Book review: Paul Collier’s ‘The Bottom Billion’ – William Isdale

William Isdale

As of Monday the 18th of August, there are 500 days before it will be time to tally the score-cards and see whether the ambitious targets set for development in the third world – the Millennium Development Goals – have been met. In many areas huge strides have been made. For example, the development goal of halving global poverty (defined as living on less than US$1.25 a day) was reached in 2010, five years ahead of the deadline. Hundreds of millions of people have been dragged out of poverty in China and India, in particular. However, for all this success, there is a subset of the world’s poorest – the bottom billion – for whom there has been little improvement. Most of these people live in Africa. Amongst the bottom billion, the average life expectancy is a miserable fifty years, whilst in other developing countries it is sixty-seven.

University of Queensland student William Isdale

Given recent debates about Australia’s commitment to foreign aid (or lack thereof), and the impending deadline of the Millennium Development Goals, now is as good a time as any to think seriously about how poverty can be tackled post-2015. In his book The Bottom Billion, Professor Paul Collier, Director of the Centre for the Study of African Economies at Oxford University, discusses the causes of the plight of the bottom billion and what can be done to help them. The issue, one discovers, is far more complex than some aid agencies make out. The solutions, too, are often counter-intuitive.

Collier identifies four traps that play a central role in keeping countries stuck in poverty: the conflict trap, the natural resources trap, the trap of being landlocked with bad neighbours, and the trap of bad governance. These traps need not be permanent – but they are extremely difficult to escape from. For instance, civil war (the conflict trap) keeps a country poor by frightening off investors, encouraging the exodus of intelligent citizens and their private capital, and by setting a toxic example of how the limited riches of the state can be seized in the future: through further warfare, now made easier by an abundance of cheap weapons. It probably won’t surprise you to hear that seventy-three percent of the bottom billion live in countries that have either recently been through a civil war or are still in one. Poor countries are more likely to have a civil war, and having a civil war makes it much more likely that it will stay poor.

Another trap is being landlocked with bad neighbours. Manufacturing is one of the most promising avenues for rapid economic growth, but transporting goods to wealthy buyers requires access to the sea. Unfortunately, many African countries are landlocked. What about Switzerland, Austria or Luxembourg, you say? Well, they have access to German and Italian ports. Uganda’s access to the sea, by comparison, depends upon Kenya’s infrastructure. Furthermore, even without access to overseas markets, Switzerland has access to its wealthy neighbour’s domestic markets: Germany, Italy, France, and Austria. To take the example of Uganda once more, as Collier points out:

Uganda has Kenya, which has been stagnant for nearly three decades; Sudan, which has been embroiled in a civil war; Rwanda, which had a genocide; Somalia, which completely collapsed; the Democratic Republic of the Congo, the history of which was sufficiently catastrophic for it to change its name from Zaire; and finally Tanzania, which invaded it. You could say that at least in recent decades Switzerland has been in the better neighbourhood.

The Bottom Billion author Paul Collier

Corruption and poor governance are undoubtedly key impediments to exiting poverty. A survey in 2004 revealed that just 1 percent of money released by the Ministry of Finance in Chad, intended for rural health clinics, actually made it to those clinics. As another shocking example of corruption stifling success, Madagascar in the 1990s established an export processing zone that was initially hugely successful; capital flowed in and almost overnight 300,000 new jobs were created. Unfortunately, not long after, President Admiral Didier Ratsiraka lost an election, and he had a cunning plan to win back his old job: he ordered his cronies to blockade the port until he was restored to power. This economic strangulation went on for eight months. Unsurprisingly, the foreign investors packed up and left. For international investors, the phrase that likely first comes to mind when thinking about Madagascar today is ‘sovereign risk’.

