Protecting Indonesia's Communal Intellectual Property Rights: A TWAIL Perspective

The Third World Approach to International Law (TWAIL) emerges as a critical perspective on the current international legal system, providing a robust framework to aid Indonesia in safeguarding its communal intellectual property rights. This research seeks to emphasize the urgency of adopting TWAIL and elucidates how its application can play a pivotal role in advancing both economic prosperity and social identity in Indonesia. Positioned within a normative juridical framework, this study delves into the TWAIL perspective and its relevance to the protection of Communal Intellectual Property Rights (CIPR). It demonstrates how embracing the TWAIL approach for communal intellectual property rights can establish a legal framework that is more just, inclusive, and respectful of the rights of indigenous communities. By securing strong legal protections at both international and national levels, communities gain the ability to manage their traditional knowledge for commercial use, identifying potential global markets. Consequently, this approach fosters improvement and underscores the potential positive impacts on economic development, particularly in expanding markets and accessing goods.


A. Introduction
The Protection of Intellectual Property Rights (IPR) is an important issue in the current global context.IPR includes rights granted to creators or holders of intellectual property rights to protect their works, such as copyrights, patents,

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Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024)   71 trademarks, industrial designs, and so on. 1 However, the existing IPR system is often criticized for providing disproportionate benefits to countries in the Third World or developing countries.In the current global IPR system, superpowers or developed countries have great advantages compared to countries in the Third World.This is related to the history of colonialism, economic domination and unfair trade policies.Countries in the Third World are often the object of intellectual exploitation by developed countries, which results in inequality in the recognition and protection of intellectual property rights.

Intellectual property rights not only recognize individual
intellectual property rights but also the existence of communal intellectual property rights.Individual intellectual rights are things that are given to rights holders or legal entities and provide material benefits.Meanwhile, communal intellectual property rights are rights owned by indigenous communities or regional communities.

Genetic Resources (GR) and Potential Geographical
Indications. 3 The recognition of intellectual property rights is also regulated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).The TRIPS Agreement regulates IPR in the context of international trade.
The TRIPS Agreement has the main objective of creating consistent minimum standards for IPR protection across all WTO member countries, as well as to promote and protect innovation and creativity in the fields of economics and trade.This agreement regulates various aspects of IPR, including copyright, trademarks, patents, trade secrets, industrial designs, and plant variety protection. 4der international law, the recognition and protection of Communal Intellectual Property Rights (CIPR) are still complex and controversial issues.At the international level, several legal instruments have been developed to recognize and protect CIPR.For example, the United Nations Declaration on the Rights of Indigenous Peoples recognizes the collective intellectual rights of indigenous peoples, including the right to control, protect and defend their knowledge, practices and cultural heritage. 5In addition, the UNESCO Convention on Cultural Diversity (UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions) also recognizes the importance of protecting and promoting the diversity of cultural expressions, including communal intellectual forms.This Convention provides a legal framework to protect and promote cultural diversity at national and international levels.
However, despite the efforts to recognize and protect IPRs in international law, there are still challenges that need to be overcome.CIPR is not yet widely recognized as an independent form of intellectual property rights within the international legal framework.This can reduce the level of protection provided and make it difficult to recognize and restore communal rights.In addition, the TRIPS Agreement has attracted controversy and criticism because it is considered to provide disproportionate benefits to advanced industrial countries and multinational companies, while ignoring intellectual property owned communally by indigenous peoples, ethnic groups or local communities.
In this context, the Third World Approach to International Law (TWAIL) approach emerges as a critical perspective on the current international legal system.TWAIL was developed by legal scholars from countries in the Third World with the aim of analyzing and studying relations Protecting Indonesia's.. Law, Vol. 5, No. 1 (2024)  74

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between superpowers and countries in the Third World in the context of social, economic and political justice.6 TWAIL highlights the structural injustices that exist in the international legal system, where countries in the Third World are often victims of policies and practices dominated by developed countries.In the context of IPR protection, the TWAIL approach emphasizes the importance of overcoming inequality and ensuring fair protection of communal intellectual property rights in countries in the Third World.
The TWAIL approach offers an alternative perspective to the existing IPR system, with a focus on human rights, social justice, local community interests, and sustainable development.TWAIL emphasizes the need to recognize and respect traditional knowledge, local knowledge and longstanding communal practices in countries in the Third World.
This means involving local communities in decision-making regarding intellectual property rights related to their cultural heritage and traditional knowledge.
The TWAIL approach also emphasizes the importance of overcoming the asymmetry between great powers and countries in the Third World in terms of IPR protection.
Countries in the Third World must be empowered and 75 encouraged to have a more active role in formulating CIPR policies that support their own interests.
Based on this, this research will further discuss about; (1) how the application of TWAIL approach in protecting communal intellectual property rights works, and (2) the urgency of implementing this approach in Indonesia's framework to protect CIPR.

