TED Case Studies
Number 778, 2005
by Isaac Congedo
Jaffa Oranges: A Case Study of Intellectual Property, Geographic Indication, and National Identity
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The Case of Jaffa Oranges

 

1.The Issue:

It is not uncommon for a food to become a symbol for something else, be it an idea, person, group, or place. There are in fact many examples of this phenomenon in Washington DC- was it not in this city that the name change from ‘French fries’ to ‘freedom fries’ was proposed? Or, given that the Jewish population of the United States is largely Ashkenazi, i.e. from central or eastern European background, can one not notice the accepted cultural ownership of the bagel and bialy (the latter of which originated in Bialystok, Poland, as a bread-product not eaten by the local population). Although many cultures use pureed and stewed tomatoes in their cuisines, is it also not found that tomato sauce itself is thought of being an Italian staple of diet? These links between food and people seem generally congenial. However, there is a citrus product in particular that does not have such a happy connotation for many. The Jaffa orange is a fruit to which many symbolically link the effects and aftermath of the 1948 Israeli-Arab War and Palestinian national identity issues. How is this so?

2.Description:

Identity though sustains its importance as it is the shaper of institutions. Given that the state was founded along the parameters set by Eastern European immigrants, much of the attitudes and notions of what it was to “be Israeli” came from this particular group’s projection of their own identity on to the land that they had recently inhabited. Not only were there inherent patterns of behavior that were downplayed in this culture of the halutzim, or pioneers, such as religiosity resembling European city Jewry, but the development of the concept of sabra, the new Jew. This cowboy-like projection of the strong Israeli in the future came into conflict with other identities that came to be part of the state, such as Oriental Jews, Former Soviet Union immigrants, and the like. The importance of identity can be measured then in how much politics reflected the battle for cultural and institutional dominance, as well as social stratification along lines of different cultural and sub-ethnic identities.

 

Historically there was a significant difference in the approach to agriculture between the Arabs of pre-1948 Palestine and Ashkenazi-Jewish immigrants, the halutzim, who came to found the Israeli state. The former group had become famed for their production of oranges from the port town of Jaffa . One could argue that the means of production were largely more "organic" by today's standards- orchards were more or less conglomerations of trees, and production depended upon the luck of the precipitation, which in the region is fairly sparse. Also, produce was hand-picked and inspected- like most agriculture, there was very personal ownership of the groves. However, with the Ashkenazi immigration to Palestine came the "modern" farming techniques, as well as the accompanying technology.

 

Yet the battle for cultural and institutional dominance was not the only battle making the setting for this case. The physical battles- i.e. the fire-fights themselves- helped to establish a context through which Jaffa is viewed in this case-study. To be dealt with later in the legal aspects of this case is the general discussion of property. Jaffa ("Yafaa" in Arabic) is a port town south of what is now Tel-Aviv. Part of the proposed Arab State in the Partition Plan prior to 1948, Jaffa was an Arab town. Upon the Israeli victory in the 1948 War, roughly 700,000 Palestinian Arabs were displaced (a few voluntarily, many not) and Jaffa, as well as other predominantly Arab pre-1948 towns came under Israeli jurisdiction, and found themselves filled by that population. How did this happen?

 

A "hot" source of information is the plethora of information- communications, intelligence, military reports, etc.- declassified since the time of their employment from 1947-1949. The opening of such papers in Israel also conincided with the same phenomenon occuring in both the United States and Britain, thus making a hind-sight glance at the issue of Palestinian Refugees from the 1948 War possible. In short, Jaffa, as a supposed strategic location to the 1948 War, was in fact not so strategic in military value. Between the two Zionist (used here as a political ideology and identity, not a pejorative word) militias operating in the 1948 War, the Haganah (later to be the base of the IDF) and the Irgun (a.k.a. IZL, a more nationalist, rightist faction containing Menahem Begin, for example), there was a signficant parting in perception of the port town. The Haganah saw no strategic threat to the Jewish capital by this city, and thus avoided frontal assault, preferring an indirect method of isolating the town from the outside.

