THE CONVENTION ON BIOLOGICAL DIVERSITY, INTELLECTUAL PROPERTY RIGHTS AND THE INTERESTS OF THE SOUTH

Tewolde Berhan Gebre Egziabher. Ethiopia, June 1996

1. INTRODUCTION

A workshop of the Crucible Group on intellectual property rights (IPRs) and farming communities was held in Uppsala in June, 1993. During the discussions it became clear that the implication of the Convention on Biological Diversity on the IPRs of farming communities and indigenous peoples have not been analyzed and that this is essential. I was asked to develop a draft of this and circulate it among the participants of that workshop for comments. It has already been published (Tewolde, 1994).

Also in the summer of 1993, I wrote down what I thought would be the essential elements of a system for collective intellectual protection for the South. A modified version of this thinking was presented at the Conference on Intellectual Property Rights and Indigenous Knowledge held in October 1993 at Lake Tahoe, California. Following is a synthesis of these two papers.

2. INNOVATIONS AND SOUTHERN SOCIETIES

The Northern countries are obviously using biotechnology (or more precisely genetic engineering), consciously or unconsciously, as their newest and most promising addition to the arsenal of arms used to force the South into submission and to keep resources, including biological diversity, flowing unhindered into the North. They thus insisted, as they have been doing in the negotiations which established the World Trade Organization (WTO), on respect for their IPRs legislation and forced the inclusion of Article 16.2 in the Convention on Biological Diversity. That they intended this to be a new and effective tap for the flow of resources to the North is seen from the fact that they blocked the inclusion of even a mildly worded balancing provision on farmers' rights. The only concession they made was to allow a statement to be made in Resolution 3, sponsored by the Scandinavian and some Southern countries and adopted during the final act of the Convention, to the effect that the issue of "farmers' rights" should be resolved.

The article (Article 16.2) does not apply to the North by specifically excluding the South. Nevertheless, it is clear that it will primarily benefit the North. This is because the values and norms of the North are such that they enable legal individuals to benefit from an IPRs regime, but those of the South do not, on the whole, do so. In order to deal with the problems posed by IPRs, therefore, we need to examine the South in relation to the North. A detailed examination of the North is considered unnecessary since, as the dominant society in the world, it is relatively well understood. In any event, also because it is the dominant society and sure of itself, it would look a more difficult task to try and change its workings in order to ensure fairness to other cultures in its enforcement of IPRs. It would seem easier to suggest to the South how it could cope with the impact of the application of IPRs by the North.

2.1 The bases for achievement and reward in the South

In the South, as was the case in the North prior to the Industrial Revolution and the emergence of capitalism, in general innovations resulted as the sum of the discoveries and inventions of the members of communities. The motive force for innovations was probably personal gain, but it was not conceivable to extract royalties from any person who used somebody else's invention or discovery. As a result, the inventor or the discoverer never tried to personalize her/his achievement. Improvements to that achievement occurred as contributions from all users of the discovery or invention.

This gave rise to free systems of science and technology, which were there for anyone to use. The exceptions to this in some communities were specialized knowledge and technology, particularly that for treating the sick which required the use of medicinal plants and "magic", or the use of special skills such as fire in blacksmithing. These specialized systems of science and technology developed their own intellectual protection systems, usually in the form of the knowledge being "unbuyable". Recruitment into these specialized technologies was through apprenticeship.

The communal approach to discoveries and inventions was strengthened by social values which saw communal action as essential for survival. For this reason, no systematic record, oral or written, is kept of who innovated, and who else used the innovation.

2.2 What is the Southern collective?

The individual oriented culture of the industrialized North has now been imposed as the dominant world culture. The issue is, therefore, not one of coming from the North or the South, but one of what values one has. On the whole, though, the majority of Northerners function as individuals alone and as members of their state, and the majority of Southerners function as members of a community, and the state is superimposed on them, often oppressively. The individuals of the North, even when professing communal allegiances, behave alone, and those of the South, even when professing capitalist individualism, are largely communal in their social relations with other individuals.

Nevertheless, the modern components of society in the South satisfy their individualistic material desires through the personalized grabbing for gain that characterizes the Northerners while leaning on their communal society for satisfying their social needs. That is why they usually use communal channels to acquire personal wealth at the expense of other members of the community. When seen through this light, corruption becomes understandable though not the less insidious, and thus remains even more unacceptable.

It is these individuals from the South who abuse their communities that become the agents of the fully individualized members of the impersonal states of the North in the outflow of resources of the South to its detriment and to the prosperity of the North.

If we are to understand fully the exploitation of the South, therefore, we need to look at the components of its society and at their internal and external linkages.

2.3 "Local community" and "indigenous people"

The components of the society of the South mentioned in the context of IPRs are indigenous and local communities (Preamble, paragraph 12 and Article 8j). The term "local populations" (Article 10e) has also been used, though not in the context of IPRs. This term obviously includes both indigenous peoples and local communities. But since "indigenous people" are also "local communities" in their own areas, "local populations" and "local communities" are, for the purpose of the Convention, comparable. Neither term has been rigorously defined in the Convention. It is also obvious that the term "local community" implies that norms and institutions of long standing make a unit out of the people involved, while the term "local populations" is neutral with regard to social organization. Since in the context of IPRs in the South our focus is on group achievement and group reward, the term of relevance is "local community".

There may be difficulties in defining a given community and in delimiting it from other communities. Conceptually, however, if a group of people have a long standing social organization that binds them together, and if they are in a defined area, they constitute a "local community". This definition is not likely to give us problems as it can include local sub-units of indigenous peoples. When an indigenous people is not populous and is restricted to one area, the terms "local community" and "indigenous people" become identical in their designation of a group.

