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Events in Russia and the world after February 24 are developing at a great speed. They qualitatively change the entire system of international relations and international law. The world order that somehow emerged after the end of the Cold War no longer exists. And it will hardly be possible to return to it later, even if the Russian-Ukrainian negotiations lead to a compromise.

One of the characteristic features of this “pre-February” world order was the dialectical struggle between the Western centre of power (power understood in every sense — military, economic, value) and the largest non-Western powers that sought to challenge it. This dynamic state of affairs was theoretically defined either through the concept of a multipolar world or through the concept of revisionism in world politics. From our point of view, a multipolar world is unlikely to work in the current situation. At least from the non-Western poles (except for Russia itself, of course), now only cautious phrases are heard in the spirit of “for all that is good and against all that is bad”. It is clear that everyone is waiting and trying to predict the consequences. And against this background, it is, in our opinion, the theory of revisionism that can most accurately characterise the unfolding developments.

But if the new geopolitical realities ought to be self-evident, they are not.

The contours of this new and historically unique geopolitical order remain only vaguely perceived, obscured by a veil of concepts, frames and imaginaries that were formed in the geopolitical contexts of yesteryear but that remain firmly in place today. Precisely why this should be is something of a mystery — though the usual suspects of nostalgia, anchor bias, willful ignorance and failure of imagination are all likely to play their part.

Trump Administration Withdrawals As noted above, the Trump administration has not just stalled new commitments to international agreements, it has actively withdrawn from a number of treaties. The accounting offered below breaks the agreements into three categories: (1) nonbinding arrangements and international organizations, (2) executive agreements, and (3) Article II treaties. As explained in Part II, rejoining each type of arrangement requires different procedures and poses different legal and political challenges. Nonbinding Arrangements & International Organizations First are nonbinding arrangements and international arrangements. Nonbinding arrangements are just what they sound like—they do not create binding commitments. But they can nonetheless be extraordinarily important. They are used in a wide array of contexts to establish diplomatic commitments and they even mimic in some instances many of the features of a binding international arraignment, so much so that the State Department has issued on how to try to avoid confusion about the nature of an agreement. The nonbinding arrangements and international organizations that the Trump administration withdrew from include: : The JCPOA is a arrangement (or set of “political commitments”). Trump withdrew the United States from the JCPOA in May 2018. (UNHRC): The Human Rights Council was created by the U.N. General Assembly in 2006. During the Obama administration, the United States won one of the 47 seats on the Council and actively participated in its work. The Trump administration from the UNHRC in June 2018, apparently in protest of the Council’s criticism of Israel’s treatment of Palestinians. : The Trump administration from participation in this non-legally binding process in December 2017. : The Trump administration from this non-legally binding process in November 2018. (UNRWA): Established pursuant to U.N. General Assembly Resolution 194 (1948). The United States made voluntary funding donations to the UNRWA out of general humanitarian funds provided by the State Department’s Bureau of Population, Refugees, and Migration, but that it would cease doing so as of August 31, 2018. Executive Agreements Executive agreements, which create binding legal obligations on the United States under international law, are commonly grouped into one of three categories based on the type of authorization that supports the agreement. (1) A “sole executive agreement” is concluded by the president on his or her own constitutional authority without any express congressional authorization or approval. (2) An “ex ante congressional-executive agreement” is authorized in advance by statute, treaty, or agreement and concluded by the president without subsequent congressional review or approval. (3) An “ex post congressional-executive agreement” is approved by a majority of Congress after it is negotiated by the president, usually through the passage of ordinary legislation. (Some argue there is an additional category that is referred to as “”: an agreement made by the executive branch that neither relies on an independent presidential power nor is specifically authorized by Congress. Its legal justification, instead, is that it “complements” or is “consistent with” existing federal law, and thus requires no additional congressional action. For these purposes, such agreements would mirror the sole executive agreement category.) Trump has withdrawn from three prominent executive agreements: : This agreement was concluded as an executive agreement pursuant to the 1992 Framework Convention (an Article II treaty); many provisions are non-binding. The United States submitted its formal intention to on November 4, 2019, which will go into effect on November 4, 2020. (WHO) Constitution: The United States joined the Constitution of the World Health Organization with an that it could withdraw by providing one year’s notice and after meeting its financial obligations to the organization. On July 6, 2020, the United States its formal intent to withdraw effective July 6, 2021. (UNESCO) Constitution: The United States joined through domestic legislation passed in 1946. The United States officially withdrew from UNESCO on December 31, 2018, after its plan to withdraw in October 2017. The withdrawal occurred pursuant to Article II(6) of the UNESCO Constitution. When the United States previously withdrew from UNESCO in 1984 and then 18 years later, it did not seek new congressional authorization instead on the statutory authorization that had allowed the initial U.S. entry into UNESCO in 1946. Article II Treaties Article II treaties are treaties negotiated by the president and then submitted to the Senate for its “advice and consent,” as specified in Article II of the Constitution. Such agreements are by far the most difficult to make. In the past there has been substantial disagreement about the power of the president to unilaterally withdraw from agreements that takes two branches to make. Whether there are actions Congress might take to or respond to withdrawals is a matter of ongoing debate. The fact remains, however, that presidents have successfully withdrawn from such treaties on their own. Never before Trump, however, has a president withdrawn from Article II treaties in such numbers. Specifically, Trump has withdrawn from an unprecedented five Article II treaties in three years: : The United States signed in December 1987 and ratified in June 1988. The Trump administration its intent to withdraw in October 2018. The United States formally withdrew in August 2019, pursuant to Article XV of the treaty, after providing six months’ notice. : The United States signed in March 1992 and ratified in November 1993; the Treaty did not enter into force until 2002, 60 days after the deposit of the 20th instrument of ratification. The Trump administration formal notice of withdrawal on May 22, 2020. The withdrawal will become effective six months from that date (November 22, 2020). : The United States signed in June 1961 and ratified in November 1972. The Trump administration its intention to withdraw from the Protocol in October 2018. The Protocol does not explicitly state rules for withdrawal. The United States has stated that this means that withdrawal is immediate, whereas the (VCLT) (to which the United States is not a party, but which is considered indicative of customary international law) provides that withdrawal would only be allowed if the treaty by its nature implies that withdrawal is permitted or the parties intended it. The VCLT also provides that in such cases, parties must give at least 12 months’ notice of intention to withdraw. : The United States signed in August 1955 and ratified in September 1956. The Trump administration S. withdrawal in October 2018, following a decision by the International Court of Justice that the United States had violated the treaty. Withdrawal was effective October 3, 2019, because there was a one-year period for the treaty to end following written notice under Article XXIII. : The United States signed in April 2010 and ratified in February 2011; the treaty is up for extension on February 5, 2021. The Trump administration has signaled that it does not intend to extend the treaty, but it has not yet withdrawn. In addition to the withdrawals outlined above, the Trump administration has threatened withdrawal but not (yet) made good on the threat for a number of agreements. In two cases—the , one of the longest-standing and most successful international organizations the world has known, and the —he threatened withdrawal, but dropped plans to withdraw after claiming a concession had been made. The president has also threatened to withdraw from the (WTO) and the , but has not taken concrete steps to carry out those threats. In the case of the WTO, however, the administration has new members of the WTO Dispute Settlement Appellate Body, thus rendering it unable to hear any appeals. While this does not constitute withdrawal from the organization, it does threaten the ability of the organization to function as intended. Canada and the European Union forged a deal to avoid the block and save the WTO dispute settlement process from complete collapse, but the organization remains hobbled by U.S. intransigence. There are, moreover, a number of agreements the United States had not yet ratified, which the United States has “unsigned” or otherwise signaled intent to withdraw from under Trump, including the (signed in September 2013, not ratified; Trump announced signature “withdrawal”); (signed in February 2016, not ratified; Trump “withdrew signature” in January 2017; consensus of the remaining parties would be required for the United States to rejoin); and the (TTIP) (negotiations abandoned).

If the victors of Versailles intended to keep their ill-gotten gains, they had to be willing to employ military force against a revanchist Germany whenever the latter attempted to effectuate resistance to the terms of the so-called peace. The Western democracies, however, lacked the requisite will; instead of fighting to preserve their hegemony, they preferred to trust in their own illusions. They put their faith into such meaningless pronouncements as Wilson's Fourteen Points,2' the Pact of Paris,22 and its corollary the Stimson Doctrine;23 into the ineffectual organs of the League of Nations - the Council, the Assembly, and the Permanent Court of International Justice; into vapid and useless legalist-moralist doctrines like neutrality, disarmament, and arbitration; and into the codification of international law and the formulation of a definition of aggression. Finally, and perhaps most egregiously of all, they actually believed in the existence of a beneficent world public opinion that would will the world on its path towards peace. These chimera were exploded when a powerful and resurgent Germany, under the leadership of a demonic yet brilliant tyrant, together with like-minded allies in Italy and Japan, challenged the status quo of Versailles with the might of their armies. 24 Inter national law was a farcical joke to the Axis powers. The only way to stop them was through the exercise of that lone medium they understood and appreciated most - sheer, naked, brutal force, stripped of all pretensions to anything but outright conquest. Hence the need for their unconditional defeat and the demand for their unconditional surrender. It was unfortunate for the lives of millions of people that the Allied enamor for international law meant they had to learn this lesson the hard way, after the mistakes of Manchuria, Ethiopia, the Rhineland, Spain, Austria, Czechoslovakia, and Poland. If Western statesmen had been attentive to the historical imperatives of power politics, and not fascinated by the seductive allurements of international law, the Second World War might never have happened - or else it would have occurred in the middle 1930s when the devastation would have been minor in comparison to that which it was in actuality. They could have fought the war on their own terms and at the time of their own choice, not those of their adversaries. The Western democracies had only themselves to blame for the Second World War. Political realists delight in bandying about that famous quotation from George Santayana: "Those who cannot remember the past are condemned to repeat it."25 Faced with a Communist threat in the aftermath of the Second World War, they set out to ensure that the United States and other Western democracies did not, in their confrontation with the Soviet Union, repeat the same grievous errors they had allegedly committed in their confrontation with fascism - reliance upon the fictitious and fatuous strength of international law and international organizations. In the political milieu of the Cold War, the West must not repeat the same near fatal mistake it had made after termination of the First World War if it wished to avoid a suicidal Third World War.26 Hence the justification for the necessity of the Truman Doctrine, the Marshall Plan, the policy of containment, the Berlin airlift, the intervention in Korea, and the creation of the North Atlantic Treaty Organization (NATO). These elements of postwar American foreign policy were quite properly founded upon pure calculations of national interest and power politics.

