Big Idea:
Cultural Sustainability requires legal frameworks that foster a culture of care, self-determination and reciprocity.
Law has a fundamental role in society. It is designed to maintain social order, resolve conflicts, and bring about change. It is often a paradox, and not always just or moral. Countless examples throughout history show it - laws enabling slavery, racial and gender inequality, hegemonic laws, colonial laws, laws legitimizing war and violence. Laws built on the principles of selfishness, elitism and greed.
But it is also a powerful and transformative tool for those who want to change mindsets, systems and society. There are many such examples too. These examples do not involve a simple conversion of binaries - see the paradox of 'the commons' in contexts where it further amplifies systemic injustice - they involve challenging eurocentric universalism and legal paradigms that have been continuously reinforced in the anthropocene without radical transformation.
Systems will not change until their legal fundamentals are challenged. This means integrating the principles of care, self-determination and reciprocity in legal systems. We have breakthroughs on the legal recognition of the rights of nature with countries like Ecuador, Bolivia, New Zealand and Panama granting legal personality to natural elements and ecosystems, advancements on the legal protection of animal rights, challenging animals' status as ‘mere things’ and legal property, and legal recognition of Indigenous and local community-centric self-governance concepts and worldviews (see the constitutional recognition of the notion of Buen Vivir in Ecuador 2008). We need to continue expanding legal concepts beyond binaries and focus on intersectionalities. The legal concept of custodianship for example, originating in laws that regulate relationships between minor children and caretakers, can be applied to human relationships with nature, territories and knowledge. It can simultaneously foster self-governance and localism while nurturing global wellbeing.
We face a climate and planetary crisis because we think we own the Earth, its resources and other people. This belief system is still embedded in socio-cultural DNA. We follow a hierarchy of rights with ownership at its pinnacle. In this paradigm Cultural Sustainability cannot exist.
How can law foster a culture of care? How can we as individuals, and jointly through our collective actions, influence lawmaking?
Concept:
Custodianship, in my view, is the legal framework for care. Conventionally, it implies a duty of care for a person (e.g. custodian of a minor), an object or a collection of objects (e.g. custodian of a museum), or an institution (e.g. custodian of the Crown). It does not exclude care for other types of subjects such as knowledge, including Traditional Knowledge and Traditional Cultural Expressions, territories and natural resources or elements of biological and cultural diversity. As a trained lawyer, with more than 30 years of lived experience in my local community, this is the legal concept that I feel can best reflect my ancestors' relationship with nature and knowledge. A relationship that changed a lot since my great-great parents are no longer.
Custodianship is at the heart of my advocacy work for the creation of a sui-generis system for nurturing, protecting and sustaining Traditional Knowledge and Traditional Cultural Expression, and the main legal argument for cultural intellectual property rights® as human rights.
Call for Action:
Embrace vocabularies and frameworks that foster care and reciprocity and enable self-determination. Ask Indigenous peoples, ethnic groups and local communities what are the principles that guide their governance systems and practices? Help reflect them in the law. Start with influencing the legal frameworks where you have direct decision-making power: contracts. The legal principle of freedom of contract is a powerful tool that allows parties to design their own terms and rules of engagement. We often used this tool, among others, to integrate the 3C RULE CONSENT. CREDIT. COMPENSATION™ in contracts that benefit Indigenous People, ethnic groups and local communities and affirm custodianship of their Traditional Knowledge, Traditional Cultural Expressions, biodiversity areas and territories.
Beyond Words:
The sky cares for all. Kochi, India 2024. ©Monica Boța Moisin
Written by Monica Boța Moisin for Cultural Intellectual Property Month 2024, Cultural Intellectual Property Rights Initiative®. Referencing: Boța Moisin, M., 2024. Cultural Sustainability and Law, in Cultural Intellectual Property Month 2024, Cultural Intellectual Property Rights Initiative®
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