Communal Intellectual Property Rights
The Third World Approach to International Law (TWAIL) is a movement of scholars and practitioners of international law and policy who are concerned with issues related to the Global South in its broad conception.TWAIL emerged as a theory and methodology for analyzing and challenging international law and its institutions. 7One of the reasons for the increase in TWAIL studies is that Third World people are becoming concerned about the dynamics of power relations between states, and that "any proposed international rule or institution would hardly the distribution of power between states and peoples".For instance, the Third World nation-states are increasingly unable to effectively govern their economies, TWAIL's involvement with communal property is in line with his wider criticism of the asymmetries and imbalances of power in international law.It calls for a more inclusive and equitable approach that addresses the historical legacies of colonialism, imperialism and global inequality, and seeks to empower communities in the Global South to assert their rights and interests within the framework of international law.TWAIL has diverse and evolving perspectives, and different scholars within the TWAIL movement may have different views on certain issues, including communal property rights.

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Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024)   79 The The TRIPS Agreement is an international agreement governing intellectual property rights in general.Although it does not specifically regulate communal intellectual property rights, TRIPS provides flexibility for member states to adopt protective measures according to their needs, including in the context of collective or traditional intellectual property.
Overall, there is sustainability between the standards contained in TRIPs and previous IP systems that were formed over a period of time through domestic processes.There is a continuing domestic impetus for the development and implementation of IP protection systems.Viewed from a policy perspective, IP is not recognized and protected solely for the sake of IP itself, or only as an indirect response to an international obligation, but rather as an integral element of the legal and trade infrastructure needed in order to increase investment and trade.more profitable.Thus, the protection of IP that is currently developing is more in favor of developed countries which place more emphasis on individual interests.This is contrary to the "atmosphere of thought" of people in developing countries who are more familiar with the Communal Intellectual Property (CIP) is knowledge from a community, society, or ethnicity that has been passed down from generation to generation and will always develop according to changes.This shows that KIK is owned by a community group that has been passed down from generation to generation.In other words, CIP is created, maintained, used and protected, and usually refers to a system of customary knowledge that has been accumulated in a community through a long process of experience in a particular location so that this traditional knowledge becomes a form of identity within a community.
This understanding of CIP as part of the inheritance from the ancestors which must be maintained with a sense of shared ownership by the custodians does not contain an element of monopoly as is the case in the concept of Individual IP which is more conventionally known today.When Westerners discover knowledge about traditional medicine, for example, they then take and use that knowledge for their own benefit through intellectual property rights claims.In this context, there is a deviation from the use of CIP from the initial concept as savings from ancestors that are guarded and jointly owned by caretakers to become owners of individual IP.The IP legal system allows someone to use (seize) CIP for

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the Third World.TWAIL wants to change global structures and dynamics that provide unequal benefits to countries and communities in the Global South, and aims to achieve greater social and economic justice. 16e TWAIL approach criticizes the view of international law which is dominated by Western countries and fights for the interests of countries in the third world. 17TWAIL resolutely opposes the practices of colonialism and imperialism, and emphasizes the importance of fighting for the rights of indigenous peoples and local communities.This approach sees international law as an instrument to fight for justice and equality, not to maintain the dominance of Western countries.

