INTRODUCTION

Technology can be referred to as the systematic knowledge for manufacture of a product, for the application of a process or for the interpretation of a service and the capacity to use such knowledge.1 Today, knowledge or technology is not freely accessible or distributed among nation-states. It is predominantly concentrated in the Western world which is therefore called ‘technologically advanced’. In the industrialized states the majority of knowledge is subject to proprietary rights to prevent the free transfer of technology and sold commercially as ‘intellectual property’.2 Thus, whoever controls technology as an expensive commodity is in a privileged position to influence the international accumulation of wealth. Since the West controls technology, as a solidified form of science, they hold that technology as their most valuable industrial resource and a means to influence other nations’ attempts on the way of development.

For the developing world, technology is an indispensable condition of ecologically sound economic development to catch up with the industrialized world:3 The Third World countries’ backwardness in technology is therefore one of the biggest problems of our time in view of the ongoing ecological destruction. The World Commission on Environment and Development has stated that the promotion of sustainable development requires international exchange of technology - to increase agricultural production, to encourage use of renewable energy systems, and to control pollution.4

Developing countries paid some $ 2 billion in 1980 by way of royalties and fees to industrialized countries who hold 65 per cent of the world patents granted.5 As years pass, the gap in scientific and technological capabilities in, among other things, biotechnology and genetic engineering, new energy sources, new materials and substitutes, and in ecosound technologies, is gradually increasing. Even though the developing countries need the help of the industrialized countries to overcome the economic and ecological problems they face, the latter do not intend to share with the Third World ‘their’ intellectual resources; in other words, they refuse to transfer technology and know-how, however great the need for it.6

What is yours is ours and what’s ours is ours. That would appear to be the philosophy of the technologically advanced states in dealing with the less-developed countries.7 However, as we shall briefly argue below, technology cannot be confined within state boundaries; it is the expression of mankind’s solidarity. It cannot, historically speaking, be the property of a few states; rather, it is the heritage of all mankind which was inherited by our ancestors, regardless of their nationalities.

HISTORICAL PERSPECTIVE

A look at the past shows that technology is a blend of knowledge acquired and transmitted by various peoples and scholars of different eras and nationalities. A brief account of the contribution of Islamic scientists will clarify this point about human knowledge as a common inheritance.

In the first part of this millennium, Arab Muslims attained the highest levels in pure and applied science, such as medicine, chemistry, astronomy, geography, history, literature, mathematics, engineering, architecture etc. They educated many great scholars, jurists, philosophers in Cordoba, the capital city of the Arab Andalusian state, from the early eighth century on. In Cordoba, the Arabs built the first university of Europe at that time.8 In those days, the Europeans were ignorant of scientific knowledge. The great Christian clergymen of the time learned with the Arabs - for example, Pope Sylvester, who studied in the University of Andalusia.9 They then carried to Europe and spread more widely the knowledge they had obtained. Technical terms such as chemistry geometry, algebra, among many others, as well as the names of particular products (cotton, sugar, coffee, for example) lacked equivalents in the then European languages and had to be adopted directly from the Arabic. Thus, the names of many constellations are of Arabic origin because the relevant knowledge was introduced to the world by the Arab Muslims.

While the Europeans considered the world flat, the Muslims measured the lengths of longitudinal circles in the Sinjar desert near Mosul, and calculated (with results astoundingly similar to the present estimate) the length of the equator.10 Moreover, Western philosophy owes a profound debt to the Arab Muslims who translated the books of ancient Greek and Roman philosophers which the Church authorities of the Middle Ages proscribed. Even books of medicine passed on by the ancient Greek and Roman scientists were burned by the uneducated Christians of the time; the few that survived did so because they were protected and translated into Arabic by Huseyn ibn Johaq of Baghdad, who also translated the works of Aristotle and Plato.11 In sum, Western philosophy and science came into existence as a result of the efforts of the Arab scholars. As even some Western scholars and historians now have the courage to admit, the Renaissance in fact started in the Muslim world of the Middle Ages.

The Frenchman, Jean Ferrera, is an example.12 He confirms in his article that the works of Ptolemy, Euclid and Archimedes were translated from Greek or Latin into Arabic. He adds that the Muslims also transmitted to Europe the concept, initially discovered in India, of zero (the word cipher in many modern European languages is from the Arabic). It was also the Arabs who taught Europe the science of trigonometry. And how many Europeans know that the logarithms they struggled with through school were the invention of Al-Khwarizmi? Only in Islamic universities was every aspect of scientific or technical development freely taught from the ninth to the twelfth century.

Unfortunately, the Ancient and the Muslim scientific and technological heritage was further developed almost exclusively by Europeans who had a different attitude to knowledge, which therefore became their exclusive property. While the Muslim scholars passed on what they inherited, the Western world takes for granted the real roots of its success. Nevertheless, in the last two decades or so, the developing world is seriously demanding that the West share its accumulated scientific and technological know-how with the technologically less-endowed countries which account for three-quarters of the world population. We shall now survey briefly some of the legal efforts of the Third World to achieve this aim.

LEGAL PERSPECTIVE

By the advent of the New International Economic Order in the mid-1970s, the developing countries had started to project their demands through non-binding international documents. Article 13 of the Charter of Economic Rights and Duties of States, adopted on 12 December 1974 by the United Nations General Assembly Resolution 3281 (XXIX), is an instance of such an attempt. By the provisions of Article 13: ‘Every State has the right to benefit from the advances and developments in science and technology for the acceleration of its economic and social development’ (para.1). Succeeding paragraphs fully endorse the promotion of international scientific and technological co-operation and the transfer of technology in order to assist the developing countries to accelerate their economic development. Similarly, Article 9 of the Universal Declaration of the Rights of Peoples adopted in Algeria states: ‘Scientific and technical progress being part of the common heritage of mankind, every people has the right to participate in it.’

