Ed Barton, LLM, CPA, CFA

What Does Sui Generis Mean?

What Is The Definition of Sui Generis?

Sui Generis is a Latin term utilized in international law as well as American law. The Latin translation is “of its own kind” and is used to describe such an unparalleled situation to stand on its own and have achieved a unique status within the law. If a legal situation or question is described as “sui generis,” it indicates that there is nothing else of the same kind with which to compare or derive precedent.

How Does the Concept of Sui Generis Rights Impact International Law?

There is a recognition that national and ethnic cultural norms may create a need to assess the rights of peoples, particularly indigenous peoples, sui generis, when looking at the implementation and enforcement of international law and regulation. For example, The International Convention for the Regulation of Whaling was signed in 1946. As part of the Convention, a Schedule was developed to address specific components that needed to be regulated sui generis. The  Schedule, amongst other things, sets out catch limits for commercial and subsistence whaling by indigenous peoples. The schedule is an integral part of the convention, but its provisions- such as catch levels- can be changed by the Commission. In practice, amendments to this document are almost always agreed upon at meetings held every two years that include representatives from all member states to maintain fairness among each country’s interests regarding how nations should manage whales on their own territory.

In the absence of a system to define the sui generis rights of indigenous peoples to whaling rights, they would be forced to accepting the global restrictions on whaling agreed to by their nation of residence, or nations with indigenous peoples relying on substance whaling, like the United States, would be forced to choose between participation in the Convention and prohibiting whaling for indigenous peoples who rely on whales as a critical source of food and cultural heritage, or non-participation in the Convention and need to develop a separate regulatory scheme for the commercial whaling industry. Each indigenous people will have a unique or sui generis right to whaling based on their unique historical and cultural behaviors.

The concepts also tend to be prevalent in intellectual property law – where the development and evolution of unique products, technology, and creative works give rise to the need to establish regulation and protection of the created intellectual property. For instance, the development and rapid spread of semiconductors resulted in the development, in the united states of the Semiconductor Chip Protection Act of 1984 (17 USC 901), recognizing that the topography of semiconductor chips and integrated circuits are sui generis, containing elements of both copyright and patent law – but not wholly applicable to either established legal concept. We can expect to see the continued development of sui generis law in artificial intelligence, data analysis, bioengineering, and other emerging technologies.

Impacts of Sui Generis Concepts On Anglo-American Law

Traditionally, Anglo-American legal systems have relied on precedent and judicial interpretation as the foundation for the legal system. As a result, sui generis situations result in the creation of new laws. At one level, all common law interpretation is sui generis at the point of decision and then is added to the corpus of the law as a whole, becoming precedent against which new cases are measured and compared to assess whether the now precedential law is applicable, or new law/legal precedent needs to be created by the judge, sui generis, for the case currently before the court.

This admittedly broad interpretation of sui generis concepts in the common law system recognizes that every case before the court is unique. Therefore any new law emanating from the decision must also be unique to that situation. Unless strategically limited by the court in the construct of the opinion or narrowness of applicability, the precedential value of these decisions is less one of direct application than the philosophical interpretation that impacts future conceptual evolution of the law.





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