U.S. Secretary of State Antony Blinken and other members of the Biden Cabinet are the “rules-based international order” (RBIO) or “” every chance they get: in press conferences, on interviews, in articles, at , for breakfast, lunch, dinner, and cocktails. Along with the terms “human rights” and “democracy,” the RBIO is routinely used to claim a moral high ground against countries that they accuse of not following this RBIO, and wielded as a cudgel to attack, criticize, accuse, and delegitimate countries in their crosshairs as rogue outliers to an international order. This cudgel is now used most commonly against China and Russia. Oddly enough, whenever the United States asserts this “rules-based order” that China (and other “”/enemy states) are violating, the United States which “rules” are being violated, but simply releases a miasma of , leaving the stench of racism and xenophobia to do the rest. This is because there is a fundamental contradiction at the heart of the RBIO. The RBIO isn’t “rules-based,” it isn’t “international,” and it confounds any sense of “order,” let alone justice. It is, at bottom, the naked exercise of U.S. imperial power and supremacy, dressed up in the invisible finery of an embroidered fiction. The RBIO is a fraudulent impersonation of international law and justice. There are many layers to this misnomer, to be deconstructed piece by piece. ‘RBIO’ in Contrast With ‘International Law’ First, the RBIO is not “international” in any sense of the word. There actually is a consensual rules-based international order, a compendium of agreed-upon rules and treaties that the international community has negotiated, agreed to, and signed up for. It’s called simply “international law.” This refers to the body of decisions, precedents, agreements, and multilateral treaties held together under the umbrella of the and the multiple institutions, policies, and protocols attached to it. Although imperfect, incomplete, evolving, it still constitutes the legal foundation of the body of international order and the orderly laws that underpin it: this is what constitutes international law. The basic foundation of the UN Charter is national sovereignty—that states have a right to exist, and are equal in relations. This is not what the United States is referring to. When the United States uses the term RBIO, rather than the existing term “international law,” it does so because it wants to impersonate international law while diverting to a unilateral, invented, fictitious order that it alone creates and decides—often with the of other imperial, Western, and transatlantic states. It also does this because, quite simply, the United States does not want to be constrained by international law and actually is an international scofflaw in many cases. The United States as International Outlaw For example, the United States refuses to sign or to ratify foundational international laws and treaties that the vast majority of countries in the world have signed, such as the Rome Statute of the International Criminal Court (ICC), CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women), ICESCR (the International Covenant on Economic, Social, and Cultural Rights), CRC (the Convention on the Rights of the Child), ICRMW (the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families), UNCLOS (the UN Convention on the Law of the Sea), PAROS (the Prevention of an Arms Race in Outer Space), the Ottawa Treaty (the Anti-Personnel Landmines Convention), and the of the ILO (International Labor Organization). In fact, the United States harbors sweatshops, legalizes (for example, in migrant farm labor), and engages in slave labor (in and ). Even the U.S. State Department’s own 2021 acknowledges of trafficking and forced labor in agriculture, food service, manufacture, domestic service, sex work, and hospitality, with U.S. government officials and involved in the trafficking of persons and . Ironically, the United States tries to hold other countries accountable to laws that it itself refuses to ratify. For example, the United States UNCLOS in the South China Sea while refusing—for decades—to ratify it and ignoring its rules, precedents, and conclusions in its own territorial waters. There are also a slew of international treaties the United States has signed, but simply violates anyway: examples include the , the , UN treaties prohibiting , , and , and of course, , “the supreme international crime”—a crime that the United States engages in routinely at least once a decade, not to mention routine drone attacks, which are in violation of international law. Most recently, the signed between the United States and Australia violates the Nuclear Non-Proliferation Treaty (NPT) by exploiting a blind spot of the (IAEA). There are also a multitude of treaties that the United States has signed but then arbitrarily withdrawn from anyway. These include the Joint Comprehensive Plan of Action (JCPOA) with Iran, the and the with North Korea, the Geneva Conventions, the , and many others. There are also approximately 368 treaties signed between the Indigenous nations and the U.S. government; every single one of them has been . There are also unilateral fictions that the United States has created, such as “Freedom of Navigation Operations” (FONOPs): this is gunboat diplomacy, a military show of force, masquerading as an easement claim. FONOPs are a concept with no basis in international law—“” is the accepted law under UNCLOS—and it is the United States and its allies who are violating international laws when they exercise these FONOPs. Air Defense Identification Zones (ADIZs) are likewise notions that have no recognition in international law—the accepted concept is “sovereign airspace”—but the United States routinely that China is Taiwan’s ADIZ or airspace—which covers of mainland China. These are some examples of the absurd fictions that the United States invents to assert that enemy states like China are violating the RBIO. This is weaponized fiction. The United States also takes great pains to undermine international structures and institutions; for example, not liking the decisions of the World Trade Organization (WTO), it has the WTO’s Investor-State Dispute Settlement (ISDS) mechanism; it has undermined—and threatened—the ICC (by passing the American Servicemembers Protection Act [ASPA], also known as the ), and more recently, the ICC prosecutor and her family members; it thumbs its nose at the and its decisions, and generally is opposed to any international institution that restricts its unbridled, unilateral exercise of power. Former U.S. Ambassador to the UN John Bolton, in blunt candor, that there is “,” but this unhinged ideology is quietly manifested in the day-to-day actions of the United States throughout successive U.S. administrations. Whose Rules? The United States Applies Its Laws Internationally On the flip side of this disdain for agreed-upon international law and institutions is the United States’ belief that its own laws should have universal jurisdiction. The United States considers laws passed by its corrupt, plutocratic legislature—hardly international or democratic by any stretch of the imagination—to apply to the rest of the world. These include unilateral sanctions against numerous countries (approximately one-third of the world’s population is impacted by ), using the instruments of the Office of Foreign Assets Control (), the U.S. legislature and courts, as well as currency and exchange systems (SWIFT). These unilateral sanctions are a violation of international law and humanitarian law, as well as perversions of common sense and decency— have under these sanctions. To add insult to injury, the United States routinely bullies other countries to comply with these unilateral sanctions, threatening secondary sanctions against countries and corporations that do not follow these U.S.-imposed illegal sanctions. This is part of the general pattern of the exercise of U.S. long-arm jurisdiction; examples abound: the depraved arrest, imprisonment, and of journalist and WikiLeaks publisher Julian Assange—an Australian national—for violating U.S. espionage laws; the absurd kidnapping of Huawei executive (a Chinese national) on Canadian soil, for violating illegal U.S. sanctions on Iran (which Canada does not itself uphold); and many other examples, too many to enumerate. This long-arm bullying is often exercised through a network of kangaroo courts within the United States, which arrogate to themselves unitary, plenipotentiary international powers to police the citizens of other countries. Not surprisingly, the United States also applies its own laws in a similarly corrupt way within its own borders, with its own gulag system fed through these kangaroo courts. The most dramatic examples of the corruption of these courts can be noted in the routine exoneration of police-inflicted murders of civilians, except under the most extreme protest and activism; and absurd judgments, such as the prosecution of Steven Donziger by a ; or the exoneration of Kyle Rittenhouse by a judge allowing the accused to run the juror lottery. Note, however, the system itself is set up for conviction: over of federal cases that go to court result in conviction; most do not even go to trial: of U.S. federal indictments are settled by defendants pleading “guilty” or “no contest” to charges filed against them. The idea that there is any impartial notion of justice is belied by the fact that fair and adequate legal representation is for most defendants; that appointed public defenders are so overstretched that they often spend on each case, simply counseling defendants to plead guilty—which most do—and individuals, in the rare cases where they do win, are often bankrupted and psychically destroyed by a system that has unlimited resources and finances to beat down its victims. This corrupt system of oppression, despite its obvious injustices and iniquities, is exacerbated within vast gray areas of the justice system where even counsel, appeal, scrutiny, or oversight does not apply, and where a single individual may be judge, jury, and executioner. These include, for example, certain parole and probation systems, review boards within prisons, debt collection systems, immigration proceedings, asset forfeiture systems, and many other quasi-judicial systems of oppression. Generally, these violations and injustices are excused or erased by the international and national media, which are complicit in maintaining an illusion of impartial, high-standards justice in the United States. This is an illusion without substance: the U.S. legal system, like the U.S. health care system or the U.S. educational system, is essentially a failed system that is designed to work only for the rich and powerful. It delivers substandard, so-called care, if not outright abuse, harm, violence, and death, to the vast majority of people who have the misfortune to enter its sausage-making chambers. Routine Exemptions, Deadly Disorder Nevertheless, from time to time, dramatic incidents of the United States flaunting the international “rules-based order”—i.e., international law by the United States—occasionally make headlines (before being rapidly silenced). One type of recurring violation is the abuse of diplomatic immunity. This type of case is mundane and repetitious: a U.S. (or Western-allied) government employee kills or harms native citizens; the United States immediately claims diplomatic immunity. Sometimes the perpetrator is drunk, out of control, or paranoid; often they are spies or contractors. For example, according to recent , seems to have been a drunk U.S. spy who killed a British teenager in 2019. She was spirited away immediately as a . Raymond Allen Davis was a , possibly , who shot dead two people in the street in Pakistan. Another person was killed by a vehicle picking up Davis to take him away from the crime scene. Davis was spirited out of the country, no explanations were given, and the murders were erased from media consciousness. This mindset of exceptionalism and impunity is not anecdotal, but manifests on a general, structural scale in the numerous one-sided U.S. status of forces agreements (SOFAs) in the countries where the United States has troops stationed. These give a similar to diplomatic immunity: the violating U.S. soldier or contractor cannot be arrested and rendered to domestic courts unless the United States chooses to waive immunity; U.S. extraterritorial exemption/immunity can be applied despite cases of murder, mayhem, violence, torture, rape, theft, sexual trafficking, and a host of other sins. This type of exceptionalism also applies to national health policies and international health regulations. For example, multiple COVID-19 outbreaks have been traced to U.S. violations of domestic public health measures—screening, testing, contract tracing, and isolation—in many territories or countries (especially island regions) where the United States has military bases. For example, several major COVID outbreaks in have been traced to U.S. troops entering the island without following local health protocols. The United States takes the cake for hypocrisy, however, when, in several COVID lawsuits, it accused China—without evidence—of violating UN/World Health Organization (WHO) by failing to notify the United States and the rest of the world in a timely manner about the outbreak of COVID-19. This is entirely refuted by the facts and the well-established : no other country has worked as assiduously and as rapidly in investigating, ascertaining, and then notifying the world of the initial outbreak, as well as sharing necessary information to control it. The United States, however, has carved out a pandemic-sized exemption from reporting any infectious diseases to the WHO if it deems it necessary for its national security interests. Ironically, this exemption is carved out for the single institution to propagate it—: “any notification that would undermine the ability of the U.S. Armed Forces to operate effectively in pursuit of U.S. national security interests would not be considered practical.” When the United States disingenuously uses the term RBIO, or rules-based international order, it may be playing at international law, but once its applications are unpacked and defused, it becomes clear that it is a weaponized fiction that the United States uses to attack its enemies and competitors. If “,” the RBIO is the vicious first tribute that the United States sends to its law-abiding opponents to undermine international order, no less dangerous for its falsehood.