Another proposal was recently put forward in Germany. According to its Article 1, ‘unprotected knowledge of normal human intellectual activity belongs to the common heritage of mankind’.13 Article 2 states that ‘this free flow is in the interest of the human, scientific, technological and economic development of the entire international community.’ Article 8 accepts ‘the legitimacy of fair access by developing states to modern technology.’ All in all, the key question is how such proposals could be made into binding legal norms in the near future.

Prof. I Seidl-Hohenveldern, on behalf of developed countries, argues that the common heritage approach ‘cannot be extended to assets which, like patent rights, are the property of an inventor or of his successors in title’.14-15 He rejects the idea that the present-day inventor alone should carry the cost of compensating the inequalities between the rich and the poor states; instead, such inequalities should, he says, be borne by states.

As a matter of fact, the developing countries are not demanding that every bit of technology that the West possesses be made freely available to them. They ask that three kinds of technology in particular be given to them at reasonable cost. These are, first, the transfer of adequate technology to exploit the living and non-living resources of the oceans;16 second, the use of nuclear energy for peaceful purposes;17 and finally, protection and preservation of the environment.18

In the face of continuing global environmental crises, that last demand of the developing countries should be taken on board with some urgency in order to protect the life and dignity of the present and future generations. Under-developed countries need expert assistance and transfer of specific technologies to, for example, prevent tropical forest from becoming deserts; to reduce CFC production and emission to the atmosphere; to decrease CO2 emissions by using alternative environmentally-friendly technologies.

CONCLUSION

We have almost entered the post-industrial era in which knowledge has become the most highly valued commodity. Knowledge, alas is kept only in the industrialized world, only a small minority of the world population have access to it, while the majority suffer from ecological and economic problems because of lack of development. The starvation, environmental pollution and low productivity-which we are accustomed to seeing in the developing world - can only be alleviated by mass technology transfer from the rich countries to the poor. The poor cannot get access to the know-how they need because it is over-priced. Therefore, in practice, the West uses technology as a new way of continuing colonialism. The transfer of technology is carried out in an unequal milieu, in which the receiver of technology pays an unnecessarily high price for technology which is often unsuitable or obsolete.19

If the prevailing norms of international protection of intellectual property continue, the gap between North and South will deepen. As confrontation rather than co-operation between the two hemispheres intensifies, there will be widespread starvation. Drought, deforestation, regional conflicts, etc. To prevent these, intellectual property could (and should) be used as a means to bridge the dangerously growing gap, and do so in a relatively short time.20 In the long run, such a policy will benefit the developed industrialized states as well. Technological colonialism can only result in a politically, economically and environmentally more vulnerable and unstable world. For these reasons, the application of the concept of knowledge as the common heritage of mankind. which demands easy access for all to the intellectual properties of the industrialized world, is very timely and necessary. Allowing easy and sometimes cost-free access to mankind’s technological heritage is also a debt owed by the West to the developing countries: not only because the West inherited the intellectual wealth of others in the past, but also because it attracts millions of intellectuals of the developing world, who represent a brain-drain of enormous scale to the great material advantage of the West.21

References

1. YUSUF, Abdulqawi Ahmed, ‘Transfer of Technology’ in BEDJAOUI, Muhammed (ed.), International law: Achievements and Prospects, Martinus Nijhoff Publ., UNESCO, Paris, 1991, p.691.

2. YUSUF, pp.691-2.

3. ibid.

4. World Commission on Environment and Development, Our Common Future, Oxford University Press, Oxford, 1987, p.87.

5. ibid.

6. BEDJAOUI, M., Towards A New International Economic Order, UNESCO, Paris, 1979, p.230.

7. ibid.

8. The second university was established in Oxford, England, in 1215, some four centuries later. See, for the Arab civilization, WAQF IKHLAS, Islam and Christianity, Hakikat Kitabevi, Istanbul, 1989, p.192.

9. WAQF IKHLAS, p.213.

10. It was Muhammed bin Musa Harazmi who calculated the attitude of the sun and the length of equator.

11. WAQF IKHLAS, p.216.

12. FERRERA, Jean, ‘Les Universites du Petrole’ (Jan. 1978), p.724. ‘Science et Vie’ (quoted in WAQF IKHLAS, p.215.)

13. The German ILA NIEO proposal, in BULAJIC, M., ‘International Protection of Intellectual Property in the context of the Right to Development: Comment on the German Proposal’ in CHOWDHURY, S.R; ERIK, M.G.D., PAUL, J.I.M., The Right to Development in International Law, Martinus Nijhoff, 1992, p.298.

14. Quoted in BULAJIC, M. International Development Law, Martinus Nijhoff, London, 1986, p.326.

15. However, he also accepts that modern Western technology ‘owes a great debt to medieval Arab thought transmitting and developing the heritage of Ancient Greece’, ibid.

16. See for example Nyhart, J.D., ‘International Law, Technology, and the Implications for Deep Seabed Mining’ in JOYNER, C.C. (ed.) International Law of the Sea and the Future of Seabed Mining, Accent Publ., Virginia, 1975, p.13.

17. YUSUF, p. 702.

18. See Our Common Future, pp. 4-5, 29, 76.

19. BEJAOUI, p.232.

20. BULAJIC, International Protection of Intellectual Property..., p.297.

21. cf. BULAJIC, p.297.