INDIGENOUS TRADITIONAL
KNOWLEDGE: SCIENCE AND
CULTURAL HERITAGE
Laura Marcela Mahecha Álvarez
Mahecha.lauram@gmailcom Student No.: 11099143
Public and European Law: Public International Law LLM University of Amsterdam
Supervisor: Prof. Dr. Y.M. Donders Date of submission: 24 July 2020
ABSTRACT
This thesis analyses the possibility to protect indigenous traditional knowledge (TK) under international human rights law, specifically under the right to enjoy the benefits of scientific progress and its applications (REBSPA) and/or the right to access to and enjoyment of cultural heritage (RATECH). Indigenous TK is linked to the dignity of indigenous communities and has implications on other human rights such as non-discrimination, self-determination, among others. Indigenous TK is the result of accumulation and development over time, through empirical observations and interactions with the surrounding environment by indigenous communities, and it comprehends, among different types of knowledge, indigenous traditional scientific knowledge. This category of knowledge has been addressed mostly from the IP regime, which is not the only appropriate mechanism. On the one hand, the REBSPA, recognized in article 15 International Covenant on Economic, Social and Cultural Rights, was addressed by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment 25 (2020); in which the definition of ‘science’ adopted implicitly excluded indigenous TK. This thesis argues that this approach is rather narrow and is the reflection of the dominance of Western knowledge. On another hand, the RATECH (formed by the right to take part in cultural life, the right of minorities to enjoy their own culture, and the right of indigenous peoples to self-determination, and to maintain, control, protect, and develop their cultural heritage) provides protection to indigenous cultural heritage. The definition of indigenous cultural heritage comprises indigenous TK. Therefore, this thesis argues that the RATECH protects indigenous TK and that a new intercultural approach is required from the CESCR in order to protect such knowledge under the REBSPA.
Table of Contents
Table of Abbreviations ... III
I. INTRODUCTION. ... 1
II. TRADITIONAL KNOWLEDGE (TK) ... 3
A. ‘Definition’ of indigenous peoples ... 4
B. Definition and elements of traditional knowledge ... 4
C. Protection of traditional knowledge ... 8
D. Conclusion ... 9
III. THE RIGHT TO ENJOY THE BENEFITS OF SCIENTIFIC PROGRESS AND ITS APPLICATIONS (REBSPA) ... 10
A. Legal basis ... 10
B. Normative content and scope of the REBSPA ... 12
1. Use of terms ... 12
C. Elements of the right ... 17
1. Availability ... 18
2. Quality and acceptability ... 18
3. Accessibility ... 19
4. Freedom of scientific research ... 19
D. Nature and scope of the State obligations ... 20
1. General obligations ... 20
2. Specific obligations ... 20
3. Core obligations ... 21
E. Special protection of indigenous peoples’ rights ... 22
F. Analysis ... 22
G. Conclusion ... 25
IV. THE RIGHT OF ACCESS TO AND ENJOYMENT OF CULTURAL HERITAGE (RATECH) ... 26
A. Legal basis ... 27
B. Normative content and scope of the RATECH ... 28
C. Indigenous peoples’ right to cultural heritage ... 29
1. Subjects of the right ... 29
2. Object of the right ... 30
D. Analysis ... 32
E. Conclusion ... 33
V. FINAL REMARKS ... 34
VI. BIBLIOGRAPHY ... 36
Table of Abbreviations
CESCR Committee on Economic, Social and Cultural
Rights
EMRIP Expert Mechanism on the Rights of Indigenous
Peoples
ICCPR International Covenant on Civil and Political
Rights (Adopted 16 December 1966, entered into force 23 March 1976) 993 UNTS 171
ICESCR International Covenant on Economic, Social and
Cultural Rights (Adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3
IHRL International human rights law
ILO Convention 169 International Labour Convention No. 169 on
Indigenous and Tribal Peoples (June 1989)
IP Intellectual property
RATECH Right to access to and enjoyment of cultural
heritage
REBSPA Right to enjoy the benefits of scientific progress
and its applications
TK Traditional knowledge
UDHR The Universal Declaration of Human Rights
(adopted 10 December 1948 UNGA Res 217 A(III)
UN United Nations
UNDRIP United Nations Declaration on the Rights of
Indigenous Peoples (adopted 13 September 2007) UNGA A/RES/61/295
UNESCO United Nations Educational, Scientific and
Cultural Organization
UNPFII United Nations Permanent Forum on Indigenous
Issues
I. INTRODUCTION.
Indigenous TK is the result of accumulation and development over time, through empirical observations and interactions with the surrounding environment by communities,1 which can
be expressed in stories; songs; beliefs; customary laws; scientific, agricultural and ecological knowledge, as well as the skills necessary to implement those technologies and knowledge.2
It is recognized that the traditions and customs of indigenous peoples are vital to their lives,3
and that TK is part of their identity.4 Hence, TK as part of the identity of indigenous peoples is
linked to their dignity, the right not to be discriminated against, and self-determination.5
However, TK is not only important to indigenous communities; there is a growing recognition that TK has important elements to contribute to current international debates.6
For the relevance of TK to indigenous rights and the role it is taking in international discussions, it should be protected through international law. It results interesting that the call for international protection of TK has been mostly directed through the IP regime which is not the only possible mechanism of protection available, and not much attention has been given from IHRL. The latter could protect TK as it is linked with the aforementioned rights of indigenous peoples and could contribute elements for the realisation of rights of non-indigenous peoples.
1 Permanent Forum on Indigenous Issues. (2014). Study to Examine Challenges in the African Region to Protect
Traditional Knowledge, Genetic Resources and Folklore. Thirteenth session, New York (12-23 May 2014),
[E/C.19/2014/2], 19 February 2014, para. 5.
2 United Nations Permanent Forum on Indigenous Issues. (2019). Traditional knowledge: Generation,
transmission and protection. Eighteenth session, New York (22 April – 3 May 2019) (item 9 of the provisional
agenda), [E/C.19/2019/5], 6 February 2019, [hereinafter E/C.19/2019/5], para. 4.
3 International Labour Organization. (2003). ILO Convention on indigenous and tribal peoples, 1989 (No. 169):
A manual. Geneva, International Labour Office [hereinafter ILO Convention 169: A manual], 24.
4 Expert Mechanism on the Rights of Indigenous Peoples. (2015). Annex – Expert Mechanism advice No. 8 (2015):
Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage, (Annex to
A/HRC/30/53), para. 57.
5 Breemen, K. (2019). Protecting Traditional Cultural Expressions. Copyright Tensions and Human Rights
Opportunities?. In Corradi, G., de Feyter, K., Desmet, E., & Vanhees, K. (Eds.). Critical Indigenous Rights
Studies. Routledge, 125-128.
