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Soft law consists of documents that are not directly enforceable in courts and tribunals but that nonetheless have an impact on international relations and, ultimately, international law. Many such international agreements may prove useful and may serve as the basis of future legally binding agreements, just as ICESCR and ICCPR grew out of the Universal Declaration of Human Rights. This chapter details agreements relevant to the protection of TRR.

What is 'soft law" and why is it relevant?

The international community lacks a central law-making authority; thus, the creation ofnew law must be through consensual processes. Historically, there are two main sourcesof international law: customary law and treaties. Customary law evolves over time,becoming universally accepted through continuous practice, whereas treaties take theform of documents signed by governments that agree to be bound by their contents.

Soft law is a rapidly developing, though controversial source of international law.The term itself is misleading, as strictly speaking it is not law at all. In practice, soft lawrefers to a great variety of instruments: declarations of principles, codes of practice, recommendations, guidelines, standards, charters, resolutions, etc. Although all these kindsof documents lack legal status (are not legally binding), there is a strong expectation thattheir provisions will be respected and followed by the international community.According to Bothe (1980):

A nonlegal commitment is . . . often much easier for a state to accept than a legal one. Inall probability, here lies the reason why states do not reject resolutions the terms ofwhich they would by no means accept as a treaty. This presents both an opportunityand a danger. As resolutions also give rise to expectations, they trigger a certain pressure for compliance that is often, as has been shown, effective in the long run. Theyinfluence practice, and practice influences law.

One reason why soft law is of interest stems from the very fact that governmentsundertake moral obligations when they sign such agreements, and some may be influenced by moral suasion. The evolution of customary international law can be acceleratedby the inclusion of principles in soft law agreements and in nongovernmental declarations and resolutions (James Cameron, Foundation for International Environmental Lawand Development, London, UK, 1995, personal communication). Because of the growing number and influence of such documents, which uphold the rights of indigenouspeoples to their knowledge, territories, and resources, it is not inconceivable that suchrights could become part of international law in the near future, even if they are notincluded in conventions (Tobin 1995). In this chapter, we describe several of these softlaw instruments and consider how they might be useful.

The Universal Declaration of Human Rights

The 1948 UDHR is a significant nonbinding international agreement. It guarantees fundamental freedoms of personal integrity and action and individual political, social, economic, and cultural rights. With regard to the protection of cultural or traditionalresources, a principal problem with the 'human rights approach" of the UDHR is thataction is directed toward nation states. It does not easily provide a basis for claimsagainst multinational companies or individuals who profit from traditional knowledge.

Article 7 of the UDHR supports equal protection for all under the law, therebyimplying that IPR protection should be available to all peoples including indigenouspeoples. Article 17 provides for the right to own collective property and not to be

arbitrarily deprived of that property. Article 23 guarantees the right to just andfavourable remuneration for work, which can be interpreted as work related to traditional knowledge. Finally, Article 27 provides for the right to culture and recognition ofinterest in scientific production, including the right to the protection of the moral andmaterial interests resulting from any scientific, literary, or artistic production.

The conversion of sacred places to other uses by outsiders and lack of respect ofsuch places by visitors could be compared with the destruction of a church, temple, ormosque, and the infringement of people’s religious rights. In these terms, Article 18 ofthe UDHR becomes relevant. It states in part:

Everyone has the right to freedom of thought, conscience and religion . . . and freedom,either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Religious freedom is an important concept to indigenous peoples. For example, ata seminar on IPR at the United Nations Human Rights Convention in Vienna, June 1993,Ray Apoaka of the North American Indian Congress suggested that IPR are a matter ofreligious freedom for indigenous peoples: 'Much of what they want to commercialize issacred to us. We see intellectual property as part of our culture. It cannot be separatedinto categories as [Western] lawyers would want."

Pauline Tangiora, a Maori leader, agrees: 'Indigenous Peoples do not limit theirreligion to buildings, but rather see the sacred in all life" (Posey 1994). Therefore, lawsgoverning religious freedom may be open to far-reaching interpretations. For example,the patenting of human cell lines may infringe indigenous peoples’ religious freedom ifit conflicts with religious beliefs.

Many countries that signed the UDHR have violated many of the rights that itenshrines. Nevertheless, it can be argued that the worldwide acceptance of the UDHRmeans that it is now part of international customary law and is, therefore, legally binding. If so, this is an important example of soft law being 'hardened" (Shaw 1994,p. 196).⁵ What is indisputable is that a number of other human rights treaties did emergeout of the UDHR, such as the ICESCR and the ICCPR (see Chapter 10), that makes itsprovisions binding.

ECOSOC and the Working Group on Indigenous Populations

The United Nations Economic and Social Council (ECOSOC) authorized theCommission on Human Rights to form a special subcommission 'to conduct a broadstudy of the problem of discrimination against Indigenous Peoples" (Kahn and Talal1987, p. 121). The Subcommission on Prevention of Discrimination and Protection ofMinorities found that current international instruments were not 'wholly adequate for

⁵ When the UDHR was adopted by the United Nations (without opposition from any country), it wasintended that it would become international law soon afterward in the form of a single convention. Instead, anumber of human rights conventions were developed and adopted over a much longer period.

the recognition and promotion of the specific rights of indigenous populations as suchwithin the overall societies of the countries in which they now live" (ECOSOC 1986).

