SIGNPOSTS TO SUI GENERIS RIGHTS: 8
SUI GENERIS RIGHTS: HISTORY OF A STRUGGLE
by Professor Dr. Yos Santasombat [*]
We are living at a time when there is an eminent threat to the earths biosphere, an alarming degradation of habitats and ecosystems, and the rapid loss of genes and species. These issues have captured the interest and concern of the world community. The destruction of tropical forests and the loss of biodiversity are danger signs to the worlds environmental system and humanitys life-support mechanisms. The crisis in the tropics also undermines prospects for sustainable development and deprives the Third World s rural poor of the resources they need to survive.
During the past century, natural resource production and management have been overwhelmingly based on methods and practices developed in, and appropriate to, the north temperate zone. Local wisdom and practices were destroyed by the Colonial power and new management system was set up in order to turn countries of the Third World into steady suppliers of raw materials, and producers of commodities for the First Worlds conspicuous consumption.
The natural resource management system in Thailand, for instance, has been a product of colonial legacy, the British legacy to be exact. As far as the forest exploitation is concerned, the British first came to Asia in search of an oak-substitute for ship-building. The British found teak in Malabar, India; and that was where the British logging firms first established themselves. The logging activities soon spilled over into Burma and northern Thailand. The Royal Forestry Department (RFD) was set up in Thailand one hundred and some years ago, and the first Director General of the RFD was Mr. Slade, a British logger. A few years after the RFD was established, the first Forestry Act was promulgated in 1881: the Teak Conservation Act. Consequently, no teak can be logged without permission from the RFD. This Act was designed to establish central control over teak production and utilisation, to facilitate the British monopoly of teak concessions in northern Thailand, and to destroy local control and management systems.
My point here is that the destruction of community-oriented, natural resource management system coincided with the adoption of Western legal system, and a more centralised control of the government at the provincial and municipal level. These changes were responses to the encroachment of colonial powers in Southeast Asia: the French in Laos, Cambodia and Vietnam, the British in Burma and Malaysia. In short, the whole region was being forcefully opened up as a source of market outlet and abundant raw materials supply for the colonial powers.
Since Thailand adopted the Western legal system, the natural resource management system gradually became more and more centralised and authoritarian. In 1937, the National Forest Reserve Act was promulgated whereby the State proclaimed ownership of all forest land. This Act was revised in the 1960s and since then local peoples who lived in the areas demarcated as reserved forests became "squatters" and "law breakers", even though most of them had lived there for generations.
The expansion of the centralised system of resource management also coincided with four other developments in Thailand:
The increase in cash crop production, the cornerstone of the Thai economy several decades ago, was carried out by means of expansion of agricultural fields, which means in effect, the clearing of more and more forest land. The use of pesticides, chemical fertilisers, and the cost of production steadily increased, but the price of agricultural outputs were kept relatively low. This the farmers were told, was part of the market mechanism: low prices gave us comparative advantage in the so-called free market. But what was even worse, the revenues generated from the agricultural sector never returned to the farmers. Instead, the revenues were spent to build more dams to generate electricity, the building of new seaports, new highways and other infrastructural services for the industrial sectors. Farmers became poorer. Poor farmers became landless farmers. Landless farmers became poor labourers. And the vicious cycle continues.
What I have briefly described, I believe, equally applies to many other Third World countries in Asia, Latin America and Africa. The question is: why is it that many Third World countries have arrived at a position where the increasing numbers of people are being marginalised and the natural environment is being so rapidly and dangerously degraded? The answer is, in essence, that the growth-centred industrial development has been made possible through the rapid destruction of two of the most treasured traditional assets: a supportive local community and a healthy natural environment.
Strong local communities and healthy natural environment are two sides of the same coin. We cannot have one without the other. This is a very important point and the one in which many "Green movements" in the West failed to understand.