6 Permanent Forum on Indigenous Issues. (2019). Report on the Eighteenth session (22 April – 3 May 2019).
Economic and Social Council, Supplement No. 23, [E/2019/43-E/C.19/2019/10], para. 6.
See in the same sense Coomans, F. (2018). A dual perspective on the right to enjoy the benefits of scientific progress. In Corradi, G., de Feyter, K., Desmet, E., & Vanhees, K. (Eds.). Critical Indigenous Rights Studies. Routledge, 89.
Hence, the research would try to answer the following question: To what extent is indigenous TK protected under the REBSPA and under the RATECH? The aim is to show different forms of protection that international law can provide to indigenous TK. For this, an internal perspective is adopted, describing first the normative scope and content of the two rights de lege lata,7 and a normative perspective to suggest how TK could be approached de lege ferenda
for its protection.
For this, the concept of TK is going to be defined (II). Accordingly, the REBSPA will be studied in order to determine whether TK can be protected under this right, since it is acknowledged that not all forms of knowledge are comprised within the concept of ‘science’ and fall under the protection of cultural rights (III).8 The REBSPA, enshrined in article
15(1)(b), was addressed by the CESCR in General Comment No. 25 on science and economic, social and cultural rights (article 15(1)(b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights);9 special attention is going to be provided to the
(implicit) disregard of indigenous TK as part of the REBSPA, from the Committee, based on the definition of science adopted.
Subsequently, the RATECH, formed by the right to take part in cultural life; the right of members of minorities to enjoy their own culture; and the right of indigenous peoples to self-determination, and to maintain, control, protect, and develop their cultural heritage10 is
considered (IV). This, to determine to what extent this right protects indigenous TK. The thesis concludes with final remarks about the possible protection of indigenous TK under the REBSPA and RATECH (V).
7 Since a great deal of the research is treaty interpretation, it is important to bear in mind the provisions regarding
treaty interpretation in The Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT); see part III Observance, application and interpretation of treaties, section 3 interpretation of treaties; especially article 31. General rule of interpretation and article 32. Supplementary means of interpretation.
8 CESCR. (2020). General Comment No. 25 on Science and economic, social and cultural rights Art. 15.1.b, 15.2,
15.3 and 15.4. Adopted by the Committee on Economic, Social and Cultural Rights at its sixty-seventh session
(17 February - 6 March 2020)[E/C.12/GC/25], 7 April 2020. [hereinafter General Comment 25], para. 5.
9 General Comment 25, fn. 8.
10 Human Rights Council. (2016). Report of the Special Rapporteur in the Field of Cultural Rights, promotion
and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Thirty-first session, agenda item 3, [A/HRC/31/59], 3 February 2016, [hereinafter A/HRC/31/59],
It is noteworthy that the IP regime is an adequate mechanism to protect TK and there have been attempts to do so.11 The close relation of the IP regime is also demonstrated in paragraph (c)
of article 15 ICESCR and the doctrine; the latter addresses TK mostly in connection with IP rather than IHRL. However, the protection of IP to TK is not going to be discussed in the present research since it falls outside the research question.
Similarly, within the analysis of ‘cultural heritage,’ UNESCO conventions are not going to be addressed because the scope of the research is limited to the protection of TK under the REBSPA and/or the RATECH. Although the Convention concerning the Protection of the World Cultural and Natural Heritage (1972), the Convention on the Protection of the Underwater Cultural Heritage (2001), and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) are not part of the human rights regime, they are significant standard-setting instruments that illustrate the encouragement for the protection of cultural heritage as part of the cultural identity of individuals and groups.12
II. TRADITIONAL KNOWLEDGE (TK)
As introduction to the topic, the defining elements of indigenous peoples are going to be mentioned; followed by the analysis of the central concept of this research, namely TK. For this, the concept and its elements are going to be defined. It is going to be argued that indigenous TK is relevant for both indigenous communities and the international community overall, and therefore it should be protected within international law. This followed by an introduction of possible international mechanisms of protection.
11 See for instance the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of
Folklore (adopted by the Diplomatic Conference of the African Regional Intellectual Property Organization at Swakopmund (Namibia) on 9 August 2010, and amended on 6 December 2016).
A. ‘Definition’ of indigenous peoples
In international law, an overarching definition of ‘indigenous peoples’ has been rejected due to the different identities and characteristics of all the diverse indigenous communities;13
however, relevant factors have been set to understand the term ‘indigenous,’ namely: a. “Priority in time, with respect to the occupation of use of a specific territory; b. The voluntary perpetuation of cultural distinctiveness, which may include the
aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions;
c. Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collective; and
d. An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.”14
B. Definition and elements of traditional knowledge
TK has been defined in multiple scenarios and has different understandings. For the present study, the definition proposed by the UNPFII15 is going to be adopted since it seems to be
comprehensive, while it is acknowledged that it is not an authoritative treaty body definition. Accordingly, TK refers to:
“complex bodies and systems of knowledge, know-how, practices and representations maintained and developed by indigenous peoples around the world, drawing on wealth of experience and interaction with the natural environment and transmitted orally from one generation to the next. Traditional knowledge systems are based on values, beliefs, rituals and community laws and practices, as well as concepts and methods for land and ecosystem management. Some knowledge is of a highly sacred nature and therefore
13 McCorquodale, R. (2018). Group Rights. In Moeckli, D.; Shah, S.; Sivakumaran, S. (Eds.). International
Human Rights Law. Third Edition, Oxford University Press. 362.
14 Idem.
15 The UNPFII is a high-level advisory body to the UN Economic and Social Council, which was established by
resolution 2000/22. Its mandate is “to discuss indigenous issues within the mandate of the Council [Economic and Social Council] relating to economic and social development, culture, the environment, education, health and human rights […].” United Nations Economic and Social Council. (2000). Resolution 2000/22. Establishment of a Permanent Forum on Indigenous Issues. 45th plenary meeting, [E/2000/22], 28 July 2000.
For more information concerning the UNPFII see:
sensitive and not publicly available, even to members of the community or people concerned.”16
Although the IP regime is not addressed, WIPO has made relevant advances concerning TK.17
In accordance WIPO uses TK “to refer to tradition-based literary, artistic or scientific works; performances; invention; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”18 Moreover, for WIPO
the definition of TK is not dependent on its antiquity, “[i]t is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. […] Its living nature also means that “traditional” knowledge is not easy to define.”19 Furthermore, WIPO categorizes ‘indigenous
knowledge’ within ‘traditional knowledge’, i.e. all indigenous knowledge is traditional knowledge (a broader category) but not all traditional knowledge is indigenous knowledge.20
Indigenous TK is then is the result of accumulation and development over time, through empirical observations and interactions with the surrounding environment by communities.21
It can be expressed in stories; songs; beliefs; customary laws; scientific, agricultural and ecological knowledge, as well as the skills necessary to implement those technologies and knowledge.22 Moreover, it can be assumed from the definitions provided that indigenous
science is part of indigenous TK, but not all indigenous TK is scientific knowledge as it can be as well literary, artistic, and other tradition-based creations.
