TRIPs versus CBD

1. Introduction

In the early 1990s, it was finally recognised at the international level that the industrial system of production and its drive for continued growth at all costs, was literally costing the Earth. The planet's life support systems are severely threatened, as evidenced by: increasing climate instability caused by the greenhouse effect; dramatic levels of soil and genetic erosion; the drying up of the equatorial rainforests leading to unprecedented fires, which will add to climate instability; marine pollution and the depletion of fish stocks; an estimated loss of 100 species per day, extinct forever......

At the same time, there has been a realisation that local and indigenous communities in developing countries, who have nurtured this biological diversity and depend upon it, are equally under threat from the same forces. Not only their livelihoods but their traditional knowledge systems and practices of innovation, accumulated over generations, and their a priori rights to this heritage, are being undermined by industry's hunger to exploit and deplete biodiversity and claim exclusive ownership over life forms.

The 1993 Convention on Biological Diversity (CBD) is a legally-binding commitment to stop this destruction and secure the conservation and sustainable use of biological diversity. Less than a year after the CBD came into force, however, the World Trade Organisation (WTO) was established with quite a different agenda.

The Convention is founded on the principle that local communities generate and are dependent on biodiversity and should continue to benefit from it. The WTO administers a global trading system, much of which is founded on the private monopoly rights of transnational corporations over biodiversity.

These rights and objectives clearly conflict. Yet both treaties provide legally binding obligations for governments. This briefing reviews the main points of the conflict and suggests approaches to resolve it.

The CBD is a result of prolonged international pressure to respond to the destruction of, and unequal profits from, the biodiversity of the Southern hemisphere. After years of debate, the Convention was agreed upon in 1992 and came into force in 1993. It is now adhered to by 170 nations. The CBD represents an important watershed in international efforts to promote biodiversity conservation. In the first place, the Convention binds signatories to a number of basic principles regarding how, by whom and for whose benefit biodiversity should be conserved. These are summarised in the box below.

Perhaps the most important feature of the Convention is that it gives formal international recognition to the central role that indigenous and local communities play in biodiversity conservation, through their traditional and sustainable practices and cultural knowledge systems.

The Convention explicitly recognises the intrinsic value of communities' knowledge systems, and gives their use and preservation greater importance than those used and commercialised by corporations.

This is to be translated into three major sets of tools:

• Positive rights for local communities, as key actors in the development and management of biological diversity.

• Funded programmes to support conservation and sustainable use at the local level in the South.

• Checks on IPRs in order that they promote, and do not run counter to, the objectives of the Convention.

The CBD's objectives are simple and straightforward: to conserve and sustainably use biological resources, and to provide for the equitable sharing of the benefits derived from them.

To ensure that these objectives are met, the agreement sets out obligations which member states must implement and respect. They fall into four broad areas:

• States must establish rules which govern access to biological resources.

• New systems of rights must be adopted and implemented for the states and communities from which biological resources originate. This includes rights in relation to companies wishing to exploit their materials and information.

• Appropriate technology is to be transferred to developing countries for the purposes of biodiversity conservation.

• States must ensure that the benefits arising from the use of biological resources (by corporations, for example) are shared with the communities and peoples from whom they have been taken.

The CBD does not stipulate any exact measures which its signatories should implement to achieve this. Countries can therefore use their discretion as to how they meet their obligations, provided that their efforts conform to the spirit of the CBD's text. The obligations, summarised in the box below, are as far as the agreement goes.

If the signatories to the CBD are to meet their obligations, it is crucial that the rights of indigenous peoples and local communities are fully recognised and implemented.

It is equally important that the conflict between the recognition and protection of these community rights and private monopoly rights is acknowledged, and a clear boundary line is established to stop private IPRs from encroaching at an increasing rate upon the collective domain of biodiversity and related knowledge.

The original aims and stated objectives of the CBD are to promote the conservation and sustainable use of biodiversity, and to ensure that benefits from it are equitably shared.

Many see a potential for the CBD to be an effective tool for biodiversity conservation and use if it provides practical means for local communities to assert their rights against the privatisation of biodiversity. However, there is a real risk that the CBD might degenerate into a mere legal charter for the transfer of germplasm from South to North under the guise of mutually agreed contracts.