 

The Irgun, however, decided that Jaffa was a "'cancer' in the Jewish body-politic" as well as the "scourge of Tel Aviv"- the Irgun's powerbase. What conspired then was an awesome bombardment of the town by the Irgun- met with resistance by its inhabitants- that severely lowered the morale of those inhabitants. Having heard of recent defeats of places like Balad as-Sheikh, and Haifa, in which the Arab residents of those towns made truce to leave under British protection after similar bombardments, thus fled a great number of Jaffa inhabitants. It should be also noted that the incidents of Deir Yassin, a particularly gruesome event considered as such by all sides, was an Irgun operation (as opposed to that of the Haganah), and upon learning that those assaulting Jaffa were, in fact, the Irgun, this gave greater cause to panic. Political leaders fled first, and then eventually fled. A town whose population originally consisted of 70,000-80,000 people found between 50,000-60,000 of those inhabitants fleeing at the start of the final battle. A Palestinian military power was decimated, cracking an Arab morale... giving to a "psychosis of flight" as put by one IDF intelligence report. Not only were cities like Jaffa lost by the Palestinians, but their surrounding countryside as well- those places of agriculture, of farming. However, as the agricultural areas were acquired, no longer were the same techniques applied en force.

 

Largely modern techniques were used for farming the same products that were previously hand-grown. Also, Israeli irrigation, a novel idea and technology created to bring steady irrigation to dry land in a dry climate, further changed the conditions in which Jaffa oranges were produced.

This issue however has not been stagnant since 1948, either. One of the key issues fueling the first intifada (“uprising” in Arabic) of the 1980’s was the (often illegal) employment of Palestinian laborers/workers in Israeli industry, including agriculture. The question of property rights and geographic indications of Jaffa oranges are numerous: Can one retain the name if the town was historically of another ethnic group/culture/jurisdiction? What about if the production methods are different? Can it be retained if the workers are still Palestinian, even if their employment is illegal, all while using Israeli methods?

This case is very difficult to classify and explore because there so many different angles that one can take when researching. Does this case clearly fit into a labor dispute? Are there human rights issues involved? If the workers are illegal isn't the dispute domestic and thus not liable in WTO discussions? How does one prove notoriety of the fruit began in time of ownership by Palestinian Arabs? How can one define the clear ethnic identity of those Arabs living before the colonial powers drew geographic borders (on a land that experienced large amounts of human migration)? Can illegal workers claim property rights over a product that they are now tending illegally? What is the actual importance of the Jaffa orange to a national identity?

The only things clear about this case are that it is extremely complicated in nature due to the number of legal areas of discussion, as well as the fact that this case, in its origins, delves deep into cultural issues that underly the Israeli-Palestinian, and larger Israeli-Arab Conflict. Upon recognizing the great cultural rifts that were made between the different ethnic and religious populations of Pre-1948 Palestine, one may understand some of the emotional dimensions that can come, to both parties involved, in arguing any side in this case. As a disclaimer, it should be noted that this website is not meant to be used as clear advocation for one side or another in a political argument, but rather as a piece of "brain candy" to be used for opening the floor to questions regarding intellectual property issues that go past monetary discussion... and into the realm of national and cultural identity within international relations.

Cultural issues established, the substance of this case in trade and intellectual property rights terms are difficult to define... yet rich. Consider all of the interrogatives mentioned above- under what form of protection can this case fall? As a civil case it is near impossible to define paramaters regarding illegal labor because of the lack of reliable statistics/reporting of illegal workers. Yet, as more and more places are claiming geographic indications in intellectual property disputes, it is a curious argument to apply to a fruit whose ownership has changed due to war.

3.Related Cases:

  1. Aral- effects of cotton industry on water in the Central Asian states
  2. Bulb- thought to be extinct, a flower bulb from Turkey is grown in the Netherlands
  3. Orchid- a debate regarding the transplantation of historically precious plants

 

 

4. Author and Date: Isaac Congedo, M.A. Comparative and Regional Studies of the Middle East Candidate, American University May, 2005.

II. Legal Clusters

 

 

5.Legal Cluster: Disagreement, Alleged

The general discourse in a case can be either one of agreement (a negotiated treaty) or disagreement (a legal proceeding) although in the world there are certainly many in-between areas. The type tells something about the degree of consensus around a subject indicating that little is actually known about the problemor that alternative approaches to a solution exist. The type of discourse also reveals something about where rules do and do notexist. A simple indicator of the stage of a case towards resolution -- that is towards a treaty or a decision -- can be created by setting a general scale reflecting the legal status of a case. The scale will range from an allegation to a case in progress to a completed case reflecting a linear process.

Agree [AGR] or Disagree [DIS] : Disagreement regarding Intellectual Property Rights relating most strongly to "traditional knowledge", yet possible Agreement along the lines of labor and royalties


Stage (ALLEGE, INPROG, or COMP): Alleged, possible future engagement

 


6. Forum and Scope:Bilateral: Israel and Occupied Territories

7. Decision Breadth: 2

Inately this is a very difficult situation to deal with, as there are parties involved, but sometimes the identities of those parties are... not easy to classify. A relaxation of security measures, government measures to reduce the employment of foreign workers and the refusal by Israelis to work in construction have caused many contractors to risk employing workers who have crossed the Green Line illegally. There are three large ethnic-political groups involved in this discussion: Non-Arab Israelis, Palestinian-Israelis and Palestinians from the Territories. However, citizenship is and important factor to consider when dealing with this legal quandary, and since the workers being discussed are illegal, thus the two parties involved are technically the Israeli government, as well as the PA.

