From: Alan McGowen <beaver.cs.washington.edu!gnosys!hpindbu.cup.hp.com!alanm>
Subject: Behind the US BioDiversity Position
Date: Wed, 2 Sep 1992 20:09:12 GMT

Original-Sender: Alan McGowen <hpindbu.cup.hp.com!alanm>

NatChat readers will be especially interested in the remarks on the
role of indigenous people in the conservation of BioDiversity below.
US refusal to sign the UNCED Biodiversity treaty makes it particularly
difficult for indigenous people to recieve just compensation for their
knowledge and for their conservation of crucial biodiversity resources
when these are used by US biotechnology companies.

------------
Alan McGowen


/* Escrito  5:32 pm  Sep  1, 1992 por biodiv-l@bdt.ftpt.ansp.br em
 ax:bitl.biodiv */
/* ---------- "IATP: Behind The BD Negotiations" ---------- */
From: IGC Conservation Biology Desk <consdesk@igc.apc.org>
Subject: IATP: Behind The BD Negotiations


Behind the Biodiversity Treaty Negotiations:
Global Industrial Rights and a National Citizens Agenda
-------------------------------------------------------
by Kristin Dawkins*

One hundred and fifty three nations signed the Biodiversity Treaty at the
Earth Summit in Rio de Janeiro last June. The United States did not. Why?

A confidential memo, written on the stationary of US Vice President Dan
Quayle and leaked to the Village Voice newspaper, cites domestic
legislative obligations that the Treaty would compel as the main concern.
The memo advises that the Treaty "would require enactment of broadened
environmental legislation in the US" and that both "the Endangered Species
Act and the National Environmental Policy Act would need to be
substantially expanded..." Furthermore, "special legislation would need to
be passed for the benefit of the indigenous populations, i.e.  American
Indians" warn the associate and executive directors of Quayle's Council on
Competitiveness.

These concerns of the Competitiveness Council are typical of its mission
under the Bush/Quayle White House, which has been to systematically use
executive authority to undermine laws achieved by citizens through the
legislative branch of our government.  Simultaneous with the biodiversity
negotiations, for example, the Competitiveness Council overruled the
Endangered Species Act to allow further logging in the last habitat of the
Spotted Owl. And simultaneous with the climate change negotiations, the
Competitiveness Council waived some 59 rules of the Clean Air Act to allow
industry to increase its emissions.

In this case, the Vice President's Competitiveness Council is protecting
the biotechnology industry. Presently a $4 billion per year sector of the
US economy, the biotech industry foresees annual sales of $50 billion in
the next few years if it is allowed unregulated access to both resources
and markets. But the Biodiversity Treaty would do just the opposite:  it
limits access to genetic resources and regulates the release of
genetically-modified organisms.

Negotiated over a period of two years before the highly-politicized Earth
Summit, the final text of the Biodiversity Treaty states its objectives to
be "the conservation of biological diversity, the sustainable use of its
components, and the fair and equitable sharing of the benefits arising out
of the utilization of genetic resources." It is the latter goal that
dominated the debate, however; as a result, the Treaty is "more about
commerce than about conservation," noted the British Financial Times.

Among the rules won by developing countries, where more than two-thirds of
the planet's genetic resources reside, is the principle that compensation
is owed to the countries of origin.  This language directs that some of
the profits to be made from the sale of engineered variations of the
earth's natural gene pool -- some percentage of the $46 billion increment
anticipated by the US biotech industry, in other words -- be shared with
developing countries.

However, this victory of the Third World is mitigated by another rule won
by the industrialized countries. After a major political battle over who
would be eligible for this compensation, the final language refers to
countries "providing genetic resources" that were taken from either
"in-situ sources, including populations of both wild and domesticated
species, or taken from ex-situ sources, which may or may not have
originated in that country." In this way, the industrialized countries led
by the US, the United Kingdom and Australia, won the right to compensate
themselves and not the developing countries for the use of about 70% of
the world's known agricultural seed and livestock genetic pool stored in
gene banks, bioengineering laboratories, and botanical gardens.  As Simone
Bilderbeek, one of the co-coordinators of the non-governmental
organizations' Task Group on Biodiversity, put it, "No one can say anymore
that the North has the technology but the South has the bio. From the
moment the Biodiversity Convention comes into force, Holland will be an
important 'country of origin!'"[SEE BOX1]

Guarding these claim to compensation is the international law of patents,
the industrialized countriesU preferred form of intellectual property
protection. Patents give monopoly control over the commercial use of a
product or process to the recognized patentholder; because they reward
scientific and technological innovation, only about 1% of all patents
worldwide are now held by Third World persons or companies. The prevailing
criteria for patents, established by the Paris Convention as long ago as
1883 and upheld by the United Nations' World Intellectual Property
Organization (WIPO), require that there be an "invention" and a known
"utility."