The use of the term "indigenous people", however, has been involved in much controversial discussion. To this effect, During (1992, p.8) states: "The extreme variation in their [indigenous peoples'] ways of life and current circumstances defy ready definition. Indeed, states manipulate definitions to suit their political needs variously labelling indigenous peoples `small nationalities', `remote area dwellers', `mountain peasants', `backward tribes', `primitive populations', and so on." Most definitions involve the concept of peoples conquered by other peoples from outside their areas and kept in subjugation losing not only their power and resources, but usually also their culture, religion, language, and finally their identity (Axt et al., 1993, pp. 22-26).

It might be helpful in clearing confusion to look at the various dimensions of being a people at times occupying and at other times being occupied.

Two given peoples might exchange roles one occupying and the other being occupied. The reversibility may be frequent or infrequent. The extreme is of course, that occupation is not reversible, that one people has occupied another and a status quo has been established.

The occupation of a people by another could be recent, with all memories vivid, or past and virtually forgotten.

The occupier and the occupied could be ethnically related, or they could be different.

The occupier and the occupied could be from geographically neighbouring areas, or be from distant areas. The extremes are adjacent locations, and different and distant continents.

The occupier and the occupied could have similar or different cultures.

Miscegenation could then be used as a measure of the relation between the two given peoples: the occupying and the occupied.

Let us arrange these dimensions of occupation in a two-way table with one column specifying status of the dimension when it is least significant, and the other when it is most significant.Table I

If we look at the situation of an occupied and occupying people of one extreme, that of both peoples having similar cultures and similar ethnic origins, living in adjacent areas, and among whom the history of occupation is both old and frequently reversed, we end up with one people with perhaps differences in dialects and some cultural traits of local idiosyncrasy. The other extreme is one of two peoples with very different cultures and ethnic origins, with the occupier coming from a distant continent, with the occupation having occurred recently, and the reversibility of roles as occupier and occupied looking impossible.

It seems that nobody argues about the two extremes. Two examples: the English are proud to call themselves Anglo-Saxon. The record of rivalry between the Angles and the Saxons, who miscegenated freely, who were both Germanic, and who came to England from Germany in the distant past figuring in no way other than as a historical curiosity. At the other extreme, the whole world is agreed in calling the Maori of New Zealand "indigenous people" because they intermarry little with, and their culture is very different from, that of their occupying Europeans, who are ethnically very different and who came from the far off continent of Europe only a few hundred years ago, and who look so completely invincible that it is doubtful if it has ever looked remotely possible to anyone that someday the Maori will colonize England.

Arguments arise when we deal with intermediate cases. To investigate if we could identify a cut-off point in the continuum between the two extremes, we could arrange the possible events in a logical order along the axis defined by the two extremes. In reality, the relationships of the variables are multidimensional and so each will be discussed separately.

Let us represent each of the dimensions of occupation (first column of Table 1) by the first letter of the first word (R T G E C M) and their significances as L (least) and H (highest). Some of these dimensions are quantitative, and we will have to be subjective as to which quantity affords us a cut-off point equivalent to a change in quality. Let us subjectively say that the following are our cut-off points: 3 reversals (a total of 4 occupations, 2 by each side), 300 years of unrecorded or 1000 years of recorded history, being geographically separated by one neighbouring area (country) or by an adjacent barrier, showing an obvious ethnic distinctiveness at encounter, having cultural differences which even when miscegenation is not prohibited, reduce intermarriage to 10 per cent or less, or the existence of legal and/or religious prohibition of intermarriages.

If intermarriage is prohibited - by religion, as this has a stronger effect on individual behaviour than legal prohibition in Southern societies - all other dimensions of occupation become secondary and the two peoples continue with their separate identities. Provided the occupied people are allowed to stay in their original area, therefore, they remain an "indigenous people". The oppression of the low castes in India (Ghurye, 1979, pp. 162-181) and other parts of the world arises from this fact.

The effect of a cultural difference that drastically reduces intermarriages (say, to less than 10 per cent) has a similar though less harsh effect as prohibiting intermarriages. The distinctive black minority in the USA suffers from this kind of rejection. This minority is itself an immigrant and thus not an indigenous people. But the Inuits of Alaska and Canada are for this reason, an "indigenous people".

At the other extreme, when reversal of occupation can happen, it is because the peoples in question are approximately equivalent in potential strength. They are, therefore, roughly comparable in population size and mutually culturally acceptable, otherwise once one people occupies the other, it will impose its culture upon the occupied. If occupation has reversed a few times (say 3), and the time is also long enough to enable mutual acceptance of one people by the other, the use of the term "indigenous people" would be inappropriate.

The uncertain situations are, therefore, those involving time of occupation, geographical origins and ethnicity where intermarriages are allowed. Let us explore the interactions among these as follows:

T_L G_L E_L ---> T_H G_L E_L ---> T_H G_H E_L ---> T_H G_H E_H

T_L G_L E_L ---> T_L G_H E_L ---> T_H G_L E_H ---> T_H G_H E_H

T_L G_L E_L ---> T_L G_L E_H ---> T_L G_H E_H ---> T_H G_H E_H

In the relationships represented above, T_L G_L E_L (first column) would indicate that the concept of the existence of two peoples, one occupier and the other occupied, is not tenable; only groupings of the same people can be indicated. The issue of "indigenous people" does not, therefore, arise though the issue of disadvantaged classes will usually arise.

The situation represented by T_H G_H E_H (last column), clearly shows the presence of an occupier and an "indigenous people".