Numbers of Parties Affected: Two: Israel and the PA (source of governance for possible future Palestinian state)

8. Legal Standing: Sublaw or NGO agreement

One of the more challenging aspects of dealing with issues of trade is the plethora of legal battles that can ensue. In general, given that there is now a formal forum in which disputes can be discussed, there is a great need to be able to define one's case in specific pieces of legislative literature. That the World Trade Organization provides legislation- or at least topical areas of discussion for the sake of possible trade disputes. However, trade disputes are not always limited to an economic factor, and thus may fall into legal discussions outside of what the World Trade Organization, or similar trade institutions, provide. Jaffa Oranges may provide a number of different legal discussions: preferential tariffs and quotas, geographic indication, traditional knowledge, interaction between trade and competition policy, as well as illegal labor.

It should be noted that it has already been discussed that Jaffa Oranges are to be labeled as a topic of dispute within geographic indications and intellectual property. After which, there are the other aspects to dispute. The argument would stem then from the articles of the Geneva Convention, regarding the question of what is legal seizure of land due to war- the answer to which is that there is no such legal seizure. Most commonly this stipulation is referred to when discussing the Occupied Territories, however Jaffa, just south of Tel Aviv and considered part of Israel-proper, could be included. Thus a possible illegal appropriation of not just territory but name of a territory could make a heated legal battle.

Preferential tariffs and quotas when researched are labeled relating to a case between Greece and FSU countries. However, this is the only provision that would work in favor of the current producers of Jaffa Oranges- provided they use the clause in reverse. That is, due to political situation between Palestinians and Israel, the EU places quotas on Israeli agricultural products. Israel could reciprocally argue that such quotas are unfair and do not support free trade, thus making a legal argument to remove quotas.

Interaction between trade and competition policy, like geographic indication, will again possibly prosecute the Israeli producer of Jaffa Oranges. In specific, this measure was enumerated for the sake of promoting competition in developing countries, and creating competitive institutions. In the case of the Palestinian territories there are numerous reasons why such a clause is necessary to argue. After the debate of legal/illegal possession of property, there is the issue of competing agricultural industries; i.e. between a developed Israeli economy that has spearheaded development in irrigation throughout the world, and a struggling Palestinian economy with little arable landmass, high unemployment, unstable services (i.e. water, electricity- the latter of which is sometimes controlled by Israel Army as methods of reciprocity for curfew violations, etc.), and so on.

Although I have not found clear stipulations, illegal labor is also a means for prosecution; however this might not make its way to trade agreements, but stay as a local dispute. And lastly, traditional knowledge would allow for argumentation so that "in the invention and that the shares of benefits that accrued to the source and country of origin and/or local/indigenous community, where applicable, was equitable and fair in the circumstances."

Standing: Treaty, Law, Sublaw, or NGO:This case could be settled under sublaw or NGO agreement- a slightly unrelated yet interesting case for comparison is of stolen license plates in Gaza

 

 

III. Geographic Clusters

 

 

9. Geographic Locations:

a. Geographic Domain: Middle East

b. Geographic Site: Middle East- Asia Region

c. Geographic Impact: Israel

10. Sub-National Factors: Yes

Again, given the complication of the dispute- i.e. illegal laborers in the Israeli economy- this is also a domestic business dispute as well.

11. Type of Habitat: Temperate, Arid (South and East)

IV. Trade Clusters

 

12. Type of Measure: Intellectual Property and Quotas

13. Direct v. Indirect Impacts: Direct

This case of Intellectual Property and Quotas certainly falls into the direct category of trade measures. Seen as methods of controlling behaviors of a trading country, neither measure would necessarily be effective in a direct manner; the former would be a paradox considering that Europe is a producer of Jaffa Oranges as well, and the latter is improbable as there is not a clear dinstinction as of yet about the numbers of illegal workers in agriculture, as well as the effect this would have on "traditional knowledge" regarding the growing and harvesting of the oranges- thus a quota affects only the macro-economy without targeting the specific issue. Yet, the measure is taken directly against the Jaffa Orange production itself.