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Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024)   87 TWAIL emphasizes the importance of fighting for the rights of indigenous peoples and local communities, and sees international law as an instrument to achieve this goal. 18 Countries around the world must pay attention to the protection of communal intellectual property rights to ensure that indigenous peoples and local communities can maintain their rights to their traditional knowledge and cultural expressions.This approach also emphasizes the importance of paying attention to the perspectives of developing countries in the development of international law.In this case, developing countries can play an important role in determining the direction of international legal policies that are more just and equitable.In addition, this approach is important for the recognition of knowledge, practices and intellectual property generated by local communities.Protecting Indonesia's.. Law, Vol. 5, No. 1 (2024)  88

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involves an approach centered on justice, recognition and empowerment of local communities.
Applying the TWAIL approach to the protection of communal intellectual property rights can provide a useful framework for considering equity issues in the context of local communities with unique knowledge and cultural heritage.
Protecting communal intellectual property rights with the TWAIL approach will involve several steps.Protecting Indonesia's.. Law, Vol. 5, No. 1 (2024)  92 equal international legal system.This means addressing the gap that exists between politically and economically strong countries and weaker countries.

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In

Addressing Historical Injustices
TWAIL acknowledges historical injustices and seeks to rectify them.Indonesia, with its colonial past, can benefit from an approach that takes into account historical inequalities.This includes addressing past injustices related to the appropriation of traditional knowledge and ensuring that future legal frameworks are more just and inclusive.

International Collaboration and Solidarity
TWAIL encourages collaboration and solidarity among developing nations.Indonesia, by adopting TWAIL principles, can align itself with a global movement seeking justice in international legal relations.This solidarity can strengthen Indonesia's position in advocating for
Therefore, it can be concluded that TWAIL provides a framework that aligns with Indonesia's historical context, Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024)   101 By taking these steps, Indonesia can work towards implementing TWAIL in a manner that protects communal intellectual property rights, respects cultural diversity, and addresses historical injustices within the international legal system.Continuous collaboration with communities, legal experts, and international partners is crucial for the success of these efforts.