Whenever a lawyer or historian describes how a particular action “violates international law” many people stop listening or reading further. It is a bit alienating to hear the words “this action constitutes a violation of international law” time and time again – and especially at the end of a debate when a speaker has no other arguments available. The statement is inevitably followed by: “…and it is a war crime and it denies people their human rights.” A plethora of international law violations are perpetrated by every major power in the world each day, and thus, the empty invocation of international law does nothing but reinforce our own sense of impotence and helplessness in the face of international lawlessness. The United States, alone, and on a daily basis violates every principle of international law ever envisioned: unprovoked wars of aggression; unmanned drone attacks; tortures and renditions; assassinations of our alleged “enemies”; sales of nuclear weapons; destabilization of unfriendly governments; creating the largest prison population in the world – the list is virtually endless. Obviously one would wish that there existed a body of international law that could put an end to these abuses, but such laws exist in theory, not in practice. Each time a legal scholar points out the particular treaties being ignored by the superpowers (and everyone else) the only appropriate response is “so what!” or “they always say that.” If there is no enforcement mechanism to prevent the violations, and no military force with the power to intervene on behalf of those victimized by the violations, what possible good does it do to invoke principles of “truth and justice” that border on fantasy? The assumption is that by invoking human rights principles, legal scholars hope to reinforce the importance of and need for such a body of law. Yet, in reality, the invocation means nothing at the present time, and goes nowhere. In the real world, it would be nice to focus on suggestions that are enforceable, and have some potential to prevent the atrocities taking place around the globe. Scholars who invoke international law principles would do well to add to their analysis, some form of action or conduct at the present time that might prevent such violations from happening. Alternatively, praying for rain sounds as effective and rational as citing international legal principles to a lawless president, and his ruthless military.

C. THE VICTORY OF THE MILDLY REFORMIST STRAND OF INTERNATIONAL HUMAN RIGHTS LAW It is difficult, then, to argue both that human rights are in decline and that they are still—even in their mildly defeated form—that problematic. A better view might be to see them instead to be part of a moderate and dialectic process of reform of international law, one that has slightly shifted its center of gravity without fundamentally undermining it. It seems unfair to the human rights movement to simultaneously accuse it of being less forceful than it could be as a result of having lost some of the battles it waged, blame it for having lost these battles, and blame it for having dared to challenge and possibly continue to unsuccessfully fully challenge international law. It also seems uncharitable to add that the punishment for failing to do all of these things should be that human rights should cease to claim that they are part of international law, having not done enough to deserve that label. One could of course argue that even the moderate encroachments of human rights on international law that have occurred are a step too far. There are certainly some states—Venezuela, Zimbabwe, Cuba—that have strongly argued for even less interference with sovereign affairs; some foreign service lawyers are concerned that former heads of states might lose their immunities for international crimes. But I doubt Professor Wuerth is arguing that we should roll back even those modest challenges as unduly upsetting the delicate balance of international law, and I would be curious as to how she would propose to do so given their by now unmistakable international legal status. If all we are left with are very minor victories, then, I think it would be unfair to deny the international human rights movement, even those. One intriguing possibility is that the international human rights law movement has itself all along been substantially about international law, rather than just about human rights. What is interesting in that light is how its mainstream, at least, has been very cautious to not upset the Westphalian system. Indeed, perhaps what is revealing is not that human rights concepts have fundamentally interfered with the proper order of international law but that, as others and myself have argued, they have quite relentlessly comforted its broad contours. Not all interpretations of human rights are maximalist and corrosive of sovereignty, therefore, and some could be faulted for not being at all. As Professor Wuerth points out, it is scholars of remedial secession who seem to define the rights restrictively in the hope of making it palatable to the international legal order. In other words, far from setting out to upset the international legal order, many international human rights lawyers and thinkers seem bent on an agenda of suppleness and docility. It is ironic, then, that even that seems too much and that international human rights law is asked to, essentially, make itself disappear.

International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles—known as realist—posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons dry up, states, especially powerful states, can just violate the law; because the international legal system lacks centralized enforcement agents, any repercussions for the violation will be determined not by law but by the participants’ own interests and power relations. International law is again irrelevant.

In fact, international law moves unpredictably or in cycles, with periods of enthusiasm and advance followed by periods of decay and retrenchment. A gradual but real development in international law and institutions in the second half of the nineteenth century, and the early twentieth century, collapsed with World War I. The League of Nations was followed by fascism and World War II. Another burst of international law-making saw the creation of the United Nations, the seeds of the human rights treaty regime, and the development of security, economic, and financial institutions mainly in the west, but gave way to the Cold War. The post-Cold War enthusiasm for international law has now collapsed as well.

This collapse can be traced through a series of crises that began twenty years ago, and that are now wearisomely familiar: the 9/11 terrorist attack, which flowered into an ongoing conflict between the west and Al Qaeda and other violent Islamic organizations, and a war in Afghanistan that has not yet ended; the Iraq War that began in 2003, that has also not really ended, but rather extends in various ways to Syria and Iran; the financial crises that began in 2008; the ensuing global recession; the European debt crisis from 2009 to 2015; the Arab Spring and its collapse from 2010 to 2012; a refugee crisis that began around 2015; Brexit, which threw the European Union in turmoil in 2016; and the global pandemic and recession of 2020. These crises accompanied and contributed to deepening popular unhappiness with globalization and international governance, which in turn generated domestic political upheavals as nationalist, nativist, and populist movements made inroads on popular opinion. These movements took place both in entrenched liberal democracies like the United States, the United Kingdom, France, Germany, the Netherlands, and Italy, as well as in developing countries, like China, India, Brazil, and the Philippines, where the commitment to liberal democracy is shakier or non-existent.

It would be one thing if the “rules-based” cliché were harmless. It is not harmless. It suffers from three defects. Firstly, its claims about “how things are” is untrue, historically and today. Contrary to those nostalgic for a rule-based liberal order that the United States bound itself to after World War II, there was never a golden era of rule adherence to which we can return. As Stephen Walt observed, historically “we mostly made up the rules, and chucked them or ignored them when they got in our way. . . there are rules, but we don't define the system in this way. For starters, defining the system as ‘rule-based’ doesn’t make much sense if the leading state(s) can ignore the rules whenever they want to.” The United States was not an umpire above the fray. Umpires don’t overthrow governments, assassinate rulers or blockade countries. Every major power, past and present, including every permanent member of the Security Council, has on occasion significantly violated international law, or rejected the rulings of international courts, or even denied their authority. Jacques Chirac’s France, like Gerhard Schroeder’s Germany, opposed the invasion of Iraq on the grounds of opposing “unilateralism” and upholding the Security Council’s authority. Yet France itself flouted the same rule, participating in NATO’s unauthorized and illegal bombing of Serbia in 1999 to rescue Kosovo Albanians from genocide. As an American hawk observed, “if there ever was an international order of the kind they describe, then Europe undermined it in 1999, too.” In 1985, France sank the Greenpeace ship Rainbow Warrior , agreeing to arbitration but refusing to submit to the International Court of Justice. The United States has not even ratified the international Law of the Sea that it urges China to observe. In the 1980s, when Nicaragua successfully sued America before the International Court of Justice over the mining of its harbors, Washington refused to pay reparations and refused to recognise the authority of the court. America’s UN ambassador Jeane Kirkpatrick’s rationalization was inflammatory, and true: the ICJ, she claimed, is a “semi-legal” body that “nations sometimes accept and sometimes don’t.” Secondly, the “rules-based” ideal cannot be realized in future, because of the tragic nature of international life. There is no transcendental impartial authority that can enforce rules in a disinterested and consistent way. There may be global governance, but there is no global government, and when states feel enough pressure they will rely on themselves if they can. Rules themselves, like norms, can conflict. We have already noted a case in point: the collision between the authority of the Security Council and international humanitarian law against the targeting of civilians. Consider a provocative suggestion: sometimes states are right to act illegally. Our own Western states violate international law from time to time, and with justification. Though our preference is for international authorization, we have compelling interests that at times will be threatened, so compelling that we won’t hold them hostage to the cause of international consensus. Indeed, we may believe, with good conscience, that the welfare of world order itself obliges the occasional breaking of rules. The same President Obama who invokes the “rules-based order” carries out extrajudicial assassinations of Islamists, and not always with the prior consent of host countries or the Security Council, thus infringing both sovereignty and due process. In principle, he is right to do so. American citizens are not entitled to decamp to remote countries and, unmolested, urge their compatriots to slaughter other Americans. Armed Islamists from other countries, likewise, are not entitled to prepare aggression against American civilians without disruption. The states where they find sanctuary may be either too weak, or too passive, to apprehend them. In such circumstances, it is reasonable for America to treat armed adversaries as armed adversaries, without relying on others’ permission. “Rules-based,” however, is a stretch. The issue came into sharp focus for Britain’s former prime minister, David Cameron, who had urged China to buy in to the “rules-based world.” Confronted by the outrage of Syria’s use of chemical weapons against civilians, Cameron in the autumn of 2013 discovered powerful reasons to set formal rules aside. Making the case for punitive airstrikes against the regime, to punish and deter future WMD atrocities, Cameron insisted, “if we’re saying there can only be a response if the UN Security Council votes positively, we are in fact contracting out our foreign policy, our morality, to the potential of a Russian veto. Now I think that is a very misguided approach.” For a government that talks so often about the rule of law, all of a sudden morality and rules were distinct, and Britain could reject rules for the sake of other valued things. Neither is this apparent doctrine an isolated case. Unless we are claiming an Anglo-American privilege, if one major power can selectively refuse to submit to the Security Council or courts, why can’t others? Major states will invoke rules, and at their discretion, will break them. Theirs is a great-power privilege. This is the world we live in. Thirdly, attempting to bring about a world of consistent rules, enforced by an international authority, will harm the West’s ability to navigate its way ahead. It is not the case, as some argue , that better rules or reformed institutions will adequately address the problem. The problem is more intractable. The world is a tragic place, where not all good things go together, and cannot offer dilemma-free clarity and consistency. Even doing good or principled things may require accommodation with oppressive regimes. Recall the celebrated case of Chile’s dictator Augusto Pinochet, who was put under house arrest in London in 1999. Prime Minister Margaret Thatcher was widely condemned for her unyielding support for Pinochet. As her critics fail to note, when Thatcher’s Britain fought to recapture the Falkland Islands from Argentina in 1982, it relied on Chile’s covert assistance , in particular early warnings of air attacks on British naval forces, warnings provided by long-range radar. On the one day the radar were switched off for maintenance, two British transports were sunk. Pinochet played a vital role in Britain’s victory, and took grave risks to do so. Were we to take legalists’ advice, and commit to arresting and trying the leaders of oppressive regimes, how confident could we be of their help in future? At the dawn of the postwar era, Hans Morgenthau identified the legalist vision, that conceived of the world in absolute terms of peace, law and crime. This would make “compromise, the virtue of the old diplomacy, the treason of the new.” As Morgenthau’s critique implied, “rules” and “order” are distinct and conflicting concepts, just as “illegal” and “immoral” are concepts wrongly conflated. “Rules” suggest strictness, nonnegotiability and clarity, and above all a supreme umpire empowered to enforce the rules. Order, though, depends on compromise, negotiation and trade-offs, in the absence of a referee. Many of these require hard value judgements, in a world so messy that rules themselves can collide. My own experience is that, off the record, government officials agree that their master concept is a charade. Yet, they reason, it is still worth pursuing. Is it, though, wise to pursue the impossible? There is no value pretending the world is anything other than it manifestly is. Instead of wishfully invoking a fictitious order that even our own states are likely to reject at critical junctures, our decisionmakers should consider how to negotiate a rougher world, the compromises they are willing to make, the violations they will tolerate, the principles they will need to stretch. If there is a pathway to peace, it is not the competitive invocation of rules, or the lawyerizing of foreign policy. Neither can solve the inherent dilemmas of power and order. The alternative need not be “mere anarchy.” If there is a workable world order to be forged, it will be made primarily by diplomats who go beyond reading international documents. It will rely on compromise, adjustment, mutual concessions and a continually negotiated universe, backed by deterrence and material strength. That may not be an attractive world. It is at least a realistic one, in which prudent diplomacy has sometimes succeeded. It is also the only world we can have. It’s sad that it needs repeating, but we can’t have it all.