14. Relation of Trade Measure to Environmental Impact:

a. Directly Related to Product: Yes, Orange

b. Indirectly Related to Product: No

c. Not Related to Product: No

d. Related to Process: Yes, Intellectual Property

15. Trade Product Identification: Orange

16. Economic Data:

With the help of US Intelligence:

"Israel has a technologically advanced market economy with substantial government participation. It depends on imports of crude oil, grains, raw materials, and military equipment. Despite limited natural resources, Israel has intensively developed its agricultural and industrial sectors over the past 20 years. Israel imports substantial quantities of grain, but is largely self-sufficient in other agricultural products. Cut diamonds, high-technology equipment, and agricultural products (fruits and vegetables) are the leading exports. Israel usually posts sizable current account deficits, which are covered by large transfer payments from abroad and by foreign loans. Roughly half of the government's external debt is owed to the US, which is its major source of economic and military aid. The bitter Israeli-Palestinian conflict; difficulties in the high-technology, construction, and tourist sectors; and fiscal austerity in the face of growing inflation led to small declines in GDP in 2001 and 2002. The economy grew at 1% in 2003, with improvements in tourism and foreign direct investment. In 2004, rising business and consumer confidence - as well as higher demand for Israeli exports boosted GDP by 3.9%." (CIA World Fact Book, 2004)

17. Impact of Trade Restriction: High

18. Industry Sector: Food: Agriculture, Trade

19. Exporters and Importers: Israel, and many

Given perhaps the severity of the claims for Jaffa oranges, it seemed useful to glance at reported numbers (taken from the UN Trade resources) of both exporters and importers. It was a hinderance that one can't find a tabulation of exports that include the breakdown for each nation's product by brand, however, the numbers produced didn't necessarily support... or deny the arguments in this case.

Table of Top Ten Exporters of Oranges
 
Country
Quantity (Mt)
Value (000 $US)
1
Spain
1442788
968812
2
United States of America
661694
358192
3
South Africa
723280
213471
4
Greece
285572
130864
5
Netherlands
224961
129689
6
Morocco
262174
109192
7
Australia
99265
72568
8
Turkey
175908
58494
9
Italy
81731
51438
10
Belgium
65253
44573

 

Ironically for this case, Israel did not make it in to the top-ten list of exporters, finishing at number:

17
Israel
44957 Metric Tons
12,422,000 $US

 

Perhaps the only odd piece of information is that Italy both exports and imports oranges... but alas, no information as to whether or not they are Jaffa.

Table of Top Ten Importers of Oranges
 
Country
Quantity (Mt)
Value (000 $US)
1
Germany
564352
317915
2
France
449968
295938
3
Netherlands
375516
214029
4
United Kingdom
325978
183600
5
Russian Federation
403789
138521
6
Belgium
196066
132736
7
Republic of Korea
144881
112631
8
Canada
225808
110279
9
Japan
117087
94748
10
Italy
118941
73942

V. Environment Clusters

 

20. Environmental Problem Type: Intellectual Property and Culture

There are no environmental problem types that are included in this topical discussion- an irony of this case-study is that the geographic areas in discussion would have better irrigation than previously available. In regards to chemicals commonly used for vegetation, there has been significant documented issues involving destruction of the environment through these means, referring to chemical fertilizers and pesticides.

21. Name, Type, and Diversity of Species:

Name: Citrus Sinensis

Type: Fruit

Diversity: Jaffa, Valencia, Washington Navel

22. Resource Impact and Effect: Low, Product

Given that there is no environmental threat in this case, as well as the context of traditional knowledge as a method of production, the environment impact of this case study is low, and there could be no other adjustment made other than an institutional change of control of property and intellectual property rights.

23. Urgency and Lifetime: Low, and indefinite

24. Substitutes: LIKE

The Jaffa oranges are known for being very sweet, as well as having a thin, easy to peel skin. Thus, any orange that fits this description... including valencias, clementines, can substitute. These all fall into the category of "LIKE", or, products similar to that in question, as compared to searching for synthetic (and thus inedible) alternatives, for example.

VI. Other Factors

 

25. Culture:

This is a very difficult case to make at times- in essence, through such a case study one might seek to find a form of retribution for historical occurences through "modern" (read Western) legal means. However, in the context of culture, much more of a case can be made. There are two distinct cultures that must be considered when discussing this case: Israeli/Sabra Culture, and Palestinian Culture. The former of the two is largely a construct that draws upon very colorful sources; it stems largely from those founders of the Israeli state who were generally secular, socialist, and "enlightened" Eastern European Jewry. Upon encountering those presently living in the Middle East, in particular their new neighbors (Levantine Arabs and Bedouin, as well as smaller groups of Middle Eastern Jewry), they sought to distinguish themselves as a form of the "New Jew," thus being self-sufficient, working the land, answering to no one... and liberated from a historical role as the persecuted European Jew. The identity struggle involved in this phenomenon is tremendous- from many Jewish perspectives (as well as secular historical perspectives) it has been seen as an ending of a 2,000 year exile.

