Wednesday, 11 December 2013

The Undetected Lion King

No everybody knows Solomon Linda; but you may know the song ‘the lion sleeps tonight’ right? Well, that is probably the moment when you think of Disney’s ‘The Lion King’ and ask yourself what Salomon Linda has to do with it.

Solomon Linda is a Zulu musician, who composed this song and he is a victim of intellectual property. While The Walt Disney Company earned millions of Dollar by using his song, he died poor in a Southafrican township. It is a tragedy and scandal that companies (like Disney) exploit traditional knowledge (TK) without obeying international legal standards.

However, the situation is tricky. One the one hand, immense treasures of TK exist, values that go beyond ethical materialism or consumerism and on the other hand, cruel market policy expedited by globalisation forces the competition of companies. Realisable regulations are needed to protect TK and enforce the indigenous right to determine what happens to traditional values, be it music, designs or handicrafts.

Article 11 paragraph 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UBDRIPI) marks the starting point for a bold approach. It implies the right to revitalize and develop cultural traditions and customs of indigenous peoples. The use of a traditional song in a successful animated film is quite a revival and a gain. The only way to guarantee that the utilization of a traditional song is not only a gain for the producing company but also for the composer, is to make an indigenous approval condition for the commercialisation. Within the Declaration and the ILO Convention 169, the achievement of the Free, Prior and Informed Consent (FPIC) could provide assistance. If states ensure that commercialisation of TK is only permitted if indigenous consent is granted, two beneficial aims could be achieved. A natural protection of the TK and the foundation of compensation. Therefore indigenous consent has to be interpreted as the power to decline or accept marketing strategies. By making the obtaining of indigenous consent obligatory for companies and states, the biggest obstacle would have been conquered.

FPIC, a legal affirmation of adequate socio-legal behaviour and decency, needs to become an every day practice in protecting TK. If this, or the truly implementation of the Declaration into national legal systems, were possible, you would have heard of Solomon Linda before.

Posted written by Lisa Albanis (LLM candidate, University of Buckingham).
Source The Guardian.



 

 

Saturday, 2 November 2013

The effects of the United States Supreme Court decision in Adoptive Couple v Baby Girl: Keeping the Spirit of the Existing Indian Family Doctrine Alive

It has been just a little over four months since the United States Supreme Court handed down its decision on the case of AdoptiveCouple v Baby Girl. This is only the second case that the US Supreme Court has heard on the Indian Child Welfare Act ( ICWA).

The first was a decision that upheld tribal jurisdiction over a child whose parents were domiciled on native nation lands MississippiBand of Choctaw Indians v Holyfield.

There were concerns prior to the US Supreme Court decision that it make take the opportunity to announce support for the “existing Indian family doctrine” that renders the Act inapplicable if a judge determines the child and its family lack sufficient ties to indigenous culture and community—in contravention of the plain language of the Act. The decision did not endorse the existing Indian family doctrine—but it did limit the application of the Act in a way which is likely to create far more problems in interpretation and application than it solved.

The SCOTUS decision found that 2, and possibly 3, sections of ICWA did not apply to the father of the child. The decision finds that 2 subsections of the Act which provide heightened legal protections were not applicable- Section 1912(d) and (f). The SCOTUS decision also found that preferences for adoptive placement found in 1915(a) were potentially not applicable to this situation.

This in itself is a strained and piecemeal reading of ICWA. But what is perhaps more disturbing is the opening lines of the majority decision, which makes reference to the “blood quantum” of the child at issue—as if to suggest, in keeping with the judicially created existing Indian family doctrine—that the child was not “Indian enough” in the eyes of SCOTUS to make ICWA relevant.

While the SCOTUS decision did not rule directly on the applicability or legitimacy of the existing Indian family doctrine, it does keep the spirit of that doctrine alive and well. The tenor of the SCOTUS decision suggests that it is still within the purview of the courts to comment on the degree of “Indian-ness” a parent or child possesses— and in so doing ignoring both the clear letter and spirit of ICWA which grants courts no such authority at all. 
Written by Sarah Sargent.
 