16 E/C.19/2019/5, fn. 2, para. 3.
17 See for instance the Berne Convention for the Protection of literary and artistic works (1886); the Agreement
on Trade-Related aspects of intellectual property rights, the Bangui Agreement of the African Intellectual Property Organization (1977); the Tunis Model Law on Copyright for Developing Countries (1976); and the Model Provisions for national laws on the protection of expressions of folklore against illicit exploitation and other prejudicial actions (1985).
18 WIPO. (2001). Intellectual Property Needs and Expectations of Traditional Knowledge Holders. WIPO Report
on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999). Geneva, April 2001, p. 25. Available in: https://www.wipo.int/edocs/pubdocs/en/tk/768/wipo_pub_768.pdf [accessed 18 July 2020].
19 WIPO. (2016). Traditional Knowledge and Intellectual Property. Background Brief – No. 1. Available in:
https://www.wipo.int/publications/en/details.jsp?id=3858 [accessed 18 July 2020].
20 WIPO, fn. 18, p. 23.
21 E/C.19/2014/2, fn. 1, para. 5. 22 E/C.19/2019/5, fn. 2, para. 4.
The UNPFII recognizes that indigenous knowledge systems are the bases of the development of culture and identity of indigenous communities;23 in addition to the direct contribution to
“sustaining biological and cultural diversity, poverty eradication, conflict resolution, food security and ecosystem health and serve as the foundation of indigenous peoples’ resilience to the impact of climate change.”24
Following this argument, the EMRIP, a subsidiary body (conformed by independent experts) of the Human Rights Council, mandated to provide expertise and advice on the right of indigenous peoples to the Council and to assist the Member States,25 considers that TK, which
is part of indigenous cultural heritage, is a holistic and intergenerational concept.26
It could be argued that traditions and customs are fundamental for the identity of indigenous communities;27 hence, the respect and protection of such traditions are necessarily linked to
their lives and dignity.28 Dignity is a fundamental principle of IHRL that is reiterated by the
UDHR, ICCPR, ICESCR, among other instruments; and is interlinked with claims of cultural identity and integrity, especially those of indigenous peoples.29 Concerning indigenous
peoples, article 15 of the UNDRIP recognizes the right to the dignity and diversity of their cultures, traditions, histories, and aspirations.30
23 United Nations Permanent Forum on Indigenous Issues. (2010). Report on the Ninth Session (19-30 April).
Economic and Social Council, official records, Supplement No. 23 [E/2010/43-E/C.19/2010/15], para. 13.
24 E/2019/43-E/C.19/2019/10, fn. 6, para. 4.
25 See about the establishment and mandate of the Expert Mechanism on the Rights of Indigenous Peoples Human
Rights Council (2007). Resolution 6/36. Expert Mechanism on the Rights of Indigenous Peoples. Adopted in the 34th meeting [A/HRC/RES/6/36], 14 December 2007. And Human Rights Council (2016). Resolution 33/25.
Expert Mechanism on the Rights of Indigenous Peoples. Adopted in the thirty-third session [A/HRC/RES/33/25],
5 October 2016.
Webpage of the Expert Mechanism on the Rights of Indigenous Peoples: https://www.ohchr.org/en/issues/ipeoples/emrip/pages/emripindex.aspx [accessed 13 July 2020].
26 Annex to A/HRC/30/53, fn. 4, para. 1. 27 Ibidem, para. 57.
28 Vieytez, E.J.R. (2019). Derechos Humanos y Diversidad Cultural: ¿un binomio inestable?| Human Rights and
Cultural Diversity: An unstable binomial?. Cuadernos Electrónicos de Filosofía del Derecho, (39), 68. ILO Convention 169: A manual, fn. 3, 24.
29 Breemen, K. fn. 5, 125.
30 United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA
Dignity and TK itself, are related to the right of non-discrimination laid down in the ICCPR,31
ICESCR,32 and UNDRIP by which indigenous peoples should not be discriminated against
based on nether their cultures and understandings.33 This right is considered “one of the core
principles of contemporary indigenous rights.”34 Further, indigenous TK is also closely related
to right to self-determination because this paramount right relates to the possibility of indigenous communities to exist as distinct peoples.35 But, indigenous TK also influences other
rights, for instance, the right to education. Some studies determined that school drop-out rates and disciplinary problems in the schools researched decreased when children were taught indigenous knowledge in traditional ways.36
Nonetheless, TK is not only relevant for indigenous peoples and communities; there is a growing recognition that indigenous TK has important elements to contribute to current international debates related to, inter alia, climate change, environmental degradation, food security and genetic resources, science, technology, and innovation.37 For instance, indigenous
communities have in their oral traditions knowledge about climate change impacts and methods for mitigation and adaptation, which are relevant for them as well as for non-indigenous communities.38 The UNPFII even states that “indigenous knowledge should be recognized as
an equal source of information in the inter-scientific dialogue to meet the challenges” it faces.39
Therefore, it is argued that indigenous TK should be protected within international law.
31 International Covenant on Civil and Political Rights [ICCPR] (Adopted 16 December 1966, entered into force
23 March 1976) 993 UNTS 171, article 26. See Annex.
32 International Covenant on Economic, Social and Cultural Rights [ICESCR] (Adopted 16 December 1966,
entered into force 3 January 1976) 993 UNTS 3, article 2(2). See Annex.
33 UNDRIP, fn. 30, preamble, articles 8, 15, 16, 17, 22, 24, 46. See Annex.
See Breemen, K. fn. 5, 127.
34 Breemen, K. fn. 5, 127.
35 Ibidem, 128. See also UNDRIP, fn. 30, article 31. 36 E/C.19/2019/5, fn. 2, para. 24.
37 E/2019/43-E/C.19/2019/10, fn. 6, para. 7. See in the same sense, Coomans, F. fn. 6, 89.
38 Maldonado, J., et al. (2016). Engagement with indigenous peoples and honouring traditional knowledge
systems. Climatic Change, 135(1), 123.
In Australia, for example, the government developed in a partnership with indigenous peoples a project for forest management which is based on indigenous traditional knowledge, which might reduce up to 50 per cent of greenhouse emissions. E/C.19/2019/5, fn. 2, para. 17.
See in the same sense Permanent Forum on Indigenous Issues. (2015). Study on the Treatment of Traditional
Knowledge in the Framework of the United Nations Declaration on the Rights of Indigenous Peoples and the Post-2015 Development Agenda. Fourteenth session, New York (20 April – 1 May 2015), [E/C.19/2015/4] 2
February 2015, paras. 36 – 40.