“What if journalists wrote about U.S. politics the way they wrote about other countries?” asked a dozen tongue-in-cheek articles since 2016. Twitter users joked about the embattled president of a former British colony, huddling in his palace, refusing to concede the election. But all of that ended Wednesday afternoon, when a violent mob rushed past U.S. Capitol Police and invaded Congress, forcing the evacuation of lawmakers and ending with tear gas, gunfire, and at least four deaths. The pictures called to mind Boris Yeltsin on top of a tank, the Arab Spring, or the streets of Venezuela. For those watching around the world, the United States had become what American leaders so often decried: a weak democracy unable to prevent violence and bloodshed from marring the transition of power from one leader to the next.

It’s a sign of how broken U.S. foreign-policy debates are that the primary reaction from many commentators was to worry about America’s moral authority and global leadership. There were comments about how happy China’s Xi Jinping must be and worries that this would undermine U.S. democracy promotion abroad. Michael McFaul, a former Obama-era ambassador to Moscow, tweeted that “Trump today delivered his latest, but hopefully his last gift to Putin.” Meanwhile, a group of NGOs, including the National Endowment for Democracy, issued a statement reaffirming its “commitment to stand in solidarity with all those around the world who share democratic values.” In short: in the middle of a literal coup attempt aimed at halting the certification of a democratic election, with insurrectionists storming the Capitol, many foreign-policy hands were fretting about whether the United States could continue to spread democracy and human rights abroad and whether it might impact America’s ability to engage in great-power competition with China.

All states in the contemporary world, including great powers, are compelled to justify their behaviour according to legal rules and accepted norms. This essay will analyse the extent to which states comply and the reasons for their compliance. Essentially, the extent to which states follow their international obligations has developed over the past 400 years. From a historical perspective, international obligations and accepted norms were founded following two key developments in European history. In 1648, the Treaty of Westphalia ended the Thirty Years’ War by acknowledging the sovereign authority of various European princes.[1] This event marked the advent of traditional international law, based on principles of territoriality and state autonomy. Then in 1945, again following major wars initiated in Europe, states began to integrate on a global scale.[2] The UN Charter became the international framework for which norms of sovereignty and non-intervention were enshrined. Now, as a result of modern technology, communication, transport, and more, the evolving process of Globalisation, “The internationalization of the world”,[3] has provided an opportunity for international law and accepted norms to reach every corner of the globe. However, the development of international law and accepted norms has not compelled states to comply all the time. Instead, the trend over the past 400 years has shown that states have been mostly compelled to justify their behavior according to legal rules and accepted norms. The emphasis on mostly should be stressed. Even though the UN Charter does not permit violating sovereignty through the use of aggression, the extent to which states follow their international obligations varies. Louis Henkin’s book, How Nations Behave, articulates the extent of compliance.[4] He said, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all the time”.[5] As such, the trend in contemporary international relations is that war remains possible, but it is much less acceptable now than it was a century or even half a century ago.[6] The benefit of the trend is that almost full compliance is said to lead states into a pattern of obedience and predictable behaviour.[7] Therefore, conflict only arises when countries fail to comply. States attempt to manage the friction with ongoing compliance through the principle of pacta sunt servanda – the adherence to agreements.[8] Over time, such agreements to norms and treaties have diminished sovereignty, increased international institutions, given rise to non-state actors, and rapidly developed the contemporary customary and treaty based rules system.[9] The evolution of the dispute-settlement procedures of the World Trade Organisation (WTO), the establishment of the International Criminal Court (ICC), and the establishment of numerous global treaties illustrate states agreeing voluntarily to give up a portion of their sovereignty.