C. Conclusion
As concept of communal intellectual property rights (IPR) refers to forms of intellectual property rights that are collectively owned by certain groups of people or communities, 11 not exclusively individuals.The protection of IPR in international law is necessary because the development of international trade and the existence of free trade movements have resulted in an increasing need for IPR which is no longer reciprocal in nature but is already global in nature between countries.Moreover, protecting IPR is considered as a necessary element for the transition of developing nations to advanced industrial economies. 12At the beginning of the 19th century, the development of IP arrangements began to cross national borders, which began with the Paris Convention for the Protection of Industrial Property or the so-called Paris Convention in 1883 which was an international agreement regarding the protection of industrial property rights.Then in 1986 a convention was formed for protection in the field of copyright known as the International Convention for the Protection of Literary andArtistic Works (Bern Convention).Followed by the formation of the WTO, which was then at the insistence of America, TRIP's was formed as a new trading system that aims to protect and enforce IP law in order to encourage innovation, transfer and dissemination of technology, obtaining mutual benefits between creators and users of technological knowledge, in ways that can creating socio-economic welfare as well as a balance between rights and obligations.
Ria Wierma PutriUtiPossidetis: Journal of International Law, Vol. 5, No. 1 (2024)   81 protection of IP which always strives not to reduce the interests of society.The TRIPS Agreement has drawn controversy and criticism because it is considered to provide unequal benefits to advanced industrial countries and multinational companies, while ignoring intellectual property owned communally by indigenous peoples, ethnic groups or local communities.b.The Recognition of Communal IntellectualProperty RightsThe recognition of Communal Intellectual Property begins with recognition of Traditional Knowledge as part of human rights in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).In the UN Declaration on the Rights of Indigenous Peoples, the recognition and protection of traditional knowledge is based on Articles 11 and 31.Article 11(1) of the UNDRIP regulates the rights of indigenous peoples to carry out and restore their cultural and customary traditions.In the UN Declaration on the Rights of Indigenous Peoples, the recognition and protection of Traditional Knowledge is based on Articles 11 and 31.Article 11(1) of the UNDRIP regulates the rights of indigenous peoples to carry out and restore their cultural and customary traditions.The demand for protection of traditional knowledge arose with the signing of the Convention on Biological Diversity (CBD) in 1992.Since then, various world meetings have been held, Protecting Indonesia's.. Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024) 82 especially in the context of the World Intellectual Property Organization (WIPO), which continue to be held to formulate how an appropriate protection system should be implemented for traditional knowledge and other communal intellectual property. 13Meanwhile, Article 31(1) states that: Indigenous peoples have the right to defend, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their science, technology and culture, including human resources and genetics, seeds, medicines, knowledge about the nature of fauna and flora, oral traditions, literature, design, sports and traditional games, as well as visual and performing arts.They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions.Recognition of collective rights as human rights provides benefits for groups that protect and preserve cultural heritage.These collective rights ensure that each individual has the right to access culture and participate in cultural activities based on personal affinity as a member of a particular community group.The cultural identity and rights 83 of indigenous peoples are respected according to the times and civilizations.
intellectual property rights refers to the recognition and protection of the collective rights of indigenous peoples or local communities to their collectively owned traditional knowledge, cultural heritage and natural resources.However, several attempts have been made to pay attention to and recognize the importance of communal intellectual property rights in the context of international law.For example, the United Nations has adopted a Declaration on the Rights of Indigenous Peoples which recognizes the collective rights of indigenous peoples to their traditional knowledge.In addition, several international agreements such as the Convention on Biological Diversity also contain provisions that seek to protect and promote the traditional knowledge of indigenous peoples regarding living resources.
First, countries in the third world must fight for the rights of indigenous peoples and local communities in international forums, such as the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO).Second, countries in the third world should adopt national laws protecting communal intellectual property rights.This law should ensure that indigenous groups and local communities have rights to their knowledge and wealth, as well as the right to receive fair compensation for the use of their knowledge and wealth.Third, countries in the third world must fight for the rights of indigenous peoples and local communities in the context of international trade.They must fight for their right to control their knowledge and wealth, and their right to benefit from their knowledge and wealth. 1989 The application of TWAIL in the protection of communal intellectual property rights is as follows: 1. Recognition of communal intellectual property.The TWAIL approach encourages recognition of the knowledge, traditions, innovations and practices developed by local communities as appropriate forms of intellectual property.This involves recognizing and respecting the knowledge and practices acquired by local people over many years and making them part of the cultural heritage that must be protected.2. Protection of the rights of local communities.The application of TWAIL in the context of communal intellectual property rights involves protecting the rights of local communities to their knowledge and practices.This can be done through recognizing communal intellectual property rights, developing legal mechanisms that protect communal knowledge and practices, and ensuring that local communities have control over the use and utilization of their intellectual property.3. Encouraging local community involvement in decisionmaking.The TWAIL approach encourages the active participation of local communities in decision-making processes related to the protection of communal intellectual property rights.This involves in-depth consultation with local communities, recognizing their Protecting Indonesia's.. Uti Possidetis: Journal of International Law, Vol. 5, No. 1 (2024) 90 knowledge and expertise, and empowering them in the management, development and protection of communal intellectual property.4. Overcome inequality and exploitation.The application of TWAIL in the protection of communal intellectual property rights also focuses on addressing the inequality and exploitation that often occurs in the relationship between local communities and external entities, such as multinational corporations.TWAIL promotes fair mechanisms for sharing the benefits and wealth that results from communal knowledge.This involves fair bargaining, avoiding extortion, and ensuring that local people benefit fairly from the use and