FOREIGN GMO TEST-GROUND AT PUKEKOHE

FOREIGN GMO TEST-GROUND AT PUKEKOHE

An international firm is about to use a Pukekohe field as a genetic

engineering testing ground, says Greens Co-Leader Jeanette Fitzsimons.

She says the experiment creates a long-term threat to Waikato and South

Auckland crops.

International company Pioneer Hi-Bred has applied to grow

genetically-engineered maize at Pukekohe. It will add a soil-bacteria

gene called PAT to about 650 maize plants in a 0.4ha field trial in

Glenbrook Road.

Ms Fitzsimons says the experiment is designed to make it possible "to

use more and more herbicide directly on the crop without killing it".

"But it is likely to increase herbicide residues in the crop and the

development of herbicide-resistant weeds," she says.

"Widespread use of such a crop could result in transfer of the new gene

to other plants, thereby transferring the herbicide resistance to weed

species."

Ms Fitzsimons says the resulting seeds from Pioneer Hi-Bred's tests will

be exported.

"Scientists are saying other countries are carrying out genetic

engineering, so if we don't 'we'll miss the bus and be left behind'. But

this was the same argument in the 1970s with nuclear power, and look at

the marketing advantage we gained by staying nuclear free.

"New Zealanders have a `genetic-engineering-free' window of opportunity,

but must act quickly."

Earlier this week Ms Fitzsimons revealed that toad DNA would be added to

New Zealand potatoes during a New Zealand Institute for Crop and Food

Research experiment in Canterbury.

Jeanette Fitzsimons MP 07.8686641 (h)

04 4706661 025 586 068

04 4737797 (early Thurs)

Paul Bensemann

Press Secretary

04 2330319 or 04 2377367 (h) 04 4706679 (w) 021 214 2665

 

==========================================

2) FOREIGN GMO TEST-GROUND AT PUKEKOHE

3) Truly the seeds of destruction

The New Straits Times

THE seed of destruction has been sown. Already marginalised,

farmers in the South have been dealt with another blow with a

new deadly "terminator technology" developed in the United

States that prevents the germination of seeds saved from

previous harvests.

On March 3 this year, US seed company Delta & Pine Land Company - which

has since taken

over by the giant agrochemical corporation [ Monsanto ] - and the US

Department of Agriculture

(USDA) disclosed that they had received a US patent codenamed "Control of

Plant Gene

Expression".

It is for a new genetic technology designed to prevent unauthorised

seed-saving by farmers.

It enables a seed company to genetically alter seed so that it will not

germinate if replanted the

second time.

The coverage of the patent is broad, according to the Third World Network,

as it applies to plants

and seeds of all species, including genetically engineered and the

conventionally-bred seeds.

The technology is being tested on cotton and tobacco, with the hope of

marketing it after the year

2000.

It may be a boon to biotechnologists but it is certainly a death sentence

to farmers. It is no wonder

why critics have condemned the patented technology as "terminator

technology".

In justifying its action, the USDA told the Rural Advancement Foundation

International (RAFI)

that it wants the technology to be "widely licensed" by American seed

companies so that they can

open up markets in the Third World.

Delta & Pine Land president Murray Robinson acknowledges that the new

technology will have

global implications, especially in markets or countries where "patent laws

are weak or

non-existence (read: Third World)".

There are 1.4 billion poor farmers in the South who depend on farm-saved

seeds and seeds

exchanged with neighbours as their primary seed source. But with

terminator technology, the

scene may change.

Third World Network warns that terminator technology threatens to restrict

farmer expertise in

selecting seed and developing locally adapted strains, thereby risking

food security and

agricultural biodiversity.

"The threat is real, considering the USDA and Delta & Pine Land have

applied for patent

protection in countries and regions throughout the South - from Madagascar

to Mali, from Brazil

to Benin, from China to Vietnam," it notes.

Once widely licensed, terminator technology could mean that the commercial

seed industry will

enter entirely new sectors - especially in self-pollinating seeds such as

wheat, rice, cotton,

soybean, oats and sorghum.

