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Between a rock and a hard place: Indigenous peoples, nation states and the multinationals

Graham Dutfield

Programme for Traditional Resource Rights
Oxford Centre for the Environment, Ethics and Society
Mansfield College
University of Oxford
Oxford OX1 3TF, UK
Tel/fax: +44 1865 284 665 E-mail: wgtrr.ocees@mansfield.ox.ac.uk


Abstract

Many indigenous peoples are suspicious of ‘bioprospecting’. They fear that traditional knowledge and resources will be misappropriated by an unholy alliance of corporations and governments. Trends in international law justify these concerns. Moreover, even ‘enlightened’ bioprospecting institutions give insufficient priority to the welfare of local communities. In response, indigenous peoples are seeking to re-establish control over their territories and prevent bioprospecting without their authorisation.

Introduction

Exploring tropical forests for new pharmaceutical leads is being promoted enthusiastically as an innovative way to save the forests. ‘Bioprospectors’ express optimism that they can help to implement the 1992 Convention on Biological Diversity by encouraging biodiversity conservation and stimulating capacity building in developing countries. Many indigenous peoples, though, are sceptical of existing bioprospecting agreements. As this article will explain, most agreements are based upon acceptance of two international trends which indigenous peoples feel threatened by. These are the standardisation of intellectual property rights law, and the extension of nation state sovereignty to encompass all biogenetic resources within national boundaries.

A brief history of bioprospecting

Bioprospecting is the collection and screening of biogenetic resources for industry. One of the first scientists to argue that such an activity could constitute the basis for a conservation strategy was Thomas Eisner of Cornell University, USA (1990). In 1989 Eisner and his colleagues in the International Society of Chemical Ecology adopted the Göteborg Resolution, which stated (Eisner and Meinwald, 1990):

Natural products constitute a treasury of immense value to humankind. The current alarming rate of species extinction is rapidly depleting this treasury, with potentially disastrous consequences. The International Society of Chemical Ecology urges that conservation measures be mounted worldwide to stem the tide of species extinction, and that vastly increased biorational studies be undertaken aimed at discovering new chemicals of use to medicine, agriculture and industry. These exploratory efforts should be pursued by a partnership of developing and developed nations, in such fashion that the financial benefits flow in fair measure to all participants.

The recent resurgence of natural product-based research by the pharmaceutical industry (Reid et al., 1993:6-15) is mainly due to technological advances. However, as Eisner acknowledges (1994), bioprospecting is hardly new. Since 18th century ‘gene hunters’ from Europe and North America have ‘discovered’ botanical treasures in the tropics (see Juma, 1989; Joyce, 1994), and these have generated enormous wealth. Indeed, for several generations virtually everybody living in the biodiversity-poor North has been a beneficiary of free northward transfers of biological resources (Table 1).

Table 1: The past and present contribution of biodiversity-rich countries to humanity
 
Pharmacy

Anti-cancer drugs: the vinca alkaloids

Tranquilizers and heart drugs: reserpine

Birth control: Dioscorea (source of many steroidal drugs)

Anaesthetics and surgical aids: cocaine, teterodoxin, d-tubocurarine, picrotoxin, madecassol, gum gutta percha

Ophthalmology and neurology: physostigmine, pilocarpine, atropine, hyoscine

Respiratory disorders: emetine, tolu balsam, benzoin tincture, l-dopa, sarsapogenine, catechin, camphor

Industry

Wild relatives of plantation and other species for ‘improvement’/protection

Exudates: latexes, waxes, resins, tannins, dyes, insecticides (neem, pyrethrins, rotenone)

Fibres and canes: rattan, bamboos, jute, sisal, kapok

Edible and industrial oils: palm oils, castor oil

Essential oils: sandalwood, ylang ylang, sassafras, camphor, anise, nutmeg, vanilla, cinnamon, clove, patchouli, cassia

Energy plants/biomass conversion: biomethanation, fermentation to produce ethanol, pyrolysis

Agriculture and food

Wild relatives of crops for ‘improvement’/protection

Beverages, sugar, natural sweeteners: coffee, cocoa, sugar cane, thaumatin

Beans
Roots and tubers: cassava, yam, sweet potato

Fruits
Vegetables: tomato, avocado, sweet pepper, aubergine, cucumber, breadfruit, okra

Spices: cloves, nutmeg, black pepper, allspice, cardamom, vanilla, cinnamon

Nuts: brazil, peanut, cashew, kola, sesame, macadamia

Animals: chickens, wild pigs, water buffalo

(Dutfield, 1993 [based on information in Counsel and Rice, eds., 1992]).

