Data Sources

Considering the vast population and diversity of the world’s indigenous peoples,¹⁶ there are practical and logistical constraints as well as financial challenges to generate original data for analysis. This study does not attempt to provide a comprehensive coverage of the issues or field cases, but to examine a selected number of controversies that best illustrate the issues and debates reviewed in this study. Likewise, the databases available from the UN system

15 Preamble of the UDHR states that, ‘[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.

16 International Fund for Agricultural Development (IFAD, n.d.) estimated that there are more than 5000 indigenous groups living in some 70-plus countries. These groups represent an impressive level of diversity; the scenarios concerning their knowledge, innovations, and practices are also very diverse.

and different regime processes are also vast. This study uses a strategic approach to target the ones most relevant to the debates concerning IK and indigenous peoples’ rights. To that end, this thesis is largely based on text-based regime analysis and document analysis. This section provides an overview of the archival targets for this study, including document types.

The databases of the UN system, including its specialized agencies, provide a

systematic compilation of materials for investigation that are very rich. Guided by subject and relevance, this study relies on both academic literature and policy documents. The latter includes a wide range produced by the UN system, indigenous peoples’ organizations (IPOs) and non-governmental organizations (NGOs). I also consult jurisprudence generated by the UN system and regional or national court rulings when necessary, including legally binding instruments (a.k.a. ‘hard law’) as well as so-called ‘soft law’, such as declarations, principles and guidelines.¹⁷ The goal for consulting different sources is to identify linkages and

conceptual formations that shape and reshape indigenous peoples’ rights and their claims for IK. These include and are not limited to the following document type: treaty body comments, communication on proceedings of targeted meetings (including various testimonies and interventions), official publications, newsletters, expert reports, thematic studies, policy papers and reports, discussion papers, working papers, concept papers, and conference papers.

The environmental regime and human rights regime are generally more receptive to inputs from rights-holders as well as from IPOs, NGOs, and the academia. The regime of intellectual property, on the other hand, is much less so. The intellectual property regime often conducts closed-door processes that exclude outsider input or monitoring. For example, my application to the WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (a.k.a. IGC) for an academic

17 For further reading on the role of soft law with particular reference to the evolving rights of indigenous peoples, see Barelli (2009).

observer status was denied. Although the WIPO claims to welcome academic observers, it is not clear what criteria it uses to accept one applicant over another. Nevertheless, I am able to follow the WIPO process and key debates through networks of IPOs/NGOs that have

observer status at the IGC or through the Global Caucus of Indigenous Peoples at the UN.

WIPO’s closed-door culture has allowed only a handful of indigenous peoples’ organizations (IPOs), non-governmental organizations (NGOs), or academics to attend IGC meetings. All of them have to go through a process of accreditation to obtain an observer status.

My professional work and role as a practitioner has allowed me to gain access to specialized meetings, networks and key actors at the international level for further inquiry and consultation when necessary. In particular, annual meetings at the UN included the UNPFII and EMRIP, as well as side-events organized by specialized agencies of the UN such as the WIPO and Secretariat of the CBD, have been helpful outlets for me to gain insights into the global processes. Other significant meetings included global and regional

consultations with indigenous delegations as well as UN agencies and mechanisms. These included ad hoc caucus meetings organized by indigenous delegates alongside the UN meetings, such as the Global Caucus of Indigenous Peoples and Asia Indigenous Peoples Caucus; as well as consultations with the UN Special Rapporteur (UNSR) on the Rights of Indigenous Peoples, International Labour Organization (ILO), and Office of the High Commissioner for Human Rights (OHCHR). When in-person participation is not possible, this study also utilizes electronic mailing lists and online working groups designated for targeted UN mechanisms that I am already a member (via my professional network) as alternative means. The following provides a compilation of principal data sources for this study.

UN System Source:

 Office of the High Commissioner for Human Rights (OHCHR), particularly the materials generated by the UN Working Group on

Indigenous Populations (UNWGIP)¹⁸ and Expert Mechanism for the Rights of Indigenous Peoples (EMRIP)

 UN Permanent Forum on Indigenous Issues (UNPFII)

 UN Special Procedures: mainly Special Rapporteur on the Rights of Indigenous Peoples and Special Rapporteur in the Field of Cultural Rights

 UN Treaty Bodies

 UN Educational, Scientific and Cultural Organization (UNESCO)

 World Intellectual Property Organization (WIPO)

 International Labour Organization (ILO): particularly materials relating to ILO Convention No.107 and No. 169 concerning indigenous peoples

 Food and Agriculture Organization (FAO) IPO/NGO Source:

 The main ones include (but are not limited to) Indigenous Peoples’ Center for Documentation, Research and Information (doCip), Forest Peoples Programme (FPP), International Institute for Environment and

Development (IIED), International Work Group for Indigenous Affairs (IWGIA), Asia Indigenous Peoples’ Pact (AIPP), Indigenous Peoples’

International Centre for Policy Research and Education (a.k.a.

TEBTEBBA), Indigenous Environmental Network (IEN), International Indigenous Forum on Biodiversity (IIFB), International Land Coalition (ILC)

Other International and Regional Source:

 International Union for Conservation of Nature (IUCN)

 World Trade Organization (WTO): only the materials relating to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs)

 International financial institutions (IFIs) such as the World Bank and regional ones like the Inter-American Development Bank or Asia Development Bank that have specific policies on indigenous peoples

 Regional human rights mechanisms, particularly the Inter-American system and the African system: only the materials relating to indigenous peoples’ rights