In 1982, ECOSOC created a Working Group on Indigenous Populations (WGIP),which has become the most open international forum for indigenous representatives andadvocates of indigenous rights. The WGIP has prepared a Declaration on the Rights ofIndigenous Peoples (see Appendix 4 for the latest official draft) that should lead to aConvention on the Rights of Indigenous Peoples.

In Resolution 1990/27, the Subcommission on Prevention of Discrimination andProtection of Minorities recommended that any UNCED convention should 'provideexplicitly for the role of indigenous peoples as resource users and managers, and for theprotection of indigenous peoples’ right to control of their own traditional knowledge ofecosystems." Resolution 1991/31 calls for a study on the applicability of collective rightsregarding property, including intellectual property.

In 1991, the subcommission requested that the UN Secretary-General prepare aconcise report on the extent to which indigenous peoples can use existing internationalstandards and mechanisms for the protection of their intellectual property, drawingattention to any gaps or obstacles and to possible measures for addressing them. WIPOwas also specifically requested to help in 'formulating recommendations for the effectiveprotection of the intellectual property of Indigenous Peoples" (ECOSOC 1992a).

In May 1992, the United Nations held a Technical Conference on IndigenousPeoples and the Environment in Santiago, Chile. Participants established some basicprinciples, including 'recognition, protection and respect for indigenous knowledge andpractices that are essential contributions to the sustainable management of the environment." It was also recommended that the United Nations system take effective measuresto protect the rights of indigenous peoples to their cultural property, genetic resources,biotechnology, and biodiversity (ECOSOC 1992b).

In July 1993, the subcommission produced its Study on the Protection of the Culturaland Intellectual Property of Indigenous Peoples (ECOSOC 1993). This document is a survey of issues relating to indigenous heritage, with particular emphasis on cultural heritage, and of international legal instruments — particularly human rights and IPRinstruments. One problem with the emphasis on cultural issues is that insufficient attention is given to the protection of biological resources and traditional knowledge.

In these declarations, recommendations, and studies, as in the Draft Declarationon the Rights of Indigenous Peoples, there has been a clear call from the Human RightsCommission for protection of, and just compensation for, the IPR of indigenous andtribal peoples. Because this forum can activate other UN agencies, it may eventually produce important results at the international level.

The Rio Declaration

The Rio Declaration on Environment and Development was signed in June 1992 at UNCEDand clearly establishes the relevance of indigenous peoples and the central importanceof their protection in achieving 'sustainable development." Given the reluctance of many

nation states to recognize indigenous peoples’ rights in the past, the tone of the RioDeclaration is indeed progressive and welcome. Principle 22 states:

Indigenous people and their communities, and other local communities, have a vitalrole in environmental management and development because of their knowledge andtraditional practices. States should recognize and duly support their identity, cultureand interests and enable their effective participation in the achievement of sustainabledevelopment.

Agenda 21

Agenda 21 is the program of action for sustainable development agreed to at UNCED.Agenda 21 has been described as 'possibly the most far-reaching and voluminous" example of international soft law 'ever to be attempted," and as a text 'which has moral if notlegal force and which may subsequently serve to underpin both national actions andsubsequent, possibly more stringent, international agreements in specific areas"(Johnson 1993).

It emphasizes the conservation and utilization of plant genetic resources in situ asa component of programs to promote sustainable agriculture (ODI 1993). It recognizesthe importance of indigenous and local communities, their knowledge and culture, andthe contribution they can make to protecting biodiversity, and states that they should berewarded.

Material relevant to protecting the rights of indigenous farming communities canbe found in chapters 14, 15, 16, 26, and 32 of Agenda 21. The areas of focus are reinforcing indigenous communities’ rights to pursue their traditional way of life and landrights. Also noteworthy are paragraphs regarding the use of indigenous knowledge intraining other rural peoples and in working for conservation of crop diversity.

Chapter 32 relates to the role of farmers, calling for a 'farmer-centred approach"as the 'key" to attaining sustainability. The chapter concentrates on increasing the role offarmers in decision-making through the creation of organizations and decentralization ofthe process.

Chapter 26 is the key chapter regarding indigenous peoples’ rights. It sets outUNCED’s specifications for empowering indigenous peoples and their communities. Itdefines 'lands" as including 'the environment of the areas which the people concernedtraditionally occupy." Clause 4 gives indigenous people an opportunity for greater control over their life and lands 'in accordance with national legislation" and the possibilityof participating 'in the establishment or management of protected areas." This is anextremely important clause because it recommends government action to strengthen thelegal position of indigenous peoples nationally and internationally. It is supported byclause 26.5 recommending that governments, United Nations organizations, and otherinternational organizations formally include indigenous people in planning by appointing 'a special focal point within each international organization" and holding annualinterorganizational coordination meetings.

