A. 1950s−80s: Postwar Reconstruction and Post-Colonialism

The origin of some aspects of contemporary TK debates can be traced back to the discussions concerning the protection of “cultural property” in the early 1950s. Following the massive destruction of cultural heritage during World War II, UNESCO adopted the Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) in 1954.Footnote ¹⁴ The Hague Convention required its Contracting Parties to “prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property” and to “refrain from requisitioning movable cultural property situated in the territory of another [Contracting Party]” (Article 4(3)). The protection of cultural property was extended beyond the realm of armed conflicts by the 1970 Convention on Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,Footnote ¹⁵ which was concluded as a response to the growing incidents of thefts in museums and archaeological sites, particularly in developing countries towards the end of the 1960s.Footnote ¹⁶ The parties to the Convention agreed, inter alia, to prevent importation of illicitly obtained cultural objects and to facilitate their return to the countries of origin (Articles 7, 9, and 13).Footnote ¹⁷

Central to the above initiatives was a belief that “cultural property” forms part of the “cultural heritage of all mankind”Footnote ¹⁸ and that every nation has “moral obligations to respect its own cultural heritage and that of all nations”.Footnote ¹⁹ A similar principle could be discerned from the Declaration on the Principles of International Cultural Cooperation adopted by UNESCO in 1966,Footnote ²⁰ which stated that “[i]n their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind” (Article I(3)). To an extent, this principle was based on the premise that the promotion of mutual respect among different cultures helps foster the “intellectual and moral solidarity of mankind”,Footnote ²¹ which in turn helps prevent wars.Footnote ²² In this light, early efforts to protect cultures and their manifestations could be seen as part of the UN's broader strategy to maintain international peace and security in the postwar era.

In the early 1970s, there was a growing recognition that cultural assets were no longer threatened only by theft and other prejudicial activities, but also by the “changing social and economic conditions, which aggravate[d] the situation with even more formidable phenomena of damage or destruction”.Footnote ²³ This was reflected in the conclusion of the UNESCO Convention Concerning the Protection of the World Cultural and National Heritage (World Heritage Convention) in 1972.Footnote ²⁴ Like the earlier conventions on cultural property, the World Heritage Convention recognized that there was a need to preserve certain heritage as “part of the world heritage of mankind as a whole” (Preamble, paragraph 6). However, it shifted the policy focus of UNESCO from the prevention of illicit activities towards the “identification, protection, conservation, presentation, and transmission to future generation” of cultural heritage (Article 4). The World Heritage Convention also emphasized the need for international co-operation and assistance (Preamble, paragraph 7), which echoed the fact that many newly independent states were having difficulties in balancing their economic development with the protection of their environment and cultural heritage at that time.

Towards the end of the 1970s, there was an important development regarding the protection of “folklore”. This initially took place in the field of copyright law with the adoption of the Tunis Model Law on Copyright for Developing Countries in 1976.Footnote ²⁵ The Tunis Model Law sought to extend the scope of copyright law to accommodate “works of national folklore” by removing the fixation requirement (Section 1(5bis)), eliminating time limits for protection (Section 6(2)), and designating a “competent authority” that could exercise moral rights to prevent folklore from distortion (Sections 5(1) and 6(1)).

Protecting folklore through copyright law was later perceived to be inadequate and there was a demand for a sui generis regime of protection tailored to the perceived “special” characteristics of folklore.Footnote ²⁶ This led to the adoption of the UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, in 1982.Footnote ²⁷ The Model Provisions sought to protect “expressions of folklore” from unauthorized use (Section 3), misrepresentation of source (Section 5), and wilful distortion (Section 6(4)). They recognized for the first time that expressions of folklore were the products of “communities”, who had vested “traditional artistic expectations” (Section 2) and “cultural interests” (Section 6(4)) in their cultural creations.

Both the Tunis Model Law and the Model Provisions can be seen, in large part, as a response to the post-colonial concern of newly independent states over the exploitation of their cultural heritage—a concern that their folklore was being “commercialized … on a worldwide scale without due respect for the … interest of the communities in which they originate and without conceding any share in the returns from such exploitation … to the peoples who are authors of their folklore”.Footnote ²⁸ It had been this same concern that led to the amendment of the 1886 Berne Convention for the Protection of Literary and Artistic WorkFootnote ²⁹ in 1971 to provide copyright protection to “unpublished and anonymous works” (Article 15(4)).

Concerns about commercial exploitation were not the sole impetus for the development of an international regime for folklore protection. Mounting concerns over the rapid disappearance of folklore also prompted UNESCO to adopt the Recommendation on the Safeguarding of Traditional Culture and Folklore in 1989, focusing on the identification, preservation, conservation, and dissemination of folklore.Footnote ³⁰ The Recommendation recognized “the extreme fragility of the traditional forms of folklore, particularly those aspects relating to oral tradition and the risk that they might be lost” (Preamble, paragraph 4), and perceived folklore as “part of the universal heritage of humanity” and as “a powerful means of bringing together different peoples … and of asserting their cultural identity” (Preamble, paragraph 1).

