter-governmental agencies such as the United Nations Conference on Trade and Development[x], the United Nations Department of Economic and Social Affairs Indigenous Peoples,[xi] the World Health Organisation,[xii] the UNESCO,[xiii] the World Trade Organisation,[xiv] the FAO[xv] and the Bonn Guidelines[xvi] advanced the question of recognition of Indigenous Peoples’ rights in general, and the right to self-determination, in particular, with caution. These organisations have a primary mission to deal with employment, social and racial inclusion, intellectual property rights, health and trade via international instruments of utmost importance for Indigenous Peoples’ cultural assets. In addition, these United Nations organisations may influence a change of domestic policy in the State members to enhance cultural awareness as a principle defined at the domestic level in most jurisdictions.


Professor Stephen James Anaya, a former Special Rapporteur to the Permanent Forum of Indigenous Issues from 2008-2014, explained that a consistent mistrust between States and Indigenous Peoples is persistent.[xvii] Mistrust comes in part because Indigenous Peoples have no guaranteed land rights, no health access and ignored self-determination to protect their natural resources from over-exploitation. Indigenous Peoples’ cultural assets, as a consequence, are also not protected. Indigenous Peoples have demanded respect for their rights since 1983 in the United Nations system.[xviii] However, land access and ownership in their territories have not effectively occurred as a consistent and accountable public policy for fostering inclusive and equitable cultural respect of their rights, domestically and internationally.[xix]


Back to International Public Law

Claudio Grossman and Daniel Bradlow mention that international law policymakers must be aware of a transnational legal order that reshaped the classic absolute sovereignty of States to relative sovereignty for members of treaties.[xx]  Grossman and Bradlow taught us that back in the 90s, a new order of active citizenship would demand just and fair democracies. For that to occur, minorities’ rights must be respected by all stakeholders. Two of the new dominant actors for minorities rights today are non-governmental organisations and Indigenous Peoples’ activists. Their activities have been augmented by access to digital media to report events locally amongst Indigenous Peoples communities. With digital advocacy, they are influencing public policy, governance and treaties. This activism inculcated awareness in the public domain to the role of Indigenous Peoples’ practices and cultural links with the land. An absence of constitutional protections and a lack of accountability by local governments to protect indigenous lands allowed alarming deforestation in their territories, which have adversely impacted Indigenous Peoples way of living. Promoting these policies that alienate them from their land and impact their right to life needs to be seriously condemned and reversed. That has been the role of non-governmental organisations and Indigenous Peoples’ activists.[xxi]


Multilateral agencies are recipients of relative sovereignty because members have agreed to surrender part of it to achieve peace globally, to secure order and wellbeing of the whole international community. Therefore, the importance of multilateral agencies to work together with one voice, especially in the adoption of working terms, is paramount.


The United Nations discourse is consistent among its agencies for its core missions maintaining international peace and security, protecting human rights, delivering humanitarian aid, and supporting sustainable development and climate action. All these missions are intertwined. Peace and security come when respect to individual and collective rights are in place, human rights come with self-determination, humanitarian aid is provided when peace is not in existence, and climate action is supported when all stakeholders are involved. It is crucial that specialised United Nations organisations such as the World Bank Group or the Secretariat of the United Nations Framework Convention on Climate Change work jointly with the Secretariat of the Convention on Biological Diversity to unify their projects on the environmental issues affecting Indigenous Peoples’ rights. Otherwise, a lack of harmony on the United Nations mission theory will expand among agencies, and isolation of results will allow the pigeonhole’s theory to prosper for many years to come. Then the proliferation of synonymous for the same definition of Traditional Knowledge will survive.[xxii]


As far as international legal terms are concerned, the European-American discourse has been dominant in shaping academic and public opinion to adopt one or another working term. Concerning the definition of Traditional Knowledge is not a different story. There is a rich background on essential doctrines in international law that shaped the discourse on Traditional Knowledge.[xxiii]


It appears that all these expressions and terms define the same right from different forums, shaping manageable perspectives for their missions to advance international agendas. However, the absence of a unique definition for what Indigenous Peoples’ creations are, as cultural and social expressions and practices, dilutes their rights in international treaties, conventions, fit-for-purpose bilateral agreements and voluntary declarations that weaken their rights. Moreover, it creates bureaucratic instruments that alienate Indigenous Peoples equal right to function with self-determination (inside the State). One may consider that to avoid dealing with self-determination, States are still under the dominant academic thought of imperialism, which is absolute sovereignty from the time of colonisation.


