Hume, David --- "Indigenous People and the World Trade Organization" [2000] IndigLawB 8; (2000) 4(26) Indigenous Law Bulletin 21

• Indigenous Peoples And The World Trade Organization

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Indigenous Peoples and the World Trade Organization

By David Hume

In December last year, world attention focused on the US city of Seattle, as a huge number of direct action environment, cultural and human rights protestors disrupted the Third Ministerial Conference of the World Trade Organization convened to discuss trade liberalisation.

There have recently been many significant advances in the struggle for recognition of the rights of indigenous peoples, including the development of the United Nations draft Declaration on the Rights of Indigenous Peoples, and the adoption by the International Labour Organization (ILO) of the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169).^[1] Despite this, the existence of the world’s first peoples has yet to noticeably register with what is arguably the world’s most powerful economic institution- the World Trade Organization (WTO). In the month preceding the Seattle WTO conference, there was no readily discernable reference to indigenous peoples on the WTO website at all, apart from a rather patronising cartoon-like graphic which appeared to depict a caricatured Inuit person offering to swap a fish for a pineapple with a caricatured Pacific Islander.^[2]

The WTO was established in 1995 to take over the role of the General Agreement on Trade and Tariffs (GATT) as the principal regulator of international trade between its member states. The 134 member nations have agreed to the WTO's multilateral agreements which essentially require that the members do not discriminate between imported and domestically produced goods and services within their domestic economies. The WTO has the power to disallow any law of a member state which is found by it to breach that condition.

That power has dramatic implications for the rights of indigenous peoples. The WTO has declared illegal every environmental and public health law brought before it as violating the free trade principle laid down in its agreements.^[3] Laws aimed at protecting the environment or safeguarding the traditional knowledge of indigenous peoples or maintaining cultural diversity are all vulnerable to the extent that they can be portrayed as breaching the non-discrimination principle. The third ministerial conference of the WTO is due to be held in Seattle, USA, from 30 November to 3 December 1999 and will focus on trade liberalisation in areas including investment, agriculture and government purchasing. Non-government organisations may apply to the WTO to register to attend the ministerial conference although it is not clear that they may actively participate if at all. Many direct action environment, cultural and rights groups are planning a protest aimed at challenging the WTO at the Seattle conference.

At a general level the frequent disallowance of national laws by the WTO is said to promote ever freer trade. This may be so and the freer access to markets that this allows imported goods and services increases the pressure within national economies to find more and greater sources of goods and services to export in order to achieve or preserve an appropriate balance in trade results.

In the case of developing and less developed countries the desire to increase exports can lead to greater pressure for the further exploitation of the lands and resources of indigenous peoples who are often among the most vulnerable people within those countries. This pressure has resulted in development projects which have inflicted severe damage on environmentally sensitive areas, seriously disrupted biodiversity and pre-existing eco-systems and devastated the lives of indigenous communities.^[4]

More specifically, the intellectual property laws of WTO members must comply with the WTO's Agreement on Trade Related Intellectual Property Rights (TRIPS).^[5] The essence of this agreement is that the corporate "discoverers" of scientific knowledge who obtain international patent or copyright protection over their "discoveries" can use the muscle of the WTO in striking down laws which hamper the full commercial enjoyment of their "ownership". This is so notwithstanding that the "discoverers" may have drawn heavily upon the community owned knowledge and property of indigenous peoples without any acknowledgment of its source or any compensation for its traditional owners.

A further concern is that international trade works to undermine cultural diversity. As trade rises local culture is gradually replaced with international culture. To cite only one example, it has been estimated that indigenous languages currently constitute about 70-80% of the world's linguistic diversity, and yet many of the world’s languages are rapidly becoming extinct through the impact of global socioeconomic forces.^[6] Even though indigenous peoples have succeeded in gaining special legal recognition of their right to limit external influences on their land and culture, those gains will be subject to the WTO’s power to disallow laws on the principal of non-discrimination.

David Hume is a volunteer at the Indigenous Law Centre at the University of New South Wales. He has worked extensively in revenue law in both the private and public sectors.

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^[1] Cf S Pritchard and C Heindow-Dolman, ‘International Legal Norms and Indigenous People: A Critical Overview, [1998] AUIndigLawRpr 38; (1998) 3 (4) Australian Indigenous Law Reporter 473.

^[2] At www.wto.org

^[3] S Pritchard and C Heindow-Dolman, above n 1, 499.

^[4] See generally H E Dallam, ‘The Growing Voice of Indigenous Peoples: Their Use of Storytelling and Rights Discourse to Transform Multilateral Developmental Bank Policies’, (1991) 8 (2) Arizona Journal of International and Comparative La 117; K Huyser, ‘Sustainable Development: Rhetoric and Reform at the World Bank’ (1994) 4 (1) Transnational Law & Contemporary Problems 253-277, 265-267; R A Williams Jr ‘Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World’, (1990) Duke Law Journal 660.

^[5] S Pritchard and C Heindow-Dolman, above n 1, 505.

^[6] Inter Commission Task Force on Indigenous peoples (IUCN) ‘Indigenous Peoples and Sustainability, Cases and Actions’ (1997), 30.