Meanwhile, a different concept emerged in the World Health Organization (WHO): “traditional medicine.”Footnote ³¹ In 1976, the WHO established a working group for the promotion and development of traditional medicine, which was followed by the passage of a resolution on the promotion and development of training and research in traditional medicine by the World Health Assembly in 1977. The aim of the WHO's traditional medicine programme was to promote the contribution of traditional medicine to health care, to explore the merits of traditional medicine in the light of modern science, and to promote the integration of traditional and Western medicine.Footnote ³²

By the end of the 1980s, various TK-related concepts—namely, “cultural property”, “cultural heritage”, “folklore”, “works of national folklore”, “expressions of folklore”, and “traditional medicine”—had been included in the work programmes of UNESCO, WIPO, and WHO. Already, the objectives of protection were manifold, including protection against destruction during armed conflicts, protection against illicit activities such as theft, protection against loss and degradation, protection against unfair commercial exploitation, and the promotion of the safe use of traditional medicine. In the 1990s, as we shall see, the international legal landscape for TK changed radically; first, through the rise of indigenism and environmentalism, and later through the move towards the international harmonization of IP laws.

B. 1990s: Indigenism, Environmentalism, and International Harmonization of IP

Towards the end of the 1980s, indigenous peoples’ movements began to gain momentum and garner attention internationally,Footnote ³³ leading to the conclusion of the first and still the only legally binding international instrument on indigenous peoples’ rights: the 1989 International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169).Footnote ³⁴ The Convention recognized the aspirations of indigenous and tribal peoples to “exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions” (Preamble, paragraph 5). It also acknowledged the close link between the livelihood of indigenous peoples and the maintenance of their traditional practices (Article 23(1)). Other initiatives in this field included the 1991 Revised Policy on Indigenous Peoples issued by the World Bank,Footnote ³⁵ the 1993 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples,Footnote ³⁶ and the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples developed under the auspices of the UN Working Group on Indigenous Populations in 1994.Footnote ³⁷

Essentially, the indigenous movements asserted that indigenous peoples are creators and guardians of TK, and that their rights (as “owners” of TK) must be respected by individuals, organizations, or governments wishing to access or use their knowledge.Footnote ³⁸ They also brought to the forefront of the TK debate the concept of “holism”—the notion that there are social, cultural, and spiritual values embodied within TK, intertwined with indigenous ways of life, and inseparably linked to the land, resources, and natural environment in which indigenous peoples live. On this view, TK forms an integral part of their cultural identities and must be protected in a “holistic” manner; any attempt to single out an individual component for protection may be prejudicial to the essence of indigenous cultures.Footnote ³⁹ In addition, the indigenous movements highlighted the crucial link between TK protection and the recognition of indigenous peoples’ rights to self-determination and to control over their lands and natural resources, thereby adding the language of human rights to the debate.Footnote ⁴⁰

The growing recognition of indigenous peoples’ rights coincided with mounting concerns over the loss of biological diversity. In 1988, the UNEP began its work on biological diversity, which led to the conclusion of the Convention on Biological Diversity (CBD) in 1992.Footnote ⁴¹ The CBD had three objectives: the conservation of biological diversity, the sustainable use of its components, and the equitable sharing of benefits arising out of the utilization of genetic resources (Article 1). Most relevant to TK protection was Article 8(j), which required its Contracting Parties to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyle relevant for the conservation and sustainable use of biological diversity”. This was clear recognition of the wealth of ecological knowledge belonging to indigenous and local communities and their important roles in environmental conservation. Explicit recognition of the role of indigenous and local communities in the conservation of biological diversity can also be found in non-binding instruments of the same period, including the Rio Declaration,Footnote ⁴² Agenda 21,Footnote ⁴³ and the Forest Principles.Footnote ⁴⁴

Equally important was the second half of Article 8(j) of the CBD, according to which the Parties should “encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”, and Article 15(5), which provided that “[a]ccess to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources”. These two provisions effectively set forth two new concepts, namely “equitable sharing of benefits”Footnote ⁴⁵ and “prior informed consent”,Footnote ⁴⁶ which would soon become the key principles governing the access to, and utilization of genetic resources and associated TK, and incorporated into the national laws of several developing countries.Footnote ⁴⁷

In line with the principles established by the Convention on Biological Diversity, the Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification (UNCCD) was concluded in 1994.Footnote ⁴⁸ It contained provisions which addressed TK protection, albeit in the narrow context of combating desertification and drought, requiring the Parties to make “inventories” of relevant TK (Article 18(2)(a)) and to ensure that TK is “adequately protected and that local populations benefit directly, on an equitable basis and as mutually agreed, from any commercial utilization of [TK] or from any technological development derived therefrom” (Articles 16(g) and 18(2)(b)). The UNCCD viewed local populations and communities as “owners” of TK (Article 7(c))Footnote ⁴⁹ and recognized that it was important not only to “preserve and maintain” TK but also to encourage its dynamic creation and dissemination (Article 18(2)).