Of the situations represented in the second column, T_L G_H E_L is an unlikely combination because the probability of related ethnic groups living in distant areas, and one of them going to conquer the other, is very low. Of the remaining 2 combinations, T_L G_L E_H is also unlikely as, given time and geographic proximity, in the absence of barriers to intermarriage, miscegenation takes place and ethnic differences fade. The third possibility (T_H G_L E_L) happens very frequently, and manifests itself very often in civil wars. Even though in the context of justice and conflict resolution this combination describes a very important situation with intractable problems (e.g. the history of Eritrea and Ethiopia, and Northern Ireland in the UK), it is a trivial case in the context of the IPR-issues that will arise as the peoples involved are of a comparable socio-economic and technological condition.

In the third column, the first combination (T_H G_H E_L) is unlikely for the same reasons that the second combination in the second column (T_L G_H E_L) is unlikely. The other two combinations in the third column would create clear cases of an occupier and an "indigenous people". However, T_L G_H E_H is unlikely as, given time and no barrier to intermarriages, ethnic distinctions would disappear. The meaningful combinations could, therefore, be written as follows:

T_L G_L E_L ---> T_H G_L E_L ---> T_H G_L E_H ---> T_H G_H E_H

Focusing on these relationships, we can define an "indigenous people" as one which is living in its original area subjugated by another people which came from a distant area, distinct from the occupier because intermarriages between the occupier and the occupied are either prohibited by law or religion, or are kept very low because of a big cultural difference between them, or because there has not been a long enough time for miscegenation to remove the differences in spite of other conditions not discouraging intermarriages. The two peoples are ethnically distinct, whether they normally occupy adjacent areas or distant lands.

3. THE STRUCTURE OF SOUTHERN SOCIETIES

Left to themselves, indigenous communities relate to one another as independent entities exchanging ideas and materials (Figure 1)

In the modern world, any indigenous community is in a matrix of the "modern community" in its country, which is linked to the North (Fig. 2). In the North, and to a lesser extent in the modern South, individuals or institutions monopolize knowledge, technologies and now even living things which have hitherto not been part of their world in the name of "intellectual property protection". The indigenous communities do not interact much with the modern community except in having their resources, and now even their own genetic make-up, leaked out into it. They cannot, therefore, ask for redress for the piracy committed. Their national modern community, in fact, not only fails to legislate recognition of their rights, but even often legislates against their traditional rights, e.g. it often prohibits them from continuing to produce their own seed as they have done for thousands of years.

The modern society forming the matrix is different for indigenous communities of the Old and New Worlds (Fig. 2). In the Old World as a whole, the members of the matrix society are ethnically identical with those of their indigenous communities. They even have a major component of their basic culture, usually including language and often even religion, being the same as those of the indigenous communities. They are different largely because they want personal financial gain, but often also because they make mistakes when they try to bring progress to their societies. Their mistakes usually arise because they have been educated into believing that Northern ways are automatically better than those of their own indigenous society. Hence, they become agents of the North. Sufficient luxury and propaganda are continually supplied to them from the North to keep them in this condition.

In the New World, the matrix of the modern society is made out of peoples of ethnic and cultural identity different from the communities of indigenous peoples among them. The isolation of these indigenous communities from the matrix society is, therefore, more complete (Figure 2). The linkage of the matrix society with the North is also more complete, as the matrix society and the Northern society are both ethnically and culturally similar or identical.

4. COMMUNITIES OF THE NORTH

There was no qualitative difference in the norms for production and consumption between communities of the North and the South in the pre-industrial period. Northern communities organized themselves to produce to cater for their members as well as for interacting communities and developed trade just as Southern communities had done. But as industrial production and trade increased, both sectors were institutionalized outside their original local communities, and corporations and enterprises came to dominate the productive life of the individual. Communities thus lost their importance, and decisions and interactions that matter are now spearheaded by the state and the corporations. The spatially delimited organizational role of the community was thus taken over by these sectorally delimited institutions (Figure 2).

These powerful sectoral organizations have one property in common: they both want to attract the individual, the one for her/his vote, and the other for her/his buying power. Enfranchisement and a high approximate minimum wage ensure the effectiveness of the individual in fulfilling both expectations. They, therefore, both push for "democracy" in their Northern societies.

They both benefit from a coalition, and one protects the interests of the other. For example, if governments really wanted complete democracy, they would push for the equality of income of everybody. But this would hurt the rich owners of corporations, and it may even decrease the self-regenerative capacity of the corporations. In return, the corporations fund the political parties of governments.

Figure 1 Flow of information among indigenous communities

Figure 2 Flow of information among modern matrix societies and their relation to indigenous communities

Since the owners of the wealthy corporations do not want loss of income at the personal level, the government-corporation coalition takes more than the resources available under the domain of the Northern countries to guarantee the minimum incomes of their societies. The state-corporation coalition overcomes this problem by organizing the flow of resources from South to North, using the Southern modern matrix society to leak these resources out of indigenous communities and channel them Northward (Figure 2). Hence the importance of the South-North resource pump to the survival of the North at the expense of the South.

5. THE VULNERABILITY OF LOCAL POPULATIONS

As pointed out above, societies in the South are led by elites who resort to privatizing the communal goods of their societies and develop their personalized values a la North.

As a result, the peasants, pastoralists, hunters and gatherers who are the base of the power of the privatizing elite lose out, usually further weakened by naked legislation passed by the elite. They are almost as helpless in the face of exploitation as indigenous peoples are. In one sense, therefore, the indigenous peoples (mostly in the New World) and the peasants, pastoralists, hunters and gatherers of independent countries (mostly in the Old World), suffer from the same exploitation at the hands of direct occupiers or remote control occupiers. In the context of IPRs, therefore, they require new strategies that bypass their occupiers. That is why the term "local communities" (Preamble, paragraph 12, Article 8j) and "local populations" (Article 10d, which include peasants, pastoralists, hunters, gatherers and indigenous peoples), are useful. Since it may help in the development of appropriate strategies in the defence of their rights it is worth keeping the distinctions among these local communities in mind.