These terms suggest that the applicability of patents to the genetic
foundation of biodiversity, and life itself, are limited.  Indeed, many
non-governmental organizations oppose the patenting of living material
outright. [SEE BOX2] Given that biological processes form about 40% of
the world economy and 90% of the economy of the poor, the "patenting of
life forms will be an enormous tax on the poor," argued Patrick Mooney of
the Rural Advancement Foundation International during the negotiations of
the Earth Summit.

The US has actively pursued the patenting of living material in other
international forums as well as the Earth Summit .  Simultaneously with
the biodiversity negotiations, in separate talks taking place in Istanbul,
the industrialized countries declared their intention of patenting their
stocks of banked genes under the auspices of the Consultative Group on
Agricultural Research (CGIAR.) Because the CGIAR is governed by financial
donors, not seed donors, there was no move in these negotiations to share
the profits of patenting with developing countries. And the US has argued
in negotiations of the General Agreement on Tariffs and Trade (GATT), the
dominant instrument of international trade policy, for patent rights over
living genetic material, too
-- again, without the obligation to share profits with countries of
origin.

Last year, GATT negotiators agreed to preserve the right of nations to
patent life forms up to the level of microorganisms but rejected the US
proposal to patent life forms up to the level of the human being. This
year, nonetheless, the US government's foremost medical research
institution, the National Institutes of Health, filed requests for patent
protection for some 3,000 different aspects of human genes whose function
is still unknown.  Although the final wording on trade- related
intellectual property provisions -- called "TRIPS" -- in the stalled
Uruguay Round of the GATT is not determined, the Earth SummitUs
Secretary-General Maurice Strong declared on numerous occasions that all
of the Earth Summit agreements would have to be "GATT-legal."

Some countries have intellectual property laws that already reject the
patenting of some life forms.  India's Patent Act of 1970, for example,
entirely excludes patentability in several areas of crucial social
significance -- agriculture, horticulture and atomic energy. Furthermore,
the Indian law covers processes, not products, in the areas of food,
medicines, drugs and chemicals.  This ensures that inventors are rewarded
by prohibiting others from using their process without compensation while,
at the same time, ensuring that use of a product that could be produced
through other means is not hindered. As a result, generic drugs and many
varieties of seeds are available to the public very cheaply because one
patentholding company cannot claim a monopoly and raise its prices or
otherwise restrict access to the benefits of the invention.

In various bilateral and multilateral settings including the GATT, the US
is attempting to negotiate intellectual property rights that would
eliminate such national laws that restrict commercial opportunities. In
bilateral negotiations with India, the US has threatened to withold trade
if its demand for changes in the Patent Act are not met. Adding to this
pressure are the proposed new GATT rules, which could make India's Patent
Act challengable on grounds that it is a "barrier to trade." Likewise, the
US is using economic and political leverage to force revisions to Brazil's
national patent law. Newspapers there recently reported that, according to
Brazil's Minister of Foreign Relations, Ambassador Axambuja, "We are being
pressured by the United States." If the Brazilian Congress fails to
approve new intellectual property rights in the field of biotechnology, he
said, "we will be retaliated against."

The Biodiversity Treaty does not necessarily favor these tactics of the
Bush Administration. As implementing mechanisms, the Treaty accepts any
"terms which recognize and are consistent with the adequate and effective
protection of intellectual property rights" providing that "such rights
are supportive of and do not run counter to" the Treaty's objectives.
Already, the European Greens used these clauses to convince the European
Parliament to postpone the patenting of living material on grounds that
patents would inhibit the objective of fairly and equitably sharing
benefits; the Parliament decided to undertake a study to ensure that their
actions would be consistent with the Treaty. Similarly, these terms could
be invoked against the US's proposals on TRIPS in the GATT and against its
bilateral negotiating tactics to influence the domestic laws of countries
like India and Brazil.

The Treaty can also be interpreted as supporting alternatives to patents,
rules regarding intellectual property that have broader social and popular
effects. These would include Farmers' and Plant Breeders' Rights as
adopted in 1983 by 102 countries; compulsory licensing by which
governments can force a patentholder to forego its monopoly on
intellectual property of social value; and indigenous peoples' rights to
the traditional knowledge of their cultures.

Indigenous peoples, who have played a major role in the conservation of
the planetUs biodiversity, differ on the question of intellectual property
rights. Some have taken the position that without legal protection, it
will be effectively stolen by Western scientists and, without compensation
for its use, economic pressures will force their communities to adopt
Western lifestyles and lead to the permanent loss of this highly
specialized knowledge. Others point out that many of those who would hold
the "right" to their traditional knowledge, under a Western legal system,
would be unaware of it nonetheless -- and subject to abuse by the system's
authorities.  Another perspective was expressed by a North American Indian
during preparatory negotiations for the Earth Summit.  He said, "We have
knowledge of plants and what we want is to share it, as we have been
sharing it for thousands of years. We do not want to patent it, and we do
not want others to patent it either."