Agencies, companies and governments who believe that millions of dollars can be raked in from the rainforests and farmers' fields are effectively trying to co-opt the CBD and use it as a tool to derail community rights and resources. Hardly a week goes by without some international conference catering to what Gurdial Singh Nijar of the Third World Network calls 'the ABS syndrome': the brokering of Access and Benefit Sharing deals to facilitate trade in biodiversity.

Such deals "revive the colonial type trade of a Third World commodity, which is then given added value by the North ...... a repeat indeed of the formula which has resulted in the present North-South 'imbalance' of trade terms, and pauperised large parts of the Third World". (1)

The emphasis in such deals is to establish codes of conduct to help corporations access local and indigenous communities' wealth of knowledge about their biodiversity, as well as samples of their materials. This is done under the guise of giving the communities a fair deal. In fact, this is the classic colonial practice of buying off some individuals to appropriate collectively held resources.

Benefit-sharing in the name of the CBD thus gets translated into speculative contracts with royalties that may (or may not) arise going largely to brokers, local elites and government offices. In this way, corporations - through their intermediaries - are able to bypass sovereign states and enter into a completely unequal relationship with local communities, whose collectively governed, priceless heritage is sold off in cheap deals.

Benefit sharing cannot be reduced to financial compensation for giving corporations access to and monopoly rights over collectively held biological resources and knowledge. These are inalienable elements of intergenerational inheritance. Benefit sharing simply cannot take place in a context of monopoly rights.

The imposition of narrow commercial interests in the pursuit of access and benefit-sharing, seriously jeopardises the promise of the CBD to ensure relevant rights for local communities. The twin agenda - of facilitating extraction and trade of genetic resources for industry, and of promoting their local use for sustainable development, under the very same framework - is untenable. There is already enormous pressure to make the CBD supportive of intellectual property systems rather than the other way around.

The drive to undermine the conservation and sustainable use agenda as well as the community rights foundations of the CBD, comes from biased international trade relations and particularly the WTO's TRIPs Agreement.

The World Trade Organisation was set up six months after CBD came into force. It promotes and oversees global rules on trade. The institution is particularly occupied with removing what it determines to be 'trade distortions' and 'barriers to trade'.

In the last round of GATT negotiations, which gave rise to the establishment of WTO, the absence of strong intellectual property rights in developing countries was said to be a barrier to trade, costing industrialised countries some $200 billion in lost royalties per annum. TRIPs was thus directed to bring developing countries' IPR laws to the level which transnational trading interests deem necessary.

TRIPs was expressly designed to ensure that intellectual property rights could be universally applied to all 'technologies', especially those which had previously been declared unsuitable for monopoly rights at the national level. These include pharmaceutical products and biological materials such as plants and micro-organisms, all of which must now be 'eligible for private property rights by IPRs.

The very idea of extending patents to biodiversity was strongly resisted by developing countries during the GATT negotiation. This was based on evidence that monopolies in the areas of food and health harm the interests of the world's poor, and efforts to conserve and make genetic resources available.

The new commercial opportunities opened up through developments in biotechnology have resulted in engaging in a massive campaign to wrest market control over biodiversity through the patent system, as well as change the rules of that system in the process. Legal questions and controversy related to IPRs on life are raging. For example, many people contest the idea that genes can be considered 'new' or that routine DNA sequencing involves an act of 'invention'.

These controversies are aggravated by the fact that many genetic 'inventions' claimed in the North derive from biological products and knowledge from the South. Further still, there are no ethical boundaries in place. Patents are being granted on human genes and on techniques to alter the fate of human reproduction.

Public outcry against genetic manipulation has driven the world's number one seed company, Pioneer Hi-Bred, to now denounce ethics as "a barrier to free trade" (2). Despite the terrible controversy, TRIPS requires developing countries to provide "legal protection" for the "intellectual property" of genetic engineers hailing from the US, Australia, Japan and Europe.