C. Protection of traditional knowledge
There are regimes with scattered instruments which provide certain protection to indigenous TK;40 leaving indigenous peoples with complex and parallel systems that impact the effective
protection of indigenous TK.41 The call for international protection of this knowledge has been,
as stated above, mostly directed through the IP regime which aims to safeguard TK from risks concerning ‘misuse’ and ‘misappropriation.’42 However, there is more to protect and promote
from TK than ‘misuse’ and ‘misappropriation;’ the dimension of TK as science and as cultural heritage has not been deeply explored, especially concerning the former, although it could help to clarify the TK’s international protection.
The Convention on Biological Diversity (1992)43 – albeit not a human rights instrument, it has
human rights implications44 – is frequently referred to as an international instrument protecting
TK,45 by safeguarding the natural and cultural heritage of indigenous peoples; specifically,
article 8(j) is highlighted.46 The Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from the Utilization to the Convention on Biological Diversity (2010)47 [hereinafter The Nagoya Protocol] notes the interconnection among genetic
resources and TK and their link with the livelihoods of indigenous communities.48 The Nagoya
Protocol requires States to sustain the established rights and customary laws of indigenous peoples.49
40 See for instance ICESCR; ICCPR; the International Treaty on Plant Genetic Resources for Food and
Agriculture; the Berne Convention for the Protection of literary and artistic works; the American Declaration on the Rights of Indigenous Peoples of the OAS; the Bangui Agreement of the African Intellectual Property Organization; the Tunis Model Law on Copyright for Developing Countries.
41 A/HRC/30/53, fn. 4, para. 24.
42 E/2019/43-E/C.19/2019/10, fn. 6, para. 7.
43 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS
79. This Convention has 196 Parties (168 signatures). Information retrieved from the webpage of the Convention on Biological Diversity: https://www.cbd.int/information/parties.shtml [accessed 18 July 2020].
44 Coomans, fn. 145.
45 See for instance Coomans, F. fn. 6.
46 Convention on Biological Diversity, fn. 43, article 8 (j). See Annex.
47 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilization to the Convention on Biological Diversity (adopted 29 October 2010, entered into force 12 October 2014) 3009 UNTS (Nagoya Protocol). This Protocol has 124 Parties (92 signatures). Information retrieved from the webpage of the Convention on Biological Diversity: https://www.cbd.int/information/parties.shtml#tab=2 [accessed 18 July 2020].
48 Nagoya Protocol, fn. 47, preamble. 49 Nagoya Protocol, fn. 47.
Consequently, the underlying purpose of both the Convention on Biological Diversity and The Nagoya Protocol is to ensure that the owners of the genetic resources have their rights protected against the illegal use of their resources and that the benefits of such knowledge are shared fairly and equitably.50 This protection can be argued to be closely related to the IP regime since
it protects the knowledge from being ‘misused;’ although the aim to share fairly and equitably the benefits of such knowledge can be linked to some extent to the REBSPA, which comprises within its scope the benefits of scientific progress and its applications (addressed below). Appropriately, the IP regime has acknowledged the differentiated nature of TK, proposing a ‘sui generis protection.’51 It is argued that TK requires a new form of protection since the
current mechanisms are inappropriate because this is a ‘different entity.’52 Although this
research is not aimed at protecting TK through intellectual property, this differentiated approach can be echoed.53
D. Conclusion
Indigenous TK is within the bases of the culture and identity of indigenous communities, and therefore the bases of their dignity. It could be argued then that IHRL could protect TK since it is closely related to basic principles of human rights, especially of indigenous communities. Moreover, indigenous TK can contribute to international debates.
It is asserted that the fragmented approach to the protection of indigenous TK leaves these communities with intricate systems, and most of the provisions aiming to protect TK, like the Convention on Biological Diversity and The Nagoya Protocol are limited to IP issues. Although, is remarkable the suggested ‘sui generis approach,’ which recognizes the special nature of indigenous TK. In that sense, IHRL could clarify the extent of protection of TK that goes beyond ‘misappropriation.’
50 Coomans, F. The Right to Enjoy the Benefits of Scientific Progress and Indigenous Knowledge. Comment to
the Draft General Comment on Science and Economic, Social and Cultural Rights, 3.
51 Permanent Forum on Indigenous Issues. (2007). Report of the Secretariat on Indigenous Traditional
Knowledge. Economic and Social Council, sixth session, New York (14-25 May 2007), 20 March 2007,
E/C.19/2007/10, para. 21.
52 Idem.
III. THE RIGHT TO ENJOY THE BENEFITS OF SCIENTIFIC PROGRESS AND ITS APPLICATIONS (REBSPA)
The REBSPA, commonly referred to as ‘the right to science,’ was an underdeveloped and frequently overlooked right which created difficulties defining and determining objectively its scope of application.54 However, in the last years, there have been developments that clarify to
a certain extent this right, especially by General Comment No. 25 adopted by the CESCR in its sixty-seventh session (April 2020).
This chapter is going to analyse the legal basis of the REBSPA, the normative content and scope of article 15 ICESCR (including the definitions of concepts within it), the elements of the right, the nature and scope of State obligations, and the special protection of indigenous peoples’ rights. This, to determine whether the indigenous TK fits within the definition of ‘science’ of human rights provisions, and to establish to what extent it can be protected under the REBSPA.
A. Legal basis
The Commission on Human Rights was tasked with the preparation of a bill of rights that lead to the drafting of the UDHR.55 In the drafting process, there was an intention to include a
provision endorsing access to science and culture;56 hence, the right to science was included in
article 44 of the draft proposed by John Humphrey, which recognized the right of everyone “to
54 Human Rights Council. (2012). Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed.
The right to enjoy the benefits of scientific progress and its applications. Twentieth session (Agenda item 3),
Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development [A/HRC/20/26], 14 May 2012 [hereinafter A/HRC/20/26], para. 3.
55 Executive Committee to the Preparatory Commission of the United Nations. (1945). Report by the Executive
Committee to the Preparatory Commission of the United Nations, [PC/EX/113/Rev.1], 12 November 1945, p. 57,
para 17. United Nations Economic and Social Council. (1946). Commission on Human Rights and
Sub-commission on the status of women, [E.27], 22 February 1946, section A(2).
See Smith, T. (2020). Understanding the nature and scope of the right to science through the Travaux
Préparatoires of the Universal Declaration of Human Rights and the International Covenant on Economic, Social
and Cultural Rights, The International Journal of Human Rights, 2.
participate in the cultural life of the community, to enjoy the arts and to share in the benefits of science.”57 This draft article would then become article 27 UDHR.58
A decade later, the ICESCR was drafted and science had already acquired a clear relevance.59
The delegate from UNESCO, Mr. Havet, argued that science was important for the development of culture and it played a relevant role in improving human life overall.60 During
the drafting process of what became article 15 ICESCR, there was no common understanding concerning the definition of certain concepts therein included, and some were never even discussed.61 The wording of the article is the following:
“Article15.