So, can the bottom billion lift themselves out of poverty? Yes. But it won’t be easy. According to Collier, the probability of a sustained turnaround beginning in any year is a dismal 1.6 percent. The average length of time it takes to escape ‘failing state’ status is fifty-nine years. Even if states are able to undertake the task of fixing their governance institutions, global markets are now harder to break into. In the 1980s there was a sufficiently large wealth gap that potentially any low-wage developing country could jump into exports. This, however, is no longer true:

During the 1990s this opportunity receded because Asia was building agglomerations of manufactures and services. These agglomerations because fabulously competitive: low wages combined with scale economics. Neither the rich countries nor the bottom billion could compete. The rich countries did not have low wages, and the bottom billion, which surely had low wages, did not have the agglomerations. They had missed the boat.

Exiting poverty is also difficult because high quality institutions require technical expertise, and poor countries typically fail to educate people with this expertise. Those who have expertise migrate, because they can earn more with their skills elsewhere. There is also the problem of capital flight: by 1990, it was estimated that 38 percent of Africa’s private wealth was held abroad – a proportion higher than in any other region in the world. The reason is simple: people invest their assets where they can get the highest safe returns, and the countries of the bottom billion don’t provide it.

For all this doom and gloom so far, The Bottom Billion is actually an overwhelmingly positive book. Collier’s prescriptions for helping fight poverty include sensible suggestions on the investment of aid (use it to help countries break into exports: e.g. through the building of ports and rail corridors), the provision of technical assistance from developed countries (to help maintain the incipient reforms of new governments), and the provision of foreign military guarantees as credible deterrents against coup d’états. Other intriguing aspects of the book concern Collier’s thoughts on ‘Fair Trade’ products, the resource curse and the World Trade Organization and tariff barriers.

Overall, The Bottom Billion is a veritable cornucopia of illuminating empirical evidence and analysis on poverty and development. It is written in an engaging style and is sure to challenge you – and probably convince you – to change your views on a number of important issues.

5/5 stars.

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Happy Birthday, Humanitarianism! - Jonathan Crowe

Jonathan Crowe

This week saw the 65th anniversary of the ratification of the Geneva Conventions on 12 August 1949. The following day was the 100th birthday of the Australian Red Cross, founded on 13 August 1914. The Geneva Conventions and the Red Cross movement both stand as important reminders of the doctrine of humanitarianism, according to which all humans deserve to be treated with dignity, even in wartime.

University of Queensland law professor Jonathan Crowe 

The International Committee of the Red Cross is given a broad mandate under the Geneva Conventions to promote humanitarianism in armed conflict. International humanitarian law protects everyone affected by war, regardless of their status. This body of law centres on the four Geneva Conventions, which have been ratified by all recognised states, and their two Additional Protocols of 1977.

Prisoner of war status

One of the central principles of the Geneva Conventions is that nobody involved in an armed conflict goes unprotected. There are multiple tiers of protection, designed to ensure that nobody falls outside the reach of the law.

Article 4 of Geneva Convention III sets out the classes of people who are entitled to prisoner of war status. The main category is members of the regular armed forces of a party to the conflict. Members of organised militias are also entitled to prisoner of war status, provided that they bear arms openly and wear a uniform or other distinctive sign. A similar (although slightly wider) definition appears in Additional Protocol I.

The benefits of prisoner of war status under Geneva Convention III are extensive and detailed. However, prisoner of war status is far from the only form of protection afforded to participants in armed conflict.

Protected persons

Some fighters might not qualify as combatants under Geneva Convention III, if the armed group to which they belong is not organised enough or they do not carry arms openly and distinguish themselves from civilians. These fighters are sometimes called ‘unprivileged belligerents’ due to their lack of prisoner of war status.

However, it would be wrong to think that unprivileged belligerents are unprotected by international humanitarian law. Protection under the law of armed conflict is not an all or nothing proposition. There are at least two additional layers of protection available to captured fighters who do not benefit from Geneva Convention III.

The first is Geneva Convention IV, which protects civilians or other persons who fall into the hands of a party to a conflict of which they are not nationals. Detainees who are ‘protected persons’ under Geneva Convention IV enjoy guarantees equivalent in many respects to those afforded to prisoners of war.