Besides the rise of environmentalism and indigenism, the 1990s also witnessed an important move towards the international harmonization of national IP laws through the conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994.Footnote ⁵⁰ TRIPS sought to harmonize national IP laws by setting out the minimum standards of IP protection to be provided by each member of the WTO. Many commentators have pointed out that TRIPS, with its neoliberal imperatives, allowed for the granting of patents to inventions based on biological resources and associated TK, but contained no provisions to protect those resources from what some see as misappropriation.Footnote ⁵¹ Accordingly, there were calls to amend TRIPS to make it more responsive to the needs of developing countries. These calls led to the adoption of the Doha Ministerial Declaration in 2001Footnote ⁵² and began the ongoing debates in the Council for TRIPS on the relationship between TRIPS and the CBD, in particular on issues concerning disclosure requirements of the source of biological materials and associated TK, prior informed consent, and benefit-sharing arrangements.Footnote ⁵³

It was not a coincidence that TRIPS was concluded at a time of rapid advancement in biotechnology and the associated growth of pharmaceutical industries.Footnote ⁵⁴ These developments posed challenges for many developing countries, especially those rich in biological resources and TK, who believed that their resources and knowledge were being sought by multinational pharmaceutical corporations to provide a head start in their product development—a practice often called “bio-prospecting”.Footnote ⁵⁵ Fears that these practices would lead to a misappropriation of TK, coupled with increased public awareness about the economic values of TK, had prompted many developing countries and indigenous groups to call for international action against what they termed “biopiracy”.Footnote ⁵⁶

A common but sometimes exaggerated view that has informed much of today's biopiracy narrative is that TK is being appropriated, through the acquisition of exclusive IP rights, by rich corporations, who convert it into valuable products, which are then sold for huge profits, without sharing the profits with, or recognizing the contribution of, the often poor TK holders.Footnote ⁵⁷ High-profile incidents such as Ayahuasca,Footnote ⁵⁸ Neem,Footnote ⁵⁹ Turmeric,Footnote ⁶⁰ and Hoodie Cactus Footnote ⁶¹ are often cited as examples of the misappropriation of TK. While scholars are divided on whether “biopiracy” really exists,Footnote ⁶² the biopiracy narrative has undeniably been an important driving force for national and international efforts to protect TK.Footnote ⁶³

Towards the end of the 1990s, the notion of “folklore” re-emerged, but this time in the field of performer's rights. In 1996, while WIPO and its members were negotiating the WIPO Performances and Phonograms Treaty, some developing countries reasserted their demands for folklore protection, resulting in the extension of the definition of “performer” to include performers of “expressions of folklore”.Footnote ⁶⁴ The renewed interest in folklore protection in this period was also evidenced by the convening of the UNESCO/WIPO World Forum on the Protection of Folklore in 1997. Given that indigenous peoples were gaining international recognition in this period, it was unsurprising that the ensuing discussions on folklore were different from those of the 1980s, in that indigenous peoples played a much greater role in shaping the terms of the discussions.Footnote ⁶⁵

Throughout the 1990s, the advancement of communication technology had allowed for rapid reproduction and publication of TK while raising public awareness of the misappropriation of cultural resources, and enhancing political consciousness about the necessity of making IP systems more responsive to the needs of wider groups of people.Footnote ⁶⁶ In response to these sociopolitical pressures, WIPO established the Global Intellectual Property Issues Division in 1997. One of the Division's first tasks was to identify and explore the needs and expectations of new beneficiaries (that is, groups which had until then had little exposure to the IP systems, such as TK holders) in order to promote the contribution of the IP system to their social, cultural, and economic development.Footnote ⁶⁷ This was done through a series of nine fact-finding missions in twenty-eight countries between 1998 and 1999. The findings of these missions, published in 2001,Footnote ⁶⁸ significantly shaped how the later debate about TK protection was framed within WIPO and continue to be relevant today.

The 1990s was an important decade for TK. It saw the emergence of new concepts such as “indigenous knowledge” and “knowledge, innovations and practices of indigenous and local communities”. It also saw the birth of the biopiracy narrative, the articulations of human rights by indigenous peoples, and the proliferation of fora—namely, the ILO, the World Bank, the CBD, the UNCCD, the UN Working Group on Indigenous Populations, and the WTO. The list of TK-related objectives was then expanded to include the recognition of indigenous peoples’ rights, the preservation of TK for the purpose of environmental conservation, and the prevention of biopiracy. As we shall see, this trend of diversification would continue at an accelerated pace in the 2000s.

C. 2000s—Present: Institutionalization, Diversification, and Intensification

In 2000, the WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established to serve as a forum for discussion on the interplay between IP and TK.Footnote ⁶⁹ This effectively institutionalized the term “traditional knowledge” and the IP-centred approach to TK protection (that is, the protection of TK through IP tools). The phrase “traditional knowledge” in the IGC's name refers to TK in the strict sense, that is, technical know-how, practices, skills, and innovations, which are to be distinguished from cultural manifestations such as music, art, designs, symbols, and performances. WIPO refers to the latter type of knowledge as “traditional cultural expressions” (TCEs), which was introduced as an alternative term to “folklore/expressions of folklore”. This terminological change was largely a response to the concern among TK proponents that “folklore” was “an anachronistic reference to a frozen cultural archive that they consider, instead, to be a dynamic resource for continuing innovation”.Footnote ⁷⁰ WIPO explains that TK (in the strict sense), TCEs, and genetic resources are folded together under the IGC's purview, because “the three themes are closely interrelated, and none can be addressed effectively without considering aspects of the others”.Footnote ⁷¹

