GRAIN
One year after the signing of the global Convention on Biological Diversity at the UN Conference on Environment and Development (UNCED), the industrialised countries are sharpening their tools to twist the treaty in favour of the biotechnology industry. The US government is moving forward to sign the Convention, but only on the basis of its "interpretation" of the sticky points. Under pressure from the industry, other OECD countries are equally trying to converge into a common power bloc as to how to "interpret" the Convention. After four years of polite negotiations, the real power politics begin.
In the middle of April, about the same time that US president Clinton publicly announced that his country was finally ready to sign the Biodiversity Convention, a text that leaked out of Washington sent NGOs concerned about local people's control over biodiversity into something of a fury. The text, drawn up by the Clinton Administration, was a draft "interpretive statement" of the Biodiversity Convention, and it outlined how the US understands the content of the treaty. The text of this "interpretation" that sailed out of Washington last month shocked pro-people biodiversity activists all over the world. In many ways, it crosses substantially over the borderline between what you can decently call interpretation and what is clearly imposition of new elements into the treaty. Indeed, as one observer put it, the US "interpretation" would effectively turn a Convention to conserve biodiversity into a tool to protect the biotechnology industry.
But while all eyes of protest focused on the confusion and clamour in Washington, the silent process of fusing together a bloc OECD intergovernmental position on how the Northern nation-states intend to interpret the Convention moved forward. The European Commission already drafted its own "interpretative declaration" going in the same direction as the one the US came up with. The Swiss chemical and pharmaceutical industries -- major stakeholders in biotechnology -- met up with representatives of their government and are using blackmail tactics to force a strong interpretation of the Convention in their favour -- under threat of leaving the country otherwise. In the meantime, the OECD secretariat has jumped in to try to help coordinate all these different efforts to turn the Convention upside down.
Scuttling the substance
The different draft versions of Northern governments ' intended interpretations that GRAIN has seen on paper are fairly similar and coalesce into one resounding message: the industrialised countries are intent on reading the vague or threatening articles of the Convention in their exclusive favour. There are two main issues they are concerned with. On the one hand, how it will affect the manoeuvring space of their powerful biotechnology companies to continue freely using genetic resources from the South and withhold proprietary technology, and on the other hand, how it will affect the money they 'll have to put on the table.
In the first area, the question of technology transfer from the rich to the poor, as contemplated in the Convention, has the industrialised countries in arms right now. The Convention on Biodiversity lays down that Contracting Parties -- i.e. governments -- should facilitate the transfer of biotechnology to the developing country donors of genetic resources "under fair and most favourable terms". Given that biotechnology is largely in the hands of the private sector which has proprietary control over it, the companies in the North fear that those "terms" -- if "misinterpreted" -- would require seed and biotechnology companies to hand over the technology to countries in the South. The American Seed Trade Association raised its alarm in a letter sent to Clinton at the beginning of May, affirming that, "Seed companies could become economic hostages to developing and other countries if they are required to provide unlimited access and under terms not reflective of the substantial investment that has occurred."
The Swiss industrial sector sees the matter slightly differently, but is equally alarmed. To them, the real threat is eventually being forced to share their technology with competitors from the North. According to the minutes of a meeting held between the industry and the Swiss government last November, the chemical sector threatened that ratification of the Convention "would lead to a transfer of complete industry branches [from Switzerland] to foreign countries." Their colleagues from the Federal Office of Intellectual Property tooted in: "The companies in the industrialised countries are afraid that their know-how, which they might offer to developing countries [in the framework of the Convention] will be sold to direct competitors in other industrialised countries." The Swiss industry giants think that the whole Convention is a bad idea in the first place, as it "is based on a wrong political assumption: the participation of the State in negotiations that should be left to the private sector." In other words: "Why do you governments get yourselves involved in our private efforts to continue getting hold of the genes we need from the South? We can handle that very well on our own!" Not surprisingly, the biotech companies are pressing the Swiss government not to ratify the Convention and let the whole thing die slowly.
Additionally, the Convention also calls on Contracting Parties to allow donors of germplasm to participate in research carried out with the use of their genetic resources. On this point, the US government wants to make it clear that no one can force the American private sector or even the universities to comply with these rules. As the Clinton Administration sees it, the Convention is a binding agreement concluded strictly between governments, and consequently the involvement of the industry can only be voluntary. One starts wondering then whom the government of the US represents: its people but not its industries?
Thus, according to its draft interpretive statement, the US understands that the Convention only commits industrial countries to do research in partnership with the Third World if it relates to research "directly conducted by Contracting Parties, and not to government-funded or other research activities carried out by non-governmental entities, including the private sector." Basically, the US is saying here that some 90% of the United States ' research capacities in biotechnology -- the companies and universities -- are off limits to the South. It completely undermines the commitment laid down in the Convention to share some of the benefits by undertaking research in partnership with those who provide the resources in the first place.
