Ana Research - For Linked In Slide Presentation(Without Footnotes)
F ROM A RISTOTLE TO S TIGLITZ - A H ISTORY OFD ISCRIMINATION A GAINST I NDIGENOUS P EOPLESI NVENTIVE C APACITY IN E CONOMIC T HEORY1 INTRODUCTIONOne of the greatest challenges to face globalization is biopiracy. In the past, biopiracy waspart of colonization policies for conquering wasted lands and uncivilized people. The legalpolicy in the international law that supported European nations to conquer other continentsand made subjects the natives was called res nullius theory. The res nullius theory supportingpossession of new territories allowed Europeans to dispose Indigenous Peoples from theirproperty, their social structure and their knowledge applied to their local biodiversity. Justrecently, an international human rights movement that re-addressed colonization andIndigenous Peoples rights reviewed the importance to recognize Indigenous Peoples rights totangible and intangible property. This preoccupation to protect Indigenous Peoples’observations and practices associated to their local biodiversity has been of paramountimportance to avoid biopiracy activities that divest Indigenous Peoples from their intangiblerights. But some questions remain unanswered. Why Indigenous Peoples are subject tobiopiracy again? Why globalization that benefits all consumers because it brings morecompetitiveness and good products at international level perverts Indigenous Peoples rightsto their own knowledge? This article suggests some arguments to comprehend the reasons forbiopiracy activities to occur at global level against Indigenous Peoples’ intangible property.This article argues that historical and economic thought played a role to ignore IndigenousPeoples’ rights to property (tangible and intangible) along with legal theories such as the resnullius theory. Therefore, competition globally among firms contributes to transferIndigenous Peoples’ knowledge in an international network of companies, customers andeconomies. This article illustrates reasons for supporting that Indigenous Peoples’ propertyrights must be inserted in the economic cycle because of economic value of their labour andtheir inventive capacity. The first section examines a number of historical arguments to help understand to whatdegree certain individuals or classes have been excluded from property ownership. Theattitude of dominant political classes excluding individuals from a determined social class tohold property affected Indigenous Peoples’ social status in the post colonization period. Then,Indigenous Peoples property rights were also excluded from legal and economic thought untilrecently. This article argues that if it is reasonable that Indigenous Peoples hold property ontheir ideas and know-how applied to their local environment through their activities, thenintellectual property labour theory applies to them. The second section introduces how ideas became incorporated into economic activity,particularly labour, so that ideas started to become useful for the exchange of goods or othernecessities among nations and individuals. Traditionally, ideas have been inconsistentlyprotected through legal instruments, because of their intangibility. Amongst historicalperiods, the American Revolution marked an historical watershed, offering the opportunity tomake property legally available to everyone, notably by providing constitutional protection.Subsequently, ideas could be protected as property due to the historical development inrecognizing property, trade and labour as sources of wealth.