Good afternoon, everyone. I want to thank the organizers of the symposium, to acknowledge the traditional peoples of the homeland here for allowing me to speak in their territory, and I also would like to acknowledge the panelists that I am speaking with today. Thank you to Siegfried and to Valerie Phillips for inviting me down here to speak on sovereignty or new modalities of sovereignty. My people are the Ned'u'ten. We have a language that is Athabascan or Dene in origin. Our creation stories are one of our sources of sovereignty. We are located in mountains, rivers and lakes in Northern British Columbia. I am a member of the Grizzly Bear Clan and hold a hereditary title. It is through our mother's line that we are connected to our territories, although we do have mechanisms such as adoptions and transfers to our father's line to ensure clan membership and populations are continuous. Engaging with the term "sovereignty" as one of the descriptors for the power Indigenous peoples inherently possess, is problematic, 1 confusing, 2 and an emotionally charged 3 endeavor. The meaning of "sovereignty" has yet to undergo significant Indigenous and political treatment, definition and elaboration, especially with respect to its coordinate relationship to the right to [*20] self-determination and Indigenous world views. 4 Perhaps it is all a matter of good timing and being strategic about what language can best portray what sovereignty means. It depends whether there is an open, safe, and positive environment for such discussion to take place. Sacred dimensions of Indigenous sovereignty may never be discussed. Yet, we are seeing Indigenous scholarship in its embryonic stage begin to engage the "S" word. 5 If that opportunity, is not seized now because Indigenous peoples feel it would threaten their cultures, land base or lead to further human rights violations, in my view the opportunity to do so will come around in the future. In the colonial context, Robert Yazzie describes sovereignty as nothing more than "the ability of a group of people to make their own decisions and control their own lives." 6 All aspects of Indigenous notions of sovereignty cannot be treated as the same. But relations to land, experiences of being colonized and oppressed, and the outright state denial that Indigenous peoples have the confidence to possess jurisdiction and land on an equal level of state actors remains a fact that can be essentialized. In 2006, we can chart how this backdrop of state-Indigenous peoples relations will lead to liberating dimensions of sovereignty that can include decolonization precepts and the birthing or rebirthing of responsibilities that can foster how Indigenous peoples can freely authorize their future destinies and relations to their land and polity. These current modalities of sovereignty formulations must be relevant, animate, and experiential to Indigenous peoples. In my view, Indigenous understandings of sovereignty are best articulated and transmitted in the languages of the Indigenous [*21] peoples. While some Indigenous peoples have latched on to "sovereignty" to restore control of their lives and to use it to convey an option to restore Indigenous cultures and found relations with states, others have found its strict Western conceptualization confining. 7 Taiaiake Alfred argues that one of the main obstacles to achieving peaceful co-existence between peoples is the uncritical acceptance of the classic notion of sovereignty. In his critical analysis of sovereignty or what he calls "de-thinking" sovereignty, he states: Unlike the earth, social and political institutions were created by men and women. In many indigenous traditions, the fact that social and political institutions were designed and chartered by human beings means that people have the power and responsibility to change them. Where the human-earth relationship is structured by the larger forces in nature outside human prerogative for change, the human-institution relationship entails an active responsibility for human beings to use their own powers of creation to achieve balance and harmony. … Sovereignty, then, is a social creation. It is not an objective or natural phenomenon, but the result of choices made by men and women, indicative of a mindset located in, rather than a natural force creative of, a social and political order. The reification of sovereignty in politics today is the result of a triumph of a particular set of ideas over others - no more natural to the world than any other man-made project. Indigenous perspectives offer alternatives, beginning with the restoration of a regime of respect. This ideal contrasts with the statist solution, still rooted in a classical notion of sovereignty that mandates a distributive rearrangement but with a basic maintenance of the superior posture of the state. True indigenous formulations are non-intrusive and [*22] build frameworks of respectful coexistence by acknowledging the integrity and autonomy of the various constituent elements of the relationship. They go far beyond even the most liberal Western conceptions of justice in promoting the achievement of peace, because they explicitly allow for difference while mandating the construction of sound relationships among autonomously powered elements. 8 Alfred's views on sovereignty are insightful. In its traditional Western legal context, classical sovereignty meant divine authority from God and absolute power over territory. It evolved in Europe as an expression of political relations between state institutions and individuals. Today, sovereignty includes more populist dimensions and has come to mean the legal competence of states or the legal personality of statehood, which includes the general power of government administration and disposition of territory. 9 In the Canadian context, the constitution is the expression of the sovereignty of the people of Canada which transforms imperial Crown and written parliamentary sovereignty over colonies into something exercised from the people rather than over them. 10 The European notion of sovereignty represents the inherent authority of a nation, the ability to protect rights justifying assertions of power. It has been classically cast as a whole or absolute term of power. It has also come to mean the power of a particular nation to exercise governing authority over a particular territory. 11 At international law, the concept of sovereignty has evolved from the state having absolute power to manage or control its own internal affairs, which no other nation could interfere with. It has now become a sovereignty that now can be limited by human rights [*23] law and the self-determination of peoples. 12 It also includes an increasing connection between nations and the decline of territorial sovereignty in the advent of new commerce, communications, and technological practices. 13 Today, sovereignty is used by nationalists to prevent erosion of state authority. 14 From my perspective, the Western notion of sovereignty has evolved in direct proportion to Europeans' ongoing contact with Indigenous peoples. Joanne Barker says that the meaning of sovereignty is situated within the historical and cultural relationships in which it is articulated; it is given meaning through the social conditions of the people; and it is dependent upon the political subjects that define relationships with one another, their political agendas, strategies for decolonization, and social justice. She further states that: Sovereignty carries the horrible stench of colonialism. It is incomplete, inaccurate and troubled. But it has also been rearticulated to mean altogether different things by indigenous peoples. In its link to concepts of self-determination and self-government, it insists on the recognition of inherent rights to the respect for political affiliations that are historical and located and for the unique cultural identities that continue to find meaning in those histories and relations. 15 Quechua scholar Sandy Grande understands "red pedagogy" as a manifestation of sovereignty. When educators use indigenous frameworks of nationhood, she states, "sovereignty becomes a project organized to defend and sustain the basic right of indigenous peoples to exist in 'wholeness' and to thrive in their relations with other peoples. Local (tribal) and global aims come together in [*24] solidarity around the shared goal of decolonization." 16 I can connect sovereignty and self-determination within the distinct context of my people by making an analogy to the trees on my Clan or house territory. The roots, trunk, and bark of the trees represent sovereignty to me. The special sap, food, medicines and seedlings that come from our trees are symbiotic with the life force or energy of my people and the land, united in a consciousness and connected through the web of life. To me, this is like self-determination or the exercise of sovereignty. The specific species of the trees represents the sovereignty and self-determination inherently and uniquely intertwined within the culture of my people. We have traditional methods to keep our trees strong, healthy, productive and secure. Like trees, we have continued to stand despite clear-cut logging and other unsustainable natural resource practices by state and industry, insect infestations, and diseases brought about through contact and climate change. We have also survived the fact that states have tried to attempt to change the way we use, regulate, and connect to our territories. Despite colonization, our sovereignty, self-determination, and cultures live. Indigenous conceptions of sovereignty are found in the respective traditions of Indigenous peoples and their relationships with their territories. The power to exercise sovereignty flows from their laws, customs, and governing systems and their interconnectedness with the Earth. When I use the term sovereignty, I mean the way that my people governs itself in accordance with our clan/potlatch system regardless of past, ongoing, and future colonizing state conduct. The continuous exercise of sovereign jurisdiction of my people, the Ned'u'ten, is exercised and renewed: . within our potlatch system, our clan and house structures as units of polities/territories; . when our hereditary leaders fulfill their responsibilities and obligations; and . when there is a transmission of oral histories and traditions, principles, customs and ceremonies from one [*25] generation to the next. My people's power is sourced or rooted in our creation stories, our spirituality and our organic and peaceful institutions. Sovereignty requires the energy of the land and the people and is distinct about locality. It is this fundamental difference from Western notions of sovereignty that represents new modalities of Indigenous sovereignty. From an Indigenous prospective, sovereignty is not just human-centered and hierarchical; it is not solely born or sustained through brute force. Indigenous sovereignty must be birthed through a genuine effort to establish peace, respect, and balance in this world. Indigenous sovereignty is interconnected with self-determination. Non-Indigenous formulations of sovereignty treat states as artificial entities that hold sovereign rights such as territorial integrity or sovereign equality. Self-determination is severed as a right possessed by peoples which can limit state powers. Finally, Indigenous sovereignty is sacred and renewed with ceremonies that are rooted in the land. Clan members and hereditary chiefs are guided by the attributes of peace, respect, generosity, balance, harmony, compassion, sharing, gifting, and discipline in their relations with all that is alive, all that is gone before, and all that has yet to come. These attributes are inalienable, inherent, and sacred. My people's way of life is tied to the land and waters in our traditional territories and to past and future generations. The power that vests in the chiefs, clans and houses is adaptable to the changing needs of the people and their relationship to their lands. It is not static and can only be limited temporarily by a deliberate self-interest intent to reject or violate such attributes. This happens when accountability and dispute resolution mechanisms are not used or enforced to address such a deviation. In this sense, sovereignty can be seen as the frame that houses the life force or energy that can flow at high or low levels depending on how the people are living at any given particular moment in their territories. Such sovereign attributes are renewed each and every time we use our potlatch system and when clan members choose to fulfill their roles and responsibilities to each other and to their [*26] neighbors. These attributes are renewed when we act as stewards for our ecological spaces. These sovereign attributes do not negate the fact that my people also exercise attributes of sovereignty similar to those upon which Western societies found their state systems - such as protecting and defending territorial boundaries, and engaging in external foreign relations with trade and commerce. I would add peacemaking, possessing governing institutions for the people, a citizenry or permanent population with a language, and powers of wealth and resource redistribution amongst our clans. The comparative inquiry is rather one of the priorities and whether or not conduct or behaviors of the people are coordinate with our principles of living a good life and maintaining and securing peaceful good relations. I also view sovereignty as having a dimension of decolonization. Indigenous sovereignty gives legitimacy to the exercise of jurisdiction by our chiefs to take back control over our colonized lands and reenergize our traditional governing systems. These systems have been subordinated by colonial systems such as the Indian Band Council System and Canadian federal, provincial or municipal governments. It is important for Indigenous peoples to understand how states unilaterally exercise sovereignty and maintain monopolies of power over Indigenous territories and peoples. Currently, Indigenous peoples use sovereignty in both offensive and defensive advocacy. Rob Porter argues that rather than protecting state authority from foreign intrusions, Indigenous peoples can use sovereignty to achieve consensual authority as a way to prevent unilateral assertions of state authority. 17 For example, states such as Canada have asserted that they alone hold the sovereign attribute to defend the boundaries and territories of the country. This monopoly of security power is confirmed in policies and laws created by the legislatures and judiciary and through the executive. How does this exercise of state sovereignty impact Indigenous peoples and Indigenous lands? Self-determination on its own may offer rights for Indigenous peoples to limit the negative impacts of the exercise of state power in the security context. However, the exercise of [*27] sovereignty, as understood by Indigenous peoples, could lead to relations where the state could no longer unilaterally exercise jurisdiction over security matters that impact Indigenous peoples over lands, territories, and resources. The operation of the principle of free, prior informed consent of the people as an expression of their will is essential to sovereignty's decolonizing dimension. Restoring Indigenous peoples' sovereign, self-determining rights to security over their peoples and lands is, in my view, one of the first steps we need to take to bring Indigenous peoples' visions of peace to the world. Constitutional reform, the development of new conventions, and progressively developing both international and domestic law to make space for Indigenous sovereignty and self-determination is necessary for peace between Indigenous peoples and states. It is also necessary for fashioning respectful security relations. In this first step, Indigenous peoples and states need to go through simultaneous but independent transformations, too. Now, if I were to take that language and apply it to how respect and peace are the key attributes of my people's sovereignty, how would we talk about that law of respect? In my culture, we have two different dimensions of the word "respect." There is respect that is authorized and used by hereditary chiefs. That respect takes place within the potlatch system. It carries with it duties and responsibilities to ensure that offices are held in a good way. That respect is also exercised on their particular clan territory and house territory. We also have another dimension of respect that operates between one another on an everyday basis in business transactions, in family relations, in ceremonial events, etc. Talking about security and securing my land and my people and talking about respect with one another, we have a principle of protecting everyone's heart, and when you protect everyone's heart and that heart is happy, then you're fulfilling your sovereignty. For example, if I were to go and talk to my mom, and I have a very pressing issue that is a matter in relation to my clan or relating to the land, I have to first ask her how her heart is doing in her language, and if her heart is not doing well, then I have to wait until she finds a solution to whatever is troubling her in her heart, mind and spirit. It may be at that time that I have to help her work through whatever [*28] she's going through until I can actually get some communication back on what I'm concerned about. So, securing the heart of people is part of our responsibility. It is embedded in our sovereignty. If you look to Western notions of sovereignty, where you're looking at a state-individual relationship, the individual is relating with the state, they're not relating with one another. This is a critical difference between Indigenous notions of sovereignty and Western notions of sovereignty. We also have a concept of working together with one another, critical for sovereignty to be effective. If I were to look at how sovereignty is exercised between my people and our neighbors, the Gitksan and Wet'suwet'en, we have similar clan structure systems, similar potlatches. We relate not so much as nations with one another but on a clan level. We have, through the centuries, been able to create a braided framework around our territories that is marked by intermarriages and feasting with one another. This is kept strong by our respect - a key principle for our expressions of sovereignty. 18 These different dimensions of sovereignty, or the ways we secure our land and our territories, are different from Western notions of sovereignty. This generation of Indigenous peoples has responsibilities to meet, and this includes the exercise of their peoples or nations' self-determination and sovereignty. By re-energizing Indigenous world views of ways of relating to the Earth and others, Indigenous peoples can contribute to peace and harmony. I'm not worried about getting caught up in the semantics over power and controlling one's land and destiny. What concerns me is the acceptance by Indigenous peoples "of the colonized state of being," where sovereignty is exercisable only by non-Indigenous entities such as states at the expense of human and ecological diversity. My hope for the future is that Indigenous peoples bring forth and unearth their modalities of sovereignty at the right times so that the development of humanity takes place holistically, respectfully, and with peace. In Canada, the notion of sovereignty is set within a federation [*29] framework. Traditionally, the federation, in its Western classical sense, was looked at when you only had one identity of people. If there were other identities of people, they weren't recognized. Even if there were dual identities of people, they weren't recognized. What we're seeing now with federalism evolving in Canada are efforts to make room for a multi-national federalism. For example, Quebec representatives lobby for more power as a province within Canada. The Inuit people up North have been able to express their identity within the Canadian federal system. For me, what would be challenging is for states like Canada to recognize sovereignty as exercised in the way that my people developed their governing systems. Sovereignty, to me, is not focused on economic exploitation; but rather establishing peaceful relations. In order for this world to have a different structure other than just states, there has to be a respect for the diversity of how Indigenous peoples structure their relations with one another and the Earth. That is my future work. If my people are forced to accept Canada's federal notion of sovereignty, then our cultures and our ways of life and our linkages to the land are in jeopardy. We will require a remedy internationally because domestic laws currently do not provide that remedy. Therefore, we have to also work at the international level to develop relationships with other peoples, other states and NGOs. Again, my hope for the future is that Indigenous peoples bring forth and unearth their modalities of sovereignty at the right times so that the development of humanity is holistic, respectful, and with peace. All my relations.

