Biopiracy and the right to self-determination of indigenous peoples

Abstract

Background: Since over thirty years, I work on the unclear legal situation of in which indigenous peoples find themselves today in the beginning mainly in the USA and later also in Canada, Australia and New Zealand. The status of indigenous people and native nations is characterized as a mixture of national and international law. Hypothesis/Purpose: To clarify the status of indigenous people it is necessary to analyze and interpret carefully hundreds of old treaties, international declarations and covenants, national statutes and jurisprudence, especially the old leading decisions of the US-Supreme Court. Such an analysis and interpretation should prove that indigenous people have the defensive right of self determination.Results: The study outlines the old decisions of the US-Supreme Court with its inherent contradictions which highly influenced the status of indigenous people in all other countries until now. It clarifies the important new developments in international law especially the non binding Declaration on the Rights of Indigenous Peoples and its effects on the interpretation of international and national law in regard to biopiracy. For this purpose it is necessary to use the methods of judgmental comparative law, historical and teleological interpretation.Conclusion: By expressly stating that indigenous peoples have a right to self-determination, the Declaration on the Rights of Indigenous Peoples of 2007 complements the protection stipulated in the Charter and the Covenants of 1966. Although the declaration itself is not legally binding as it is a resolution of the UN General Assembly, it can serve as a blueprint to show the rights that indigenous peoples can derive from international law as well as rights which should ideally be granted to them by the states even though they are not yet binding customary or treaty law. Self-determination means exactly that, it is up to the bearers of the right to decide how they want to utilize this right and then work together with the state in which they live in defining a joint framework.