5.1 Categories of local populations

The most vulnerable of the local populations of the South are indigenous peoples, followed by hunters and gatherers, followed by pastoralists, followed by peasants, and, lastly followed by the entrepreneurs and the intellectuals.

Indigenous peoples: Indigenous peoples are internally well organized into effective communities. Contact with the outside world is forced upon them by the outside world itself, and, as a rule, this contact is detrimental to them both as communities and as individuals. In the case of many indigenous peoples, therefore, it would seem that since survival must precede all else, minimization of external contacts would weigh heavily in considerations for the respect of rights. On the other hand, it looks certain that such a minimization, if at all achievable, cannot but be temporary. Since all living cultures are dynamic, undergoing self-modification to maximize survival in the face of changing circumstances, it is essential that social adaptations take place which ensure the well-being of the community, and hence also of the individual, while coping with the inevitable interaction with the external world and using this interaction to the advantage of the community.

In this context, it is useful to note that all indigenous peoples have similar vulnerabilities to contact with their occupiers. On one extreme are the indigenous peoples of the Amazon for whom this contact usually literally spells death through new diseases and other new causes. On the other extreme are some castes who, though down trodden, have carved out for themselves invaluable positions in the survival of the occupying society which thus tolerates or even protects them. Among the Gurage of Ethiopia, for example, the society consists of the farming majority, who are the occupiers, and the Fuga, a low caste group of artisans who are now physiognomically indistinguishable from the occupiers. The Fuga serve the majority and are despised by them, but, nevertheless, are protected by them as they are the key ritualists in various traditional initiation ceremonies of the oppressing majority (Shack, 1969 p.9). The indigenous peoples of the New World tend to be of the former, and those of the Old World of the latter type. However, communities that are being destroyed by contact with neighbouring dominant communities, even if not through new diseases, are common in the Old World as well.

Hunters and Gatherers: The hunters and gatherers of the New World are indigenous people as already defined. But some hunters and gatherers of the Old World do not fit in that definition. They often have neighbours who are related to them ethnically, linguistically and even in some important components of world view and rituals. This link pre-disposes them to being willing to modify their individual and community life to cope with inevitable new contacts and to use them to advantage. The need for self isolation as an urgent step suggested for indigenous peoples does not, therefore, exist and the threat of extinction is not immediate.

Pastoralists: Pastoralists share most of the characteristics of the peasants of the Old World (see the following section).

Pastoralists are not in any immediate danger as societies or as individuals. However, in the presence of peasants, urban entrepreneurs, and government projects (e.g. irrigations schemes, hydropower generation facilities, national parks, etc.) they are the ones to lose out in the competition. Given the opportunity, they are usually willing to change and become more effective in dealing with the usual modernization drive. The question that arises in the context of intellectual property protection, therefore, is one of how to empower them rather than one of a fear of destroying them.

Peasants: The peasants and pastoralists of the Old World are indigenous in the sense that they did not come recently as part of an alien occupying people. If we go far enough back in history (this needs to be further than 100-500 years), we will, in fact, usually find that they came as conquerors. But miscegenation has usually taken place with the original population though pockets of indigenous peoples have often remained as castes servile to the locally dominant peasants and pastoralists. Even so, peasants and pastoralists are targets of exploitation by national elites and entrepreneurs.

In the face of competition with pastoralists, the peasants have the upper hand.

The entrepreneurs and elites of most of the Southern countries come from the peasantry, or from its upper class, the aristocracy, or from both. In cases where countries are primarily pastoralist (e.g. much of Sahelian Africa), the entrepreneurs and elites come from among the pastoralists or from the pastoralist upper class, the aristocracy, or from both (Bonfiglioli, 1996).

Peasants, even more than pastoralists, are in no immediate danger as individuals. Since they are, by definition, an oppressed community, traditionally oppressed by the aristocracy and now by elites and entrepreneurs, they want change provided that this change confers advantage on them. The precautions needed to protect communities and individuals from destruction that is obvious when dealing with indigenous peoples is thus not necessary when dealing with peasants and pastoralists.

The situation with the New World Peasants (mostly in Latin America) is complex. These peasants consist of immigrants from Europe and Africa, who were brought in by the occupying Europeans. These are the lower strata of the occupying people. They suffer from exploitation by the entrepreneurs and elites of the country in question, but they neither cause worry in the context of possible disruptions through external contacts, nor are they important in the context of biodiversity except in the situation in which the indigenous farmers have been eliminated bequeathing their biodiversity and knowledge and technologies about it to these new peasants.

The indigenous farmers in much of Latin America have now become peasants. As attached to the land which has been occupied, they were vulnerable to the impact of the occupying Europeans. They have, therefore, created a new synthesis of local and European cultures and their communities are no longer vulnerable to disruption from contacts with the outside world. In terms of exploitation, however, they are among the most seriously affected in their respective countries.

5.2 Biodiversity and local populations

Plants, animals and other organisms become economically useful to humans when their uses are known. Local populations are the source of virtually all our knowledge about the uses of the plants and animals, and even of the micro-organisms, in their localities. All local populations should, therefore, have the rights over the knowledge about the plants and animals that grow and live in their areas and the technologies for using them if anybody at all is to have those rights.

In addition to having knowledge on local wild plants and animals, pastoralists and peasants have, through selection and experimentation, created the biodiversity of crops and domestic animals. These great innovators should, therefore, have the rights to the germplasm of their own domesticated plants and animals if anybody at all is to have rights over them.