The creation of empires and states, business conglomerates and civic dictatorships whether in colonial times or in the modern era has only been possible through dismantling the communities and their natural resources, and harnessing the fragments to build up new economic and social patterns that are responsive to the interests of a dominant few. The modern nation state has been built by stripping power and control from local communities and creating structures of governance from which the great mass of humanity is excluded. Likewise, the market economy has expanded primarily by enabling state and commercial interests to gain control of territory that has traditionally been used and cherished by others, and by transforming that territory together with the people themselves into expendable resources for exploitation. By proclaiming exclusive rights over the forests, the state and private enterprise have torn them out of fabrics of peasant subsistence. By providing local leaders with an outside power base, unaccountable to local people, they have undermined village checks and balances. By stimulating demand for consumer goods, they have impelled villagers to seek an ever wider range of things to sell. Such a policy was determinedly pursued by the courts of Aztec Mexico, the feudal lords of West Africa, by the factory owners of Lancashire and the British Raj, as it is today by the World Bank, IMF, WTO or the Coca-Cola Corporation.
Only in this way has it been possible to convert peasants into labour for a global economy, replace traditional with modern agriculture, and free up the natural resources for the industrial economy. To achieve the condition of economic progress millions have been thrown into the unfathomable, lifeless abyss as a calculated act of policy, their resources and communities dismantled and degraded, their cultures denigrated and devalued, and their own worth reduced to their value as labour. Seen from this perspective, the processes that now go under the rubric of nation-building, economic growth, and progress are first and foremost processes of expropriation, exploitation, exclusion, denial and dispossession. In short, the destruction of local communities.
If we take a good look at history, we can clearly see that the rise of capitalism went hand in hand with colonialism. The destruction of diverse local economies and industries, markets and ecosystems into a single global system was achieved largely through the medium of a handful of luxury commodities in particular gold, sugar, tea, opium and cotton. Of these, cotton had perhaps the most far-reaching effects.
The growth of the British cotton industry was phenomenal. Before the invention of Arkwrights spinning frame in 1769, cotton was a luxury material imported in small quantities to Europe from Asia. By 1912, Britain was importing nearly 900,000 tonnes of raw cotton, and exporting nearly seven billion yards of woven material, each year almost enough to make a suit of clothes for every man, woman, and child alive in the world at the time. The absurdity of shipping such a staggering quantity of material from all over the world to one island and then shipping it all out again was of no concern to the protagonists of capitalism whose only priority was profit.
The importation of cotton to feed Britains fastest growing industry spared land in England for food production and labour to work in the new factories, but the repercussions of the cotton trade were catastrophic and affected people all over the world. In the United States the worlds largest supplier of cotton 90,000 Cherokee Indians were evicted from their lands to make way for cotton plantations. Thirty thousand of them died during eviction. In the mid-18th century, the number of slaves imported from Africa increased 800% specifically for the cotton plantations in the South an increase which came to a climax in the most bloody conflict of the 19th century, the American Civil War.
In Egypt, the land in the hands of the peasants diminished by half, due to the production of cotton for export to England. In Ethiopia, the production of cotton resulted in the eviction of local pastoralists from their traditional pastures. These people were pushed into fragile uplands, contributing to the deforestation that has been partly responsible for Ethiopias continuing ecological crisis.
It was not only the cultivation of cotton that destroyed communities, but also the marketing of the finished product. In England, handloom weavers were put out of business and driven to find work in the factories. The Irish linen industry was forced out of business. In India, the East India Company exerted coercive control over Indias handloom weavers. More than 10,000 Bengali weavers rapidly lost their independence as producers and in many instances became waged workers employed on terms and conditions over which they had no control. When the East India Companys monopoly was abolished in 1813, the Indian weaving industry was too debilitated to resist the flooding of the market with inferior products from England. India found the cash to pay for this imported cloth partly by growing opium to be sold to China as a means of breaking down its closed markets, a trade which resulted in the Opium Wars of the second half of the 19th century. In the early 20th century Mahatma Gandhi organised a boycott of British-made cloth and championed the spinning wheel as a means of reviving the local economy. The Charkha, the spinning wheel, remains upon the Indian flag as a reminder of the traditional industries and communities that were consumed by the imperialistic nature of cotton industry.
But the bloody history of cotton is still in the making. Right here in Thailand, a multinational company Monsanto is actively promoting a transgenic cotton seed product for domestic production. The cotton seed, with the natural pesticide Bacillus thurengiensis (Bt) has not been fully tested for its impact on human beings, local plant species, pests, bees, herbal medicine and the environment. Agricultural experts, environmentalists, and medical doctors have expressed concerns about the potential threats of the Bt cotton. Nevertheless, the MNC has been allowed to conducted field tests in many provinces of Thailand. Their main concerns here of course are to find a solution to pests and to increase yields. NGOs, however, have voiced their concerns that the Bt cotton will bring farmers under the control of Monsanto, from whom they would have to buy the hybrid seed every two years. If nothing is done to stop the Bt cotton, another vicious cycle of poverty and environmental degradation will soon begin here in Thailand.