1. The States Parties to the present Covenant recognize the right of everyone: a. To take part in cultural life;
b. To enjoy the benefits of scientific progress and its applications;
c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.”62
57 Commission on Human Rights. (1947). Report of the Drafting Committee to the Commission on Human Rights.
First session, Drafting Committee on an International Bill of Human Rights [Annex A E/CN.4/21], 1 July 1947, p. 21
See Smith, T. fn. 55, p. 2.
58 The Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR),
article 27. See Annex.
59 See in this regard United Nations General Assembly. (1957) Twelfth session, of the Third Committee in its
796th Meeting, [A/C.3/SR.796], 31 October 1957.
See Smith, T. fn. 55, p. 6.
60 Commission on Human Rights. (1951). Summary record of the two hundred and twenty-eight meeting. Seventh
Session [E/CN.4/SR.228], 28 June 1951, 11. See Smith, T. fn. 55, p. 6.
61 See Smith, T. fn. 55, p. 10.
There are regional provisions that have also referred to the REBSPA, for instance, the Inter-American system refers to ‘science,’ ‘scientific knowledge,’ ‘scientific discoveries’ in different instruments.63 There are also similar references in the Arab, ASEAN, African, and European
systems referring to the REBSPA.64
B. Normative content and scope of the REBSPA
The normative content and scope of the REBSPA are going to be determined by defining the concepts of the right, followed by its elements, nature and scope of the State obligations, in which the general, specific, and core obligations are going to be determined. This, to fully understand what is comprehended within the REBSPA.
1. Use of terms
a. “Scientific progress and its applications”
The concept of ‘science’ was not defined for human rights purposes, and the drafting history of the ICESCR does not guide in that sense. Accordingly, there was a call for such a definition in the ‘Venice Statement.’65 This Statement was the result of expert meetings held between
2007 and 2009 among UNESCO, the Amsterdam Centre for International Law, the Irish Centre for Human Rights, and the European Inter-University Centre for Human Rights and Democratization, with the participation of academics, intergovernmental organizations, and non-governmental organizations.66 These meetings aimed at clarifying the normative content
of the REBSPA and the State obligations emerging from it.67
Following the Venice Statement, UNESCO provided a definition in the Recommendation on the Status of Scientific Researchers (1974 and then in 2017), in which ‘science’ is:
“the enterprise whereby humankind, acting individually or in small or large groups, makes an organized attempt, by means of the objective study of observed phenomena and its validation through sharing of findings and data through peer review, to discover 63 See Annex I for the provisions.
64 See Annex I for the provisions.
65 American Association for the Advancement of Science. (2013). Defining the right to enjoy the benefits of
scientific progress and its applications: American Scientists' Perspectives. Washington, DC: AAAS, 4.
66 Muller, A. (2010). Remarks on the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress
and its Applications (article 15(1)(b) ICESCR). Human Rights Law Review, 10(4), 766.
and master the chain of causalities, relations or interactions; brings together in a coordinated form subsystems of knowledge by means of systematic reflection and conceptualization; and thereby furnishes itself with the opportunity of using, to its own advantage, understanding of the processes and phenomena occurring in nature and society.”68
Besides, UNESCO defines ‘the sciences’ as “a complex of knowledge, fact and hypothesis, in which the theoretical element is capable of being validated in the short or long term, and to that extent includes the sciences concerned with social facts and phenomena.”69 This definition was
adopted by the CESCR as the definition of ‘science’ within the REBSPA in General Comment 25;70 hence, the Committee accepted that the concept of science refers to processes that follow
a certain methodology – ‘doing science’ – and to the results of such process – knowledge and applications.71
The CESCR in General Comment 25 reaffirmed that not all forms of knowledge are comprised within the concept of ‘science;’ those might be protected and promoted as a cultural right.72
The defining criteria are the bases on “critical inquiry and the openness to falsifiability and testability.”73 Therefore, “knowledge which is solely based on tradition, revelation or authority,
without the possible contrast with reason and experience, or which is immune to any falsifiability or intersubjective verification, cannot be considered science.”74
The concept of science, or at least ‘scientific production,’ was considered by the CESCR in General Comment No. 17 on paragraph (c) of article 15 ICESCR.75 On that occasion, the
Committee considered that “scientific productions and innovations, including knowledge,
68 UNESCO. (2017). Recommendation on Science and Scientific Researchers, 13 November 2017, para. 1(a)(i). 69 Ibidem, para. 1(ii). And, General Comment 25, fn. 8, para. 4.
70 General Comment 25, fn. 8, para. 4. 71 Ibidem, para. 5.
72 Idem. 73 Idem. 74 Idem.
75 CESCR. (2005). General Comment No. 17 on the right of everyone to benefit from the protection of the moral
and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15, paragraph 1(c), of the Covenant). Adopted by the Committee on Economic, Social and Cultural Rights
at its Thirty-fifth session (7-25 November 2005) [E/C.12/GC/17], 12 January 2006, [hereinafter General Comment 17].
innovations, and practices of indigenous and local communities” were within the scope of the article and were considered ‘scientific productions.’76
Since there can be different approaches to the definition of science, and the one provided by UNESCO and adopted by the CESCR is not the only one, other definitions are going now to be mentioned. Although these sources have not the same legal authority as the General Comment of the CESCR, they can provide further guidance as to whether TK can be comprised within a definition of science of the REBSPA.
The former Special Rapporteur in the field of cultural rights, Farida Shaheed, in her 2012 Report on the REBSPA held that “science must be understood as the knowledge that is testable and refutable, in all fields of inquiry, including social sciences, and encompassing all research;”77 this includes a discussion of existing theorems and understandings.78
On its hand, the Venice Statement outlines elements that are relevant for the definition of ‘science’ and ‘scientific progress,’ as well as the aims of science that are compatible with the REBSPA.79 In doing so, it declares ‘science’ as the knowledge that enhances the “conditions
for further scientific and cultural activity.”80 Also, this Statement, on the one hand, holds that
‘science is not only about advancing knowledge of a specific subject matter’ that might have practical uses; but it is also, at the same time, ‘about enhancing the conditions for further scientific and cultural activity.’81
The American Association for the Advancement of Science responded to the Venice Statement’s call for a definition of science;82 this is relevant since it provides a glance to the
scientist’s perspective of the meaning of ‘benefits of science and its applications.’ According to this Association, the REBSPA refers to advancing knowledge, emphasizing the possibility
76 Ibidem, para. 9.
77 A/HRC/20/26, fn. 54, para. 24. 78 Ibidem, para. 18.
79 UNESCO. (2009). Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its
Applications, adopted in the Experts’ Meeting on 16-17 July 2009 [hereinafter The Venice Statement]. Muller, A. 66, 770.