Draping all these efforts to undermine the technology transfer commitments in the Convention, are the moves in the North to "interpret" what the Convention says about intellectual property on genetic resources and biotechnology. The Convention is indeed ambiguous on this issue, due to the controversy plaguing the entire negotiating process. On one hand, the Convention stipulates that transfer of technology should be consistent with intellectual property rights (IPRs) in the case where such technology has already been patented. On the other hand, it fully recognises the potential problems of such IPRs and calls for State action to make sure that such intellectual property rights legislation supports and is not detrimental to the objectives of the Convention. The language in all of this is vague enough to see it used for any ends and purposes, putting the debate on how to move forward squarely on the table.
But the North is now trying to shortcut any possible multilateral discussion on this -- and thus any fair deal with the South. The US comes forward stating that it understands that current intellectual property rights "do not cause a serious damage or threat to biological diversity", so there is no need to worry. And, furthermore, "The United States seeks to avoid any interpretation that would permit or encourage Contracting Parties to use [the Convention] to justify less adequate and effective protection to intellectual property rights." The EC Commission goes even further in its draft interpretation by bluntly affirming that patents on life forms are "an essential pre-condition for the implementation of policies for technology transfer and co-investment." In other words, the threatening message from the OECD to the rest of the world is: "Don 't you even try to question our biotech patents, but rather make up you mind and install them quickly yourselves if you want to see any technology transfer."
The hysterical reactions of the US Administration and the EC Commission run the risk of undermining whatever positive potential the Convention has for the equitable conservation and use of biodiversity. Without even offering to discuss these matters openly amongst all countries that signed the Convention, they are now coming forward with arrogant and forceful statements of intent that could destroy the whole thing. Obviously, their main concern is not the protection of biodiversity but rather the profit of a handful of companies.
Funding for whom?
The other major headache zone for the North is the cash. The Convention calls for new and additional funding coming mainly from the industrialised countries to be managed by a democratic and transparent mechanism. In the interim period before the Conference of the Parties (the Convention's signatories) meets to take decisions on this, the World Bank-based Global Environment Facility (GEF) was identified as a temporary funding mechanism. The GEF is a funding mechanism whose rules are dictated by the industrialised countries. The US and Europeans now propose a number of adjustments to the Convention as regards the funding mechanism. Washington insists that the GEF should actually remain the permanent funding mechanism and be empowered with important decision-making functions not currently foreseen in the Convention. According to the US paper, it should be the GEF -- and not the 160-odd signatories to the Convention -- who should have the power to decide which measures are to be undertaken across the globe to conserve biodiversity. The US thinking is that the democratic body which the Conference of Parties is meant to be should only be allowed to set the vague lines on the overall financial resources needed, while the GEF is charged with deciding specifically who pays up and how the money is actually spent. This way, the North can entirely control the funding to serve its own interests.
While the European Commission seem to agree on this line, it also gives an interesting turn on how it sees that the money should be used. The draft statement of the EC Commission says that "The European Community and its member states shall encourage the use of the financial mechanisms established by the Convention to facilitate the transfer of intellectual property rights held by European operators." Meaning that the scarce resources for the conservation of biodiversity should be used to purchase licenses from European corporations holding patents on technology so that it can be transferred to the South. The Swiss government seems to be pushing in the same direction as it "considers to buy some patents which could be put at the disposition of developing countries in the framework of development corporation", according to a representative of the Swiss Ministry for the Environment.
All this would effectively add the Biodiversity Fund to the already long list of subsidy tools for the biotech industry! By the arm of interpretation, the industrialised countries are trying to transform the Convention on Biodiversity into a Convention on Trade in Biotechnology. If the governments of the North get it their way, they will have silently highjacked and destroyed the whole idea of a Convention which has the explicit objective to ensure the conservation and sustainable use of biodiversity and the fair and equitable sharing of the benefits arising from it. Unless, of course, you define "fair and equitable sharing" as something exclusively for the benefit of the private industry in the North.. A matter of interpretation or manipulation?
Documents:
- EC, "Proposal for a Council Decision Concerning the Conclusion of the Convention on Biological Diversity", COM(92)509 final, Brussels 21 December 1992.
- US, "Biodiversity Convention: Technology Transfer (including Intellectual Property Rights) and Finance", undated draft interpretative statement circulated to OECD governments.
- Swiss Federal Office for Intellectual Property, "Die Konvention über die biologische Vielfalt und ihre Implikationen im Bereich des geistigen Eigentums", Sitzung vom 10. November 1992, im Bundesamt für geistiges Eigentum, Zusammenfassendes Ausspracheprotokoll.
- Vandana Shiva, "The Dunkelisation of the Biodiversity Convention: The US Administration's 'Interpretation ' of the Biodiversity Treaty", April 1993.
- "A Matter of Interpretation: The Strategy of U.S. NGOs Toward the Convention on Biological Diversity", paper written by members of BioNet, a US NGO coalition, 30 April 1993.
- Letter of David R. Lambert, Executive Vice President of the American Seed Trade Association, to Bill Clinton, 3 May 1993.