Indigenous Data and Cultural Rights in the Digital Era: (Re)constructing Benefit-Sharing and Co-Governance Mechanisms in International Economic Law

Principle Investigator：Ying-Jun Lin

Data is a vital asset for the digital economy. Yet, international economic law (IEL) is struggling to recognize and realize Indigenous data sovereignty. This project examines the feasibility of introducing benefit-sharing mechanisms into IEL to create a digital co-governance model between governments and Indigenous peoples.

Conventional IEL relies heavily on exception clauses to protect state regulatory
autonomy for non-economic policies. However, this carve-out-based paradigm fails to accommodate Indigenous peoples' collective interests and autonomy as legal subjects. Instead, their interests are often blended with general public interests or treated as social welfare under state discretion. Grounded in the systemic unity of international law, this research argues that IEL needs to recognize Indigenous collective rights, mirroring international human rights law. This project seeks to transcend existing models to revitalize Indigenous subjectivity in international economic law through three dimensions. First, examining the normative limits of trade and investment treaties through comparative analysis and case studies, including trade disputes (e.g., WTO EC – Seal Products, USMCA Mexico – Corn) and investor-State arbitrations
(e.g., Burlington Resources v. Ecuador, South American Silver v. Bolivia); second, decoding the structural power dynamics behind trade negotiations addressing data governance. Drawing on socio-political constructivism and the conceptual link between "Indigenous data safety" and "cultural safety," this project dissects the asymmetrical power relations between states and Indigenous peoples in economic governance; and third, analyzing co-governance and benefit-sharing mechanisms in international law that address competing interests among stakeholders. A comparative approach will review access and benefit-sharing mechanisms under the Nagoya Protocol of the Convention on Biological Diversity (CBD) and the Pandemic Influenza Preparedness (PIP) Framework.

Based on the findings, this project aims to propose pathways for integrating co-governance and benefit-sharing mechanisms into trade agreements and investment treaties to secure Indigenous data sovereignty. It evaluates traditional knowledge, cultural assets, and data specific to Indigenous peoples. Drawing insights from the Nagoya Protocol and international health law, this project argues that benefit-sharing provides economic incentives and market mechanisms to enforce Free, Prior and Informed Consent (FPIC). This enables Indigenous peoples to shape, participate in, and consent to economic arrangements that respect their collective rights and self- determined development, without depriving governments of their regulatory autonomy over digital governance.