80 The Venice Statement, fn. 79, section III(8). See American Association for the Advancement of Science, fn.
65, p. 4.
81 The Venice Statement, 79, section III(8). See Muller, A. fn. 66, 771. 82 American Association for the Advancement of Science, fn. 65, 4.
of science to ‘reveal new truths’ that are needed for ‘planning and predicting the future.’83
Besides, according to this view, knowledge of the scientific method increases the critical thinking and analytic reasoning, which entitles individuals to apply knowledge/information within their society, enabling the exercise of effective citizenship.84
Chapman argues that what distinguishes ‘science’ from ‘other domains of culture and knowledge’ is its progressive character.85 Hence, “science is seen as a collective enterprise of
researchers in successive generations who built on each other’s knowledge base and findings.”86 In essence, then, scientific knowledge is cumulative in the sense that it produces
methods of science that “are used to create scientific theories, which are then tested and evaluated enabling them to become the basis for more knowledge.”87
From all the definitions provided, it could be summed that ‘science’ is an objective and critical study done through systematic methods, with a progressive character, that can be verified, tested, refuted, and contrasted with reason and experience; this also encompasses the possibility of peer review. Further, science enhances conditions for further knowledge and activities (both scientific and cultural).
b. “Enjoy the benefits”
The CESCR considers that ‘benefits’ refer, first, to the “material results of applications of scientific research, such as vaccination, fertilizers, technological instruments and the like.”88
However, the concept does not refer only to ‘physical’ results as such, and can also be “scientific knowledge and information directly deriving from scientific activity, as science provides benefits through the development and dissemination of the knowledge itself.”89 The
benefits of science “convey[s] the idea of a positive impact on the well-being of people and the realization of their human rights,” and they “encompass not only scientific results and
83 Ibidem, 2-3. 84 Ibidem, p. 3.
85 Chapman, A.R. (2009). Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and
Its Applications. Journal of Human Rights, 8(1), 6.
86 Ibidem, 7. 87 Idem.
88 General Comment 25, fn. 8, para. 8. 89 Idem.
outcomes but also the scientific process, its methodologies, and tools.”90 In the same line, the
American Association for the Advancement of Science argues that the benefits of science must be read to include material, conceptual, methodological, and cultural benefits.91
Further, to enjoy the benefits of science, it is not required that the individuals contributed to the scientific progress from which the benefit derived.92 This understanding was restated by
the Venice Statement.93 Some scholars argue that the ‘benefits’ should be understood as
benefits “that everyone should be able to enjoy in everyday life.”94 It could be concluded,
accordingly, that ‘to enjoy the benefits’ is mostly passive and individuals are not required to contribute to the scientific production itself.
c. Other relevant concepts of article 15 ICESCR
Article 15 ICESCR encompasses more than the REBSPA, which is only in subparagraph (1)(b). The other paragraphs of article 15 refer to the right to take part in cultural life, and the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author. Also, it encompasses the obligation of States to take the steps necessary to achieve the full realization of the right that requires those measures necessary to achieve the full realization of the right; which compel States to adopt the measures required for the conservation, development, and diffusion of science and culture; and the freedom indispensable for scientific research and creative activity. And, lastly, the recognition of the importance of international cooperation for the development of science and culture.
These other paragraphs contain relevant concepts that are interrelated to the REBSPA; nevertheless, they are outside of the scope of the present investigation considering that these paragraphs would not guide whether indigenous TK can be protected within the REBSPA. Consequently, they are not going to be addressed. Still, it is worth mentioning that article 15(1)(c) about the benefits of the protection of moral and material interests from any scientific, literary or artistic production was analysed by the CESCR in its General Comment No. 17 90 A/HRC/20/26, fn. 54, para. 24.
91 American Association for the Advancement of Science, fn. 65, 17. 92 Muller, A. fn. 66, 780.
93 The Venice Statement, fn. 79, section III(11). See Muller, A. fn. 66, 780. 94 Chapman, A.R. fn. 85, 9. Muller, A. fn. 66, 780.
(2005);95 and subparagraphs (2), (3), and (4) were addressed in General Comment No. 25
(2020).96
The right to take part in cultural life was addressed by the CESCR in General Comment No. 21 on the right of everyone to take part in cultural life (article 15, paragraph 1(a) of the ICESCR).97 It is noteworthy that the Committee held that the right to take part in cultural life
includes “the right of every person to take part in scientific progress and in decisions concerning its direction.”98 The REBSPA and the right to take part in cultural life are related
in the sense that both are in the pursuit of “knowledge and understanding and to human creativity in a constantly changing world.”99 Moreover, both rights require that there are the
necessary conditions for everyone, without discrimination, to “continuously engage in critical thinking about themselves and the world they inhabit, and to have the opportunity and wherewithal to interrogate, investigate, and contribute new knowledge with ideas, expressions, and innovative applications [..].”100 The right to take part in cultural life “entails conditions that
allow people to reconsider, create, and contribute to cultural meaning and manifestations in a continuously developing manner.”101
C. Elements of the right
The REBSPA includes both freedoms and entitlements; the former includes the right to participate in scientific research; whilst the latter includes the right to enjoy, without discrimination, the benefits of scientific progress.102 The essential elements of the REBSPA
can be identified as availability, quality, acceptability, accessibility, and freedom of scientific research.103
95 See General Comment 17, fn. 75. 96 See General Comment 25, fn. 8.
97 See CESCR. (2009). General Comment No. 21. Right of everyone to take part in cultural life (art. 15, para. 1
(a), of the International Covenant on Economic, Social and Cultural Rights. Adopted by the Committee on
Economic, Social and Cultural Rights at its Forty-third session (2-20 November 2009) [E/C.12/GC/21], 21 December 2009.
98 General Comment 25, fn. 8, para. 10. 99 A/HRC/20/26, fn. 54, para 17. 100 Ibidem, para 18.
101 Idem.
102 General Comment 25, fn. 8, para. 15. 103 Idem.
1. Availability
Availability relates to the obligation to take steps for the conservation, development, and diffusion of science.104 This element is closely connected to paragraph (2) of article 15
ICESCR.105 Accordingly, conservation requires “the identification and safeguarding of
scientific knowledge, products and tools […].”106 Development requires commitment with the
advancement of science in benefit for humans.107 Lastly, diffusion entails the diffusion of both
scientific knowledge and its applications in the scientific community and society in general;108
“the diffusion of science is a precondition for public participation in decision-making and essential for fostering further research, development, and applications.”109
2. Quality and acceptability
Quality “refers to the most advanced, up-to-date, and generally accepted standards by the scientific community.”110 Acceptability correlates to the effort to ensure that science and its
applications are disseminated acceptably according to different cultural and social contexts, respecting the integrity and ethical standards.111
For these elements, especially acceptability, the participation of individuals and communities in decision-making processes related to science becomes pertinent.112 Participation is important
concerning “(a) the obligation to protect all persons, including marginalized populations, such as indigenous peoples, against the negative consequences of scientific testing or applications on, in particular, their food security, health or environment, and (b) the need to ensure that scientific research is conducted on key issues, including for the most vulnerable.”113
104 Ibidem, para. 16. 105 A/HRC/20/26, fn. 54, para. 45. 106 Ibidem, para. 46. 107 Ibidem, para. 47. 108 Ibidem, para. 48. 109 Idem.