In 2005, WIPO set up the WIPO Voluntary Fund to finance, and thus enhance, the participation of indigenous and local communities in the IGC process.Footnote ⁷² Four years later, the IGC was given the mandate to develop an international legal instrument (or instruments) that would give effective protection for TK (in the strict sense), genetic resources, and TCEs.Footnote ⁷³ Following extensive consultations with multiple stakeholders, the IGC produced two sets of “draft articles”, one for TK and another for TCEs, together with a less-developed “consolidated document” for genetic resources.Footnote ⁷⁴ These documents are being negotiated at WIPO and are expected to be submitted to the WIPO General Assembly in September 2014 for consideration and for a decision on whether a Diplomatic Conference should be convened.Footnote ⁷⁵

Outside WIPO, indigenous peoples’ claims over TK also became institutionalized under the UN human rights system with the establishment of the UN Permanent Forum on Indigenous Issues (UNPFII) in 2000.Footnote ⁷⁶ The UNPFII serves as “an advisory body to the Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights”.Footnote ⁷⁷ Thus far, UNPFII has made several recommendations regarding TK protection to the CBD and WIPO, emphasizing the need to take into account the rights of indigenous peoples when designing a regime for TK protection.Footnote ⁷⁸ Since 2007, the main point of reference for UNPFII has been the UN Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly on 13 September 2007.Footnote ⁷⁹ The Declaration proclaims, inter alia, that indigenous peoples have the right to “maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures” and also the right to “maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions” (Article 31(1)).

Beyond the fields of IP and human rights, TK protection was also recognized as having important implications for trade and development. This was evidenced by the incorporation of TK protection into UNCTAD's Plan of Action (2000), according to which UNCTAD was requested to study, from a development perspective, “ways to protect traditional knowledge, innovations and practices of local and indigenous communities and enhance cooperation on research and development on technologies associated with the sustainable use of biological resources”.Footnote ⁸⁰

Paralleling the initiatives of UNCTAD were those of the FAO, which emphasized the importance of TK for food security, agricultural diversity, and the sustainable management of agro-ecosystems.Footnote ⁸¹ Prompted by concerns over the loss of valuable local agricultural systems and practices, the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) was concluded in 2001.Footnote ⁸² The ITPGR aimed at the conservation and sustainable use of plant genetic resources for food and agriculture, and the fair and equitable sharing of the benefits arising out of their use for sustainable agriculture and food security (Article 1(1)). It explicitly acknowledged the important role of traditional farmers in the conservation of plant genetic resources by introducing the novel notion of “farmers’ rights” (Part III) and calling upon the Contracting Parties to ensure the “protection of traditional knowledge relevant to plant genetic resources for food and agriculture” as a means to “protect and preserve” farmers’ rights (Article 9(2)(a)). It also established a multilateral system of access and benefit-sharing (Part IV), set up a standardized material transfer agreement for accessing plant genetic resources (Article 12(4)), and treated plant genetic resources as a “common heritage of humanity”,Footnote ⁸³ echoing a similar principle contained in earlier conventions on cultural property and cultural heritage.

Meanwhile, there was a renewed interest in UNESCO in the preservation of TK against loss and deterioration, as demonstrated by the passage of the Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Cultural Heritage Convention) in 2003,Footnote ⁸⁴ and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Cultural Diversity Convention) in 2005.Footnote ⁸⁵

The Intangible Cultural Heritage Convention sought to safeguard, ensure respect for, and raise awareness about, intangible cultural heritage and to provide international assistance for these purposes (Article 1). It recognized that there is a “deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage” (Preamble, paragraph 3), and that all forms of cultural heritage must be protected in an integrated manner.Footnote ⁸⁶

Recognizing that cultural diversity is a “defining characteristic of humanity” (Preamble, paragraph 1), the Cultural Diversity Convention dealt with the protection of cultural expressions more broadly, with one objective being “to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner” (Article 1(b)). While TK is not its main focus, it recognized “the importance of traditional knowledge as a source of intangible and material wealth … and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion” (Preamble, paragraph 8).

Both the Intangible Cultural Heritage Convention and the Cultural Diversity Convention recognized that there is a close link between heritage, cultural diversity, and sustainable development.Footnote ⁸⁷ They also represented a shift in emphasis from the preservation of “fixed” monuments, which was informed by the concepts of monumentality and aesthetics,Footnote ⁸⁸ to the sustainable usage and safeguarding of “living” cultural heritage for social purposes.Footnote ⁸⁹

UNESCO's renewed interest in TK protection coincided with several new initiatives of other organizations. In the field of traditional medicine, for example, the WHO introduced the Traditional Medicine Strategy for 2002−2005.Footnote ⁹⁰ In the field of environmental law, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the CBD was adopted in 2010Footnote ⁹¹ to supplement the CBD by providing greater legal certainty and transparency for both providers and users of genetic resources.Footnote ⁹² In the field of food and agriculture, the Committee on World Food Security adopted in May 2012 the multidisciplinary Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, aimed at sustainable livelihood, social stability, housing security, rural development, environmental protection, and social and economic development for the benefit of vulnerable and marginalized people.Footnote ⁹³ Finally, in the field of IP law, the Beijing Treaty on Audiovisual Performances, which provides international protection for the economic and moral rights of audiovisual performers, including performers of TCEs, was recently concluded in June 2012.Footnote ⁹⁴

D. TK Debate Today: Fragmentation

Since 2000, the scope of TK discussions has been enlarged to encompass issues of trade and development, food security, and agricultural sustainability. We have witnessed the emergence of new TK platforms, including UNPFII, FAO, and UNCTAD, and the increased specialization of existing ones, giving rise to more nuanced concepts such as “traditional cultural expressions”, “intangible cultural heritage”, and “cultural diversity”. The outcome of such diversification and specialization is an extremely complex legal and policy discourse, within which TK is variously framed as an issue of IP, cultural heritage, human rights, environmental conservation, food and agriculture, trade and development, or public health.

