1 Assistant Professor, Department of Public and International Law, Faculty of Law and Political Science, Tehran, Iran

2 PhD in International Law, Faculty of law and Political Sciences, University of Tehran, Tehran, Iran


Indigenous people are the people who, from olden days and especially prior to the colonization era, have sustained a common history as well as bonds and traditions that allow them to stand out from the mainstream society and enjoy their own unique practices, set of values and cultural experience. Living under the rules and framework of the central governing authority, these people have emotional and spiritual bond with their territory and place of residence. They also consider protection of their culture and intangible heritage, mostly carried through oral traditions, tantamount to the survival and continuation of their identity and furthermore securing their heritage from merging in other dominant societies in the surrounding world to the point of being lost. The legal approaches that have been proposed to protect the intangible heritage of indigenous people can be classified as two categories: First, the private and intellectual property laws that regards the mentioned heritage as of economic value, offers solutions relying on various dimensions such as copyright, patent, trademark law, the law of contracts and the law of responsibility. Secondly, the Human Rights that introduce new mechanisms to safeguard the indigenous people’s right to their intangible heritage and folklore, based on the framework of “Cultural Rights” in addition to the doctrines pertaining Human Rights which have reflected well in international documents and tribunal case laws. The extent of approval in this approach has even led some to consider the right of indigenous people to protect their intangible heritage as a part of their identity as a principle of customary human rights rule.


الف) فارسی

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ب) انگلیسی

  1. Barker, Joanne (2005). “For Whom Sovereignty Matters”, in: Joanne Barker (ed.), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press.
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  4. Martinez Cobo, José R. (1987). A Study of the Discrimination Against Indigenous Peoples, United Nations, New York, Doc. E/CN.4/Sub.2/1986/7/Add.4, Special Rapporteur of the Sub-Commission on prevention of Discrimination and Protection of Minorities, UCHCR.
  5. McDonald, Ian (1997). “Copyright and Intellectual Property Concerns of Australia’s Indigenous People”, Copyright World, no. 73, pp. 15-23.
  6. Moran, Jessica Myers (2008). “Legal Means for Protecting the Intangible Cultural Heritage of Indigenous People in a Post-colonial World”, Holy Cross Journal of Law and Public policy, vol. 12, pp. 71-94.
  7. Nason, James D. (2001). “Traditional Property and Modern Laws: The Need for Native American Community Intellectual Property Rights Legislation”, Stanford Law and Policy Review, vol. 12, pp. 255-266.
  8. Patterson, Robert K. and Karjala, Dennis S. (2003). “Looking beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples”, Cardozo Journal of International and Comparative Law, vol. 11, pp. 633-670.
  9. Surendra, Patel J. (1996). “Can the Intellectual Property Rights System Serve the Interest of Indigenous Knowledge?”, in: Stephen B. Brush and Doreen Stabinsky (eds.), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, Island Press.
  10. Wiessner, Siegfried (2011). “The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges”, The European Journal of International Law, vol. 22, no. 1, pp. 121-140.
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  12. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31 Aug. 2001, Inter-Am Ct HR.
  13. E/CN.4/1998/6/Add.1, Report submitted by Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23, Visit to Australia, 4 September 1997.
  14. E/CN.4/1999/58/Add.1, Report submitted by Special Rapporteur, in accordance with Commission on Human Rights resolution 1998/18, Addendum, Visit to the United States of America, 9 ecember 1998.
  15. General Discussion on the Right to Take Part in Cultural Life as recognized in Art. 15 of the ICESCR UN Doc. E/1993/23, Chapter VII.
  16. Kitok v. Sweden, Communication No. 197/1985 (27 July 1988), UN Doc. A/43/40 (1988).
  17. Lubicon Lake Band (Bernard Ominayak) v. Canada, No. 167/1984 (26 March 1990), UN Doc. A/45/40 (1990).
  18. Inter-American Commission on Human Rights, Resolution N. 12/85, Case 7615, Brazil, 5 March 1985.
  19. Comment on Economic, Social, & Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author (Article 15, Paragraph 1(c), of the Covenant), 32, U.N. Doc. E/C.12/GC/17 (2006).
  20. UN Doc. E/CN.4/Sub.2/1994/56 (1994).
  21. UN Doc. A/RES/48/163 (1994).
  22. UN Doc. A/RES/59/174 (2005).
  23. UN Doc. A/RES/61/295 (2007).
  24. UN Doc.E/CN.4/Sub.2/1995/26 Annex 1 (1995).
  25. UN Doc. E/C.19/2004/43 (2004).