The
Enclosure of the Commons
For
indigenous communities, biodiversity has always been a local, commonly
shared resource on which they have been dependent for their livelihood.
The current moves in many countries of the South to introduce new intellectual
property laws under the GATT/WTO agreements to, in effect, 'enclose' these
'commons' and bring them under a regime of private property and patents
for the benefit of corporations, are a grave threat to their very survival.
by Vandana
Shiva
THE
'enclosure' of biodiversity and knowledge is the final step in a series
of enclosures that began with the rise of colonialism. Land and forests
were the first resources to be 'enclosed' and converted from commons to
commodities. Later on, water resources were 'enclosed' through dams, groundwater
mining and privatisation schemes. Now it is the turn of biodiversity and
knowledge to be 'enclosed' through intellectual property rights (IPRs).
The
destruction of commons was essential for the industrial revolution, to
provide a supply of natural resources for raw material to industry. A
life-support system can be shared, it cannot be owned as private property
or exploited for private profit. The commons, therefore, had to be privatised,
and people's sustenance base in these commons had to be appropriated,
to feed the engine of industrial progress and capital accumulation.
The
enclosure of the commons has been called the revolution of the rich against
the poor. However, enclosures are not just a historical episode that occurred
in 16th century in England. The enclosure of the commons can be a guiding
metaphor for understanding conflicts being generated by the expansion
of IPR systems to biodiversity.
The
policy of deforestation and the enclosure of commons which started in
England, was later replicated in the colonies in India. The first Indian
Forest Act was passed in 1865 by the Supreme Legislative Council, which
authorised the government to declare forests and wastelands ('benap' or
unmeasured lands) as reserved forests. The introduction of this legislation
marks the beginning of what is called the 'scientific management' of forests;
it amounted basically to the formalisation of the erosion both of forests
and of the rights of local people to forest produce. Though the forests
were converted into state property, forest reservation was in fact an
enclosure because it converted a common resource into a commercial one.
The state merely mediated in the privatisation.
In the
colonial period peasants were forced to grow indigo instead of food, salt
was taxed to provide revenues for the British military, and meanwhile,
forests were being enclosed to transform them into state monopolies for
commercial exploitation. In the rural areas, the effects on the peasants
were the gradual erosion of usufruct rights (nistar rights) of access,
of food, fuel, and livestock grazing from the community's common lands.
The marginalisation of peasant communities' rights over their forests,
sacred groves and 'wastelands' has been the prime cause of their impoverishment.
Biodiversity
has always been a local commonly owned and utilised resource for indigenous
communities. A resource is common property when social systems exist to
use it on the principles of justice and sustainability. This involves
a combination of rights and responsibilities among users, a combination
of utilisation and conservation, a sense of co-production with nature
and sharing them among members of diverse communities. They do not view
their heritage in terms of property at all, i.e. a good which has an owner
and is used for the purpose of extracting economic benefits, but instead
they view it in terms of possessing community and individual responsibility.
For indigenous peoples, heritage is a bundle of relationships rather than
a bundle of economic rights. That is the reason no concept of 'private
property' exists among the communities for common resources.
Within
indigenous communities, despite some innovations being first introduced
by individuals, innovation is seen as a social and collective phenomena
and results of innovation are freely available to anyone who wants to
use them. Consequently, not only the biodiversity but its utilisation
have also been in the commons, being freely exchanged both within and
between communities. Common resource knowledge based innovations have
been passed on over centuries to new generations and adopted for newer
uses, and these innovations have over time been absorbed into the common
pool of knowledge about that resource. This common pool of knowledge has
contributed immeasurably to the vast agricultural and medicinal plant
diversity that exists today. Thus, the concept of individual 'property'
rights to either the resource or to knowledge remain alien to the local
community. This undoubtedly exacerbates the usurpation of the knowledge
of indigenous people with serious consequences for them and for biodiversity
conservation.
The
Western bias in defining property rights
Today
we have to look beyond the state and the market place to protect the rights
of the two-thirds majority of India - the rural communities . Empowering
the community with rights would enable the recovery of commons again.
Commons are resources shaped, managed and utilised through community control.