[*529] Those seeking philosophical justifications for the protection of plant genetic resources have a harder time than those seeking protection for tribal art works. First of all, most plants and knowledge about plants develop from the need to satisfy dietary or medicinal needs as opposed to the need for self-expression. Admittedly, some plants and their uses may be closely tied to group identity, even to the point that use of the resource by an outsider would be considered offensive. 39 Hegelian personhood theory, however, contains an important limitation: rights to protect personhood should not unreasonably infringe on the rights of others in the community. 40 Policing this limitation creates a legitimate role for the State in Hegel, and it is easy to see how a balancing of individual rights within the polity becomes necessary. In the context of the biopiracy debate, the problem is justifying the privilege of one group's interests in cultural expression over another's interest in good health and nutrition. Imagine a long-term occupant community that uses Plant X to cure severe asthma only in the context of a religious ceremony. Uses outside the ceremonial context would offend the group. Given the choice between the group's interest in self-expression and the interest of world-wide asthma sufferers in gaining relief from their disability, Hegelian philosophy provides little compelling reason to privilege the claims of the group. Even post-modern philosophy, usually very sympathetic to claims made by the victims of colonial oppression, provides only mixed support for a property rights approach to biopiracy. Rosemary Coombe and Vandana Shiva, for example, wonder whether imposing Western (Northern?) notions of property on long-term occupant communities best serves their interests. 41 Might not imposing a regime of intellectual property rights in the rain forest be a form of neo-colonialism? Creating new property rights is, in fact, a rather Western form of problem solving. 42 [*530] It should be noted that it is not impossible to invoke Locke, Hegel and other philosophers in support of creating new intellectual property rights. In fact, one sometimes hears their vocabulary invoked by those who have obtained increased rights. In particular, politically powerful constituencies have sometimes offered arguments about morality and free-riding as an effective smokescreen for the expansion of intellectual property rights. For example, the music publishing industry trots out the heirs of famous composers whenever it seeks an extension of the copyright term. Those who observe the legislative process closely, however, understand that the congressional motivation for extending monopoly rights is not based on pity for the grandchildren of long-dead artists. Free-riding and unjust enrichment rhetoric is offered to hide acts of corporate welfare and has traditionally been most useful to groups with vast political clout. For political underdogs, like LTOC Advocates, the rhetoric of moral philosophy, like the rhetoric of economics and history, is not effective against biopirates.C. Mega-Corp: The Anthropologist's Natural Rhetorical AllyOne powerful group has consistently argued for expanding intellectual property rights. Despite the best efforts of public interest groups and academics, large multi-national corporations engaged in pharmaceutical, agribusiness and biotechnical research have succeeded in significantly broadening protection for a wide variety of works in the last decade. 43 The success of corporate lobbyists even includes instances of sui generis protection. 44 Unfortunately, large multi-nationals are unlikely to argue in favor of increased rights for long-term occupant communities because having to purchase licenses from them would raise their research costs. Part III of this paper will explore how the power of these multinationals might be co-opted by long-term occupant communities. Indeed, their success may depend on finding a way to set sail with the biopirates. [*531] II. Normative Arguments Against New Property RightsThe preceding section of this essay describes the scarcity of rhetorical tools available to advance the pro-property strategy of LTOC Advocates. It is not always necessary, however, to marshal arguments palatable to the intellectual community. As the two initial hypotheticals suggest, there is a strong emotional appeal that can be employed on behalf of long-term occupant communities. 45 Perhaps policymakers, unlike academics, can be swayed by the seductive vocabulary of justice and moral entitlement. I offer two normative arguments below to demonstrate why even policymakers with a natural sympathy for long-term occupant communities will be unlikely to heed the call for new intellectual property rights.A. Don't We Want a Cure for Cancer? Corporate interests and anthropologists agree on the vast potential of the world's rapidly disappearing plant genetic resources. 46 Hundreds of important and efficacious drugs have already been developed from plants found in developing countries. 47 In fact, four-fifths of all drugs have their basis in natural plant resources. 48 The world's biodiversity is also an important source of new agricultural products, for instance, crops that produce more per acre and are more resistant to disease than previous strains. 49 Considering the overall well-being of the human population, some would suggest that the two hypotheticals presented at the beginning of this essay represent success stories. A cure for cancer may well be found in the rain forest, and we certainly hope someone will find it. New property rights for long-term occupant communities would raise the cost of bio-prospecting and therefore the cost of developing new drugs and crops from existing plant genetic resources. Pharmaceutical companies, agribusiness and bio-tech firms would be forced to buy information and germplasm from [*532] rights holders and might well encounter refusals to deal. Although principles of unjust enrichment suggest that the biopirates should pay, and principles of group autonomy militate in favor of respecting the cultural and religious practices of disempowered groups, policymakers will weigh the cost to the sick and hungry against privileging these principles. A strong normative argument will be offered that the interest of the world community is not well served by the creation of new property rights, especially when the practice of biopiracy does not entail depriving long-term occupant communities of their traditional medicines or food. With biopirates providing medicine and food to much of the world, policymakers may well demand an especially compelling argument as to why they should be economically sanctioned.B. Preserving BiodiversityThe loggers are winning. Despite efforts by environmentalists and LTOC Advocates, the world's biodiversity is disappearing at an alarming rate. 50 This environmental disaster implicates not only forest dwellers, but those who wish to be cured and fed by products made with plant genetic resources. It also threatens the future profits of the pharmaceutical, agribusiness, and bio-tech firms who would like to make and sell new medicines and food. Biopirates, in other words, are the natural enemies of those who would log the existing primeval forests to extinction. 51 While this essay is not the place to settle the debate over whether market forces alone can save the rain forests, it is clear that biopirates lose potential income [*533] as rain forest disappears. This insight has implications for the creation of new intellectual property rights for long-term occupant communities. Do environmentalists and anthropologists (not to mention those who consume new medicines and food products) really want to make the rain forest a less attractive source of profits for the natural enemies of logging interests?A recent article in the Journal of Political Economy concluded that "numerical simulation results suggest that, under plausible conditions, the bioprospecting value of certain genetic resources could be large enough to support market-based conservation of biodiversity." 52 The key to Rausser and Small's finding, that pharmaceutical companies may have a financial incentive to engage in conservation efforts, is the notion that "research leads" significantly diminish the cost of bio-prospecting. If firms were to test plants randomly in the hope of identifying valuable germ plasm, the cost of bio-prospecting would be so significant that expending resources on conservation would not be feasible. 53 In practice, Rausser and Small note, bio-prospecting is not random, but rather driven by "research leads" that significantly reduce the cost of searching. 54 If research leads provided by long-term occupant communities are key to bio-prospecting success and the success of bio-prospectors is directly related to preserving habitats, do we really want to establish new property rights in that information? Policymakers must consider the argument that bio-prospecting in [*534] threatened areas should be made cheaper, rather than more expensive.C. Natural Allies ReduxLoss of biodiversity and the logging of virgin forests are threats to long-term occupant communities and multi-national pharmaceutical, agribusiness and bio-tech firms alike. An effective strategy to fight logging interests and preserve biodiversity would draw these two allies closer together rather than driving a wedge between them by adopting the rhetoric of property rights. 55 In the fight against those who destroy their homeland and their botanical resources, long-term occupant communities need the international clout of the biopirates on their side. The language and vocabulary of property rights is not likely to co-opt them and therefore may be detrimental to biodiversity and the long-term interests of local communities.III. Market Failure and the Possibility of Effective Rhetoric If pharmaceutical companies are the natural enemies of loggers, then why have they not purchased and preserved huge tracts of rain forest? Why has the market not facilitated a close working relationship between long-term occupant communities and those who want to exploit their knowledge? Given that one potential ally possesses vast financial and political resources while the other possesses priceless information and plant genetic resources, why haven't the two joined forces to slow habitat destruction? If Rausser and Small are right about economic incentives, then we appear to be faced with significant market failure. A wide variety of commentators agree that intervention is needed to preserve the [*535] earth's biodiversity (and with it the cultural diversity of the inhabitants of biologically rich areas). 56Although long-term occupant communities and the large corporations who would like to exploit their knowledge are theoretically natural allies, the market has failed to bring them together efficiently. Having made the argument that market intervention in the form of new intellectual property rights for long-term occupant communities is both rhetorically impossible and normatively problematic, this essay will identify six factors that have stymied concerted action by these two groups interested in the preservation of plant genetic resources. The discussion suggests that the most effective rhetoric for co-opting the political might of the biopirates against the forces of habitat destruction is the rhetoric of the market rather than the rhetoric of principle.A. High Transactions Costs If a biopirate wants to establish a long-term working relationship in a biologically rich area, with whom should he establish it? It is often unclear who, if anyone, within a long-term occupant community is authorized to sell knowledge. In addition, frequently more than one group possesses the same knowledge. Pharmaceutical companies trying to act in good faith and provide compensation have run into difficulty in identifying precisely who deserves to be compensated. 57 One solution may be to contract with a national organization instead, as Merck did in its agreement with INBIO in Costa Rica. In the developing world, however, where most plant genetic resources are found, national governments often do not speak for long-term occupant communities. 58 In fact, the two are often antagonists. 59 The sheer cost of transacting over plant genetic resources stands in the way of a functioning market. [*536] B. Corrupt Governments The problem with creating markets for knowledge of plant genetic resources is especially acute when corrupt local and national governments are unwilling to facilitate transactions with their least powerful constituents. In the developing world, we see a pattern of dislocation, destruction of homeland, and a preference for logging and commercial farming interests that threaten both biodiversity and the very existence of long-term occupant communities. Governmental antagonism to these communities complicates transactions with them. Even where official policy is benign, institutionalized bribery and the lack of a reliable judiciary make establishing a flourishing market difficult. Bureaucratic impediments to bio-prospecting may make it entirely unprofitable.C. End-Term Problems The lack of government support for long-term occupant communities, combined with government support for logging interests may contribute to a sense that the world's remaining biologically rich environments are doomed. In end-term situations, perverse incentives exist for both sellers and buyers. As commercial lawyers well know, in the period before bankruptcy, all bets are off. Consider the history of a large extinct sea bird, the Great Auk. It inhabited the cold waters of the northern hemisphere in great numbers until hunting, to supply food for the crews of sailing ships, brought it to the verge of extinction. One last colony existed on Eldey Island, Iceland. In 1844, naturalists and collectors came to the island in order to harvest the last of the birds before they became extinct. 