Fundamental guarantees

What about fighters or other detainees who find themselves in the hands of their own nation or an allied power? These people are not covered by the protected persons regime of Geneva Convention IV, but they are still able to rely on the fundamental guarantees found in Common Article 3 of the Geneva Conventions.

Common Article 3 appears identically in each of the four conventions. It sets out the basic rights guaranteed to all persons not actively engaged in combat, including captured and wounded fighters. These rights include protections against torture and ill treatment, as well as procedural guarantees.

A more extensive list of fundamental rights is contained in Article 75 of Additional Protocol I. Not all nations are parties to this treaty, but it is likely that many of its protections are enshrined in customary international law. Together, these provisions represent the minimum level of protection to which everyone is entitled in times of war.

Nobody is unprotected

It is occasionally suggested that these basic tenets of international humanitarian law do not apply to people who provide support for terrorism. However, there is no basis for this in the treaties. The closest we get is the security based exceptions contained in Geneva Convention IV, but even those provisions are subject to express guarantees of humane treatment and procedural justice.

A strong case can be made that terrorists, like other people caught up in warfare, should be afforded at least a basic level of protection. This is as it should be. The whole point of international humanitarian law is to serve as the last ditch hold out position of humanity against arbitrary violence. It holds open the prospect of a lasting peace based on mutual respect for human values.

International humanitarian law exists to emphasise that, even in wartime, all people have rights by virtue of their human dignity. The longevity of the Geneva Conventions and the Australian Red Cross shows the continuing relevance of humanitarianism in wartime and peacetime. Both institutions deserve our support in pursuing this important principle.

Jonathan Crowe is an Associate Professor in the T C Beirne School of Law at the University of Queensland. He is co-author (with Kylie Weston-Scheuber) of Principles of International Humanitarian Law (Edward Elgar, 2013). A version of this article appeared previously at Elgarblog.

Traditional Knowledge and the Future of Intellectual Property

Written BY: Jocelyn Bosse

In the age of the internet, pirates are no longer the wench-loving, mead-drinking, cannon-firing individuals that we see in films. Instead, we continuously hear cable companies and advertisements warning us not to pirate movies, TV shows or music via illegal downloads.

Yet with all the public debate over internet pirates, another type of pirate has more or less escaped notice: the pirates of indigenous knowledge.

Broadly speaking, indigenous knowledge can be divided into three categories:

1. Traditional Knowledge – including medicinal and other uses of plants or animals, knowledge of the seasons and dealing with extreme climatic events.
2. Genetic Resources – the information in the DNA of indigenous peoples whose evolutionary history and different traits are of interest to biologists.
3. Traditional Cultural Expressions – art, music and dance that expresses knowledge, history and identity.

Piracy of Traditional Knowledge

The prime target within traditional knowledge is the understanding of medicinal applications of plant material. Pharmaceutical companies have a lot to gain from extracting biologically active compounds and marketing them as drugs.

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Neem Tree

Several lawsuits have revealed that researchers have not treated indigenous peoples ethically once they have obtained access to their knowledge. In India, the Neem Tree case became the key example of biopiracy: a pharmaceutical company trying to profit from traditional knowledge without giving any benefits to the traditional owners. US companies had patented compounds that were derived from the Neem tree, but after a 10-year battle with the European Patent Office, the patents were finally revoked.[1]

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                Smokebush plant

Cases have arisen in Australia of patenting traditional knowledge. In Western Australia, samples of smokebush were taken by US researchers and found to have benefits for HIV/AIDS treatment. The company Amrad obtained exclusive rights to the species for research, but never entered into a benefits sharing agreement with the Aboriginal community.[2]

The issue should not be confused: indigenous groups are not trying to prevent important medicines from becoming commercially available per se. The point of contention is that pharmaceutical companies are using the existing knowledge for their own financial gain, without giving appropriate compensation to the traditional owners.