In the commons, no one can be excluded. The commons cannot be monopolised
by the economically powerful citizen or corporation, or by the politically
powerful state.
Commons
and communities are beyond both the market and the state. They are governed
by self-determined norms, and are self managed. In the 'colonial' and
'development' era, the commons were enclosed and community power undermined
by takeover by the state. Thus, water and forests were made state property,
leading to the alienation of local communities, and the destruction of
the resource base. Poverty, ecological destruction and social disintegration
and political disempowerment have been the result of such state-driven
'enclosures'.
In the
globalisation era, the commons are being enclosed and the power of communities
is being undermined by a corporate enclosure in which life itself is being
transformed into the private property of corporations. The corporate enclosure
is happening in two ways. Firstly, IPR systems are allowing the 'enclosure'
of biodiversity and knowledge, thus eroding the commons and the community.
Secondly, the corporation is being treated as the only form of association
with legal personality.
IPRs
are the equivalent of the letters patent that the colonisers have used
since 1492, when Colombus set precedence in treating the licence to conquer
non-European peoples as a natural right of European men. The land titles
issued by the Pope through European kings and queens were the first patents.
Charters and patents issued to merchant adventurers were authorisations
to 'discover, find, search out and view such remote heathen and barbarous
lands, countries and territories not actually possessed of any Christian
prince or people'. The colonisers' freedom was built on the slavery and
subjugation of the people with original rights to the land. This violent
takeover was rendered 'natural' by defining the colonised people into
nature, thus denying them their humanity and freedom.
Locke's
treatise on property effectively legitimised this same process of theft
and robbery during the enclosure movement in Europe. Locke clearly articulates
capitalism's freedom to build on the freedom to steal; he states that
property is created by removing resources from nature through mixing with
labour in its 'spiritual' form as manifested in the control of capital.
According to Locke, only capital can add value to appropriated nature,
and hence only those who own the capital have the natural right to own
natural resources; a right that supersedes the common rights of others
with prior claims. Capital is thus, defined as a source of freedom, but
this freedom is based on the denial of freedom to the land, forests, rivers
and biodiversity that capital claims as its own. Because property obtained
through privatisation of commons is equated with freedom, those commoners
laying claim to it are perceived to be depriving the owners of capital
of freedom. Thus, peasants and tribals who demand the return of their
rights and access to resources are regarded as thieves and saboteurs.
The
takeover of territories and land in the past, and the takeover of biodiversity
and indigenous knowledge now has been based on 'emptying' land and biodiversity
of all relationships to indigenous people.
All
sustainable cultures, in their diversity, have viewed the earth as terra
mater (mother earth). The colonial construct of the passivity of the earth
and the consequent creation of the colonial category of land as terra
nullius (nobody's land), served two purposes: it denied the existence
and prior rights of original inhabitants and negated the regenerative
capacity and life processes of the earth.
In Australia,
the concept of terra nullius (literally meaning 'empty land') was used
to justify the appropriation of land and its natural resources, by declaring
the entire continent of Australia uninhabited. This declaration enabled
the colonisers to privatise the commons relatively easily, because as
far as they were concerned, there were no commons existing in the first
place!
The
decimation of indigenous peoples everywhere was justified morally on the
grounds that they were not really human; and that they were part of the
fauna. As Pilger has observed, the Encyclopedia Britannica appeared to
be in no doubt about this in the context of Australia: 'Man in Australia
is an animal of prey. More ferocious than the lynx, the leopard, or the
hyena, he devours his own people.' In another Australian textbook, Triumph
in the Tropics, Australian aborigines were equated with their half-wild
dogs. Being animals, the original Australians and Americans, the Africans
and Asians possessed no rights as human beings. Their lands could be usurped
as terra nullius - lands empty of people, 'vacant', 'waste', and 'unused'.
The morality of the missions justified the military takeover of resources
all over the world to serve imperial markets. European men were thus able
to describe their invasions as 'discoveries', piracy and theft as 'trade',
and extermination and enslavement as their 'civilising mission'.