With the patent, the world's two most critical food crops, rice and wheat

- staple diet for

three-quarters of the world's poor - can potentially enter the realm of

private monopoly.

In Malaysia, the Department of Agriculture has already taken note of the

latest development.

While it has expressed concern, it remains unclear how Malaysia, with

substantial rice cultivation,

will counter the US move.

"Terminator technology is a threat to our well-being, a threat to food

security," says Professor

Datuk Dr Zakri A. Hamid, who heads the United Nations Convention on

Biodiversity Subsidiary

Body and Science and Technological Advice.

 

Subject:

Resent-Date: Wed, 14 Oct 1998 00:04:08 -0700

Date: Wed, 14 Oct 1998 14:47:37 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

Resent-Message-ID: <"NTy2iC.A.bZD.ozEJ2"@oolaa>

Resent-From: bio-ipr@cuenet.com

X-Mailing-List: <bio-ipr@cuenet.com> archive/latest/29

X-Loop: bio-ipr@cuenet.com

Precedence: list

Resent-Sender: bio-ipr-request@cuenet.com

Subject: [BIO-IPR] EU, IP, Indigeous People & the Digital Age

Resent-Bcc:

 

BIO-IPR docserver

________________________________________________________

 

TITLE: EU, IP, Indigenous People and the Digital  Age: Intersecting Circles?

AUTHOR: James Tunney

PUBLICATION: European Intellectual Property Review

DATE: September 1998

SOURCE: EIPR, Vol.20, Issue 9, Sweet & Maxwell Ltd, London

URL: http://www.smlawpub.co.uk

________________________________________________________

 

EU, IP, INDIGENOUS PEOPLE AND THE DIGITAL AGE:

INTERSECTING CIRCLES?

 

JAMES TUNNEY

James Tunney, Senior Lecturer in Law, University of Abertay, Dundee

 

«I thought finally that of all the nostalgias that haunt the human heart the

greatest of them all for me, is an ever-lasting longing to bring what is

youngest home to what is oldest in us all.» [1]

 

A Time for Change

 

The development of IP, in parallel with the growth of regional unions such

as the EU, and global ones such as the World Trade Organization, is an

important strand in the globalisation process. While communications and

entertainment industries pulsate through the body of the global village,

quieter but formidable forces are also stirring. Indigenous peoples have

organised, mobilised, pressurised and achieved some political success, which

will set the pendulum of historical experience on a return arc. [2]

Paradoxically perhaps, the global village does not frighten the indigenous

movement. 'As the Indian movement gathers momentum ... it will become

apparent that not only will Indians survive the electronic world of Marshall

McLuhan, they will thrive in it.' [3]

 

The digital age poses some of the most immediate legal problems both for the

EU and the system of IP in general. [4] Just as solutions in the IP domain

are needed at the cutting edge of new technology, the momentum of the

indigenous people’s movement will also expose the failings of orthodox IP It

could be argued that solutions to IP problems associated with the oldest and

the newest [5] are conceptually closer than might be thought, and that the

convergence and confluence characteristic of the emerging political,

economic, technological and legal landscapes creates opportunities for

coherence. Unfortunately, however, conceptual clarity is arguably being

sacrificed on the altar of commercial expediency, and constructed by a

compartmentalisation of legal thinking. The dominance of short-term shaping

forces is leading to a conceptual disintegration in IP This article argues

that the EU has the opportunity to adopt a proactive approach to the

coherent development of IP, by adopting a common approach which is capable

of dealing with concerns associated with both indigenous people and the

digital age, which focuses on underlying concepts rather than dominant

socio-dynamic forces. [6]

 

IP and Indigenous People: Square Pegs and Round Holes

 