From Aristotle, Plato, Jean-Jacques Rousseau, John Locke, Adam Smith, David Ricardo andKarl Marx, there is enough evidence that good ideas for economic activities were a product ofcivilized people. John Kenneth Galbraith and Joseph Stiglitz address contemporary theoriesof political economy linked to intangible property protection and issues facing the intellectualproperty system. Although they do not mention Indigenous Peoples’ rights directly, theyprovide a platform to argue for their inclusion. Including Indigenous Peoples’ rights in thecircle of wealth is paramount to stop biopiracy activities that curtail economic value fromtheir labour. Thus, including Indigenous Peoples’ labour and inventive capacity allow them tohave an advantage in the global market. Useful ideas on trade and commerce are connected to the economic value of labour that canfoster good ideas for inventions. This article concludes showing that human labour iseconomically valuable regardless of social class or legal structure. The theories in economicand philosophical thought that ignored Indigenous Peoples’ contribution have embracedintangible rights for all individuals. Biopiracy activities occur because not all individuals areincluded in the economic cycle of wealth. (…) It is clear that, when referring to the savages, Rousseau did not recognize IndigenousPeoples’ labour. Although Rousseau did not support slavery, it seemed that IndigenousPeoples did not participate in the revolution of holding ownership. For Locke, an individual isthe owner of his body and his labour from which group of individuals the Indigenous Peopleswould be part of it. i Comparing Locke’s observations that Indigenous Peoples living together without theattitude to fence in a piece of land are “tenants in common” with Rousseau’s passage above,some conclusions are surprising. Locke seemed to be more progressive in social equality thanRousseau and being inclusive of Indigenous Peoples’ labour and freedom.ii That is aninteresting dilemma proposed by comparing Rousseau and Locke – what are the IndigenousPeoples’ rights in Locke and Rousseau’s theories? Quite different and distinctive,nonetheless, Indigenous Peoples’ property is perceived as to be restricted to their ownperson.iii For Locke, the first to gather fruits regained individual property from communal propertyover natural resources.iv Having Rousseau’s observations in mind, Indigenous Peoples as firstoccupiers may have retained their property in the so-called “wasted and public lands”v assoon as they fenced in a part of the land. That did not occur in the same legal translation offencing in a piece of land and defending against intruders as Europeans would be accustomedto.vi Indigenous Peoples attitude towards property was to wander around a determined arealike tenants in common. At the time of colonization, the international policy of the conquest of new lands offeredintense incentive to new settlers to populate the New World. The quest for gold and silverbrought civilized Europeans to encounter new people unknown to them. Therefore, it couldbe suggested that the theory of wasted and public lands, on which the res nullius theoryvii hasits foundations, was largely controversial and today is refuted by most historians with justmerit.
Those first inhabitants were politically, economically and culturally dispossessed as soon asthe first European discovered unoccupied and “wasted lands”.viii The jurisprudence supportedby the terra nullius theory and more practical interests such as gold and natural resourcespossession, dispossessed Indigenous Peoples of their land rights as well as of any recognitionof intellectual labour applied to their discoveries or labour-saving inventions. Therefore, theories on social equality failed to acknowledge property rights to IndigenousPeoples, although Locke demonstrated individual rights were vested in Indigenous Peoples.Then, in 1776, Adam Smith’s publication of An Inquiry into the Nature and Causes of theWealth of the Nations, or in short title, The Wealth of Nations, addressed issues for intangibleproperty particularly the division of labour and art to create wealth in society. (…)1.1 Adam Smith and the early American coloniesFor the early American colonies, much of this division of labour was theoretical, if not non-existent. For many years in the American colonies, necessities had to be overcome by earlyAmericans’ improvements (or adaptations) to the new life. The adaptation to a world whereimports could cost the settlers dearly would have been less costly if improvisation andcreativity were prized assets. That has also provided a fertile opportunity to early inventorsfrom any occupation branch to contribute to labour-saving inventions.ix Another idea to consider further is that the new American settlers were dependent onEnglish imports, so that creativity and ingenuity could contribute to the reduction ofdependency on foreign products. The circumstance of non-inexistent division of labourpermitted early Americans to claim political independence from monopolies of commercedue to their ingenuity in solving daily problems with their own resources. Before 1776,Smith suggested that England was confining American colonies to unfair monopolies, theconsequences of which he forecast as “violation of the most sacred rights”: Forecasting the American Independence as well as the poisonous side of the monopolies ofcommerce in a mercantile era, Smith demonstrated that