However, a number of influential conservationists believe that the world is undergoing an extinction ‘spasm’ (Myers, 1979; Myers, 1989; Wilson, 1992), and that many resources are vanishing before people become aware of their existence. This situation is attributed mainly to large-scale clearances of the biodiversity-rich tropical forests. Southern governments are frequently blamed for letting this happen, but respond that as long as Northern countries fail to share the benefits of commercial exploitation of biogenetic resources, conservation cannot be justified economically. Intergovernmental negotiations, such as those resulting in the agreed text of the Convention on Biological Diversity, have to some extent accommodated the demands of multinationals seeking access to the resources of biodiversity-rich areas, and of Southern governments wishing to control what they regard as their biogenetic assets. Unfortunately, indigenous peoples have tended to be marginalised from these debates, as they are from by the types of partnership promoted by many bioprospecting enthusiasts.

The Convention on Biological Diversity and the General Agreement on Tariffs and Trade

The Convention on Biological Diversity (CBD) came into force in 1993 and has been ratified by over 160 countries. There are three main objectives (Article 1):

· the conservation of biological diversity
· the sustainable use of its components
· the fair and equitable sharing of the benefits arising out of the utilization of genetic resources
Agreeing a text acceptable to governments in the biodiversity-poor North and the multinational companies on one side, and the Southern governments on the other, proved to be a difficult and contentious process. The latter countries together possess most of the planet’s biological wealth but require greater scientific, technological and financial capacities to exploit it. The multinationals wanted continued free access to biological resources; Southern governments demanded technology transfers and benefit-sharing as conditions for access. To some extent Southern governments prevailed. Nevertheless, only the United States refused to sign at the Earth Summit, the other Northern countries deciding that it was an agreement they could live with, as did most multinationals (Note from the editor: The USA have in the mean time signed the CBD Agreement, but it has not (yet) been ratified by their Congress). In many ways, then, the CBD is a framework agreement setting out the terms on which the world’s biogenetic wealth is to be shared out between nation states in the South and industrial concerns mostly in the North, but with some potentially far-reaching concessions to indigenous peoples and local communities. Thus, while the sovereignty of nation states is now extended by treaty to all genetic resources within their borders, the intellectual property rights of corporations were recognised in the final version of the CBD, albeit in somewhat ambiguous language. Brief reviews of these developments explain why indigenous peoples feel threatened by them.

National sovereignty
According to Article 15:

Recognizing the sovereign rights of States over their natural resources, their authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

Until recently, genetic resources have been considered as part of the common heritage of humankind. Given the widely disparate abilities of countries to exploit these resources profitably, it was understandable that developing countries would wish to challenge this assumption. However, this extension of the domain of the nation state is highly problematic for indigenous peoples, because it appears to contradict international human rights law, according to which ‘all peoples may, for their own ends, freely dispose of their natural wealth and resources’. Indigenous peoples fear that governments which enact legislation to implement the CBD will apply this principle unrestrictedly, and thereby violate their territorial integrity and resource rights (IAI-TPTF, 1996).

Intellectual Property Rights
Developing countries in recent years have been put under tremendous pressure to adopt intellectual property rights (IPR) regimes that accord with the standards which now prevail in North America, Europe and Japan. Discussions on the standardisation of IPR have taken place mainly during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), although the CBD is another important forum where IPR has been debated.

The Uruguay Round culminated in an international agreement commonly known as the 1994 GATT Final Act, which was signed in 1994 by 124 governments. It includes the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). During negotiations the United States and several other Northern countries demanded protection for biotechnology products and processes in the broadest possible sense, including the patenting of life-forms. As a result, although members may exclude from patentability ‘plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes’ (Article 27.3 (b)), TRIPs does not easily allow countries to prohibit the patenting of all life-forms, whether on moral or other grounds. Therefore, patenting of genetically-modified organisms and even human genetic material will probably be permitted by more and more countries. Indigenous peoples are outspoken in their opposition to such patents, considering them to be violations of the sanctity of life and contrary to their moral beliefs.

Despite certain ambiguities, the CBD tends also to support corporate IPR. Thus, Article 16 on Access to and Transfer of Technology, states in part:

In the case of technology subject to patents and other intellectual property rights, such access and transfer [of technology including biotechnology] shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights.

While compliance with GATT-TRIPs and the CBD requires states to implement domestic legislation consistent with their provisions, a potential conflict exists. Implementing GATT 1994 will tend to harmonize IPR law, while national legislation to implement the CBD in biodiversity-rich countries is likely to link access to biogenetic resources to expanded nation state rights, and perhaps indigenous rights, too. Two important and inter-linked issues arise here: the possibility of adapting IPR regimes so they can protect indigenous knowledge, and the question of intellectual and biological ‘piracy’.

Conventionally, IPR are conferred upon individuals and corporate entities, but not upon communities. While intellectual property law can protect inventions of companies based upon the knowledge of local communities, the community knowledge itself cannot be protected. Furthermore, in the case of patents the geographic location of the source of the raw material used for the ‘invention’ has no bearing on the decision to accept or reject a patent application. These features of patents effectively support the act of ‘biopiracy’ in which indigenous peoples and local communities have their knowledge and resources taken and used without their authorisation by corporations and governments without their prior agreement. One controversial instance of this is the case of the neem tree (Azadirachta indica), which has been used for centuries by Indian farming communities for numerous purposes, including protecting crops from insect pests. Two companies in the United States have patents for derivatives of the active principle without having compensated local farmers for their knowledge and prior use of the tree. It is estimated that the global market for neem-based bio-insecticides will reach US$ 50 million per annum by the year 2000 (AgBiotechnology News, 1993 [in RAFI, 1994:49]).