Indigenous people do not constitute an homogeneous group. They range in

diversity from those tribes barely known to exist outside their community,

to groups such as the Mashantucket Pequot, whose Foxwoods Casino alone

(which was opened by the tribe in 1992), by 1994 had sales of over $600

million. [7] A similar diversity of views, philosophies and strategic

 

responses exists in relation to the assessment of the impact of trade on

indigenous people. [8] The impact of IP on indigenous people shares some of

the spectrum of responses. Some would reject and oppose the contemporary

system of IP, some would ignore it, while others would accept it and seek

reform or modification. The academic world also displays a healthy lack of

uniformity of views. They range from the defence of the status quo,

explicitly or implicitly, through those who would stress the opportunities

of the linkage of trade and IP for indigenous people, [9] to others who

would be more cautions. [10] It could be argued that a greater imaginative

or proactive use of existing IP systems by indigenous people would address

some of the problems, but that would be to ignore the socioeconomic

realities for many indigenous groups. Whatever the strategic approach, the

most sympathetic analysis of the IP system, from the perspective of

indigenous people, would probably register it somewhere between insensitive

and highly destructive.

 

The arguments against the western hegemony in the IP area have in modern

times been led by the less developed countries ('LDCs'). It has long been

argued that patents and trade marks in particular were against the interests

of LDCs. [11] The development of the UNCTAD (United Nations Conference on

Trade and Development) Draft Code on Technology Transfer [12] was seen to be

a possible redress of imbalance. Some see this as having failed, [13] and

that experience will have been noted by those advocating greater protection

of indigenous people’s rights. The value of the LDC approach is further

limited by the fact that indigenous people are not confined to these

countries.

 

Practical Problems

 

The contemporary system of IP fails indigenous people very obviously in the

operational context. [14] Thus for example, in relation to patents and plant

breeders’ rights, the cost of filing and registration is prohibitive, as are

the cost of infringement proceedings. In addition to this immediate and

obvious practical problem, there are clear conceptual problems, which impact

operationally. Posey puts it thus: 'IPR law provides indigenous peoples with

few legal courses of action to assert ownership of knowledge because the law

simply cannot accommodate complex non-Western systems of ownership, tenure,

and access.' [15] Posey argues that the trans-generational, communal nature

of indigenous knowledge is difficult for IP rights to accommodate.

Confidential information may be invoked but it requires to be stretched

artificially. [16] Appellations of origin and trade marks may help, but they

again require money, time and vigilance. While some signals of greater

engagement and involvement in the IP arena by indigenous people can be seen

across the Atlantic and Pacific, there is still a long way to go.

 

Apart from the immediate practical and conceptual problems, there are

factors which are more subtle, but equally significant, in relation to

operational inappropriateness. The origin, attainment and quest for

indigenous knowledge is different. It 'may come from ancestor spirits,

 

vision quests, or lineage groups that transmit it orally but not necessarily

>from a specific individual act of discovery'. [17] Although different, it

is

no less sophisticated in its fabric, thus:

 

«Scientists use the term indigenous knowledge systems (IKS) to describe the

totality of information, practices, beliefs, and philosophy that is unique

to each indigenous culture. Such a system may be commonly held within a

community or indigenous society, or it may be known only to specialists,

tribal elders or lineage groups. The term traditional ecological knowledge

(TEK) describes those aspects of an indigenous knowledge system that are

directly related to the management of and conservation of the environment.»

[18]

 

In relation to TEK, Johnson explains that it is

 

«a body of knowledge built by a group of people through generations living

in close contact with nature. It includes a system of classification, a set

of empirical observations about the local environment, and a system of

self-management that governs resource use.» [19]

 

The impracticality or impossibility of securing patents is therefore not

only directly impeded by expense, but by different conceptions of knowledge,

of the origin of knowledge and of ownership of that knowledge. The

individual, autonomous inventor, creator or author contrasts with the

generally communal and collective nature of the activity from an indigenous

perspective. This has further implications for the attitude of indigenous

people towards the commercial exploitation of knowledge. Copyright

protection for indigenous people, which is not as inaccessible as other IP

rights, may be hampered by problems associated with authorship and

originality. [20]

 

Negative Impact of IP

 

The negative exclusionary effect of the IP system in relation to access for

indigenous people is compounded by a positive exclusionary effect, where IP

rights are secured in such a way as to exclude preexisting rights which

indigenous people could have had. The practices of pharmaceutical companies

and other companies in the area of bioprospecting are the most notorious

examples. [21] There is also growing discontent with the appropriation of

traditional songs, imagery and movement.