Over the past sixty years or so, “TK protection” has undergone a profound transformation from being an incidental part of the UN's postwar policies to become an integral part of international policy and legal debate today. This transformation is characterized by the proliferation of international fora working on TK, the accompanying growth and diversification of norm-making initiatives and instruments, and the increasing specialization of the relevant fora, as illustrated in Figure 1.

Figure 1

The growth of (selected) TK-related instruments and initiatives.

Each international institution involved in TK protection has a specific agenda to pursue and a particular mandate to perform. They therefore approach TK from different angles. While WIPO is seeking to protect TK against misappropriation or “biopiracy”, UNEP is working towards the preservation of traditional ecological knowledge, the access to genetic resources and associated TK, and the equitable sharing of the benefits arising from their use. UNESCO is aiming for the preservation and promotion of TK, while the WTO is examining the relationship between TRIPS and the CBD, focusing on the disclosure requirement for patent applications. From a human rights perspective, ILO and UNPFII are seeking to protect TK as part of the protection and promotion of indigenous peoples’ social, economic, and cultural rights, while other institutions are looking into the relevance of TK for sustainable development (UNCTAD), food security and sustainable agriculture (FAO), and the provision of primary health care (WHO).

These initiatives seem to have developed rapidly and largely independently of one another. This is a classic case of the fragmentation of international law, whereby “specialized law-making and institution-building has taken place with relative ignorance of legislative and institutional activities in the adjoining fields”.Footnote ⁹⁵ According to the International Law Commission, fragmentation arises because “[e]ach rule-complex or ‘regime’ comes with its own principles, its own form of expertise and its own ‘ethos’, not necessarily identical to the ethos of neighbouring specialization”,Footnote ⁹⁶ which ultimately leads to “functional differentiation” and may result in “conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law”.Footnote ⁹⁷ Fragmentation is said to be, on one level, a reflection of the political fragmentation among states whose divergent political priorities have led to diverse institutionalizationFootnote ⁹⁸ and, on another level, a manifestation of the political process whereby the relevant institutions themselves “are engaged in a hegemonic struggle in which each hopes to have its special interests identified with the general interest”.Footnote ⁹⁹

Of course, the multiplication of international norm-making platforms and the increased complexity of legal rules can be perceived as a natural by-product of the development of any new international law, reflecting its maturation rather than positing a threat to its unity.Footnote ¹⁰⁰ After all, a similar phenomenon is happening in other emerging fields of international law, such as fisheries governanceFootnote ¹⁰¹ and forest protection.Footnote ¹⁰² It is also arguable that the proliferation of international fora facilitates the collective generation and exchange of ideas relating to TK protection. As WIPO observes, the differences in each organization's approach is “naturally a reflection of each organization's particular mandate and objectives”, and the diversity of perspectives has “helped enrich the debate” with ideas and potential solutions.Footnote ¹⁰³ From this perspective, one may be inclined to dismiss concerns about fragmentation in the field of TK protection as mere “postmodern anxieties”Footnote ¹⁰⁴ unworthy of discussion.

Nevertheless, there is a danger in overemphasizing the normality and advantages of fragmentation, which can blind us to its potentially harmful features that require carefully crafted responses. Indeed, as it will become apparent in Part II of this paper, while the multiplication of international organizations may not, in itself, be a danger to the unity of global efforts to protect TK,Footnote ¹⁰⁵ it complicates markedly the relevant norm-making processes.

A. Terminological Confusion

One notable consequence of fragmentation is the superabundance of TK-related concepts. The terms used to describe aspects of traditional culture now include “traditional knowledge”, “cultural property”, “cultural heritage”, “intangible cultural heritage”, “folklore/expression of folklore”, “traditional cultural expressions”, “traditional medicines”, “indigenous knowledge”, “heritage of indigenous people”, and “cultural diversity”. Because these concepts emerged at different times and for different purposes, it is difficult to clearly delineate their meanings. As a result, confusion exists among international institutions and national governments as to whether and what extent the subject matters they seek to protect overlap. It is not clear, for example, what the differences are between the term “intangible cultural heritage” used by UNESCO and the term “traditional cultural expressions” used by WIPO. Equally unclear is the distinction between “indigenous knowledge” and “traditional knowledge”, which have been used by WIPO and UNPFII either interchangeably or differently depending on the context.Footnote ¹⁰⁶ While there have been attempts to clarify the relationship between some of the terms,Footnote ¹⁰⁷ none enjoys universal acceptance and terminological uncertainties remain.