Open Questions

We have opened a can of worms for advocating one working term for Indigenous Peoples’ cultural assets for multilateral agencies and other stakeholders. Non-definition of a fact or event is a form to weaken that same phenomenon. It is a quest for a working term to be validated by all stakeholders crucial to allow former colonies to be free from old dogmas and better understand Indigenous Peoples’ rights. For instance, if The World Intellectual Property Organisation defines Traditional Knowledge as “a living body of knowledge passed on from generation to generation within a community. It often forms part of a people’s cultural and spiritual identity”,[xxiv] every other agency in the United Nations should consider adopting the same term as well. It is a question of consistency.


However, one should also consider that Traditional Knowledge is a vague term and open to critique. For example, some countries adopted Indigenous Knowledge instead of Traditional Knowledge because of political innuendos and the message that the terms convey. Furthermore, Traditional Knowledge does not define ownership to be related to Indigenous Peoples’ knowledge. Instead, it discourages readers from comprehension, attracting confusion between what is traditional and what is not.  A further query is whether Indigenous Peoples had an opportunity for a proper consultation to ratify any adopted working term used by these international organisations.


Those are open questions that have been left untouched for so long because it is a complex task to find a consensus on what should be done by all stakeholders involved. If we do not have a unified discourse from all international organisations and mutual and undivided cooperation, particularly an inclusion policy for Indigenous Peoples, we will be in the rabbit hole for longer. The international law principle of relative sovereignty is a consent from States that are parties to the treaties, conventions and agreements that all will abide by the terms so that an honest relationship with their Indigenous populations will occur. The use of precise terms for domestic law would comply with ratified international instruments. If mistrust survives by misleading terms, there is no compliance. That will attest that the most critical purpose of the Declaration on the Rights of Indigenous Peoples, first preambular paragraph, which states, “affirming that indigenous peoples are equal in dignity and rights to all other peoples, while recognising the right of all individuals and peoples to be different, to consider themselves different, and to be respected as such,”[xxv] is impossible to achieve.

 

[i] See, THE WORLD BANK GROUP,  Open Knowledge Repository,https://openknowledge.worldbank.org/handle/10986/9792https://documents.worldbank.org/en/publication/documents-reports/documentdetail/403851468003569212/indigenous-knowledge-for-development; see, also, P.C. MOHAN, Indigenous Knowledge for Development, WORLD BANK GROUP OPEN KNOWLEDGE REPOSITORY, 2001, https://openknowledge.worldbank.org/handle/10986/9792.

[ii] Article 8(j) – Traditional Knowledge, Innovations and Practices, CONVENTION ON BIOLOGICAL DIVERSITY (Apr. 28, 2021), https://www.cbd.int/traditional/.

[iii] Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge, WORLD INTELLECTUAL PROPERTY ORGANIZATION (2020), https://www.wipo.int/publications/en/details.jsp?id=4498 (WIPO adopted Traditional Knowledge); see also A. Agrawal, Indigenous Knowledge and the Politics of Classification 54 Int. Soc. Sci. J. 287, (2002),https://onlinelibrary.wiley.com/doi/abs/10.1111/1468-2451.00382; see also P. Drahos & S. Frankel, INDIGENOUS PEOPLES’ INNOVATION INTELLECTUAL PROPERTY PATHWAYS TO DEVELOPMENT 1-28 (ANU Press, 2012).

[iv] D.P. Verma, supra note iii, at 310. (Arguing for Nehru’s Pan-Asian international law that aimed at peace in the Asian region)

[v] U.N. Secretary-General, Global Consultation on the Realization of the Right to Development as a Human Right: Rep. by the Secretary-General pursuant to Commission on Human Rights resolution 1989/45, E/CN.4/1990/9/Rev.1, UNITED NATIONS DIGITAL LIBRARY (1990), https://digitallibrary.un.org/record/100164?ln=en.

[vi] S.P. Chakrabarty & R. Kaur, A Primer to Traditional Knowledge Protection in India: The Road Ahead. Liverpool Law Rev (2021).https://doi.org/10.1007/s10991-021-09281-4

[vii] C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169), ILO, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312314.