The justification given for this is that without patents, companies will not invest in genetic engineering, and without genetic engineering we cannot feed the world - despite 12,000 years of community 'research and development' work without which there would be no genetic engineering, which goes to feed commodity markets, not people.

Trading interests reflected in the WTO have overridden two basic assumptions which are fundamental to the CBD.

The first is that intellectual property is a matter of national sovereignty and policy, because it establishes monopolies and monopolies are, de facto, dangerous. Historically, countries have taken great care with their national IPR systems in order to protect the balance between private incentives and the public interest. The possibility of doing so is now forfeited to service the imperative of the TRIPS Agreement.

The second assumption is that life forms are part of the public domain. Biodiversity represents a cultural and ecological heritage developed over generations and upon which our collective survival depends. Subjecting this heritage to a legal regime of commercial monopoly rights under TRIPS will destroy the conditions for its conservation and sustainable use, especially by the communities, and thereby destroy society's access to diverse food and medicine.

TRIPs requires countries to provide patents on products or processes from any field of technology which are new, represent an inventive step and are capable of industrial application. There are few exceptions to this rule. States may limit the availability of patents on inventions whose commercial use would offend "ordre public" or morality (Article 27.2). States may also exclude plants and animals from IPR protection, but not plant varieties (Article 27.3b).

Because of this provision, biodiversity falls firmly under the legal regime of TRIPs. Plant varieties must now be patentable or be open to an 'effective sui generis system' of IPR. The precise meaning of 'effective Sui generis system' is unknown. Most people conclude that plant variety protection (PVP) - a 'soft' kind of patent system for agriculture - would satisfy this requirement. However, plant variety protection has proven to be a legal incentive to breed uniformity and restrict the rights of farmers and local communities working with biodiversity. Here TRIPs' intentions are quite the opposite of the CBD's.

The rare studies conducted in countries where plant variety protection has been in effect for decades, such as the United States, show that this kind of legal system has resulted in: little impact in terms of stimulating plant breeding; reduced information and germplasm flows from the private to the public sector; a decreased role for public plant breeding; and increased seed prices for farmers(3). Despite this, developing countries are being compelled to adopt PVP - not on the basis of its merits for agriculture, but on the basis of it appearing to satisfy the criteria of TRIPs.

Should TRIPS be implemented as it is, developing countries will suffer an unprecedented loss of control over and benefits from their own biodiversity:

Countries which opt to extend their patent laws to plant varieties will be setting up a system of private rights for individuals to prevent others from making, using or selling the protected variety or any product that might contain patented genetic information. Who stands to gain? Farmers will not be able to access freely or re-use seeds. Scientists will be subjected to research restrictions on their use of patented materials. In addition, they reduce the availability of diversity and threaten the survival of public research.

It is highly likely that countries which opt to legislate PVP as a lesser evil will end up in the same situation. No one knows what 'effective' sui generis systems for plant varieties entail but it is likely that some type of the UPOV-inspired system of PVP will be imposed (4).

The rules set by UPOV hinge on genetic uniformity as a requirement for monopoly rights. They also exact payments from farmers - the source of biodiversity upon which breeding is based.

Neither system - patent or PVP - has any mechanism for sharing benefits between IPR holders and germplasm or knowledge donors, a requirement that is squarely embedded in the CBD objectives.

Seen from the perspective of the CBD, the rights conferred by TRIPs over biological resources are astonishing. By the year 2000, developing countries will have to implement a regime of private property rights on their own biodiversity for the benefit of Northern transnational corporations (TNCs).

According to the World Intellectual Property Organisation (WIPO), citizens and corporations of industrialised countries hold 95% of the patents in Africa, almost 85% of those in Latin America and 70% of those in Asia (5). The patent system operates for the North. To impose it on life forms - biodiversity and the community knowledge embedded within it - in the South, is nothing short of perverting the very objectives of the CBD.

Increasingly, people realise that the TRIPS Agreement blatantly contradicts the CBD. TRIPS is a totally inappropriate vehicle for legislating new rights to biodiversity. The option for countries to develop a sui generis system of rights over these resources, within the TRIPS framework, is also increasingly viewed as a trap.