 

More subtly offensive practices permeate the market-place in relation to

trade marks and business names. There has been a steady appropriation of

cultural terms, both general and particular, noticeably from the native

North American culture. [22] Mass media and Native American culture, as

depicted by Hollywood, was instrumental in engendering certain stereotypical

representations which were subsequently harnessed for their commercial

potential. There has been, and continues to be a cavalier use of names

associated with Native Americans. Cars to football teams have commercially

exploited or utilised native names, connotations or pseudo-native

references. [23] More directly offensive is the use of names of particular

individuals such as Crazy Horse, for everything from restaurants and record

shops, to hairdressers and beers. [24] The sense of appropriation and

disrespect which sustain these commercial uses is thankfully at the tail of

 

the brutal histories of European colonialism, as education and mobilisation

of Native Americans becomes enhanced.

 

The significance of the representation of names and image to indigenous

peoples has long been appreciated in certain quarters in Europe. [25] Sir

James Frazer, writing in 1922, identified the significance of names in his

chapter on 'Tabooed Words'. He explained how names are a crucial part of

'savage' peoples’ being, often shrouded in secrecy, linked with sorcery and

protection from it, sometimes permanent, sometimes conditional. This

importance also applies to certain other relations, names of the dead, or

certain classes of dead people, names of sovereigns or names of gods. There

is something amiss with a system which allows commercialisation and

trivalisation of names which are protected within communities closer to

earlier and original conceptions. Frazer’s account is tinged with an

awareness of the dangers of arrogance when dealing with ideas which might

seem more basic than contemporary ones, and argues that we do well to see

the inheritance.

 

«We stand upon the foundation reared by the generations that have gone

before, and we can but dimly realise the painful and prolonged efforts which

it has cost humanity to struggle up to the point, no very exalted one after

all, which we have reached. Our gratitude is due to the name-less and

forgotten toilers, whose patient thought and active exertions have largely

made us what we are. The amount of new knowledge which one age, certainly

which one man, can add to the common store is small, and it argues stupidity

or dishonesty, besides ingratitude, to ignore the heap while vaunting the

few grains which it may have been our privilege to add to it.» [26]

 

It is surely unjustifiable not to have learned the lesson by now, not so

much in relation to ancestors, as in relation to contemporary groups which

sustain similar belief patterns. [27] The insensivity adds momentum to

extremism in that organisations such as the Zapatistas in Mexico use

examples such as this as part of the argument that Western trading systems

represent an assault on traditional cultures, justifying armed rebellion. As

bioprospecting trawls the depths of indigenous knowledge, contemporary

dance, world music and fashion are beginning to follow the example, with the

probability of an equal lack of sensitivity to the cultural significance of

what they may find. There is no incentive for proponents of the IP system to

ignore the voice of indigenous people, and there may indeed be a great

danger in doing so. Arguments such as this are not arguing for cultural

relativism in law, but the necessity for understanding a plurality of

perspectives in the design and evolution of a system of law which of its

nature may impact on many people around the globe and relate to deep

interests they possess. [28]

 

IP and Indigenous People: The Deeper Problems

 

The operational problems associated with IP whirl in a spiral towards the

heart of some larger problem. The direction leads through the historical

origins of mature legal systems. Legal systems were the essence of imperial

 

