Locating Novel Protections for the Traditional Knowledge of Indigenous Communities in Customary International Law

The international community is currently in the process of establishing multiple frameworks for protecting the traditional knowledge (TK) of indigenous peoples including through initiatives such as the Nagoya Protocol (under the Convention on Biological Diversity (CBD)), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGCIPGRTKF) under the World Intellectual Property Rights Organizations (WIPO). However, this Article conceptualizes alternate pathways to recognize and protect the right to TK within customary international law (CIL). As a starting point of analysis, the Article uses Third World Approaches to International Law (TWAIL) to investigate the reasons for the inadequate protection of indigenous peoples’ traditional knowledge. Specifically, it explores how postcolonial states, often at the behest of the First World, have perpetuated colonial epistemologies that have contributed to the creation of deficient standards of protection for indigenous and tribal communities. As a rule, CIL is ascertained through the inclusion of traditional knowledge within its scope. To explore the legal basis of these norm developments in international law, this Article will delve into their pronouncements in international treaties such as the International Covenant on Civil and Political Rights (ICCPR) the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Indigenous and Tribal Peoples Convention (ILO-169), as well as relevant holdings by international courts that help clarify the customary character of the norms in question. inductive reasoning. That is, to establish the existence of a novel customary rule, it is necessary to show that there is widespread, representative, and uniform state practice, coupled with the belief that the rule constitutes a legal obligation. However, this Article explores whether a deductively implied propositional rule derived from the relationship between two interrelated customary norms ought to be deemed a novel precept of CIL in the context of human rights protections for indigenous peoples. In doing so, this Article will investigate the two related norms: the right to culture for indigenous communities, and the inclusion of traditional knowledge within its scope. To explore the legal basis of these norm developments in international law, this Article will delve into their pronouncements in international treaties such as the International Covenant on Civil and Political Rights (ICCPR) the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Indigenous and Tribal Peoples Convention (ILO-169), as well as relevant holdings by international courts that help clarify the customary character of the norms in question.