The conflict between CBD and TRIPs over rights to biodiversity runs deeply through both treaties and will force parties to decide which agreement should take precedence over the other. There are at least three areas of outright contradiction: in their objectives, systems of rights and legal obligations.

The CBD is intended to strengthen developing countries' capacities to conserve and use biological diversity on a long-term basis, taking into account all rights over those resources, and including the right to enjoy the benefits of this resource base. Because of structural imbalances between countries rich in biological diversity and those strong in technological and legal instruments, the South has consistently been exploited.

The CBD is supposed to rectify this and level the playing field by:

• Empowering the South to regulate access to its biodiversity.

• Conditioning access to the South's biodiversity, by requiring prior informed consent and the sharing of the benefits.

• Providing for transfer of technology from North to South.

• Recognising the a priori collective rights of local communities in developing countries, who are the source of biodiversity and traditional knowledge and whose role in conservation is now universally acknowledged as fundamental.

On the other hand, TRIPs is intended to provide private property rights over products and processes, be they biodiversity-based or not, in order to ensure that corporate interests are safeguarded equally world-wide. The uniform legal regime which TRIPs aims to achieve would provide monopoly control to those who claim to have 'invented' new plants, animals, micro-organisms or uses thereof.

A right to intellectual property under TRIPs is recognised on the basis of novelty. Community rights under CBD are founded on the basis of pre-existing rights to biodiversity and associated knowledge. IPR on biodiversity-related 'inventions' is therefore dependent upon the prior rights of communities.

By distorting the meaning of novelty to myopic, culturally reduced industrial interests, the implementation of TRIPs will systematically negate the wider historical contribution made by communities in developing countries to the planet's biodiversity, as well as undermine their rights. The two systems of rights detailed in the TRIPs and the CBD are, therefore, in complete opposition to one another.

The Preamble to the TRIPs Agreement defines intellectual property rights as being private rights. Because these rights are subject to the general WTO principle of national treatment, the implementation of TRIPs Article 27.3(b) on biodiversity will give global jurisdiction to private individual property rights.

Therefore, the global scope of these rights will destabilise the regime of national sovereignty espoused by CBD, which itself aims to recognise the inherent rights of indigenous and local communities.

In this sense, it is clear that IPRs applied to life forms under TRIPs runs counter to, and certainly do not support, the objectives of the Convention:

• IPRs will prevent the CBD from realising the full and practical meaning of Article 3 on national sovereignty and Article 8j on the rights of local and indigenous communities.

• Conservation of biological diversity as called for by the CBD is not possible under a global regime of private monopoly rights. Conservation of biological resources implies enormous responsibilities that TRIPS does not allocate to those who will benefit from ownership rights to these resources.

• The private property regime established by TRIPS will undermine the implementation of the access and benefit sharing provisions of CBD. Private monopoly can only begin where national or community sovereignty has been effectively suspended. Therefore, under TRIPS, the very genetic resources which nations and communities are supposed to control access to, will be under the control of IPR holders. Governments and communities will have no means of regulating access or demanding a share of benefits because they will be subject private ownership, contrary to the objectives of CBD.

All member states of the CBD and TRIPs agreements face an inescapable problem. Both treaties are legally binding for signatories, but their obligations pull countries in completely different directions.

It is likely that a country which in all good faith seeks to implement community rights, and does so through a CBD-framed policy, could find itself in serious contravention of the TRIPs Agreement.

The conflicting rights and obligations between CBD and TRIPs are summarised in the table below.

If the CBD is to be implemented in the interest of humanity's survival and well-being, then urgent measures need to be taken to ensure that its very objectives are not undermined by the narrow agenda of TRIPs.

In essence this is a simple exercise, and the main lines of action proposed are summarised on the first page of this briefing. It is fundamentally a matter of:

• Recognising that the CBD has primacy over the WTO in the area of biodiversity and traditional knowledge systems.

• Ensuring that the review of the TRIPS Agreement allows sovereign states to exclude all life forms and related knowledge from IPR systems.

• Urgently recognising the a priori collective rights of indigenous peoples and local communities over their biodiversity and related knowledge.