 
 


 

Tuesday, 12 March 2013

Conference criticizing the international politics of Traditional Knowledge

A conference held recently at the Graduate Institute of International and Development Studies in Geneva brought to the surface a powerful set of academic critiques of the politics of TK law at the international level. Criticizing instruments like the otherwise much-praised Nagoya Protocol, academics (many of whom involved in the negotiations and / or implementation of the instrument) suggested that the field is still riddled with concessions to state sovereignty and loopholes that disregard the transnational nature of TK exploitation.

A fuller report of the conference presents some of the arguments made in more nuance, and is well worth a read.

Written by Lucas Lixinski

Saturday, 2 March 2013

Recognition of Aboriginal and Torres Strait Islander Peoples in Australia: the Act of Recognition

This blog has discussed in the past the issue of constitutional recognition of Aboriginal and Torres Strait Islander Peoples in Australia, and how a referendum was being called for after an expert panel convened by the government recommended so.

It later discussed how the referendum had failed to gain sufficient momentum, and an Act of Recognition was being considered, with a sunset clause which would bring about the referendum in the foreseeable future. The proposal was soaked in the mud of partisan politics, but that all recently changed, and the Opposition decided to support the legislation. So, in February 13th, the Act of Recognition was finally passed.

The Prime Minister's speech at the signature of the act explains its content and the achievement that the legislation is on its own. Let's now hope that this in fact helps build momentum towards the referendum. Stay tuned for more developments!

Post written by Lucas Lixinski.

Monday, 25 February 2013

Suriname: the impact of gold mining

On February 13h we read a publication from the American Commission on Human Rights (IACHR) from a working visit to Suriname in South America. The visit took place on 23th and 25th January. From this visit the Commission released a statement on the rights of women and indigenous peoples of continental interest.

During the visit Rapporteurs received information from both the state and non-state individuals and entities. The Rapporteurs acknowledge the steps taken by the State to recognize the right of certain communities maroon i.e. recognition of their traditional territories and the use and enjoyment of the land and the resources necessary for their survival. Yet, the Rapporteurs emphasize the need to increase its efforts.

Some of the information that they received was related to gold mining and its impact. For instance the use mercury on water damages the quality of it in these communities. There is also the issue of forced displacement, child labour and sexual violence perpetrated against women in mining areas. Due to this situation surrounding gold mining, the Rapporteurs stress “the need to hold consultations with affected communities before and during the implementation of these activities, and the State's obligation to take measures to safeguard the economic, social and cultural rights of these communities”.

Another case presented to the Rapporteurs was from the village Brownsweg, where the population feels isolated “with respect to policies, programs and benefits provided by the national government and the lack of an effective response to their needs.” Moreover, the villagers noted “deficiencies in the provision of basic services, such as those related to water and health, and lack of support for the preservation of their language.”

While Suriname is not a member of the ILO Convention No 169, it is indeed one of the countries that voted in favour of the Declaration on the Rights of Indigenous Peoples (UNDRIP). Therefore, it is important to remember some potential articles which Suriname appears to be violating e.g. Art 10 ‘Indigenous peoples shall not be forcibly removed from their lands or territories.’ Art 17(2) “States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.”. Art 26 “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. Art 29 “Indigenous peoples have the right to the conservation and protection of the environment” and Art 29(2) “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” [I am sure there are more]

Source Servindi (Servicios en ComunicaciĆ³n Intercultural).

Monday, 18 February 2013

Colombia: consultation is a must!

From Colombia we heard news that a Judge in the region of Choco (situated in the west of Colombia on the Pacific coast) has suspended for six months the licenses, concessions and studies granted to mining in more than 50,000 hectares.

Going back to October 2012 the Land Unit from the Ministry of Agriculture filed a lawsuit against the National Mining Agency. At that time the Mining Agency has issued 13 titles covering 40,000 hectares, 13,000 of which were part of indigenous lands. The judge ordered security forces to recover, in the shortest time possible, the territory and ordered to the companies involved to withdraw personnel and machinery from the territory.

It is said, according to the Agencia Intercultutral de Noticias de Bolivia (AINI), the judge based the case on the fact that the Indigenous communities living in the area were never asked; in other words they were not consulted as required by the ILO Convention 169 and UNDRIP – both signed and ratified by Colombia.

Wednesday, 26 December 2012

Two Tales of the Indian Child Welfare ACt


Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.


But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.
  
But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.