110 General Comment 25, fn. 8, para. 18. 111 Ibidem, para. 19.
112 A/HRC/20/26, fn. 54, para. 43. 113 Idem.
3. Accessibility
Accessibility “means that scientific progress and its applications should be accessible for all persons, without discrimination.”114 This comprises the removal of “discriminatory barriers
that impede persons from participating in scientific progress, for instance, by facilitating access by marginalized populations to scientific education.”115 Consequently, it connotates a right to
access scientific knowledge, information, and advances, without discrimination per article 2(2) ICESCR.116 The accessibility should be understood as access to science as a whole, and not
limited to specific outcomes or applications,117 as it is a right “to be introduced to and informed
about main scientific discoveries and their applications […].”118
Furthermore, as accessibility relates to the opportunities for all to contribute to the scientific enterprise and the freedom indispensable for scientific research, scientific developments should not be obstructed by political or other interferences.119 Correspondingly, the REBSPA needs
to be read in conjunction with the right to the freedom of association,120 expression,121 and
information.122
4. Freedom of scientific research
Closely related to the accessibility, the freedom of scientific research encompasses the right to freely communicate research results and to publish and publicize them without censorship.123
And even more relevant for the scope of the present investigation, this freedom includes “the right of everyone to participate in the scientific enterprise, without discrimination on the bases of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Barriers to scientific research and opportunities for entering the science professions of certain sectors of society must be overcome.”124
114 General Comment 25, fn. 8, para. 17. 115 Idem.
116 A/HRC/20/26, fn. 54, para. 26. ICESCR, fn. 32, article 2 (2.) See Annex I. 117 A/HRC/20/26, fn. 54, para. 26.
118 Ibidem, para. 27. 119 Ibidem, para. 39.
120 ICCPR, fn. 31, article 22. See Annex I. 121 ICCPR, fn. 31, article 19. See Annex I. 122 ICCPR, fn. 31, article 19. See Annex I. 123 A/HRC/20/26, fn. 54, para. 40. 124 Ibidem, para. 42.
D. Nature and scope of the State obligations 1. General obligations
As with all economic, social and cultural rights, States are obliged to ‘take steps to the maximum of their available resources,’ to progressively achieve the full realization of the rights, avoiding as much as possible retrogressive measures.125 Nevertheless, States are under
the immediate obligation to eliminate all forms of discrimination against individuals and groups in their enjoyment of economic, social, and cultural rights.126 The CESCR even argues
that States must take steps, regarding article 15(2), to “make all necessary efforts to overcome persistent inequalities in scientific advancement through culturally and gender-appropriate means of education and communication, with the aim of allowing the widest participation in scientific progress of those populations who have traditionally been excluded from such progress.”127
2. Specific obligations
Human rights, including the REBSPA, entails for States specific obligations to respect, protect, and fulfil. Therefore, States have the obligation to respect the REBSPA in the sense that they must “refrain from interfering directly or indirectly in the enjoyment of this right.”128 The
obligation to protect requires the adoption of measures that prevent private actors from interfering with the right; for instance, by preventing access to knowledge or discriminating on grounds of gender, sexual orientation, gender identity, or other circumstances.129
Finally, the obligation to fulfil requires States to adopt measures and establishing remedies directed to the full enjoyment of the REBSPA.130 The latter includes education policies, grants,
participation tools, dissemination of knowledge, providing access to the internet and other sources, participation in international cooperation, and ensuring appropriate financing.131 This
obligation to fulfil is reinforced by paragraph (2) of article 15 ICESCR.132
125 See ICESCR, fn. 32. Article 2(1). See Annex I. 126 General Comment 25, fn. 8, para. 25.
127 Ibidem, para. 26. 128 Ibidem, para. 42. 129 Ibidem, para. 43. 130 Ibidem, para. 45. 131 Idem.
3. Core obligations
Before addressing the core obligations of the REBSPA, it is worth recalling that rights in the ICESCR, including this right, can be subject to limitations (which are not going to be addressed since they fall outside of the scope of the investigation).133 It is important to mention, however,
that any limitation to the REBSPA needs to comply with the general clause in article 4 ICESCR,134 meaning that the core obligations of the right need to still be respected.135
Core obligations need to be implemented by States, as the CESCR phrase it “as a matter of priority;”136 and if they fail to do so, States must prove that all reasonable efforts were made
according to the available resources (individually and those from international assistance).137
Accordingly, in General Comment 25, the Committee provides a list of twelve core obligations related to the REBSPA, among several is worth mentioning (taking into account the scope of the investigation) those of:
• “Eliminate laws, policies and practices that unjustifiably limit access by individuals or particular groups to facilities, services, goods and information related to science, scientific knowledge and its applications; […]
• Remove limitations to the freedom of scientific research that are incompatible with article 4 of the Covenant;
• Ensure that people have access to the basic education and skills necessary for the comprehension and application of scientific knowledge and that scientific education in both public and private schools respects the best available scientific knowledge; […]
• Ensure that in the allocation of public resources, priority is given to research in areas where there is the greatest need for scientific progress in health, food and other basic needs related to economic, social and cultural rights and the well-being of the population, especially with regard to vulnerable and marginalized groups; […] 133 See in relation to the limitations to the REBSPA: Donders, Y. (2015). Balancing interests: limitations to the
right to enjoy the benefits of scientific progress and its applications / Une Balance des intérêts – Les restrictions au droit de bénéficier du progrès scientifique et de ses applications. Journal Européen des Droits de l’Homme, 2015(4), 486-503.
134 ICESCR, fn. 32. Article 4. See Annex I. 135 General Comment 25, fn. 8, para. 21. 136 Ibidem, para. 51.
• Adopt mechanisms to protect people from the harmful consequences of false misleading and pseudoscience-based practices, especially when other economic, social and cultural rights are at risk […].”138
E. Special protection of indigenous peoples’ rights
Although States have the general obligation to eradicate discrimination barriers, according to article 2(2) ICESCR, there are groups of people that have been systematically discriminated against relating the REBSPA that require special attention. They are, inter alia, women, persons with disabilities, LGBTIQ+, persons in poverty, and indigenous peoples.139 Since this
research concentrates on indigenous TK, among those groups only the indigenous peoples are going to be mentioned.