60 The birds of the last colony ended up in natural history museums around the world. If the world's strongholds of plant genetic resources are rapidly disappearing, along with the peoples who have information about their properties, then we are likely to see a mad rush instead of the sort of stable market that would facilitate long-term alliances between local communities and corporate biopirates.D. Information Asymmetry Even where a national government is interested in facilitating commercial exchanges, a long-term occupant community's ignorance [*537] of the market value of its plant knowledge makes it difficult to establish a reliable market with those who wish to exploit the information. Initial transactions may be highly one-sided, leading to a lack of interest on the part of sellers to transact in the future. If initial deals are perceived to be exploitative, trust will erode. An Amazonian tribe may understand that tea made from a particular bark will relax muscles without making the drinker drowsy, but it has little information about the international market for muscle relaxants without dangerous side affects. Price setting is difficult in this context, especially when the seller is not sophisticated enough to consider (or desire) transactions involving deferred payments, royalties, or other contingency arrangements. In addition, the buyer often lacks important information about the value of plant knowledge held by long-term occupant communities. It is difficult for a firm to price information it does not have yet.E. Lack of Trust Markets do not function efficiently when the parties to a potential transaction do not trust each other. Long-term occupant communities, already suspicious of destructive outside influences, are understandably reluctant to transact with biopirates who have not respected their culture and have been unwilling to share the fruits of their bio-prospecting. No efficient market will coalesce until long-term occupant communities have good reason to trust those who wish to exploit their knowledge.F. Threats to Cultural Integrity The development of a robust market between biopirates and long-term occupant communities would have some disadvantages for the holders of valuable information. To the extent that some information is considered sacred, only a strong new property rights regime would enable long-term occupant communities to deny outsiders all access. In addition, a robust market would almost certainly reduce the cultural isolation of many groups. Although transacting can present threats, those who argue for an absolute right of cultural integrity must consider whether the strategy of arguing for new intellectual property rights can really help them achieve that goal. They may have to consider the possibility that the choice may be between a second-best world for long-term occupant communities or no world at all. [*538] IV."Your Friend in the Rain Forest": Lawyers and the Failure of ImaginationThe rhetoric of justice and the insistence on moral principles has not stopped the ongoing destruction of the world's remaining biologically rich ecosystems and the communities who live there. It is time to reexamine the rhetorical strategy of those who argue that justice and fairness require the creation of new intellectual property rights for long-term occupant communities. Given that one sure solution to the preservation problem would be to set aside vast tracts of wilderness (a real property answer, not an intellectual property answer), 61 it may be time to set sail with the biopirates and attempt to co-opt their wealth and political clout. Preservation is in the direct financial interest of some of the most powerful private institutions on the earth - international pharmaceutical, agribusiness and bio-tech firms - and it is worth convincing them to support the effort. 62 To do so, it may be necessary to abandon the rhetoric of intellectual property rights. This final section provides two brief points about future dialogue. First, abandoning the rhetoric of morality and justice (the rhetoric of intellectual property rights for long-term occupant communities) does not mean the abandonment of just and moral ends. Second, lawyers must exercise significant imagination in the face of the natural question that the biopirates will ask: Why should I pay for what I can get for free?A. Market TalkOne alternate rhetorical strategy emphasizes the consequences of the market failure described above. Virginia Nazarea has eloquently documented the fragility of plant knowledge systems, emphasizing the need to create and maintain records of what people know about the properties, characteristics and uses of plant resources. 63 Merely conserving plant genetic resources in "seed banks" is not enough to preserve biodiversity. Human knowledge must be preserved also. Unfortunately, this knowledge, the same [*539] knowledge that biopirates currently plunder, is rapidly disappearing. Multi-national pharmaceutical, agribusiness and bio-tech firms must be made to see that it is in their best interest to prevent this from happening. Creative non-intellectual property solutions have already been suggested. Professor Peter Drahos has proposed the creation of a global bio-collecting society. 64 He notes that the "life science industry wants in this field freedom of contract, low search and transaction costs, and certainty of use." 65 He offers an institution that would serve as a central repository of traditional knowledge and arbiter of disputes between donors and those who wish to exploit plant genetic resources. What might pharmaceutical companies be willing to pay for the right to make withdraws from a vast knowledge bank? Although Drahos suggests a complex mechanism for compensating those who make contributions to the bio-collecting society, a simpler and more efficacious arrangement might require former biopirates to secure large tracts of land for donor communities in return for the right to make withdrawals. 66 Creative forms of compensation would more efficiently preserve both biodiversity and community.Jonathon Carlson points out that there is a potential role for the World Bank here. 67 Although the World Bank is not generally known as a friend of the environment, it is one of the few institutions that has the power to influence national governments. To the extent that corruption or bureaucracy stand in the way of a more efficient market for plant genetic resources, the World Bank might be able to help. If former biopirates wished to purchase or quiet title to land in favor of long-term occupant communities, the cooperation of the World Bank would be invaluable. Carlson notes that "Bank support for projects that clarify property rights by granting clear land title to impoverished groups have often resulted in increased [*540] investment in conservation measures." 68 But the project need not be sold on humanitarian grounds only - the express motivation for approaching the bank would be to facilitate the creation of an efficient and durable market in plant genetic resources.Other writers have spoken convincingly in market terms, suggesting the need to explore contractual solutions 69 and emphasizing the need to make habitat preservation part of the exchange for knowledge. Even if creating a functioning market is not feasible, Jim Chen's suggestion of tax responses to market failure may be attractive. 70 A surcharge on products created by the exploitation of plant genetic resources might be directed to habitat preservation. Regardless of the particularities of the arguments offered, a form marketplace rhetoric clearly offers advantages over the rhetoric of justice.If LTOC Advocates cannot adopt a new rhetoric, they may soon lose their chance to grab the initiative. A new draft treaty, the International Treaty of Plant Genetic Resources for Food and Agriculture, represents a growing trend to focus on the rights of sovereign states, rather than the rights of local occupant communities. It has already been signed by eight nations and requires signatories to "recognize the sovereign rights of States over their own plant genetic resources for food and agriculture." 71 Although it provides for benefit sharing with "farmers" 72 (an undefined term) and for "protection of traditional knowledge," 73 it requires that signatories "agree to take the necessary legal or other appropriate measures to provide … access to plant genetic resources." 74 The International Bureau of WIPO is also exploring a nation-to-nation approach to the exploitation of plant genetic resources. 75 While [*541] LTOC Advocates have been busy asserting the need for new intellectual property rights, national governments have been seizing the international policy initiative. As a practical matter, LTOC Advocates may be forced to choose between partnering with multinational corporations or trusting national governments that have a poor track record of conservation and a history of mistreatment of local communities.B."Your Friend in the Rain Forest"Luckily for the aspirations of long-term occupant communities, most large multinational pharmaceutical companies have serious image problems. They have an unparalleled reputation for greed, and their lobbyists are well-known for pressing Congress to ignore the public interest in favor of their own bottom line. The high prices they charge for patented drugs mean the poor often go without adequate medicine. 76 An imaginative lawyer might point out to them that a fix for their reputational problems might be found in the rain forest. Picture the advertising campaign that could follow the purchase of vast tracts of rain forest by biopirates (or should we call them "bio-friends"?):Last January, with help from the World Bank and the Brazilian government, we at Pfizer-ADM-Genentech helped set aside 500 million acres of land in the Amazon basin to be kept forever free from logging and industrial development. Was it merely to help a local community maintain its way of life? [insert footage of thriving village] Not entirely. Was it to help insure that the "lungs of the world" would forever keep producing oxygen? Only in part. Was it to help reduce global warming? We're glad to help, of course, but we really had just one goal in mind: Discovering a cure for little Mary's cancer [insert footage of brave, sick child]. Phizer-ADM-Genentech: Your Friend in the Rain Forest.Commercial advertising revitalized the modern Olympic movement, and there's no reason why it cannot play a role in conserving the world's biodiversity. The point, however, is not that publicity holds the key to environmental preservation, but rather that in a world that will not be saved by sui generis intellectual property rights, lawerly imagination becomes a critical resource. [*542] C. A Final Word About JusticeAlthough the rhetoric of justice is unlikely to convince international policymakers to grant long-term occupant communities new intellectual property rights, it has other clearly effective uses, especially in arguing against strict enforcement of the TRIPS Agreement against developing countries. Consider the words of Vandana Shiva:The US has accused countries of the Third World as engaging in 'unfair trading practice' if they fail to adopt US Patent Laws which allow monopoly rights in life forms. Yet, it is the US which has engaged in unfair practices related to the use of Third World genetic resources. It has freely taken the biological diversity of the Third World to spin millions of dollars of profits, none of which has been shared with Third World countries, the original owners of the germ plasm. 77It is precisely this sort of rhetoric that has led to the agriculture industry's decision not to market seeds with so-called "terminator genes" that would prevent farmers in developing countries from saving seeds. A similar rhetoric of justice and fairness recently resulted in the willingness of international pharmaceutical companies to be flexible with the pricing and distribution of AIDS drugs in South Africa. 78 The rhetoric of justice may also be effective in stimulating (sometimes perhaps through shame or guilt) the willingness to engage in the sort of creative thinking that this essay advocates.ConclusionI have not offered a program to save the rain forests. It will take a powerful coalition of different groups to take on that daunting task. My point is a simple one. Advocating new intellectual property rights for long-term occupant communities is a poor rhetorical strategy for maintaining the world's biodiversity and helping the disempowered groups that hold so much critical knowledge [*543] about plant genetic resources. My positive suggestions for a new rhetoric are decidedly pragmatic and stand in sharp contrast to the "goals of today's romantic social critics, among whom cultural anthropologists stand out in disproportionate numbers." 79 I agree with Alan Wolfe and Michael Brown that "romantic criticism … simply fails to persuade a large public audience." 80 The current rhetoric of biopiracy may gratify our "sense of moral worth but can offer only 'utopian longings that ultimately have no critical edge.'" 81 This essay suggests engaging multi-national corporations on pragmatic terms, using language that is less threatening to their interests and more likely to achieve concrete results. It represents "a return to a realist perspective that approaches social problems in all their ambiguity and nuance, confronting squarely the tragic contradictions that inevitably arise in the everyday life of pluralist societies." 82 Finally, this perspective demonstrates that imagination is the most critical commodity needed by advocates for long-term occupant communities if they are going to find a rhetoric that will take them where they want to go.