For this reason, the 1992 Convention on Biological Diversity (CBD) made it clear that benefits arising from patented traditional knowledge should be shared appropriately.[3] The CBD did not provide adequate protection, so in 2010, the International Regime on Access and Benefit Sharing (IRABS) was established.[4] The IRABS demands the knowledge and informed consent of Indigenous peoples for their information to be used. In Australia, similar legislation exists through the Queensland Biodiversity Act 2004 (Qld) and the Environment Protection and Biodiversity Regulations 2000 (Cth), but the requirements for the benefits sharing remain quite vague.

Piracy of Genetic Resources

With the advent of the Human Genome Project and the field of genomics rapidly growing, biologists have taken a keen interest in the genetic resources of indigenous peoples around the world. Evolutionary biologists have great curiosity for comparing the genetic history of different groups, which can give insights into the combined history of the human race.

With all their enthusiasm, many researchers have not considered the rights of indigenous peoples before using their DNA. Australian Aboriginals were strongly opposed to being a part of the Human Genome Diversity Project, and a case involving Canadian First Nations peoples revealed that they were right to be wary. A group in British Colombia was told that their DNA samples would be used for health research, but instead was used for researching their ancestral origins without their consent.[5]

Issues of informed consent and ownership aside, there are also concerns over the patentability of information found during testing of indigenous genomes. Gene therapy has shown huge potential – both medically and commercially. Nonetheless, there is an understandable reluctance amongst indigenous peoples to allow Western scientists to seemingly ‘colonise’ their DNA by overriding their self-ownership with patents. As such, the use of genetic resources has been under major consideration by an ongoing Intergovernmental Committee at the World Intellectual Property Organisation (WIPO), with the hope of developing a unified regulation in the near future.

Piracy of Traditional Cultural Expressions

The artistic forms of knowledge have raised new concerns in the area of copyright law. In the Aboriginal community, ownership of art is markedly different from the Western concept. Whilst copyright law assigns rights to the individual creator for a fixed time period, Australian Indigenous peoples regard their artistic works as belonging to a certain group. The rights to recreate or perform that work belong to a tribal elder or certain individuals.

Australian judges have respected the different approaches to ownership, such as in the Bulun Bulun case. A traditional Indigenous artwork was reproduced on T-shirts being sold to tourists in the Northern Territory. Although the suit itself was settled outside of court, the judge noted:

“The `transaction' between them [Mr Bulun Bulun and the Ganalbingu people] out of which fiduciary relationship is said to arise is the use with permission by Mr Bulun Bulun of ritual knowledge of the Ganalbingu people, and the embodiment of that knowledge within the artistic work. That use has been permitted in accordance with the law and customs of the Ganalbingu people...”[6] 

Indigenous peoples are now more aware of their rights. Despite the blunders of corporations and research teams, there is still hope for a future where information can be shared without infringing traditional knowledge. Today, Elder John Watson and his community are working with Griffith University researchers to commercialise the pain-relieving Marjarla plant.[7] Along with the imminent WIPO reforms, there is a good chance that the next decade will see many more agreements to share knowledge that can benefit indigenous peoples and the world.

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[1] BBC News, India Wins Landmark Patent Battle (9 March 2005) <http://news.bbc.co.uk/2/hi/science/nature/4333627.stm>.

[2] Troy Coyle, The Great Indigenous Rip-Off (11 June 2003) Great Reporter <http://www.greatreporter.com/content/great-indigenous-rip>.

[3] Convention on Biological Diversity art 8(j).

[4] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity

[5] Laura Arbour and Doris Cook, ‘DNA on Loan: Issues to Consider when Carrying Out Genetic Research with Aboriginal Families and Communities’ (2006) 9 Community Genetics 153, 154.

[6] Martin Hardie, ‘The Bulun Bulun Case: John Bulun Bulun & Anor v R&T Textiles Pty Ltd’ (1998) 4(16) Indigenous Law Bulletin 24.

[7] IP Australia, What About the Human Factor in Innovation? (24 July 2014) <http://www.ipaustralia.gov.au/about-us/news-and-media/you-tube-transcripts/traditional-knowledge/>.