The CESCR recognized in General Comment 25 that indigenous TK “has an important role to play in the global scientific dialogue […].”140 Hence, indigenous peoples “should participate
in a global intercultural dialogue for scientific progress, as their inputs are precious and science shout not be used as an instrument of cultural imposition.”141 It can be inferred from the
wording that although indigenous TK is relevant and could contribute to science, it is not recognized as science per se.
Furthermore, the Committee encourages States to adopt measures “including special regimes of intellectual property, and measures to secure the ownership and control of this traditional knowledge by local and traditional communities and indigenous peoples.”142
F. Analysis
Indigenous TK as it was described above (see Definition and elements of traditional
knowledge), is the result of accumulation and development of knowledge, know-how,
practices, and representations over time by indigenous communities, through empirical observations and interactions with their surrounding environment. This system of knowledge
138 General Comment 25, fn. 8, para. 52. 139 Ibidem, para 28.
140 Ibidem, paras. 39-40. 141 Idem.
needs to fit within the elements of science described in this chapter for it to be protected within the REBSPA; otherwise would be another type of knowledge that might be protected and developed as a cultural right. It is implied by the CESCR in General Comment 25, that indigenous TK is not within the concept of science; this, based on the definition, provided by UNESCO in 2017 and upheld by the Committee.143
The author of the thesis acknowledges that indigenous TK might conflict with or at least not fulfil all the elements of definitions of science; mainly with the possibility of peer review, verification, refutability, and testability. These difficulties are reinforced by the methods of transmission and expression of such knowledge, which is transmitted mostly orally from one generation to the next one. Moreover, some knowledge is considered highly sacred and therefore is not publicly shared.144 Furthermore, as mentioned in chapter II. TRADITIONAL
KNOWLEDGE (TK), indigenous TK comprehends more than indigenous traditional
scientific knowledge, which could be an objective obstacle to recognize indigenous TK, as the overarching category, within the REBSPA.
Nevertheless, indigenous TK is a progressive system of knowledge (is cumulative since it develops through time), advanced by empirical observations that enhances conditions for further knowledge, and scientific and cultural activities. Therefore, it is considered by the author that the definition and approach adopted by the CESCR are rather narrow. In this sense, Professor F. Coomans questioned, according to the view advanced here correctly, the narrow definition of science provided by the CESCR.145 Professor Coomans argued convincingly that
the definition therein provided excluded the concept of indigenous knowledge and science, disregarding the universal character of the ICESCR.146
The basis of such criticism is the long-standing perception of scientific knowledge being advanced through research and development by institutes and companies in the developed world.147 This dominance of Western systems of knowledge, especially in the scientific field
that persists in the twenty-first century, could be identified as the main factor influencing the
143 See General Comment 25, fn. 8, para. 5 144 E/C.19/2019/5, fn. 2, para. 3.
145 Coomans, F. fn. 50, 1. 146 Idem.
way the CESCR approached indigenous TK.148 This, even though the Committee attempted to
recognize the need for special protection for indigenous peoples concerning the REBSPA,149
which was included in the last stages of the drafting of the General Comment.150 As the UNPFII
phrases it correctly:
“Indigenous peoples want to have an equal footing, especially in an arena where they are still viewed as objects of research, rather than as agents of change, which creates an unequal balance of power. The main concern is for the development of new standards and protocol and the promotion of research ethics in this field.”151
Furthermore, the approach taken in General Comment 25 is not fully convincing if we try to reconcile the definition therein adopted with the elements of the REBSPA of accessibility and the freedom of scientific research. These elements entail the lifting of barriers impeding persons from participating in scientific progress; ergo, indigenous peoples should have the same opportunities to contribute to the scientific enterprise and enjoy the freedom indispensable for scientific research.
These, in addition to the recognition of TK and non-Western science, make necessary a new collective perspective of science and knowledge.152 As Professor Coomans suggested to the
CESCR, science and indigenous TK should not be disjointed and catalogued in a hierarchy, “but rather a spectrum or continuum of dynamic relationships reinforced by trends towards globalization.”153 This intercultural approach – contrary to the Western-system of knowledge
approach – that takes into account multiple domains of knowledge and various logics and
148 E/C.19/2019/5, fn. 2, para 2.
149 General Comment 25, fn. 8, paras. 39-40.
150 See CESCR. (2020). General Comment. Science and economic, social and cultural rights. Art. 15: 15.1.b,
15.2, 15.3 and 15.4 (Draft version 2 January 2020), Draft prepared by Rodrigo Uprimny and Mikel Mancisidor.
2 January 2020. Available in:
https://www.ohchr.org/EN/HRBodies/CESCR/Pages/DraftGeneralComment_Science.aspx [accessed 22 July 23, 2020].
151 Permanent Forum on Indigenous Issues. (2010). Indigenous Peoples: Development with Culture and Identity:
Articles 3 and 32 of the United Nations Declaration on the Right of Indigenous Peoples, Report of the International Expert Group Meeting. Ninth session, New York (19-30 April 2010), [E/C.19/2010/14] 5 February
2010, para. 16.
152 Coomans, F. fn. 50, p. 1. 153 Ibidem, p. 3.
epistemologies,154 and that respects and considers as valid non-Western scientific modes of
expression155 should be adopted by the CESCR.
Consequently, recognizing indigenous traditional scientific knowledge as science is a mechanism of balancing the, historically uneven, power by recognizing indigenous peoples’ equal footing in the scientific field, moving from the perspective of ‘objects of research.’156
G. Conclusion
The REBSPA has been addressed in the last years, clarifying to a certain extent – especially by CESCR's General Comment 25 – the normative content, scope of application, and elements of the right. The first challenge addressing this right is the definition 'science' that was not defined for human rights purposes. Subsequently, the definition and approach adopted by the CESCR in its General Comment 25 implicitly exclude TK from the concept of science although it acknowledges the relevance of such knowledge in the scientific arena. However, it argues that knowledge that is not science can be protected as a cultural right.
It is accepted that indigenous TK might conflict with some elements of the multiple definitions of science; especially concerning peer review, verification, reinforced by the, usually, oral transmission of such knowledge. Nonetheless, indigenous TK is a progressive system of knowledge, that could fit within a definition of science that is open to non-Western knowledge. Besides, the elements of accessibility and the freedom indispensable for scientific research support the need to lift discriminatory barriers for indigenous peoples.
Therefore, it is suggested, reiterating Professor Coomans’ position, that the CESCR adopts an intercultural approach opened to multiple domains of knowledge, logics, and epistemologies. This, to recognize the equal footing of indigenous peoples in the scientific domain.
154 Coomans, F. fn. 6, 95.
155 Maldonado, J., et al. fn. 38, 123. See also Vieytez, E.J.R. fn. 28, 61. 156 See E/C.19/2010/14, fn. 151, para. 16.