rule and the instruments of colonialism. [29] The legal claims to

sovereignty over the lands of indigenous people were clear and compelling to

most European theologians and jurists. [30] The human and environmental

effects, from the earliest arrivals, have been recorded and widely

discussed. [31] The general and particular trade patterns associated with

colonial trade and the effect on indigenous people have been well

documented. [32] Colonial legal systems alienated indigenous people. The

imposed legal systems were used as instruments of imposition of alien rule,

justifying the behaviour of European powers. The treatment and dispossession

of indigenous people, the claim to sovereignty, ownership of land, the

fruits of land and cultural property and the failure to respect treaties

were not calculated to engender the respect for law which is presumed in the

present European populace. Great debates still rage about the return of

cultural treasures. [33] In addition to tangible properties, IP may be seen

as inextricably linked in European empire and arguably a potent modern

reinvention on colonialism. [34] The COICA Statement (Coordinating Body of

Indigenous People of The Amazon Basin) of 1994, emphasises this colonial

analysis. [35] Law therefore was a blunt and brutal instrument in the

arsenal of colonial rule. IP was the product of the processes of the

cultural infrastructure of the European colonial powers. The distance

between likely acceptance or toleration by indigenous people would be

widened further. The hot-house of the Renaissance and the Industrial

Revolution origins of IP would be as far removed from the indigenous world

as an iceberg in the Kalahari.

 

The operational, practical and immediate are the shallows where lawyers

remain, often avoiding the deeper philosophical currents that might sweep

them away. [36] Mainstream legal debate is also grappling with deeper

paradigmatic flaws which impact on contemporary legal principles and their

development. [37] The very notion of property itself, in its European

incarnation, is an alien one developed by imperial and feudal forces which

powered the systems which came to be so destructive for indigenous people.

The conception of good and services that underpins the Treaty of Rome and

development of GATT are inherently inappropriate to indigenous people in

many ways. Goods may have a far richer role in the tapestry of life than

they do in the Western view. [38] Thom White Wolf Fasset, for example,

explained the significance of traditional Pomo basket in terms of the wider

moral and cultural developments, where the basket was contextualised, full

of meaning and purposeful in an holistic, educational sense in relation to

medicines and the seasons. [39] While only an extreme or idealistic fringe

envisage any turning back of the clock, that does not preclude the

introduction of a modecum of sensitivity in particular circumstances,

although they might be quite narrowly defined.

 

IP, as a body of law, peculiarly from a European industrial tradition,

therefore is arguably inherently inappropriate or dysfunctional in relation

 

to the needs of indigenous people. For example, despite the fact that a

celebrated decision in a copyright dispute was recorded in mid sixth-century

Ireland, [40] subsequent imperial attitudes to orality [41] and the

subjugation of non-imperial languages meant that decisions would never be

recognized. The sweat of the brow that watered the soil in the garden where

copyright flourished was only that of the colonial masters. The intellectual

produce of those who toiled outside the citadels of political and legal

power did not perturb the proponents of the noble construct of the

copyright. A dysfunctional, non-inclusive system of IP undermines the

strength of the case of those who advocate and support for it. [42]

 

But it is perhaps necessary to allude to some of the deeper forces which

undermine the efficacy of the construct of IP law for indigenous community,

in areas such as theology, physics, philosophy, conception of time, nature

and justice. This merges not just as a faint , bitter voice from the

dispossessed margin but from the perspectives of native academics who have

climbed western scholastic ladders. Academics, particularly, from within the

indigenous communities stress the basic difference of world views. [43]

These renders Western concept of IP quite difficult. In particular the wider

and alternative concepts of sacredness are ignored. The dominance of

Euro-Christian fabric of law continues. The triangular link between a

dominant religion, the structure of political power and the system of law

seems to persist. [44]

 

But there are positive developments which, by suggesting the antithesis of

long-held theses in Western paradigms, paved the way for the synthesis of

perspectives. Indigenous views are gradually slipping into the Western

mainstream, both from indigenous and Western scholars. Indigenous critiques

are increasingly complementing critiques from orthodox academic world. The

identification of the shortcoming of Western paradigms emerges directly from

diverse other disciplines such as feminism, [45] pot-modernism, [46]

physics, [47] and even from more inherently mechanistic subjects such as

accountancy. [48] There are practical ramifications in areas which were

perceived to be merely 'mechanistic', 'functional', or 'reductionist'. Thus

in the latter area, for example, Birkin argues that contemporary mainstream

techniques, values and ways of thinking are influenced by dualistic ontology

unsuitable for environmental accounting and sustainable development.

Paradigm shifts of this gentle should equip the Western world to understand

and address some of the flaws in the operation of certain legal systems.