5.3 IPRs, local populations, and the Convention on Biological Diversity

Many countries in the South have indigenous peoples and pastoralists. Virtually all of them have peasants. Though they are often not referred to as "indigenous peoples", they are, nevertheless, indigenous.

Most of the biodiversity in the world is in the South. Since the Convention on Biological Diversity recognizes sovereign rights of countries over their biodiversity (Preamble, paragraph 4 and Article 3), and since within these countries it is the local communities who create and know and look after this biological diversity, ultimately it is their rights that are being recognized by the Convention.

But, as already pointed out, the world economic system exploits these local populations. Systems should, therefore, be devised to protect them from exploitation, not only in the context of the North-South divide, but also in the context of national class relationships.

The Convention, in fact, specifically recognizes indigenous and local communities (Preamble, paragraph 12 and Article 8j), as sources of knowledge and practices of relevance to the conservation of biodiversity, and as "embodying traditional lifestyles on biological resources". In Article 8j, it stipulates that the wider application of the "knowledge, innovations and practises of indigenous and local communities ... for the conservation and sustainable use of biological diversity ... with the approval and involvement of the holders of such knowledge, innovations and practices ..." should be promoted. It even goes so far as to stipulate that "the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices" be encouraged.

If the term "encourage" had been changed, as was insisted upon by the Peruvian delegation (UNEP, 1992, p. 19), into "effect" or an equivalent thereof, the Convention would have become a solid base from which to fight for the rights of local populations. Even without that, however, the Convention does make enough stipulation to make it possible for empowered local populations in a world where states are equal in the eyes of the law to extract economic benefits from the use by others of their knowledge and biological diversity.

What is stipulated in Article 8j would enable local and indigenous communities to sue and claim damages from any one who uses their knowledge, innovations (including, therefore, their crop and domestic plant germplasm) and practices without their approval and involvement. The process of approval would enable bargaining, and the process of involvement would bring about gains in income or training, and thus help in the process of strengthening the community to enable it to cope with the contacts forced upon it by the outside world.

The provision in Article 10c, which stipulates, "Each Contracting Party shall ... protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements" could be used to pressurize governments into taking their indigenous and local communities seriously. Article 10d, which states, "Each Contracting Party shall ... support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced", could be used to pressurize governments into supporting the rehabilitation of the environments of local communities.

One of the reasons for the lack of recognition of the value of the knowledge and innovations of local and indigenous communities, and hence also of the lack of recognition of their intellectual rights, at least internally in the countries of the South, is the low esteem, or even denial of the existence of, useful traditional knowledge, technologies and innovations. Article 17.2 stipulates that Contracting Parties shall facilitate the exchange of information, including "results of technical, scientific and socio-economic research ..." and "indigenous and traditional knowledge". If indigenous and traditional knowledge is formally exchanged between states through a system which includes the results of formal scientific research, then its esteem would go up. This would help in the fight for enforcing the stipulations in Articles 8j, 10c and 10d.

On the other hand, the combination of Articles 17.1 and 17.2 place "indigenous and traditional knowledge" as "publicly available", and thus, therefore, not protected by IPRs legislation. But it is "publicly available" at par with "technical, scientific and socio-economic research" (Article 17.2). And we know from Article 16.2 that when the results of technical, scientific and socio-economic research have been intellectual property right-protected, their protection has to be respected. Therefore, the fact that the knowledge and technologies of indigenous peoples are not intellectual right-protected is merely by default. Following the stipulation of Article 8j, therefore, the exchange can be made conditional upon the specific approval and hence also of negotiated conditions, of the communities. Equally importantly, should Southern countries develop legislation for protecting the intellectual rights of communities, Article 17 would then concern only that portion of the information on the knowledge, technologies and innovations of indigenous peoples not covered by the protection.

The Convention has provisions which would support the development of a community intellectual rights (CIRs) protection system.

Article 11 stipulates that each Contracting Party shall adopt incentives for the conservation and sustainable use of biological diversity. If intellectual rights protection were introduced, communities could be motivated to perpetuate their plant varieties and animal breeds, and indigenous peoples would be supported in sustaining their distinct lifestyles. Article 10b, which states that "Each Contracting Party shall ... adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity;" would also become a basis for deciding to adopt community intellectual rights. Article 10c, which stipulates the protection and encouragement of customary use of biological resources compatible with conservation could be used to strengthen this argument.

The Convention could also be modified, or it could have protocols added to it, if the spirit of the statement in paragraph 12 of the Preamble were to be seen as just and if there arose a majority desire among the Parties to the Convention to rectify the shortcoming of Article 8j.

The Parties could develop a protocol on intellectual property protection according to Article 23.4c, or amend the Convention according to Article 23.4d. The ideas for these changes could come from the Subsidiary Body on Scientific, Technical and Technological Advice, established by Article 25.1 and functioning according to Article 25.2a-e and 23b.

The very germplasm taken from the pastoralists (mainly animal breeds) and peasants (both crop varieties and animal breeds) is already being used through genetic engineering to substitute their exports to the North by enabling its production in factories using genetically engineered micro-organisms, and in farms using transgenic crops and domestic animals. There is no system yet in place by which the local communities, or even their countries, from which these materials were taken are being compensated for either their innovations and maintenance of those genetic materials in the first place, or their current and future loss in export earnings.

Articles 14.1c and 14.1d could be used to pressurize the North to warn Southern countries likely to be affected that such developments are happening, and Article 14.1e and all the articles already mentioned which concern financial and technological assistance to the South could be used to fund environmental rehabilitation and product diversification among the peasants and pastoralists of the South likely to be affected.

The North would have no choice but to recognize such a legislation on CIRs because it is the one that has consistently pushed for IPRs protection, and because, apparently in international law, intellectual property protection legislation is a purely national affair. Even in the face of the creation of the World Trade Organization, such legislation could be introduced as a sui generis IPRs protection system.

