Stimulating Trade and Development of Indigenous Cultural Heritage by Means of International Law: Issues of Legitimacy and Method
Adopting the view that a more active participation of indigenous peoples in the trade of their knowledge assets would promote their socioeconomic development raises difficult questions of legitimacy and method. Questions of legitimacy are posed by the potentially modernising effects of development endangering traditional ways of indigenous peoples’ social organisation. Questions of method arise when studying how international law, including international economic law, could better contribute to furthering the development interests of indigenous peoples in the trade of indigenous cultural heritage (ICH). There will be many areas where modern law and indigenous custom collide. These questions are the focus of the first part of the paper. The second part studies international law’s potential to stimulate ICH trade for the sake of indigenous socioeconomic development. To this end, it first assesses how interests of indigenous peoples in trade and development of ICH are currently institutionalised in international economic law. The paper then examines whether preferential trade rules for indigenous cultural goods and services would be an adequate tool to advance the interests of indigenous peoples in ICH trade and development.
Chapter 4 Guardianship and the Wai 262 Report
The analysis in the previous chapter made clear that, though existing intellectual property (IP) and related law could be used to protect some Māori interests in their cultural heritage, it cannot do so in an all-encompassing or satisfying way. This is in large part due to the disparities between how IP and its related laws function and the means by which Māori knowledge systems operate, much of which hinges on the idea of “ownership”. As discussed above (Sect. 3.1), indigenous peoples, including Māori, do not view their relationship with their tangible and intangible cultural heritage as one of “ownership”. In other words, their relationship usually does not equate to the bundle of rights usually associated with “property” of title, possession, exclusivity and alienability. Though in many situations, the relationship may be equivalent to “ownership”, or may be “ownership-like”, it is often better construed as a relationship of guardianship or stewardship (kaitiakitanga). Many indigenous communities care for their cultural heritage as a duty to their ancestors and to future generations. Indigenous peoples, thus, do not own their cultural heritage, so much as have duties and responsibilities over it. The disconnect between ownership and responsibilities also means that indigenous peoples may have duties over that which they do not own. Furthermore, though Western property is individual in nature, indigenous peoples seldom “own” their tangible and intangible property and lands individually, but as a collective. This is true even if one (or several identifiable) individual(s) has (or have) the responsibility over it. The duty is undertaken on behalf of the community.
Completing the Gats Framework: Addressing Uruguay Round Leftovers
This paper explores three ongoing areas of rule-making activity under the General Agreement on Trade in Services ‐ emergency safeguards (ESM), subsidies and government procurement. It suggests that as policy makers turn their attention to a range of new issues in the context of a second set of GATS negotiations, it is essential that new impetus be given to completing what the Uruguay Round left unfinished. The paper first examines the desirability, feasibility and prospects for developing multilateral rules on an emergency safeguard mechanism and trade distorting subsidies, in the context of the ongoing GATS negotiations. Using the existing framework of trade in goods as a model, the paper examines whether and how relevant GATT principles might be applicable in these two areas in the context of services trade. The paper suggests that the very feasibility of an ESM remains an open question, given the state of our knowledge of services trade. The paper cautions, however, that the clear political expectation on the part of many developing countries that concrete disciplines must arise from the current discussions suggests that it is likely that the GATS will feature some form of ESM in the future, much as its ultimate substantive provisions and operational modalities remain to be determined. On subsidies, the paper suggests that the desirability of disciplines in this area will require a more thorough identification phase to determine the extent to which subsidies exist in services industries and result in adverse trade or investment effects. As with safeguards, the feasibility of subsidy disciplines will need to factor in the specificities of services trade and investment. While some guidance could come for the SCM Agreement, it is not a panacea. The paper’s third section turns its attention to whether and how disciplines governing public purchases of services should best be addressed under WTO law. The paper suggests that procurement regimes for services, even if explicitly discriminating against foreign suppliers, are unlikely to have major repercussions on domestic or foreign welfare so long as markets are contestable. The priority issue from a developing country perspective may therefore lie more in removing barriers to access (i.e. trade) and presence (investment) in goods and services markets and enforcing domestic competition laws than in developing a GATS-anchored set of procurement disciplines.