The FAO International Code of Conduct for Plant Germplasm Collecting and Transfer

The FAO International Code of Conduct for Plant Germplasm Collecting and Transfer is partof the FAO’s Global System on Plant Genetic Resources, the International Undertakingon Plant Genetic Resources, and its annexes. The code provides a set of general principles that governments may wish to use in developing national regulations or formulating bilateral agreements on the collection of germplasm.

The code of conduct was adopted as Resolution 8/93 by the 27th session of theFAO conference in November 1993. Its first objective is to

Promote the conservation, collection and use of plant genetic resources from their natural habitats or surroundings in ways that respect the environment and local traditionsand cultures.

It aims to involve farmers, scientists, and organizations in conservation programsin countries where collecting is taking place, to promote the 'sharing of benefits," andincrease recognition of the rights and needs of local communities and farmers so thatthey may be compensated for their contribution to the conservation and development ofplant genetic resources and not have their current benefits undermined by resourcetransfer.

Among the code’s provisions are

• Collectors should respect local customs, traditions, values, and property rights;not deplete local resources; and work with the agreement of and in cooperationwith local communities. Duplicate sets of all collections and associated materials are to be deposited with the host country.
• Curators are directed to take practical steps, such as the use of MTAs, to sharebenefits derived from collected germplasm with the local communities, farmers, and host countries.
• Users should consider some form of compensation to local communities, farmers, and host countries for the benefits derived from the use of germplasm.

Unesco’s cultural documents

Unesco has produced a number of nonbinding documents of relevance to indigenouspeoples. For example, the 1966 Declaration on the Principles of International CulturalCooperation states:

Each culture has a dignity and value which must be respected and preserved . . . . Everypeople has the right and duty to develop its own culture.

The importance of this statement is that it can be interpreted to uphold collectiverights as opposed to individual rights.

Although the Unesco–WIPO model provisions (described in Chapter 9) have notbeen adopted in full by any country, they did influence the drafters of the 1989 UnescoRecommendations on the Safeguarding of Traditional Culture and Folklore, which wereadopted unanimously by member states. Folklore is defined as follows (Unesco 1990):

Folklore (or traditional and popular culture) is the totality of tradition-based creationsof a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Itsforms are, among others, language, literature, music, dance, games, mythology, rituals,customs, handicrafts, architecture and other arts.

Among the provisions of the recommendations are the following:

E.    Dissemination of folklore: The attention of people should be drawn to the importanceof folklore as an ingredient of cultural identity. It is essential for the items that makeup this cultural heritage to be widely disseminated so that the value of folklore andthe need to preserve it can be recognized. However, distortion during disseminationshould be avoided so that the integrity of the traditions can be safeguarded. To promote a fair dissemination, Member States should: . . . (g) encourage the internationalscientific community to adopt a code of ethics ensuring a proper approach to andrespect for traditional cultures.

F.    Protection of folklore: In so far as folklore constitutes manifestations of intellectualcreativity whether it be individual or collective, it deserves to be protected in a manner inspired by the protection provided for intellectual productions. Such protection of folklore has become indispensable as a means of promoting furtherdevelopment, maintenance and dissemination of those expressions, both within andoutside the country, without prejudice to related legitimate interests. Leaving asidethe 'intellectual property aspects" of the protection of expressions of folklore, thereare various categories of rights that are already protected and should continue toenjoy protection in the future in folklore documentation centres and archives. Tothis end, Member States should: (a) regarding 'intellectual property" aspects: callthe attention of relevant authorities to the important work of Unesco and WIPO inrelation to intellectual property, while recognizing that this work relates to only oneaspect of folklore protection and that the need for separate action in a range of areasto safeguard folklore is urgent; (b) regarding the other rights involved: (i) protect theinformant as the transmitter of tradition (protection of privacy and confidentiality);(ii) protect the interest of the collector by ensuring that the materials gathered areconserved in archives in good condition and in a methodical manner; (iii) adopt thenecessary measures to safeguard the materials gathered against misuse, whetherintentional or otherwise; (iv) recognize the responsibility of archives to monitor theuse made of the materials gathered.

G.    International cooperation: In view of the need to intensify cultural cooperation andexchanges, in particular through the pooling of human and material resources, inorder to carry out folklore development and revitalization programmes as well asresearch made by specialists who are the nationals of one Member State on the territory of another Member State, Member States should: (c) cooperate closely so asto ensure internationally that the various interested parties (communities or naturalor legal persons) enjoy the economic, moral and so-called neighbouring rightsresulting from the investigation, creation, composition, performance, recordingand/or dissemination of folklore.

Conclusions

Soft law is important for at least two reasons:

• Even though soft law documents are not legally binding, they establish what areaccepted by states as standards of behaviour, and they promote some policiesthat can benefit traditional communities.
• Soft law documents may ultimately have an impact on international law.

Therefore, although indigenous peoples may feel that attempting to influenceinternational law should be a priority, soft law options should not be neglected. Theefforts of the WGIP show that many indigenous peoples are already aware of this.

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