The Law of the Sea Goes Digital—Indigenous Peoples’ “Right to Exclude” Their Traditional Knowledge from the Digital Sphere

This article explores one of the arguably most innovative ideas in the new legal instrument under the United Nations Convention on the Law of the Sea (UNCLOS) concerning biodiversity in areas beyond national jurisdiction (the BBNJ Agreement): the establishment of a digital open-access platform (the “clearing-house mechanism”) to provide and share information. While the BBNJ’s clearing-house mechanism may not be a new tool, it is unique in its attitude towards traditional knowledge associated with marine genetic resources held by Indigenous Peoples and local communities, in the sense that it might allow for the exclusion of such knowledge from the mechanism. This article sheds light on this exclusion and examines the right of Indigenous Peoples and local communities to protect their knowledge vis-à-vis the treaty’s digital platform—the clearing-house mechanism. In doing so, the article suggests a development of what might be a new “digital right” in the emerging discourse of “digital human rights”—the right not to have a “digital presence.” The article argues that the proposed new right fits with the current scholarship on digital human rights, and specifically with “second generation rights,” in terms of its justifications. This framework should focus not only on private companies in the field of technology, but also on states’ initiatives, as was recognized in the BBNJ. This analysis also fits with the general discourse on Indigenous Peoples’ rights and contribute to further develop this subject-field.