Soft Law and Current International Efforts

Though international efforts to aid appropriation of indigenous resources and knowledge have been criticized as having no immediate, enforceable effect, there is power in the moral persuasion which attends international discourse. In short, countries are beholden to an international set of mores, and any nation’s dereliction is punished by reputational and economic disadvantages in the international setting. Jonathan L. Charney’s Commitment and Compliance: What Role for International “Soft Law” proposes that metaphors of “hard” law and “soft” law are helpful for understanding the importance of international regulations.

According to O’Connell, humanity is seeking to achieve an ordered world, which can be obtained through norm-supporting stability. While a society under hard law, where there are explicit consequences to disobeying rules and regulations, is optimal, soft laws may also be useful in obtaining social norms. Soft laws, made up of international discourse and voluntary accords, are not as binding as hard laws, but they do attract compliance by targeted members of the international community. The many advantages of soft law include the fact that soft laws are flexible, easier to correct when errors in policy occur, regulate the behavior of non-state actions, and fill in the gaps of hard laws without the laborious procedure of treaty amendments.

Because states engage in international trade to obtain the goods that they can not produce themselves, states are interdependent. The responses of soft law develop into more binding law as time elapses. Ultimately, the purpose of both soft and hard law is to encourage members of society to behave differently in a manner that conforms to the good of the larger group.

WIPO is currently in the process of transitioning from this “soft” law to a more binding piece of legislation. To this end, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) met in Geneva from March 15th to March 19th of 2004 with the ultimate goal of accelerating international protection of indigenous peoples’ rights. The IGC relies upon input from over 3,000 representatives of indigenous and local communities and other stakeholders in 60 locations around the world. They also receive a great deal of support from over 90 non-governmental organizations (NGOs), especially in the crucial area of funds. This most recent conference marked an effort on the part of the IGC to intensify their work in protecting traditional knowledge (TK) and traditional cultural expressions (TCE) at community, national, regional and international levels. The African group of countries submitted a text on objectives, principles, and elements of an international regulatory instrument, or instruments. This proposal received widespread support in the Committee as a framework for its other proposals. With this framework, and the intensification of efforts to create a workable international treaty for the protection of indigenous rights, the IGC is moving steadily toward their goal of protecting TK and TCE under one specific legal regime. For more information.

Integrating Intellectual Property Rights and Development Policy, a report produced by the Commission on Intellectual Property Rights (CIPR), was published in 2002 with much fanfare. The commissioners, a person group made up of law professors, practicing attorneys, and government officials representing the United States, the United Kingdom, Argentina, and India were assisted by a small staff of policy analysts to craft the 191 page report. The report covers a range of legal issues health care, the Internet, and government capacity to regulate in general. Most relevant to our current discussion, however, is the report’s treatment of indigenous knowledge. The report goes a long way to add to the discussion of bio-piracy and intellectual property rights of indigenous peoples.

On balance, the commission finds that international law, such as that propagated by WIPO or the WTO, may simply be too generic to alleviate some of the concerns regarding intellectual property and traditional knowledge. Accordingly, the commission identified two possible solutions. First, the CIPR indetifies domestic legislation as a possible means to protect indigenous intellectual property. Several nations including Panama, Guatemala, and the Philippines have enacted domestic legislation to protect their indigenous communities from theft by multinational corporations or researchers from the North. Second, the commissioners illustrate several nations’ successful self-protection by way of documenting and categorizing their indigenous knowledge. Notably, India has used such organized records to assist foreign patent offices in discerning the uniqueness, or “novelty” of various discoveries and inventions. The commission found that modifying and using traditional Western IPR structures and tools can be effective in protecting the rights of indigenous communities.

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