The use that can be made of the provision in the Convention that concerns local populations for maximizing their benefits will depend on the nature of these populations. It would be worthwhile to present some tentative ideas on the issue.

Indigenous peoples: As already pointed out, the risk of social disruption should be one of the most important considerations in advocating for indigenous peoples.

Much of this advocacy will focus on national and local governments to observe the spirit of Articles 10c and 10d, and thus support rather than undermine their indigenous populations. Popularizing the stipulations in these articles, and especially that in Article 17.2, could help raise the status of indigenous peoples nationally.

In the long run, indigenous peoples will have to develop the organizational strength and the awareness to be able to cope with the forces working against them, primarily from within their respective countries, but also from the North. For this, income generation is essential. But the income has to accrue to the community, not to individuals for, otherwise, the social fabric would break down instead of strengthening. For this reason, the enforcement of Article 8j would have to be preceded by the transformation of the community to a legal personality. The details of how this could be done will probably remain community specific.

Hunters and Gatherers: The case of hunters and gatherers of the New World has been covered earlier under "indigenous peoples". The hunters and gatherers of the Old World would also have to be advocated for in the same way as for the indigenous peoples except for the fact that the fear of social disruption is greatly reduced.

Pastoralists and Peasants: These peoples cause no concern about social disruptions arising from the monetization of the value of their knowledge, innovations and technologies. Their societies are, however, already riddled with inequity. If possible, therefore, it would be good to choose a system of legal personification which will not enhance this inequity.

The poorer elements and servile castes should be decisively represented in the mechanism that ensures community legal personality.

With these provisos, the comments made earlier on enforcing the intellectual rights of communities according to the provisions of the Convention apply to pastoralists and peasants as well.

In addition, pastoralists and peasants are innovators of germplasm with far greater achievements than modern scientists (Fowler and Mooney, 1990, p. 24). The stipulations of Articles 16.1 and 16.2 could be the basis for developing community level intellectual protection.

In considering a specific community intellectual rights (CIRs) protection system, the identification of useful traits in farmers' crop varieties and domestic animal breeds may be useful. It can be based on the system of descriptors already developed for many domesticated plants and animals. It is not the descriptors per se but the corrosive conditionality of absolute uniformity of progeny that is at the source of the discrimination against the varieties and breeds developed by peasants and pastoralists, and at the base of the erosion of genetic variability in the farm and in the herd. This loss of genetic diversity is itself the cause of the ever-increasing need for the application of pesticides and fungicides, and the pollution and poisoning of water and living things, including humans.

5.4 IPRs and national governments

At the level of the modern sector, countries of the South would fare better if they had no IPRs legislation. This is because they need to import much technology and literature, but they can export little.

It is probably now too late to advise individual Southern countries to stay away from intellectual property legislation considering the mighty hand of the North and its stated intention to subjugate the whole world through the World Trade Organization (WTO) into accepting a "harmonized" intellectual property legislation. Probably the most useful advice is to suggest to Southern governments that for their modern sectors they introduce as minimal IPRs legislation as possible as slowly as possible. To help them in this, NGOs could be involved in developing sample legislations and advising on the timing of the promulgation of IPRs legislation.

Any legislation aimed at protecting the intellectual rights of local peoples should, therefore, contain major elements of empowerment of indigenous peoples, hunters, gatherers, pastoralists and peasants. This empowerment should include the creation of institutions to help these local communities describe, document and follow up the fate of their biological resources, take appropriate action to ensure that the interests safeguarded by law are indeed nationally and internationally respected, and carry out scientific research on biological resources and their utilization. This will enable governments both to keep abreast with changes in the world scene, and to strengthen the base for the putting into effect of community IPRs legislation.

But most importantly, the empowerment should include control of these institutions by the local communities, with government having a monitoring role only.

Recognition of property rights legislation by a Southern country should be made conditional on the inclusion in the legislation of the above requirements and safeguards.

5.5 IPRs and the international community

Most governments in the South can be expected to want the IPRs of their local populations respected if only because they will see it as a possible source of income, especially of foreign currency.

However, they can also be expected not to be effective about ensuring that the benefits accruing from these rights do in fact go to the owners of those rights, the local communities.

The United Nations system should, therefore, create a body to monitor the respect of the CIRs of local populations, and alert the world community to abuses and confront governments with the facts about those abuses.

The United Nations system is sensitive to political pressures from governments. It may, therefore, often not find it easy to condemn governments. It may often not even be easy to collect the relevant information, especially from non-governmental sources. NGOs, both in the North and the South, would fill in this information gap. They, and especially those of the North, could also play a very useful advocacy role for local populations of the South by raising the awareness of the Northern public, by pressurizing governments, especially those of the North, and by prodding the United Nations system into action. It should, however, be remembered that not all NGOs can be depended upon to do that. NGOs run by unscrupulous individuals may even be used as Trojan horses to subvert the process. There is need for developing a system, complete with criteria and methodology of application, for evaluating NGOs in general.

6. THE DYNAMICS OF NORTH-SOUTH INTERACTIONS

The North, together with its immitators in the South, has been duped into believing that resources are endlessly available and its technical ingenuity will always be able to conjure them up. This has come about through the creation and constant operation of the South-North resource pump. The Northern government-corporation (national and transnational) coalition which operates this resource pump does injustice not only to the South, which is robbed, but also to the North. The duping of the North is effected through the combination of its "democratic norms", which blinker it against seeing the injustices in the South, and its affluence, which makes all look limitlessly available.

In this set of dynamics we can identify 3 actual allies, and opposing them, 3 potential allies.

