The Human Rights-Related Aspects of Indigenous Knowledge in the Context of Common Law Equitable Doctrines and Implications of the Kiobel Decision

Abstract

This article will examine the nexus between human rights; knowledge produced, maintained, and regulated by indigenous societies; and equitable principles inherent within private contract law. The issue of indigenous knowledge has generated significant controversy and challenges for the international business community. Scholars have begun to address the need for business managers to be aware of the ethical issues involving indigenous knowledge, e.g. activist stakeholders challenging what they perceive as the misappropriation of indigenous knowledge.

This article will extend this area of research by examining the human rights-related aspects of indigenous knowledge in relation to business practices that can significantly harm the indigenous community that produces, maintains, and regulates this category of knowledge. This discussion draws from important international law instruments, such as the draft, "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights," developed by the United Nations (U.N.) Sub-Commission on the Promotion and Protection of Human Rights. The World Intellectual Property Organization (WIPO) is another important forum that has explored the nexus between human rights and indigenous knowledge. As derived from various sources, the human rights related norms involving indigenous knowledge include: respect, dignity, autonomy, attribution, self-determination, and equity.

The article will survey efforts undertaken by various national governments to protect indigenous knowledge, and will assess the human rights-related foundations and aspects of the various national legislations. The article will then examine the various international efforts that have taken place, or are presently underway, to protect these rights across international legal regimes. The efforts undertaken by the WIPO, the Trade Related Aspects of Intellectual Property (TRIPS), and the U.N. convention on biodiversity will be examined in greater detail.

Lastly, the article will discuss the implication of the U.S. Supreme Court’s decision in Kiobel; as well as questionable conduct of certain business entities in the context of common law doctrines of equity; including good faith, fair dealing, unconscionability, misappropriation, unjust enrichment, and estoppel. From this perspective, equitable remedies may be available to indigenous communities, if a court or an administrative legal regime finds that the transference of indigenous knowledge from indigenous communities to multi-national corporations was unfair and disadvantageous to the indigenous community. Equitable remedies include restitution, the creation of a quasi-contract, and monetary damages for the benefit of an indigenous community. The recognition of these common law equity doctrines ex ante is anticipated to provide ethical guidance to business managers seeking to position themselves and the enterprises they serve as global citizens that uphold the human rights-related aspects of indigenous knowledge. The role of private law is, therefore, positioned as a complement to the larger public regulatory framework.

Keywords: indigenous knowledge, international intellectual property protection, common law equitable remedies