 

The Self-interest of Reflection

 

The solving of one riddle, may help in the solution of related ones.

European IP floats on the currents of European intellectual tradition, and

some of the implications of that tradition cannot be forgotten. [49] War in

Europe, for example, has not only led to the origin of the EU experiment,

but has caused a reassessment of the many facets of the systems that led to

repeated and devastating conflict. Jung talks of the problem in relation to

 

the European intellectual tradition and its inability to deal with Eastern

thought in his essay on 'Yoga and the West' [50] in a way which seems to

mirror the arguments put forward from indigenous scholars. He wrote:

 

«It is said of the yogi that he can remove mountains, though it would be

difficult to furnish any real proof of this. The power of the yogi operates

within limits acceptable to his environment. The European, on the other

hand, can blow up mountains, and the World War has given us a bitter

foretaste of what he is capable of when free rein is given to an intellect

that has grown estranged from human nature. As a European I cannot wish the

European more 'control' and more power over the nature within and around

us.»

 

and later:

 

«Western man has no need of more superiority over nature, whether inside or

outside. He has both in almost devilish perfection. What he lacks is

conscious recognition of his inferiority to the nature around and within

him.» [51]

Koestler traced the development of the 'fatal estrangement of the mystic and

the savant' from the early 1600s particularly to the time of Kepler, not

only in the area of astronomy, but in science in general. He points to the

use of science to accelerate the destructive tendencies within the European

experience. Many would disagree. [52] Some would disagree vehemently. [53]

But Jung and Koestler are not alone as European thinkers who see the divorce

between the 'spiritual' and Unscientific' as somewhat artificial and

inevitably linked to certain strains of destructive tendencies. Although

elements of the scientific community have marshalled their forces and are

responding to the less sustainable arguments directed against them, [54] it

would be unfortunate if the challenge posed by the more sustainable ones

were ignored owing to disciplinary protectionism. IP is a fundamental part

of the European commercial and industrial machine, whose destructive

tendencies require that it be treated with respect and caution.

 

This debate fans the flames of contemporary arguments which are raging in

the I. P. domain. Lawyers may dismiss the attempt to trace fault lines in

Western thinking and method to Aristotle, Aquinas, Augustine, Bacon,

Copernicus, Descartes, Galileo or Locke, or whoever else may be identified,

as fruitless academic speculation. They may also seek to portray the IP

system as a mere clockwork, mechanical device, ethically neutral and

separate from the other forces which shape modern society. However, that

would be to deny the discontent that developments in biotechnology and

genetic engineering, such as cloning, are causing within certain circles in

the Western world. These industries have their articulate advocates, and one

need not be afraid that their views and insights will not be aired. [55] But

coherent analysis which is brave enough to deal with the full spectrum of

arguments and perspectives is desirable both in the public interest and

ultimately for the functioning of market structures. Indigenous philosophy

is relevant to this debate, providing signposts to the correction of some of

 

the defects of contemporary paradigms, [56] the formulation of new ones

appropriate to the digital age [57] or perhaps even in the construct of

thinking necessary to work in complex new technologies. [58] More

particularly, addressing indigenous people's concerns about the impact of IP

law could lead to the greater acceptability of the IP system, and to

solutions to the complex challenges posed by new technologies.

 

EU, IP and Indigenous People: Legal Boomerangs

 

Coming back to dry land, it is axiomatic that potential IP rights are

circumscribed by other rights and principles. Most of the statutory

structures recognise competing interests. National IP rights are subject to

limitations such as public policy under statute [59] and public interest at

common law. [60] The development of regional communities and unions

necessitates further circumscription in order to function. IP is protected

as part of the single market. [61] However, the dictates of free movement of

goods and services required the qualification of certain IP rights. The

reconciliation of IP with other grundnorms of the single market such as free

movement and competition law generated a substantial case law. The classic

existence/exercise dichotomy was a necessary tool in the legal engineering

of single market attainment, and it shows how IP is not immune to the impact

of other areas of law. Indeed, the fact that IP has emerged early

historically, as a candidate for international and national regulation like

mushrooms in the morning, gives a signal to the inevitable subsequent

qualification. [62] Competition law is likely to play a more formidable role

in the qualification of the exercise of IP rights in the future. [63]

 

Within the EU, indigenous people (as far as they may be identified) will

receive orthodox IP protection. Because of the ignorance or disregard of

indigenous people’s concerns, it is probable that the crystallising

indigenous rights will operate to restrict existing IP rights.