Whether
it is the gradual privatisation and divisibility of community held rights
or the declaration of terra nullius, the transformation of common property
rights into private property rights, implies the exclusion of the right
to survival for large sections of society. The realisation that under
conditions of limited availability, uncontrolled exploitation of natural
resources involves taking away resources from those who need them for
survival, has been an underlying element of Indian philosophy. Prudent
and restrained use of resources has been viewed as an essential element
of social justice.
According
to an ancient Indian text, the Ishopanishad:
'A selfish
man over utilising the resources of nature to satisfy his own ever increasing
needs is nothing but a thief because using resources beyond one's needs
would result in the utilisation of resources over which others have a
right.'
This
relationship between restraint in resource use and social justice was
also the core element of Mahatma Gandhi's political philosophy. In his
view:
'The
earth provides enough for everyone's need, but not for everyone's greed.'
The
eurocentric concept of property views only capital investment as investment,
and hence treats returns on capital investment as the only right that
needs protection. Non-Western indigenous communities and cultures recognise
that investment can also be of labour or of care and nurturance. Rights
in such cultural systems protect investments beyond capital. They protect
the culture of conservation and the culture of caring and sharing.
There
are major differences between ownership of resources shaped in Europe
during the enclosures movement and during colonial takeover, and 'ownership'
as it has been practised by tribals and farmers throughout history across
diverse societies. The former is based on ownership as private property,
based on concepts of returns on investment for profits. The latter is
based on entitlements through usufruct rights, based on concepts of return
on labour to provide for ourselves, our children, our families, our communities.
Usufruct rights can be privately held or held in common. When held in
common, they define common property.
Equity
is built into usufruct rights since ownership is based on returns on labour.
The poor have survived in India in spite of having no access to capital
because they have had guaranteed access to the resource base needed for
sustenance - common pastures, water, and biodiversity. Sustainability
and justice is built into usufructuary rights since there are physical
limits on how much one can labour and hence there are limits on returns
on investment of labour and return on investment. Inequity is built into
private property based on ownership of capital since there is no limit
on how much capital one can own and control and invest.
IPRs
as an extension of the eurocentric concept of property to biodiversity
and biodiversity-related knowledge
The
culturally biased and narrow notions of rights and property that have
shaped IPRs are inadequate and inappropriate for indigenous cultures and
for the objective of conserving biodiversity and cultural diversity. Through
IPRs and TRIPs a particular eurocentric culture has been universalised
and globalised. When applied to biodiversity, such narrow concepts of
rights become mechanisms for denying the intrinsic worth of diverse species,
and denying the prior rights and prior innovations of indigenous communities.
The
thrust of the Western IPR regimes in the area of biodiversity is diametrically
opposed to indigenous knowledge systems. Knowledge is considered to be
the produce of individual creativity, based on Western scientific thought
and systems of knowledge creation and gathering whereby the resource base
is merely viewed as 'raw material'. In this paradigm IPRs represent the
property rights to the products of mind, thereby resulting in knowledge
and creativity being so narrowly defined that the creativity of nature
and non-Western knowledge systems have been ignored.
The
two categories of IPRs that have a direct impact on the erosion of prior
rights of communities are patents and plant breeders' rights. Plant breeders'
rights negate the contribution of Third World farmers as breeders and
hence undermine farmers' rights. Patents allow the usurpation of indigenous
knowledge as a Western invention through minor tinkering or trivial translation.
The
Union for the Protection of New Varieties of Plant (UPOV) Convention represents
a Western-devised (therefore internationally 'acceptable') form of plant
variety protection, other than patenting.
A frequent
comment heard in scientific and lay circles, is that 'we should patent
all our traditional knowledge and biodiversity'. However, neither traditional
knowledge nor biodiversity can be patented by indigenous practitioners
because for indigenous societies, it is not 'novel', it is ancient.
The
reason that the collective and cumulative innovation of millions of people
of thousands of years can be 'pirated' and claimed as an 'innovation'
of Western-trained scientists or corporations is because of two reasons.
The first reason is the colonial hangover of the idea that science is
unique to the West, and indigenous knowledge systems cannot be treated
as scientific.
The
second reason is that countries like the US, where most pirated indigenous
innovations are filed for patenting, do not recognise the existing knowledge
of other countries as prior art. Thus, while patent regimes offer no protection
to indigenous communities for their common innovation and their common
resources, they allow the appropriation of their biodiversity and knowledge
by scientists and commercial interests of other cultures, including members
of the 'modern' scientific culture in their own societies.