The diversity of TK-related terms is just one aspect of the terminological confusion caused by fragmentation. Another is the diversity of definitions of the term “traditional knowledge”. There is no universally accepted definition of “traditional knowledge”. Akin to the variety of terms, the variety of definitions also reflects the varying priorities and policy focus of each institution. For example, WIPO defines “traditional knowledge” in two ways. There is “traditional knowledge” in a broad sense (or TK lato sensu), which covers both the content of the knowledge and the expressions of that knowledge;Footnote ¹⁰⁸ and “traditional knowledge” in the strict sense (or TK stricto sensu), which refers to “the content or substance of traditional know-how, skills, practices and learning” only.Footnote ¹⁰⁹ These definitions were formulated for the limited purpose of IP protection. They are to be contrasted with the broader definition of TK provided by the CBD Secretariat, namely “a body of knowledge built by a group of people through generations living in close contact with nature”, which includes “a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use”.Footnote ¹¹⁰ This definition was formulated for the purpose of identifying relevant ecological knowledge for its preservation under the CBD.

The lack of clear demarcation among TK-related concepts and the lack of universal understanding as to what constitutes “traditional knowledge” make it difficult for relevant organizations to identify the areas in which their competences overlap, and thus the areas in which they should seek collaboration. The lack of adequate collaboration may, in turn, lead to the duplication of effort or inconsistencies in approaches to TK protection.Footnote ¹¹¹ This is not to suggest that we need a single, precise definition of TK or clear-cut distinctions among different terms,Footnote ¹¹² or that tackling fragmentation would help resolve all terminological confusion.Footnote ¹¹³ It does indicate, however, that scholars need to pay greater attention to the effects of fragmentation in the way TK is perceived by different institutions and how these different perceptions interrelate, so as to foster inter-institutional co-operation in the future.

A good way to comprehend the effects of fragmentation on conceptions of TK is to look at how TK issues are framed and characterized by each institution. Generally speaking, WIPO and WTO perceive TK as an “intellectual asset”Footnote ¹¹⁴ —an item of “property” or commodity tradable within a market economy. In contrast, UNESCO perceives TK as an important constituent of “culture” and a “common heritage of humanity”. CBD and UNCTAD perceive TK as a set of “tools” for conservation and development, respectively. In a different light, UNPFII perceives TK as an aspect of “human rights”, or more specifically of cultural rights. As we shall see, these different mindsets or paradigmsFootnote ¹¹⁵ significantly influence the crafting of the policy goals and legal rules of each institution.

B. Diversity of Objectives

Multiple objectives in relation to TK protection are being pursued by many organizations. These objectives now include the prevention of misappropriation and biopiracy, the preservation of TK from the deculturating forces of globalization, the protection of indigenous peoples’ rights, the equitable sharing of the benefits arising from the use of TK, the preservation of TK for scientific and social development and environmental conservation, and the maintenance of the long-term viability of natural ecosystems.

These objectives, like the choice of terms and definitions, reflect the different mindsets of the relevant institutions. For example, since WIPO generally conceives of TK as a form of property, its focuses on private property protection, “granting rights to individual innovators over innovations with commercial or industrial application”.Footnote ¹¹⁶ In contrast, UNESCO has adopted the “common heritage of humanity” model, which perceives TK as belonging not to individuals but to humanity as a whole. This is reflected in UNESCO's focus on the identification, documentation, transmission, revitalization, and promotion of TK—that is, on its “safeguarding”. These varying mindsets and objectives may conflict. For instance, documentation efforts based on the “common heritage” model may, by making TK publicly available, inadvertently facilitate its misappropriation by third parties, which the “private property model” seeks to prevent.Footnote ¹¹⁷

The diversity of objectives also raises the question of priorities: are some objectives more important than the rest? This question is of great concern to national governments, especially those of developing countries, whose limited resources only allow for their participation in some (as opposed to all) organizations.

More importantly, however, the variety of potentially overlapping objectives renders their clear distinction and the demarcation of each institution's efforts almost unattainable.Footnote ¹¹⁸ This may result in the duplication of their initiatives, or worse, inconsistencies in their approaches aimed at the same subject matter. One of the many examples of duplicated efforts is the International Technical Workshop on Indigenous Traditional Knowledge organized by UNPFII in 2005,Footnote ¹¹⁹ which has significant overlaps, in terms of issues covered and the aim to promote more holistic understanding of TK, with the workshop on sui generis protection of TK organized by UNCTAD and the Commonwealth Secretariat one year earlier,Footnote ¹²⁰ but the later event did not make any reference to the earlier one, let alone have representatives from UNCTAD attend the discussion.Footnote ¹²¹

The fact that certain TK-related principles are being applied by more than one organization also increases the risk of inconsistency. As seen in Part I, the principle of access and the equitable sharing of benefits are being discussed in both UNEP (in the context of the CBD) and in FAO (in the context of the ITPGR). The principle of “common heritage of humanity”, which initially emerged in UNESCO, has also been taken up by FAO when formulating the ITPGR. In the absence of effective co-ordination, there is a possibility that the same principles will be inconsistently applied across different fora, thereby creating legal uncertainty that is not conducive to the effective protection of TK.