Loose Thinking about Free Speech - Graeme Orr

Loose Thinking about Free Speech

Megabytes have been devoted recently to ‘free speech’.  Much has been self-serving.  A lot of it has been driven by right-wing voices, in opposition to vilification laws and a proposal to strengthen the press complaints system. Left-wing voices have focused on gags on public servants and moves to deny grant monies being used to advocate for policy reform.

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University of Queensland law professor Graeme Orr

Balancing free expression with civility and equality is not simple. Conservatives accentuate the need for respectful debate and concern for reputation. Progressives fret about power and the need for marginalised voices to share stage with the well-resourced. Small ‘l’ liberals want to leave things to the marketplace and point to the internet as a liberating agent. These are all principled positions. Freed of posturing, most would agree we need to balance these principles.

At present, the debate is largely driven by self-described liberals. ‘Self-described’ because they tend, unfortunately, to have a mote in their eye. Else they are reacting to passing cases and old cultural battles, as much as any deep commitment to liberty. 

Two causes celebres have animated the George Brandises (Attorney-General) and Tim Wilsons (his choice as Human Rights Commissioner) to declare themselves the living embodiments of JS Mill.   One was the civil suit against Murdoch columnist Andrew Bolt, for vilifying prominent ‘light-skinned Indigenous’ figures. The Federal Court required Bolt to apologise, under the Racial Discrimination Act. In a volte face last week, the Prime Minister abandoned reform of that law.  Not because the law was necessary to modulate aggressive racialism, but because he risked too much political capital to have it repealed. 

“We need a rational press complaints system, but it is hard to apply in the lightning-fast, decentralised era of internet news”

The other cause that agitated free speech concern was the Gillard government’s interest in press regulation over self-regulation. After a public inquiry, and echoing UK proposals, Justice Finkelstein recommended a speedy conciliation process for complaints against newspapers, and the power to order apologies and corrections but not damages. In both the Bolt and Finkelstein debates, the Murdoch press led the opposition to regulation. 

There is a principled ground for objecting to racial vilification laws. Where vilification falls short of personal intimidation such laws may martyr bigots. Suppression may breed more perversion.  Press regulation was more pragmatic.  We need a rational press complaints system, but it is hard to apply in the lightning-fast, decentralised era of internet news.

We should judge these new Millian liberals on what they do not say, and what they actually do, rather than just by what they say. Last year, in Monis’s case, the High Court upheld charges against two Muslim Australians. They had committed the offence of using the postal service in an ‘offensive’ manner, by sending spiteful letters to the families of servicemen killed in Afghanistan. 

This was a criminal case, involving private communications. Spiteful behaviour, but also speech with a political point. The silence about Monis’s case was deafening, from Labor and Liberal politicians alike. Similar offences also apply at state level and to the internet. It would take a Stasi-like police force to enforce criminal laws for every ‘offensive’ communication via the internet.

The mote-in-the-eye goes beyond the problem of selective outrage about ‘free speech’.  Besides its approach to government access to internet and mobile phone ‘metadata’, the Abbott government has sought to restrain the public speech of  public servants and of community groups receiving Commonwealth funds. Rules now warn public servants against expressing even anonymous opinions on social media if they might be read as ‘harsh or extreme’ about government or opposition policy.  Public servants with community roles, such as in an environmental group, are also warned against, say, criticising government policy on wind farms.

A dictate against NGO advocacy is now included in funding agreements. 140 community based legal centres, for example, will be banned from using any of their funding for law reform advocacy.  This might be understandable were the government committed to better funding of services. But social problems cannot be addressed with only individual bandages.  They often require a systemic push for reform.  Even the High Court held, in a case involving the foreign aid organisation Aid/Watch, that charities could act as public advocates.  Informed debate about the best way to advance public welfare was itself a worthy aim.  Tax deductions, after all, are available to donors to political parties, and governments routinely run big advertising campaigns to push contentious polices.