The only problem encompassing this situation is that this new Middle Eastern identity was not congruent with those already living there. Even Middle Eastern Jewry was far too "Arab" for the halutzim, "pioneers" from Eastern Europe. As part of the new culture being brought into this region came agricultural "advancements" as well. Not merely in real life, but also depicted in art from the region and time, one can contrast difference in landscape from the changes being made; the halutzim planted in neat, clean rows... as to be compared (especially pictorially) with the conglomerations of tree in Arab orchards. Yet with these European systems, there was the process under way of the creation of Israeli identity. In this process, "Israeli" was created as something non-Arab in aesthetic form (including language, the Israeli accent is reminiscent of the Yiddish accents, note the German-sounding Resh, as opposed to Middle Eastern pronunciations of Hebrew that differentiates between the frontal and glottal letters, such as Ayin, Het, Qoof, etc...) yet Middle Eastern. Similarly, in trade, especially agriculture, changes were also made. From harvesting to irrigation methods, employed methods of production in Israel both pre- and post-1948 included "modern" techniques.

Though what relation does this have to culture? Jaffas oranges gained their notoriety well before 1948- did you know that you can buy "Jaffa Juice" as was possible pre-1948? Also, there are numerous claims of orchards that were subsequently lost by Palestinian farmers before and after 1967 as well. That said, it is also important to understand the value of the orange in the Diaspora culture of the Palestinians. Of numerous authors and poets to write, Ghassan Kanafani has one of the most famous stories, entitled The Land of Sad Oranges, in which the reader is introduced to the psychological effects of effects of the 1948, 1967, and 1973 Wars upon Palestinian society. In particular, a portrayal of a family's father, immasculated by the experience of losing his land and relocating his family to Lebanon, is tied up in the symbol of the orange, also corporeally representing the fruit that he used to harvest himself. While there are are numerous pieces of material culture within Palestinian culture, the orange remains one of the most symbolic when discussing the group-narrative and sentiment.

This commentary on culture by itself is not case enough to bring to the WTO for a dispute, but it certainly resonates with larger cultural disparities that underly the Israeli-Palestinian conflict, as well as provide a background for beginning a historical discussion about the origins of the notoriety of this type of orange.

26. Trans-Boundary Issues: Yes

This case does have relation to the issue of illegal employment of non-Israeli Palestinians, and thus illegal border-crossing by these illegal workers.

27. Rights:No

As there is not conducive evidence as to exactly how many illegal workers are employed in this agricultural field, and that it is further doubtful their rights would be a matter easily recorded for statistical evidence, one cannot prove that there are issues of human rights involved in the process of production of Jaffa Oranges.

28. Relevant Literature:

Almog, Oz, The Sabra: The Creation of the New Jew. University of California Press, London, England. 2000.

CIA World Fact Book, 2005: Israel. <<http://www.cia.gov/cia/publications/factbook/geos/is.html>> viewed May 3, 2005.

Easy Fruit Website (Thank you very much for the use of the pictures!) <<http://www.easyfruit.co.uk/oranges/update/>> viewed April 26, 2005.

Food and Agriculture Organization of the United Nations Website, <<http://faostat.fao.org/faostat/form?collection=Trade.CropsLivestockProducts&Domain=Trade&servlet=1&hasbulk=0&version=ext&language=EN>> viewed April 14, 2005.

Haaretz Online (Newspaper): Merovski, Arik. "Palestinian Workers Return, and So Does Sabotaged Construction"<<http://www.haaretz.com/hasen/pages/ShArtVty.jhtml?sw=palestinian+labor&itemNo=557450>> viewed April 5, 2005.

Israeli Embassy Website, Ministry of Agriculture, Trade: Fruit Exporters <<http://www.moag.gov.il/english/news/fruit.htm>> viewed April 4, 2005.

Morris, Benny, The Birth of the Palestinian Refugee Problem, 1947-1949. Cambridge University Press, Cambridge, England. 1987.

Marlin-Bennett, Renee. "Pioneers and Heroes and the Cult of the Land" American University, Ward 106, September 21, 2004.

Peled and Shafir, Being Israeli: the Dynamics of Multiple Citizenship. Cambridge University Press, Cambridge, UK. 2002. CH3

World Trade Organization Website, Intellectual Property <<http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm>> viewed April 20, 2005.

World Trade Organization Website, Traditional Knowledge <<http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm>> viewed April 20, 2005.



5/2005 © Isaac Congedo