The Northern governments, the Northern corporations, and the Southern matrix society (see Figure 2) maintain the South-North pump. Their time horizon is short. The governments look to the next election. The corporations look to the profits of the current fiscal year. The individuals of the matrix society of the South look to the amount of money they will deposit in the bank during the next visit or transaction. If these three actors looked further into the future, they would not be allies. A society with ever increasing expectations must some day become ungovernable, and both governments and corporations would lose out and fall out. A society continually drained will dry up, and the matrix society of the South will eventually find it as difficult to exist as the indigenous communities under it now do. The present industrial and commercial system, based on the unattainable aim of perpetual growth in a limited world, is undoubtedly unstable.

The societies of the North, the local communities of the South and the indigenous peoples of the South also have a short time horizon and a long-term prospect. The Southern indigenous communities try to compensate for their leaking-out resources and continue into the next day, often by destroying the environment that provided the leaked-out resources in the first place. The members of the Northern societies try daily to increase their income and buy one more of those "indispensable" irrelevant new gadgets to be one up with the Jones's. All three are forced or duped into looking for the wrong thing. If the Northerners could look for happiness not only in gadgets and if the Southerners could look for ways of stopping the leakage of their resources, they would all be tackling the root cause of their problems. The indigenous peoples alone trying to do so would invite liquidation by their alien matrix society. The local communities of the South trying to do it alone would invite the wrath of their matrix societies and their Northern bosses. The Northern societies doing it alone could be effective as they could bend their own governments and even the corporations. But this is not likely to be initiated in the North as the Northern societies are only asking for more, and the only sources of more known to them are their governments and corporations. All three doing it together, if they will ever try to act together, could change the world. That is why we say that they are potential allies.

But is this alliance realistically possible? If the Northern societies are benefitting from the status-quo, why should they want to change it?

The Northern crisis, which has started to show its permanent face in the last few decades, has to deepen to reveal its true nature to the Northern public. This will, no doubt, sensitize it to being more open than hitherto to considering alternative lifestyles. If the Southern matrix societies could be made to stop operating the South-North resource pump and the Southern communities could be strengthened to incorporate new scientific knowledge into old community production systems, the chances for societies pushing for economic growth that is in harmony with the limits set by nature, and offering an alternative lifestyle to the untenable one of the North, could emerge. Their emergence would indicate to the Northern public the modifications needed in its lifestyle, and governments would change and corporations be forced to re-orient. The resulting pluralism in the world would force the matrix societies in the New World also to look at their indigenous peoples more positively and to relate to them instead of to the geographically distant Northerners.

No doubt, though, in the meantime, much more injustice and much more misery will occur, and many more Southern communities will be disrupted and many more indigenous peoples will be pushed to extinction.

7. THE CONTEXT OF ACTION FOR CHANGE

Therefore, we need action that will minimize this misery and maximize world enlightenment. And we need international movements to do this.

These international movements should have the long-term aims of fostering the self-reliance and thus survival of Southern communities, especially indigenous peoples, pushing for the decline and eventual elimination of the one-way pumping relationships between Southern matrix societies and Northern governments and corporations, strengthening the linkages between indigenous and other Southern communities and the Northern public (i.e. bypassing governments and corporations), strengthening the linkages between Southern communities and their matrix societies, and, in the meantime, minimizing the impacts of the one-way pumping linkages that now exist. In this way, mutual linkages will increase and predatory linkages weaken and cease.

In prioritizing for action, there should be two equally important foci. One is the survival of Southern communities and especially indigenous peoples. The other is the strengthening of the links between the local communities of the Old World and their matrix societies on the one hand, and the weakening of the pumping linkages between these matrix societies and Northern governments and corporations on the other.

Our efforts to protect indigenous peoples should be two-pronged: one of influencing national legislation to favour them even if we know that legislation is often hollow as it lacks the commitment to enforce it, and one of mobilizing pressure from the Northern public on Northern governments and corporations who are the ones that can restrain the Southern matrix society in question. Even hollow legislation would make the pressure of the Northern public more effective than it might have been. Though it is against the interests of Northern governments and corporations to strengthen linkages between Southern communities and their governments, the Northern governments can be forced to intervene thus on specific issues pushed by the Northern public.

In the Old World South, our focus should be trying to sow the seeds of enlightenment so that the matrix society could know more about its local communities. To a limited extent, the inherent contradiction between the Northern corporations and the entrepreneurs of the Southern matrix society could be used to hasten the severing of linkages with the Northern corporations. But it should be realized that this is fraught with danger: if the national entrepreneurs adopt the vision of limitless economic growth from the North, it would be little consolation that the South has also become North. Japan, a late comer, for example, is no improvement over Europe. However, should the contradiction between the Southern entrepreneurs and the Northern corporations be maintained and sustainability be made an attractive base for their competition, the Southern entrepreneurs, combined with the sustainability component from their indigenous communities, could obtain an edge in this competition and further the cause of world survival, justice and pluralism.

Southern societies are going to continue being less and less stable as a result of the poverty which is becoming prevalent as more and more resources are pumped out. It is thus inevitable that various governments will emerge (are emerging) trying various social and economic experiments. We should develop the capacity to spot quickly governments that try to do what we want and mobilize international support for them. The more experiments in new forms of governance which bring genuine empowerment to indigenous peoples and local communities succeed, even partially, the closer we will be to a world of sustainable development, pluralism and justice.

8. COMMUNITY INTELLECTUAL RIGHTS (CIRs)

Now that the Northern governments and corporations are pushing IPRs as their newest instrument for improving their one-way resources pump, we have to develop strategies to cope with them.