U.S. PhRMA owes traditional knowledge much of their profits since many commercial products have been derived from traditional knowledge. Due to a push towards more natural medicines in the U.S., pharmaceutical companies began looking towards India’s natural remedies as potential sources for alternative medicines for those who could not afford allopathic medicine (Patwardhan & Vaidya & Chorgadhe, 2004, p. 791). U.S. PhRMA would send researchers to live in indigenous communities in an attempt to try to further research therapeutic plants with healing potential that indigenous people used. Also, these researchers would then do their own research on those plants in order to create and patent drugs based off of it (Patwardhan & Vaidya & Chorgadhe, 2004, p. 792). As a result of stealing traditional knowledge, U.S PhRMA has profited an upwards of 14 billion dollars annually. Also, research to create drugs and medicines have been based on traditional Indian Ayurvedic medicine (Patwardhan & Vaidya & Chorgadhe, 2004, p. 793). This, again, is stealing of traditional knowledge, but the U.S. believed they were not stealing because the traditional knowledge was not patented to begin with (Subbiah, 2004, p. 530). The United States is more concerned with earning large economic profits and justify their actions through cultural superiority

U.S. patent law disregards traditional knowledge and does not make an attempt to ensure traditional knowledge is not stolen or protected. This can be seen in the novelty requirement of U.S. patent law, 35 U.S.C. section 102 (a), which states that “the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent” (Pre-AIA, 2013). This definition of “novel” for a patent, does not take into account the oral history that makes up a vast amount of traditional knowledge, or recorded but scientifically unpublished traditional knowledge.

Don Marahare has reviewed the oft-cited “deficiencies” of traditional intellectual property law in the protection of traditional knowledge, such as the absence of protection for old knowledge or where no definitive author can be identified.65 He strongly supports the Model Law for the Protection of Traditional Knowledge and Expressions of Culture, discussed critically below,66 supplemented by ideas from such things as the Convention on Biological Diversity.67 We do not review his specific suggestions, because we feel that Mr. Marahare begins from an incorrect premise, namely, that the goal is to achieve “maximum protection over . . . traditional knowledge.”68 Protection of knowledge is only half of the IP equation. Protection does provide some benefits to some people, but protection is also socially detrimental in tying up knowledge that could otherwise be used freely to advance both culture and technology. A move toward more protection is not warranted unless it can be shown that the benefits outweigh the costs.

With no claim to comprehensiveness, we address here briefly the contributions of some recent commentators to illustrate what we regard as the structural framework for analyzing the problem of protecting intangible indigenous cultural heritage. Yuqin Jin60 argues for U.S. adoption of “indigenous IP laws” respecting biological and genetic knowledge but is unclear exactly what those laws should provide. Jin argues for a registration system for indigenous knowledge and mandatory disclosure of the origins of genetic resources in patent applications.61 While these provisions might prevent the issuance of some patents and invalidate others, they would not in themselves give any affirmative right of control over the knowledge in question or any economic compensation to the indigenous group that is the source of the knowledge. Jin also suggests that “indigenous medicine, fauna, flora, and their associated knowledge” should be eligible for patents, perhaps for a longer term than is provided for inventions generally.62 Jin acknowledges the problems of what peoples qualify as “indigenous” and who speaks for them.63 However, while this contribution does not explicitly advocate a “one size fits all” solution to the question of indigenous IP, it does not explain how the rights it advocates might vary from group to group. Nor does it attempt to address the problem of why indigenous knowledge, and only indigenous knowledge, should get treatment so radically different under IP law than we afford to all other types of old knowledge. Indeed, in a closing argument Jin asserts that if indigenous people could have patented turmeric, the subsequent litigation ultimately denying such a patent to “inventors” outside turmeric’s indigenous discoverers could have been avoided.64 The real lesson, however, is that patents in old knowledge should not be afforded to anybody, indigenous or otherwise.

Recently, pharmaceutical companies have turned to natural compounds in search of substances with powerful healing properties. 1 The abundant and diverse plant life of many developing countries is at the forefront of such research. 2 Although this abundance is a promising source for cures, it also has proven to be a daunting obstacle. 3 Companies must examine roughly 10,000 plants for every species they find with promising medicinal qualities. 4 To cut costs and streamline research, pharmaceutical companies increasingly rely on the remedies of indigenous peoples to locate naturally occurring medicinal compounds. 5 In 74% of these cases, Western science confirms the curative value of these native remedies. 6 Accordingly, reliance on indigenous knowledge has proven a significant source of savings in drug research. 7 Despite the profits from the cures, as well as the benefits to humankind, indigenous peoples' cooperation and teachings, however, often go unrewarded. 8

Critics argue this dynamic is a reflection of inequities in the Trade Related Aspects [*368] of Intellectual Property Agreement (TRIPS) that rapidly is setting substantive requirements for patent protection throughout the world. 9 According to the critics, such requirements codify value-laden Western notions of property rights, as well as technology. 10 Thus, TRIPS is a form of economic imperialism whereby developed countries protect their own intellectual property rights but may legally plunder or colonize the intellectual heritage of indigenous cultures. 11 Therefore, some argue that intellectual property regimes should be reformed to correct this political and cultural asymmetry. 12

[*90] Finally, relying solely on top-down efforts to define indigenous peoples' own cultural heritage undermines indigenous peoples' rights to self-determination. 119 Indigenous peoples must have the opportunity to articulate their own paths with respect to their traditional knowledge, including whether to reveal or license it, and when to veto research. 120 Empowering indigenous peoples to control and direct their culture and lifeways means emphasizing their role in the creation of their own destinies through the development of tribally specific cultural preservation laws. In contrast to the international and national regimes discussed above, this Article contends that tribal law should be applied as the "ultimate determinant of rights and responsibilities in relation to indigenous cultural and intellectual heritage." 121 Employing tribal law to protect the cultural property of indigenous peoples opens the door to many possibilities. Tribal law is drawn from a tribe's traditional customary law, tribal belief systems, and other contemporary forms of tribal governance, including ordinances and tribal constitutions. 122 It therefore reflects not only substantive legal principles, but also the cultural context from which they evolved. Through tribal law, indigenous governance of cultural property and traditional knowledge will correlate specifically to the works tribes seek to protect, allow for forms of punishment consistent with the community's values, and properly incentivize behavior that is good for the community at large. Tribal law is also uniquely well-suited to accommodate the religious and cultural beliefs of tribes in ways that Western law cannot. 123 For example, tribal codes may better reflect the relationship between tribes and the earth. Even if a tribe is no longer living in its aboriginal territory, [*91] most tribes share a common belief that the earth is sacred. 124 Tribal law is more apt to capture this belief than Western legal systems, which tend to view the earth and her resources as a collection of commodities to own, rather than an integral part of daily life. 125 Thus, tribes may choose to protect their sacred places in tribal codes even if, for culturally mandated reasons, they elect not to delineate them in detail. 126 In addition to the physical world, tribal codes may reflect the richness of the tribe's other resources, which are as varied as the community, tribal elders, and oral literature. Tribally formulated laws governing the protection of traditional knowledge are free to evolve outside the constraints of Anglo-American intellectual property doctrine, and in most cases they should do so. Whether tribes choose to create collective rather than individual ownership schemes, to limit authority over cultural property to specific group members or to permit the inalienability of tribal cultural property, these choices are best effectuated by and through tribal law. 127 Some groups may even seek to form regional organizations devoted to recognizing, promoting, and supporting the rights of local communities to traditional knowledge. 128 Regardless of substantive variances, tribal law is most adept at accommodating the wide-ranging and diverse cultural lives of indigenous communities. 129

However, just because something can be done does not necessarily mean it should be done. There are dangers and unforeseen consequences that could come from putting sacred cultural elements into an ownership model. First, creating a property right to control cultural expression may trivialize and minimize both the importance of the cultural element being protecting and the harm of the appropriation. 124 While we enforce intellectual property laws, we may not see the infringement [*100] of a copyright or a trademark as a particularly serious transgression. There is also the issue of using the master's tools to dismantle the master's house, 125 meaning that if cultural appropriation is truly a weapon of colonialism and oppression, it is possible that the adoption of Western categories of property could actually empower the dominant culture. 126 Professor Farley posits, "Will translating indigenous art and authorship practices into western categories do more, in the end, to appropriate the local culture than straightforward pirating would?" 127 She further suggests that: Such an approach will force indigenous peoples to translate their story into the language of individualism, and therefore isolate and amplify one voice among many legitimate participants. It may, in the long run, be destructive to traditional indigenous culture to mandate that the world be thought of as the property of individuals. The cost of copyright protection may prove to be too high." 128 Others worry that attempts to protect indigenous culture might actually have the opposite effect, "freezing" a living culture and keeping it from growing and flourishing. 129 It has even been suggested that a certain level of cultural appropriation may actually preserve cultural elements and keep them from vanishing altogether. 130 These challenges and criticisms make it clear that if some kind of property rights scheme is employed to protect intangible indigenous cultural property rights, a great deal of care and attention to detail will be required to create legislation that will not only work, but will do more good than harm. These criticisms also highlight the problem with attempting to create a one size fits all statutory scheme to cover every situation and every group of people. The varying threats to cultural preservation faced by different tribes, created by different forms of appropriation, might very well require a number of diverse legal remedies at various levels of government. Others might be best addressed outside of the legal system altogether. In the drafting of any kind of law that would address these issues, the goal of such a legal remedy should always be kept in mind: to preserve culture, to protect sacred matter, and to strengthen sovereignty.