Alternatively, they might operate to extend IP rights in new ways. The

latter may look highly improbable, however, as IP has been almost

irrevocably dominated by the forces which are seen to be hostile to the

interests of indigenous people.

 

For indigenous people’s rights to limit the exercise of IP rights, it is

necessary to identify whether indigenous people, from within or without the

EU, may have enforceable rights. With the UN Draft Declaration on the Rights

of Indigenous Peoples [64] the process of crystallisation of specific legal

rights for indigenous people on the international plane is maturing, through

a collection of binding and non-binding international agreements. This

stream is increasingly being fed by a number of tributaries which should

gather enough momentum to generate principles of international law.

Decisions such as the Mabo case [65] in Australia indicate a willingness to

re-examine doctrines which the common law utilised in a very harmful way

against indigenous people. Blakeney notes various recent declarations which

will inevitably form a head of pressure which lawyers and politicians should

 

not ignore. [64] But perennial problems in the area of human and cultural

rights arise when crossing the gulf between aspiration and actuality.

Advocates of the protection of indigenous rights are all too aware of the

lack of specific enforceability. [67] The EU may provide a viable avenue of

enforcement.

 

Fundamental Rights in the EU and Indigenous People

 

A combination of the principle of supremacy of Community law in Costa, [68]

complemented by the principle of direct effects articulated in Van Gend en

Loos [69] combined with the EU protection of fundamental rights suggests a

possible path to the enforceability of rights. The ECJ has independently

accepted that it has a duty to protect human rights as an inherent part of

its competence and jurisdiction. Thus the decision of the ECJ in the Nold

case is important, where it emphasised that:

 

As the Court has already stated, fundamental rights form an integral part of

the general principles of law, the observance of which it ensures. In

safeguarding these rights, the Court is bound to draw inspiration from

constitutional traditions common to the Member States, and it cannot

therefore uphold measures which are incompatible with fundamental rights

recognized and protected by the Constitutions of those States. Similarly,

international treaties for the protection of human rights on which the

Member States have collaborated or of which they are signatories, can supply

guidelines which should be followed within the framework of Community law.

[70]

 

If the international development of indigenous rights continues, then it is

likely to be recognised by the ECJ once a justiciable matter arises, and

where appropriate locus stands requirements are met. Were the ECJ to

recognise and enforce indigenous rights in the future, then they might

operate to restrict the exercise of existing IP rights. Alternatively,

inadequate IP protection may be compensated by the judicial or even

legislative development of appropriate legal principles. Arguments fashioned

>from international conventions could be based on self determination,

protection of biodiversity, cultural rights or religious freedom, for

example. [71] IP or rights associated with IP could be relevant to a number

of Articles of the Draft Declaration. [72] The European Convention on Human

Rights might be particularly relevant. [73]

 

Parallel to the development of the ECJ’s jurisprudence in the area of

fundamental rights, the European Commission is actively developing a policy

on the external dimension of human rights. One of their priorities as

expressed in a Communication on the External Dimension of Human Rights

Policy [74] is the protection of indigenous people. This may also ultimately

enhance the possibility of enforceable rights. It is clear that the

Commission conceived indigenous rights as a purely external matter. The

application of principles contained in the Draft Declaration into EU law

might be politically explosive. Do the Basques, the Irish or the Scots

constitute indigenous peoples? [75] There are clearly identifiable

indigenous people within the EU, such as the Saami in Finland and Sweden,

 

who could not surely receive less protection than those outside. In

appropriate cases, whether through directly or indirectly enforceable

indigenous rights, there may be a possibility of the limitation of the

exercise of IP rights.