utilization of their knowledge.5. Building solidarity and cooperation between third world countries.The TWAIL approach also involves building solidarity and cooperation between third world countries in the context of protecting communal intellectual property rights.This involves exchanging knowledge and experiences between local communities from different countries and strengthening collaboration to protect communal intellectual property at an international level.Possidetis: Journal of International Law, Vol. 5, No. 1 (2024) 91 The application of The Third World Approach to International Law (TWAIL) in the protection of communal intellectual property rights has significant political, economic and social implications.Following are some of the implications of implementing the TWAIL approach: 20 1. Political Implications a. Empowerment of Countries in the Global South: The TWAIL approach promotes the empowerment of countries in the Global South in regulating and protecting their communal intellectual property rights.This can strengthen the sovereignty of countries in the Global South in managing and exploiting their own intellectual property without unfair interference from Western countries.encourages active participation of local communities in decision-making regarding communal intellectual property rights.This can strengthen the role of local communities in determining policies relating to the protection and use of their communal knowledge.c.Defending Global Justice and Equality: The TWAIL approach promotes the creation of a more just and 20 Pratyush Nath Upreti, A TWAIL critique of intellectual property and related disputes in investor-state dispute settlement, The Journal of World Intellectual Property, Volume 25, Issue 1 p. 220-237.2022.
the context of communal intellectual property rights, this means fighting for the protection of the rights of local communities and indigenous peoples who are often victims of exploitation and abuse by more powerful global entities.2. Economic Implications a. Community economic empowerment.The TWAIL approach recognizes that communities with traditional knowledge have the potential to develop a sustainable local economy.By protecting communal intellectual property rights, communities can maintain control over the knowledge and resources they own.This includes traditional knowledge passed down from generation to generation, customary practices related to the environment, traditional medicines, agricultural techniques, handicrafts and other forms of intellectual property.In the context of community economic empowerment, the TWAIL approach encourages local skills and capacity building, training, access to financial resources, and technical support to help communities manage and utilize their intellectual property.This has the potential to increase community incomes, create local jobs, improve living standards, and strengthen community economic sovereignty.b.Access to global markets.Through legal recognition and protection of their traditional knowledge, communities can manage and use it commercially, enter into partnerships with businesses, and gain economic benefits from the sale of products or services based on communal knowledge.With strong legal protections, communities can manage their traditional knowledge in a way that allows for commercial use.They can identify potential global markets that require their knowledge or knowledgebased products and develop relevant business strategies.Thus, the community can enter the global market with unique and different products or services.In addition, through the protection of communal intellectual property rights, communities can enter into partnerships with local or international businesses.This partnership can assist them in developing, producing, and market their products or services more effectively in global markets.Businesses can provide needed knowledge and resources, while communities can provide valuable traditional knowledge.Such partnerships create opportunities to access global markets with greater support.
cultural diversity, and the need to protect communal intellectual property rights.By adopting TWAIL principles, Indonesia can work towards a legal framework that is more just, inclusive, and respectful of the rights of its indigenous communities.The establishment of legally recognized and enforceable exclusive rights on the exploitation of specified inventions 28 and to worth the value of the invention can be achieved by providing an appropriate framework of intellectual property rights.With this positive growth, it also encourages the innovation and creative output by allowing inventors to recoup expenses and benefit from their creations exclusively for a period of time and/or negotiating payment in return for others using them, as the main goal of intellectual property rights (IPR).29As crucial as individual intellectual property rights, the protection of communal intellectual property rights is important to ensure the survival of the culture and traditions of indigenous groups and local communities, as wellRia Wierma Putri crucial as individual intellectual property rights, the protection of communal intellectual property rights is important to ensure the survival of the culture and traditions of indigenous groups and local communities.By giving the opportunity for the local communities to expand their markets, it will raise their chance in developing their economic and even affecting the export and import supplies.The Third World Approach to International Law (TWAIL) approach is very relevant in this context, because this approach fights for the rights of indigenous peoples and local communities in a global context.Applying the TWAIL approach to the protection of communal intellectual property rights can provide a useful framework for considering equity issues in the context of local communities with unique knowledge and cultural heritage.The application of TWAIL in protecting communal intellectual property rights includes recognizing communal intellectual property, protecting the Protecting Indonesia's..Uti Possidetis: Journal of InternationalLaw, Vol. 5, No. 1 (2024)  102rights of local communities, encouraging local community involvement in decision making, overcoming inequality and exploitation and defending global justice and equality.Indonesia can work through several steps towards a legal framework that respects CIPR, embraces cultural diversity, and addresses historical injustices within the international legal system.Subsequently, it will pave the way for the local community to identify their potential global target of their valuable traditional knowledge, and enhance the opportunity of the businesses of the global trade.
TWAIL seeks through research, policy, and politics to overcome the underdevelopment experienced by countries in 14 Larisa Namina.TWAIL Third World Approaches to International Law" and Human Rights: Some Considerations.JouRnaL oF ConstitutionaL ReseaRCH, Universidade Federal do Parana.Vol. 5 No. 1. p. 261-272.2018. 15Endalew Lijalem Enyew.Sailing with TWAIL: A Historical Inquiry into Third World Perspectives on the Law of the Sea.Chinese Journal of International Law.Vol.21 Issue 3, p. 439-497.2022.
14TWAIL has three basic objectives that are interrelated and directed.First, TWAIL aims to understand, deconstruct, and reveal the use of international law as a tool used to create and maintain racial hierarchies in international norms and institutions that restrict non-Europeans to Europeans.Second, TWAIL seeks to establish and create alternative normative legal frameworks for international governance.15Thisapproach aims to create a more inclusive and equitable legal system that reflects the interests and perspectives of countries in the Global South and local communities.Finally,