Cotton did not kill or subjugate people. The invisible hand of the free market did. The most effective and powerful tool of the imperialist free market system is the legal system both national and international. We are now trapped in the authoritarian legal systems, trade agreements, international conventions, most if not all of which are the modern mechanisms of control whereby the colonial conquest which have begun 505 years ago continues.
During the past decades, the industrial North have tried to push more and more of the Souths biological resources into an open access system through the medium of new and seemingly beneficial programs such as bioreserves, debt-for-nature swaps, the Convention on Biological Diversity, etc., while at the same time they have established a private property regime to protect their intellectual property through international laws and trade agreements.
In Thailand, the response by people and organisations, NGOs and academicians concerned about small- scale farmers and local communities to the imposition of unjust trade agreements and international conventions is taking different forms. Some organisations work with national policy-makers to develop legislation to protect and promote local knowledge systems, stressing the collective and non-propriety nature of these systems. Others try to use the political momentum generated by the obligation of WTO member states to provide for sui generis legislation on plant varieties so that it includes the rights of local communities and protects farmers varieties as well.
To me, one of the most promising concepts that has been worked out here in Thailand is the community rights concept. This concept is now clearly stated in the new Constitution of Thailand promulgated two months ago. On the socio-economic level, community rights refer to the rights to manage and control local natural resources. Traditions and customs, knowledge and practices governing local resource management of local communities must be recognised and accepted as part of the law and national policy. The essence of control over resources is that there exist socially recognised and sanctioned rules and conventions that make it clear who is the manager of the resource in question call these managers "decision units". Each decision unit will have certain interests in the management of the resource, and those interests will find expression in claims made by the decision unit. When various claims such as plants varieties are adjudicated and given formal protection, we say that rules and conventions are established that bestow entitlements on each decision unit. Entitlements entail a socially recognised structure of institutional arrangements that both constrain and liberate individuals in their behaviours with respect to other individuals; as such, institutions are at the core of communal management regimes over agricultural and biological resources. It is the institutional arrangements that comprise the binding agreements that transforms the isolated individuals into a cooperative community. Because property represents a secure claim or a situation or a resource, if you will we can regard such collective management systems as common property regimes.
The difference between a common property regime and an open access regime is that in a situation of open access, I have privilege with respect to use of the resource since no one else has the legal ability to keep me out; they have no rights. But since I have no ability to prevent them from using the natural resource, I have no rights and they have privilege. It follows, therefore, that an open access situation is one of mutual privilege and no rights. Contrast this with a common property regime in which there are rules defining who is the resource management group and who is out. That is, some have a right to be in, while others have a duty to stay out. Of those recognised as being in, each has a duty to obey the rules of the group and each has the right to expect others also to obey the rules. Hence, there is mutual duty and rights. It is the rights of the members limiting group size and hence total use, along with the rights of the members proscribing the use that each will make, that together constitute property. Hence the term common property regime.
As all of us are well aware, the application of intellectual property rights on plant varieties will have tremendous impact on food security and health care in developing countries. As exclusive monopoly rights, they will limit access to genetic and biological resources, and increase the cost of production tremendously. Intellectual property as private property regime could also have serious impact on national research and innovation, as key markets are cornered and monopolised by the MNCs. In recent years, we have all learned that the private property regimes do not and cannot embrace the research and development made by farmers, herbalists, traditional doctors and other peoples managing biological resources within local communities.
To my mind, we need to review and clarify the common property regimes more closely and perhaps to better understand the extent to which this concept may offer opportunities for community-oriented biodiversity legislation.
In recent years, it has been proven time and again how the growth-centred development paradigm leads to environmental and social disaster. The time has come for a paradigm shift from consumeristic, growth- centred, and resource mining and exploitation to community-oriented development models which do not deplete natural resources stock and where human rights and freedom constitute the norm. It all depends on us to make our own choice: either in the way of dependence and subjection or the path toward freedom and true development.