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- Newsgroups: misc.activism.progressive
- Path: sparky!uunet!wupost!mont!pencil.cs.missouri.edu!rich
- From: rich@pencil.cs.missouri.edu (Rich Winkel)
- Subject: Behind the Biodiversity Treaty Negotiations
- Message-ID: <1992Sep3.020919.7784@mont.cs.missouri.edu>
- Followup-To: alt.activism.d
- Originator: rich@pencil.cs.missouri.edu
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- Organization: PACH
- Date: Thu, 3 Sep 1992 02:09:19 GMT
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- Lines: 317
-
- /** gen.nativenet: 335.0 **/
- ** Topic: Behind the US BioDiversity Position **
- ** Written 1:09 pm Sep 2, 1992 by alanm@hpindbu.cup.hp.com in cdp:gen.nativenet **
- Original-Sender: Alan McGowen <hpindbu.cup.hp.com!alanm>
-
- [ Alan sent this article to the NATCHAT mailing list. I am passing it on
- on the NATIVE-L list as well since it seems appropriate to the subject
- matter of that list as well. Apologies to those who receive this long
- file twice. --Gary ]
-
-
- 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.)
- ** End of text from cdp:gen.nativenet **
-