While insisting upon patenting genetic material to protect the profits of
the biotechnology industry, the US systematically rejected all proposals
for regulating that industry in the interests of protecting public health.
In negotiating the Biodiversity Treaty and the chapter on biodiversity in
the Earth Summit's action plan, referred to as "Agenda 21," the US
successfully deleted from all texts any references to "biosafety."
Irregardless of the flagrant double standard, the US argued in these
debates that genetically modified organisms should be considered
"natural," while in defending patents, the US argued they should be
considered "novel."

After witholding its signature from the Treaty, the US issued a final
memorandum, entitled "Interpretive Statements for the Record," to clarify
its views on a number of matters resulting from the Earth Summit. In a
section referring to Agenda 21, the memo reiterates that the "United
States understands that biotechnology is in no way an intrinsically unsafe
process." But interestingly, the memo goes on to state that the "United
States accepts to consider the need for and feasibility of internationally
agreed guidelines on safety in biotechnology releases, and to consider
studying the feasibility of guidelines which could facilitate national
legislation on liability and compensation, subject to this
understanding."

The latter statement, despite its tentative tone, provides US activists
with both a warning and a mandate. The warning comes as a reminder of the
White House's strategy to use international agreements to overrule
domestic legislation. State laws -- like those of Maine, Vermont,
Wisconsin and Minnesota regulating the use of the synthetic growth
hormone. Bovine Somatotropin (BST), used to stimulate milk production in
cows or those proposed in Minnesota and North Carolina to require permits
for the release of genetically engineered organisms -- could be declared
internationally illegal as "barriers to trade" under the proposed rules of
GATT, for example.

On the other hand, national legislation on biosafety that addresses
liability and compensation -- as the Interpretive Statement suggests --
could be very useful in countering the corporate agenda and excessive
powers of the executive branch of the US government. Last winter,
President Bush announced a moratorium on all new environmental, health and
safety regulations in response to findings of Vice President Dan Quayle's
Competitiveness Council. And in May, the Vice President announced a new
"risk-based" policy on genetically-altered foods: they need not be
especially labeled nor must biotechnology companies seek the approval of
the Food and Drug Administration, if the company determines the
alterations are "not enough to create safety concerns." These rulings and
the Competitiveness Council itself ought to be constrained by the US
Congress.

In fact, the White House memos provide US citizens and legislators with a
clear political agenda.  First, national legislation can redress the
actions of the Competitiveness Council. Second, national legislation can
prescribe a comprehensive approach to the regulation of biotechnology. And
third, with or without a signature on the Biodiversity Treaty, national
legislation can implement its objectives. As Dan Quayle alerted us, both
"the Endangered Species Act and the National Environmental Policy Act
would need to be substantially expanded..." and "special legislation would
need to be passed for the benefit of the indigenous populations, i.e.
American Indians..."

Thanks for the advice, Dan.

------

[BOX1]
"No one can say anymore that the North has the technology but the South
has the bio," comments Simone Bilderbeek, one of the co-coordinators of
the non-governmental organizations' Task Group on Biodiversity.  "From the
moment the Biodiversity Convention comes into force, Holland is an
important country of origin!  Why would a company like Rotterdam-based
Unilever make a complicated deal with Indonesia, if it can find a
beautiful collection of Indonesian genes in a nice and tidy Western gene
bank.  Instead of crawling through hot, wet, mosquito-plagued rainforests
to obtain the originals, it can go next door where all the genes are
orderly numbered, named, systematized and easily accessible... "

[BOX2]
Non-governmental organizations drafted 39 alternative treaties at the
Earth Summit, expressing their own principles and commitments to work for
sustainable development. The Alternative Treaty on Trade states "The
patenting of intellectual property, which by definition grants private
ownership to discovery and invention, nullifies collaboration and the
sharing of knowledge.  In order to address issues of intellectual property
while preserving the rights of traditional societies using non-patentable
living resources, all patenting of biological resources and life forms
should be halted and existing international laws of the World Intellectual
Property Organization (WIPO) under the Paris Convention framework should
be recognized.  In addition, existing formal and informal rights of local
communities to biodiversity and biological resources, along with their
contribution to the improvement and maintenance of biodiversity, should be
recognized and valued. Trade mechanisms that reduce or restrict the free
flow of ideas and technologies necessary for the protection of the
environment and health must be eliminated. All nations' rights to use
products with broad social value through mechanisms such as compulsory
licensing must not be compromised by GATT or any other negotiations."

* You may contact the author:

  Kristin Dawkins,
  Institute for Agriculture & Trade Policy
  1313 5th St. SE Suite 303
  Mineapolis MN USA 55414
  Phone:  (612) 379-5980
  Fax:    (612) 379-5982
  E-mail: kdawkins@igc.apc.org

(ref.: kdawkins in trade.library "Dawkins-Biodiv Tr/IPRs & US Agenda," ed.)
Newsgroups: alt.native