IPR
systems evolved in industrialised countries and reflected in the TRIPs
agreement only recognise Western knowledge systems as scientific and formal
and non-Western knowledge systems are regarded as unscientific and informal.
The creation of monopoly rights to biodiversity utilisation through its
claim to the creation of 'novelty' can have serious implications for erosion
of national and community rights to biodiversity and devaluation of India's
indigenous knowledge. TRIPs gives countries the option of formulating
its own sui generis regime for plants as an alternative to patent protection
. Collective rights can be a strong candidate for such sui generis systems
for agricultural biodiversity and medicinal plant biodiversity. Therefore,
it is crucial that community-held and utilised biodiversity knowledge
systems are accorded legal recognition as the 'common property' owned
by the communities concerned. Building such an alternative is essential
to prevent biodiversity and knowledge monopolisation by an unbalanced
mechanistic and non-innovative implementation of TRIPs or in response
to Special 301 threats from the US.
Examination
of existing national and international legal community rights legislation
reveals that there are no binding legal instruments or standards that
adequately grant rights to indigenous people's collective knowledge and
innovations thereby protecting their knowledge from biopiracy. That is
not to say there is no scope for such developments. To the contrary, trends
and precedents set in the area of international indigenous rights legislation
and case law signify a strong movement in this direction, with several
significant judgments being passed in recent years.
The
CBD, an instrument passed in 1992, represents the boldest move in the
direction of recognising indigenous knowledge traditions and innovations.
The Convention deals specifically with biodiversity and makes biodiversity
conservation the obligation of member states. It also recognises the role
of local communities and tribals in conservation of knowledge for biological
wealth.
In the
preamble, the Convention states:
'that
contracting parties recognise the close and traditional dependence of
many indigenous and local communities embodying traditional lifestyles
on biological resources and the desirability of sharing equitable benefits
arising from the use of traditional knowledge, innovations and practices,
relevant to the conservation of biological diversity and sustainable use
of its components.'
Right
to enact laws
The
Convention not only recognises the sovereign rights of the nation state
to biodiversity and the method of its utilisation through Articles 3 and
4, but also gives them right to enact their own laws for protecting their
biodiversity, in a manner best suited to their particular needs and priorities.
The
UN Draft Declaration on the Rights of Indigenous Peoples 1993 yet to be
adopted by the UN General Assembly, promises to strengthen the position
of indigenous collective rights considerably. For instance, Article 29
states:
'Indigenous
people are entitled to the recognition of the full ownership, control
and protection of their cultural and intellectual property...'
Despite
the Draft Declaration constituting a non-binding status, the articles
indicate a strong international consensus on the positive assertion of
indigenous community rights. It will provide a powerful tool in changing
attitudes as well as a focus for dialogue and debate at the national and
international level.
The
Fourth Technical Conference on Plant Genetic Resources held in 1996 by
FAO, produced the Leipzig Declaration on 'farmers' rights'. This Declaration
gives legal recognition to farmers' innovation in contributing to the
rich diversity of agricultural crops in the world. The central objective
of farmers' rights is to ensure control of and access to agricultural
biodiversity by local communities, so that they can continue to further
sustainably develop their farming systems.
It is
quite evident that there is a lack of fit between the structure of commons
and communities, and the structure of Western, especially US concepts
of rights and property.
If commons
and communities do not fit into the narrow, non-sustainable and parochial
framework of eurocentric jurisprudence, then it is that framework that
needs changing rather than the collective nature of rights of communities.
The
challenge at the end of 500 years of colonialism and 50 years of independence
and the threshold of the third millennium is to evolve a millennium perspective
on the environment, and on people's rights instead of being enslaved by
the colonial paradigms that have emerged over the last 500 years of colonial
rule.
The
above article is an edited extract from a longer version which appeared
in The Enclosure and Recovery of the Commons published by The Research
Foundation for Science, Technology and Ecology, India. Vandana Shiva is
a scientist and activist. She is also a contributing editor for Third
World Resurgence. (TWR 84 - August 1997)
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