It can be argued that having two or more organizations pursuing the same goals or applying the same principles may in fact help promote the convergence of approaches, since it presents an opportunity for them to enter into a strategic partnership. In other words, overlaps of competences may not necessarily translate into competition.Footnote ¹²² However, for this to happen, the relevant organizations must consciously, and actively, seek collaboration with one another. Each organization must also know where it stands in terms of the scope of its competence in relation to the other. Unfortunately, thus far there appears to be neither adequate collaboration nor mutual awareness of competences among the organizations. It is true that there have been collaborative efforts among the UN agencies (the WIPO-UNEP and WIPO-UNESCO collaborations are prime examplesFootnote ¹²³ ), but the extent to which such efforts can mitigate the adverse effects of fragmentation is questionable not least because each forum is likely to have an in-built institutional bias towards “[advancing their] bureaucratic agenda in favour of institutional growth”.Footnote ¹²⁴

In any case, effective protection of TK at the international level would require more than just ad-hoc collaboration among a few organizations. We need an integrated, comprehensive, and coherent global framework for TK protection—a “global TK project”, whereby all relevant organizations collectively work towards a common goal, however loosely defined that goal might be. It should be noted that this is not a new vision; many legal scholars have been articulating their ideas of the “global TK project” in one way or another since TK first entered the international debate. Many believe that the different paradigms of TK are actually different sides of the same cube, which renders their conceptual division artificial.Footnote ¹²⁵ However, few have attempted to carve out the details of what this global TK framework should look like; and for those who have attempted to do so,Footnote ¹²⁶ their efforts are in large part either incomplete or impractical, not least because of the complexity of the issues involved. They were, in other words, faced by the challenge of the fragmentation of international law and, as a result, workable solutions to settle the divergence of perceptions have been slow to emerge.

Whilst the detailed examination of what this “global TK project” should look like lies beyond the scope of this paper, it is worth pointing out that the success of such a collective endeavour is largely dependent upon acute understanding of existing problems and of the shared goal of TK protection. Put differently, to assemble the TK “jigsaw pieces” together, one must be fully aware of the shapes and parameters of all pieces, while having clearly in mind “the overall TK picture” that one seeks to construct.Footnote ¹²⁷ Regrettably, yet unsurprisingly, recent practices have suggested that neither the parameters of the “TK pieces” (that is, the scope of each organization's competence) nor the “overall TK picture” (that is, the common goal of TK protection) are sufficiently clear today, which is at least partially attributable to the fragmentation of international law.

C. Multiplicity of Beneficiaries

Thus far, we have discussed the impact of fragmentation on the perception of what TK is and why it deserves protection. It is noteworthy that the questions of what is to be protected and why are inextricably linked with the question of who should benefit from TK protection. The answers are also affected by fragmentation. Interestingly, some international institutions have focused exclusively on particular groups of beneficiaries. UNCCD, for example, only mentions the TK of “local communities”, while UNPFII and ILO focus on the TK of “indigenous peoples”. CBD, on the other hand, mentions the TK of both “indigenous and local communities”, while maintaining that the sovereign rights over genetic resources and associated TK belong to states. In contrast, while FAO (in the context of ITPGR) recognizes both local and indigenous communities as holders of TK, it places an emphasis on the TK of traditional “farmers”.

Like the choice of terms and objectives, these different choices of the beneficiaries of TK protection reflect the diverse policy goals of the organizations. More fundamentally, they appear to be the product of evolving politics inherent in the global efforts to protect TK, whereby different interest groups are forged across different fora at different times with varying degrees of influence. Initially, owing to the dominance of countries with a significant number of indigenous minorities, such as Australia and Canada, the international discussions on TK often took place under the rubric of “indigenous knowledge”, and were closely linked with the discussions about indigenous peoples’ rights. As the debate progressed, however, other countries—the Asian countries in particular—began to take an interest in TK and pushed for the recognition of the rights of “farmers” and “local communities” which are not “indigenous” per se, but are perceived as legitimate holders of TK. These different groups of interests are now expressed and realized simultaneously in different fora (or even within an individual forum),Footnote ¹²⁸ giving rise to difficult legal and policy questions regarding their distinctions,Footnote ¹²⁹ and how to accommodate adequately (and avoid homogenizing) their demands.Footnote ¹³⁰ Given the ambiguous relationship between the categories of beneficiaries and the current tendency in the discussions to essentialize their needs,Footnote ¹³¹ there is a real danger that states are negotiating on a different matter, believing that they are referring to the same one.

While these problems are not directly caused by the fragmentation of international law per se, they are aggravated by the multiplication of international fora, which provides platforms for the expressions of different interest groups. This is sustained by the lack of adequate co-ordination among the existing fora, which inhibits the mutual understanding regarding the needs of different groups of TK holders among, and within, the fora. This suggests that the promotion of mutual understanding among the relevant fora regarding the needs and expectations of TK holders could help resolve at least some of the confusion concerning beneficiary allocation.

What this paper has sought to do thus far is to offer a modest examination of how the fragmentation of international law complicates the question of what TK is, why it deserves protection, and for whose benefits TK protection should serve. Beyond these substantive matters, the fragmentation of international law also raises many administrative questions, to which we now turn.