Certainly the most important in the context of the present debate and probably also the largest body of innovations of indigenous communities is in biodiversity and the older forms of biotechnology, i.e. excluding genetic engineering. These have continued to flow between communities unrestrained for thousands of years. Ideally, they should continue to do so, but the IPRs systems of the North have made this impossible. If we want to prevent the indigenous communities from leaking dry, getting nothing in return as their innovations are commercialized by the Northern corporations, we must develop an indigenous Community Intellectual Rights (CIRs) system.

Such a system will have to be able to identify a community and protect its intellectual rights. To do so, it must build on an existing (or newly created) community organization as a legal personality which is effective in liaising with both the matrix society and the North, and in being just to its individual members. The legal issues, which will have to be related to the matrix society, will be based on technical considerations which will have to be communicated to the matrix society and thence also to the North. The enforcing of the legal provisions and the securing of royalties will also require interactions with the institutions of the matrix society and of the North. These interactions will require actors external to the local and indigenous communities. They will have to come from the enlightened components of the matrix society, from the matrix societies of other Southern countries, and/or from the enlightened components of the public in the North.

8.1 Legal personality

Each community has its own organization. However, not all individuals in a given society are necessarily members of the same organization. Some local communities do in fact have monolithic organizations, but many have a whole set of organizations with many members and one individual being a member of a number of organizations. The reticulation of organizations joins up everybody into a system of interacting parts. It is not easy to make a legal entity out of such a reticulation.

Nor are all traditional organizations of indigenous communities fully just; and financial inputs into unjust systems would only exacerbate these injustices eventually causing a break down of the communities.

But all communities can convene bodies representing them - be their organization monolithic or reticulate. Where appropriate, efforts could also be made to include sectors of the indigenous community, e.g. castes, normally excluded from the traditional organizations. This would ensure that the legal personality is just to all the members of the society.

In any event, the community organization to be granted legal personality should be created and institutionalized by all the members of the community in question. When the community is large (and some communities are multiethnic and even trans-boundary) the legal personality may have to be created by representatives coming from possibly more than one country.

The members embodying this legal personality should be office bearers, functioning according to statutes created by the community, answerable to it and liable to being removed from office by it.

8.2 Duration of CIRs Protection

An indigenous community's innovations bear a distinct imprint of the community. A community continues to exist in perpetuity. It would, therefore, be appropriate if its CIRs was also for perpetuity. Failing that, the period of protection has to start at the commencement of the commercial utilization of the right. Prior to that, the innovation will have been being freely given to uncommercialized users. The rationale for CIRs protection starts only when the matrix society or the North commercializes that innovation; until then, it is only a potential CIR. It would be as pointless to ask how long ago the innovation occurred in the community as it is pointless to ask how long ago an innovation had been created by an individual in the North before she/he formally requested for IPRs protection.

8.3 Beneficiaries of CIRs

Direct benefits should go to the community as a whole and through the community to the members individually. In the latter case, the sharing out should be made on a per-head of adults basis.

8.4 The innovation to be protected

Any achievement of the indigenous community which is likely to be commercialized in the North or in the matrix society of the given local community or in the matrix societies of other local communities, be that innovation in germplasm, in knowledge and technology on biodiversity, in any other technology, in art, in music or in any other field, is obviously novel outside of the community of its origin.

Considering that biodiversity, biotechnology and biosafety are now hotly debated issues, it is probably prudent to develop now a CIRs system for biodiversity and biotechnology, and to develop systems for other innovations separately.

Further technical detail specific to biodiversity and biotechnology is given in the appendix to this discussion paper.

8.5 Exemptions

The idea behind CIRs is not to restrict the access other communities traditionally have. The CIRs protection should, therefore, apply only in cases of commercialization.

8.6 Technical institutions and capacity building

The identification of innovations and their characterization for CIRs protection requires technical capability which the local communities will not have. Local communities should thus identify institutions that will help them technically. These could be national or based in other countries, governmental, international or non-governmental. Ideally, the communities will, as time goes on, develop their own institutions. In the mean time, it is hoped that enlightened institutions or enlightened governments and non-governmental organizations, and possibly even international organizations will play this technical role. The local communities should retain the right to nominate these technical institutions, which may be more than one for each CIR request, and to change them through a system of legal notification.

8.7 CIRs granting authority

Obviously, this cannot be different from the competent authority granting IPRs in each country.

8.8 CIRs promoting agencies and individuals

The presence of individuals and institutions sensitizing local communities on the possibilities of CIRs is essential. Initially, it will most probably be NGOs and the enlightened institutions of some enlightened governments that will be active in this. Soon, local communities themselves will probably use their own people with technical training to pursue these issues. Obviously, any CIRs legislation being contemplated will not consider these individuals and institutions in the legal sense, though these individuals and institutions may act as legal representatives for the indigenous communities in their transactions for, and in enforcing observance of, their CIRs.

8.9 Worldwide information system

Piracy by Northern corporations and by Southern matrix societies is to be expected. There will thus be need for a world-wide documentation system for tracing the fates of innovations. This will be needed also for enforcing the Convention on Biological Diversity. It is hoped that the United Nations Organization system will undertake to create it. Without it, the possibility of claiming royalties by local communities will be reduced.

8.10 International CIRs violation watchdogs

Faced with violations of their CIRs, indigenous communities will fare no better than they have done with human rights. There is, therefore, need for international watchdog organizations for CIRs comparable to those on human rights.

References

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During, A.T., 1992. Guardians of the Land: Indigenous Peoples and the Health of the Earth. Worldwatch Paper 112. Worldwatch Institute: Washington, D.C.

Fowler, Cary and Pat Mooney, 1990. Shattering: Food, politics and the loss of genetic diversity. The University of Arizona Press: Tucson, AZ. pp. 137-139.

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