Governments tend to see ideological enemies everywhere:  in the public service, in NGOs and in the ABC. Compromising principles out of partisan concern is hardly a new phenomenon. The Queensland government recently legislated to tie unions in knots before they could mount ‘political’ campaigns.  That law was repealed quietly, one evening in July, because the government feared it would be defeated in the High Court.

Unfortunately, many liberals have a stunted idea of freedom of speech, as merely a negative liberty.  It is the freedom of magnates to run a political party or a multi-million dollar campaign against the mining tax. But what if you lack the resources for megaphone speech?  Or you are one of the disaggregated voices of the unemployed or micro-business? To paraphrase Anatole France, in its majestic equality our law allows everybody, equally, to own a media chain or to risk arrest holding a placard at a demonstration.

Sadly, we live in an environment more partisan than principled. Opposition to racial vilification law is not based on its impact:  there are few complaints, which are conciliated cheaply in private.  It is based mostly on the symbolics:  communitarians want to use the law to emblemise social progress, others resent certain migrant groups.  Mr Wilson gave the game away when he falsely claimed that law was only open to ‘ethnic minorities’. 

In the process, the dictum of another French writer, Voltaire, has been recast. Today, it is less a case of ‘I disagree with what you say, but will defend your right to say it’.  And more ‘If I don’t agree with what you say, I will defend my right to be a hypocrite’.

Graeme Orr is a University of Queensland law professor and author of The Law of Politics

A version of this first appeared in Inside Story.

2014 Magistrates Work Experience Program - Balawyn Jones

2014 Magistrates Work Experience Program  – Balawyn Jones

 In 2014, JATL received an unprecedented number of applications for its annual Magistrates Work Experience Program, organised with the support of the Magistrates Court of Queensland and UQ Pro Bono Centre. BA/LLB candidate Balawyn Jones was one of the successful applicants out of a very talented pool of candidates. These are her reflections on her experiences during the Program

Magistrate Jacqui Payne

I had the good fortune of being paired with Magistrate Jacqueline Payne. A cursory Google search shows how influential Magistrate Payne has been in the legal sphere. As some of you would know, Magistrate Payne was the first Indigenous woman to be admitted as a solicitor, and also be appointed to the Magistrates Court, in Queensland. Magistrate Payne has been involved in many high-profile cases during her time on the bench, including the Haneef, Bali Nine and Musgrave Park ‘Tent Embassy’ cases.

Magistrate Payne’s experience in private practice (having started her own firm) and in both the Magistrate’s and Murri Court, although important to my experience, was not the thing that struck me most about my time in the Court. From my first day, Magistrate Payne made me feel welcome and involved, and through this experience and her kindness I learnt more from one person than I have in years of study.

Off to a running start, I had the privilege in my first week of sitting in the Murri Court with Magistrate Payne and the Indigenous Elders and Respected Persons. I learnt a lot about the complexity of issues that are faced by actors in the legal system, in particular the challenges faced in the application of criminal law to disadvantaged and marginalised defendants.

University of Queensland student Balawyn Jones

Magistrate Payne ensured that I was sitting in on different types of cases every week and so I experienced everything from arrest to sentencing. Magistrate Payne went to lengths to explain the context and policy behind the points of law that were raised in court, for example the difference between context and excuse in criminal law. She even made traffic court interesting, with tea break discussions on the mandatory sentencing policy behind traffic infringements. 

I was lucky enough to be able to conduct research for reserved decisions and to spend time in between sessions picking her brain on anything from the front page of the newspaper that day to cultural diversity or feminism. Every day I spent in the Magistrates Court Program was exciting, whether I was listening to the details of elaborate car chases in a bail hearing or being subject to a demonstration of the ‘Number 1 come along hold’ by the Police Prosecutor (I shouldn’t have asked…).

This experience connected my degree to real people and real scenarios. I would highly recommend the Program to anyone! Many thanks again to the UQ Pro Bono Centre and JATL for facilitating this wonderful opportunity and, of course, Magistrate Payne for putting up with me shadowing her for weeks on end. 

Balawyn Jones