creativity could overcome thedivision of labour, if a particular talent to pursue one economic activity was not available.However, ingenuity in the sense of producing useful things was prohibited in some trades.Smith indicated that preceding the stage of inventiveness and creativity to transform meniallabour into intellectual labour is the stage of barbarous societies. Smith’s comments that the stages in which natives engaged were limited to hunting andrudimentary husbandry when the New World was discovered may suggest that hisrecognition of intellectual labour amongst Indigenous Peoples did not exist. In this passagebelow, Smith indicates that the period of intellectual labour occurred before the civilization,so that creativity was present in the barbarous stage. However, Smith considered that thenatives in the barbarous state of society were somehow inferior to the civilized man, like inthis passage below:
(…)2 KARL MARX AND PROPERTY (1818−1883) One can observe in Smith and Rousseau’s writings that there is an element of second-classuncivilized citizenry related to the first occupiers of the new potentially productive lands ofAmerica and the former colonies of Africa and Asia. That perception has not changed, evenfrom the perspective of a revolutionary school of thought created by Karl Marx. Hisunderstanding of capitalism and its historical implications after the Industrial Revolutiondenounced social inequality in labour-work and in the role of the capitalism. Karl Marx mayhave agreed that Indigenous People were unproductive. Here, unproductive meant not beingcapable of producing economic value out of their practices and knowledge. In the passagebelow, Marx defined the common property of Indigenous People modus operandi, in whichthere is a trace of disregard for their creativity and intellectual labour to transform things intosomething useful for the economic cycle. For Marx, the communal property practiced byIndigenous Peoples and their division of labour in agriculture lacked freedom of labour andselling of labour, two characteristics of capitalism: (…)2.1 Karl Marx and Indigenous Peoples − of property and economic activity In his seminal work, Das Kapital, Karl Marx approved and inserted botanist JoakimFrederik Schouwx observations of Asiatic Indigenous Peoples lack of economic structure intheir society. Schouw found that Indigenous Peoples’ possessed inability to understand theirsocial position in the economic chain of activities or to participate in the capitalism. ForMarx, an element of being native or being Indigenous Peoples was to be outside of the wholeeconomic chain. Marx observed that to exchange their leisure activities for economic andcapitalist modus operandi is not part of their culture, as stated in the following passage: (…)For Marx, the collection of 50 lbs to 300 lbs of sago from trees transforms the human activityinto human labour, however, commodity or economic value was absent from it. Then, why could it not be applied Locke’s theory of labour to Indigenous Peoples’activities? Indeed, it is not a menial labour as Smith has introduced the term in the Inquiry,because the tree has to be ripe and be subject to the judgment by the native as a ripe tree, inorder to him/her to collect sago. It is possible that they did exchange sago for something elseif they found they would have had a sago surplus and needed another item in their dailyroutine. When Marx demonstrated the economic value of the “virgin state of soil” and thatlabour “filters” the raw material, he lacked understanding that the truth of post-IndustrialRevolution social inequality for Indigenous Peoples’ labourers against non-Indigenouslabourers were not considered economic or capable of commercialization. (…)
3 JOSEPH STIGLITZ (B. 1943)3.1 Classics never die: from Adam Smith’s old monopolies of trade to Joseph Stiglitz’s critique to the Uruguay RoundThe relationship of demand and incentive to invent has been part of the critique of globalizedindustries of our century. Some industries are defined as natural monopolies, becausemanagement by governments is desirable, as in the case of water.xi Then, monopoly of tradefor innovative products can be translated as Galbraith’s innovation test of not what peopleneed but what can be sold. Joseph Stiglitz in his book Globalization and its discontentsxii updated Galbraith’s test ofinnovation using the pharmaceutical industry as an illustration of monopoly of trade. Thepharmaceutical industry is especially interesting to examine for its business practice ofproviding cure for sale and profit. Its nature (…) Biopiracy activities are linked directly on globalization activities from multinationals.Stiglitz comments towards traditional medicines and foods are connected to the IndigenousPeoples’ knowledge, namely Traditional Knowledge. The patent strategy used byinternational companies generally have non-Indigenous Peoples employees, skilled in scienceand trained to identify valuable intangible assets, which makes them able to forecast theeconomical value of what has been supplied to them as information. Thus the IndigenousPeoples, holders of the insightful information called Traditional Knowledge, do not realizethey are enlarging the private property of international companies when they share theirinformation on traditional medicines or foods with outsiders to their social system. i ii See, supra note 29 and accompanying text. iii See supra note 29. iv v vi . vii viii ix x