[viii] CONVENTION ON BIOLOGICAL DIVERSITY, https://www.cbd.int/.

[ix] Id. 

[x] UNITED NATIONS CONFERENCEON TRADEAND DEVELOPMENT, https://unctad.org/.

[xi] UNITED NATIONS DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS INDIGENOUS PEOPLES, https://www.un.org/development/desa/indigenouspeoples/climate-change.html.

[xiii] U.N.E.S.C.O., Investing in Cultural Diversity and Intercultural Dialouge: UNESCO World Report (François Rivière ed., 2009), https://www.un.org/en/events/culturaldiversityday/pdf/Investing_in_cultural_diversity.pdf.

[xiv] TRIPs Review Article 27 (3) (b) and Related Issues, WORLD TRADE ORGANISATION (Nov. 2008), https://www.wto.org/english/tratop_e/trips_e/art27_3b_background_e.htm.

[xv] Text of the Treaties: Official Versions, THE FOOD AND AGRICULTURE ORGANISATION OF THE UNITED NATIONS, http://www.fao.org/plant-treaty/overview/texts-treaty/en/.

[xvi] Secretariat of the Convention on Biological Diversity, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, CONVENTION ON BIOLOGICAL DIVERSITY (2002), https://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf.

[xvii] S.J. Anaya, Final Presentation to UNPFII 2014, UNSR (May 20, 2014),https://unsr.jamesanaya.org/?p=1176

[xix] S.J. Anaya, International Law and Indigenous Peoples: Historical Stands and Contemporary Developments, CULTURAL SURVIVAL (Mar. 1994), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/international-law-and-indigenous-peoples-historical-stands; “A series of processes promoted through international organisations have translated indigenous peoples’ demands into a new and still developing body of international human rights law. A watershed in United Nations (UN) activity concerning indigenous peoples was the 1971 resolution by the UN Economic and Social Council authorising a study on the conditions of indigenous populations. The study was entrusted to Ambassador Martinez Cobo, and was prepared largely by the UN Center for Human Rights. The fifth and final volume of the study was completed in 1983. One of the most comprehensive surveys of the status of indigenous communities worldwide at the time of its writing, the study includes extensive recommendations and conclusions generally supportive of indigenous peoples’ demands. The study, which makes a strong case for special protections to safeguard indigenous cultures, has become a standard reference for normative deliberations concerning indigenous peoples within the UN system.”

[xx] C. Grossman & D.D. Bradlow, Are We Being Propelled Towards a People-Centered Transnational Legal Order? 9 AUILR, 4 (1993), https://digitalcommons.wcl.american.edu/auilr/vol9/iss1/1/.

[xxi] Id, at 7-9.

[xxii] UNCTAD, Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions (S. Twarog & P. Kapoor eds., 2004), https://unctad.org/webflyer/protecting-and-promoting-traditional-knowledge-systems-national-experiences-and (Some agencies promote their studies solely with experts chosen according to their agenda).

[xxiii] G. DUTFIELD, INTELLECTUAL PROPERTY RIGHTS TRADE AND BIODIVERSITY (Routledge 2000); see also A. ZAPPALAGLIO, Traditional Knowledge: Emergence and History of the Concept at International Level SSRN, (2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2554132; see also C. Oguamanam, Towards a Tiered or Differentiated Approach to Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) in Relation to the Intellectual Property System, 23 AJIC 1, 1-24 (2019), http://www.scielo.org.za/pdf/ajic/v23/04.pdf.

[xxiv] Traditional Knowledge, WIPO, https://www.wipo.int/tk/en/.

[xxv] E. Daes, UN. Sub-Commission on Prevention of Discrimination and Protection of Minorities. Working Group on Indigenous Populations. Chairperson/Rapporteur, Draft Declaration on the Rights of Indigenous Peoples: revised working paper / submitted by the Chairperson-Rapporteur, Erica-Irene Daes, pursuant to Sub-Commission resolution 1992/33 and Commission on Human Rights resolution 1993/31,E/CN.4/Sub.2/1993/26, UNITED NATIONS DIGITAL LIBRARY (Jun. 8, 1993), https://digitallibrary.un.org/record/168945?ln=en.


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 first part of this article here

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