ABSTRACT
The concept of human rights is one of those concepts in the international discourse for which there is no universally accepted definition, despite the fact that human rights are widely understood to be universal in nature. Nonetheless, one of the definitions of the human-rights concept suggests that human rights constitute any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere (except, I would add, in exceptional circumstances). Internationally, human rights are enshrined, first, in the 1948 UDHR and its legally binding covenants, the 1966 ICCPR and the 1966 ICESCR. These two covenants transformed the advisory nature of the 1948 UDHR into two legally binding instruments with which state parties have the legal obligation to comply. These three pieces of international human-rights instruments constitute what is known as the International Bill of Rights. They encompass a cross-section of elements of human rights based on such principles as the universality, inalienability, indivisibility/interdependence and fundamentality of human rights. Having regard to these principles, it may seem plausible that there is no point in developing a specific set of rights for indigenous and local communities. Discussions in this chapter and the subsequent ones, however are based on one of the grounds for developing the 2007 UN-DRIP which is the fact that due to the specific injustices that indigenous peoples have undergone there is a need to address their human-rights-related concerns in an express manner. Also controversial are the interpretations associated with the inclusion of IPRs into human-rights instruments. Here, we refer to Article 27 of UDHR and Article 15 of the ICESCR. For some analysts, these provisions undoubtedly relate to the protection of the human rights of peoples considered as products resulting from their intellectual effort and creative minds. On the other hand, there are views that IPRs are not human rights because they are subject to recognition while human rights are fundamental rights and thus do not require any specific recognition. This chapter does not attempt to add to the above-mentioned controversial
issues. It revolves around the assumptions that community rights indeed deserve special attention in the human-rights discourse, precisely due to the specific circumstances of traditional and indigenous communities. Furthermore, it is our view in this chapter and the subsequent ones that, indeed, the provisions of Article 27 of the UDHR and Article 15 of the ICESCR refer to IPRs, thus making
them integral and important components of human-rights instruments. Following these assumptions, this chapter explores the extent to which both community rights and IP provisions are crafted in a selected number of human-rights instruments. These analyses are meant to assist us in establishing that because community rights and IPRs are important components of the human-rights discourse, policy processes aimed at addressing community concerns should strongly reflect a human-rights perspective in order for them to be comprehensive, tailored and responsive to the expectations of traditional and local communities.