D. Inconsistency in National Positions and Selective Participation

What scholars often overlook when assessing the difficulties of TK protection are the implications of fragmentation for national governments. The anecdote in the opening paragraph of this paper is only one of the many instances where TK-related discussions among relevant national agencies become deadlocked. Of course, one may ask: how are confusions at the national level related to fragmentation of international law? In response to this question, the following paragraphs will seek to demonstrate that confusion at the national level may simultaneously be a cause, and a consequence, of the fragmentation of international law.

Let us first look at how international organizations generally function. When speaking of international organizations, one must not forget that they are entities created by states as platforms for organizing their collective co-operation on specific matters, and accordingly international organizations are “entirely defined by the function, or purpose, for which they have been created”.Footnote ¹³² Whilst international organizations can influence the interests and knowledge of its members, they remain essentially an agent of the states, and as such their mandates and parameters of competence are almost always dictated by the will of their members.Footnote ¹³³

Therefore, inconsistency in the views of Member States regarding TK protection across different fora would likely lead to inconsistency in the policies and work programmes of these fora. In this way, the confusions regarding the nature of TK and the objectives of its protection at a national level can make their way into international discussions. This process is facilitated by the fact that the government representatives who attend a meeting in, say, UNESCO, are usually not the same representatives who attend similar meetings in WIPO, FAO, or CBD. Needless to say, this is because national administration is often organized in such a way that each ministry is responsible for specific issues within their mandates, not unlike international organizations. For Thailand, the Ministry of Culture and the Ministry of Education are almost exclusively responsible for the activities of UNESCO, whereas the Ministry of Commerce (the Department of Intellectual Property in particular) is responsible for WIPO's meetings. Like the international organizations, these ministries have different views as to what TK is and what should be the objectives for its protection. Naturally, therefore, their views articulated at different fora are likely to reflect the policy focus of their own agencies. In this sense, the fragmentation of views among national agencies can be perceived as the origin of fragmentation of international legal rules, at least insofar as those international legal rules are directly affected by the views of the states.

Thus, ensuring that national positions represented at different fora by different agencies are coherent and consistent would go some ways towards resolving the inconsistency in the approaches of different fora. Unfortunately, as previously mentioned, finding a common national position on a matter as complex as TK among several governmental agencies is difficult to say the least. In Thailand, there have been talks about setting up a national co-ordinating body to deal specifically with TK issues, but none have led to concrete actions or solutions. The task of national co-ordination now rests with the Ministry of Foreign Affairs whose expertise lies—not with IP, human rights, cultural heritage, or environmental laws—but with diplomacy. Better national co-ordination is certainly needed to ensure coherence in national positions across different fora.

However, it would be wrong to conclude that the burden of tackling fragmentation lies solely with national governments. In reality, international organizations themselves can do much to help address the fragmentation of international law. This is because, whilst international organizations rely on their Member States for clear policy directions, the Member States themselves are, at the same time, reliant upon the expertise and assistance of the international organizations. This dual relationship between states and international organizations suggests that the fragmentation of approaches among the international organizations can also make its way into domestic discussions. Indeed, this is particularly true for Thailand, where various agencies are struggling to make sense of such terms as “intangible cultural heritage” and “traditional cultural expressions”, which are commonly used in international discussions, but have no equivalent in Thai. At least for Thailand, the explosion of TK-related terms at the international level seems to be partially responsible for the terminological confusion at the domestic level and, as such, an equal burden to tackle fragmentation lies upon the international organizations themselves.

Let us now consider the effect of fragmentation from another perspective. One obvious consequence of the multiplication of international fora working on TK is that some governments (especially those of developing countries) cannot be fully engaged in all fora owing to their limited resources. Ultimately, they may have to focus on the forum(s) which they believe are most relevant to their domestic concerns, and would give the best value for money.Footnote ¹³⁴ This may result in resources and efforts being directed towards one forum at the expense of other forum's programme development, leading to disparity in institutional capacity, and to certain aspects of TK protection being overlooked.

Related to this is the ongoing debate about which forum is most qualified to discuss TK issues. Given WIPO's IP-centred mandate, many have questioned whether it is a suitable forum to deal with a subject matter as multifaceted as TK.Footnote ¹³⁵ Similarly, it has been argued that the TK issue does not involve trade, and therefore addressing it in the WTO would be inappropriate.Footnote ¹³⁶ UNESCO or UNCTAD might be a better place to discuss TK issues, given that they have a more holistic conception of TK, yet they cannot adequately respond to the concerns about biopiracy and misappropriation of TK. At present, legal scholars are still divided as to whether there could or should be a new international body that deals comprehensively with TK issues.Footnote ¹³⁷

Such a body may help bridge the current fragmented efforts, but there is a possibility that it might aggravate, rather than solve, the problem of fragmentation, partly because the mandate of this new agency will be set by the states whose goals regarding TK protection are, as discussed above, still confused. It is also unlikely that this new agency would have the same level of expertise and experience which existing organizations possess.Footnote ¹³⁸ Further, its establishment would put additional strain on the already limited funds available to the international organizations, thus potentially leading to all fora being worse off in terms of capacity and knowledge development. To this extent, having a new body may in fact be counter-productive to the global effort to protect TK. Therefore, instead of talking about a new organization, it seems more worthwhile to talk about the ways in which effective synergies can be promoted among existing ones, especially when there is an alternative option of having an existing forum co-ordinate and initiate necessary collaborative efforts with other fora.Footnote ¹³⁹