Indigenous perspectives

Given the sources of knowledge in such cases as neem, the fairness of IPR law is being questioned by indigenous peoples. The Draft UN Declaration on the Rights of Indigenous Peoples expresses the concerns, demands and aspirations of hundreds of indigenous peoples’ organisation around the world. Article 29 states that:

Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestation, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.

Evidently, indigenous peoples interpret their cultural and intellectual property broadly, so that these encompass much more than knowledge, but also their cultural heritage, their biological resources, and even their cells and DNA.

In fact, indigenous peoples have their own regimes to regulate access to and control over knowledge and resources that are often more sophisticated than those based on IPR or national sovereignty. According to the North American indigenous peoples’ organisation, the Four Directions Council (1996):

Indigenous peoples possess their own locally-specific systems of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to possessing knowledge, all of which are embedded uniquely in each culture and its language.

For this reason, the Four Directions Council argues that: Any attempt to devise uniform guidelines for the recognition and protection of indigenous peoples’ knowledge runs the risk of collapsing this rich jurisprudential diversity into a single ‘model’ that will not fit the values, conceptions or laws of any indigenous society. A better approach … would be for the international community to agree that traditional knowledge must be acquired and used in conformity with the customary laws of the peoples concerned.

This perspective has limited support in the CBD, which, in Article 10(c) requires contracting parties to: Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.

For indigenous peoples, then, protection of knowledge and resources, and continuation of customary law and practice, are central to maintenance of their cultural identity. Therefore, control over these is an aspect of human rights. This needs to be understood by all governments, companies and other institutions before they enter into negotiations for the use of biogenetic resources on the territories of indigenous peoples. These negotiations should certainly involve indigenous peoples. Often they do not. The following case, despite a generally favourable image, has attracted criticism for failing to accommodate local needs and concerns.

The National Biodiversity Institute (INBIO)

The National Biodiversity Institute of Costa Rica is frequently hailed as a model bioprospecting institution, and its agreements with pharmaceutical companies are regarded as examples for other countries to follow. It is true that INBio’s activities and collaborations have some positive features, including capacity building and benefit-sharing. In other respects, INBio and its agreements are inappropriate for other countries and may be inappropriate for Costa Rica, too.

INBio is a private non-profit organisation which was established in 1989 with the blessing of the government. Its main objectives are to carry out a species inventory of the country -- which is estimated to have 4% of the world’s biological diversity -- and to explore the commercial potential of the country’s biological resources.

Costa Rica’s 1992 Conservation of Wildlife Law (Laird, 1995; Salazar and Cabrera, 1996) declares national sovereignty over the biological diversity of the country. This is not equivalent to nationalisation of all biogenetic resources in the country. Nevertheless, the State has the exclusive right to grant permits to investigate, collect and exploit the country’s biological diversity in the publicly-owned conservation areas, which make up 25% of the whole country. The Ministry of Natural Resources, Energy and Mines (MIRENEM) is authorised to grant bioprospecting permits in these areas, and INBio has such a permit.

INBio’s first and best known agreement with a multinational company was the one with Merck, which began in 1991 and has been renewed up to the present. Merck gave INBio an advance payment of US$1 million, equipment for an extraction laboratory, and a guarantee of royalties in case a product is derived from any of the extracts (of plant and insect specimens) which INBio will transfer to Merck. 50% of the royalties will go to the government’s National Parks Fund through MIRENEM.

The agreement has certain positive aspects. First, the advance payment, which is not a common feature of such agreements; second, INBio’s freedom to supply extracts to other companies, including those given to Merck if two years have elapsed since Merck received them; third, INBio has control over taxonomic information on all its samples. Thus, if an extract shows promise for Merck to continue its research it will have to approach INBio again to obtain more material.

However, before promoting the Costa Rican approach as a model, certain points merit consideration:

1) The government has granted INBio prospecting rights to explore lands and biogenetic resources over which the State has jurisdiction. Although Costa Rica is more culturally homogeneous than its neighbours indigenous peoples exist whose inalienable rights to lands and resources pre-date the existence of the country. Therefore if indigenous peoples are not parties to negotiations, an argument can be made that both the government and INBio are effectively usurping the territorial and resource rights of indigenous peoples.

2) The government and INBio are the beneficiaries of the Merck agreement. The only way that local communities appear to gain in any direct sense is through the training of a small number of local ‘parataxonomists’. Furthermore, INBio will not contribute at all to revitalising local knowledge traditions because it professes to have no interest at all in such knowledge. Nor, one can only conclude, in the cultural diversity that underpins such traditions. According to Maurice Iwu, a prominent Nigerian scientist (in Dutfield, 1994):

The kind of deal that was done in Costa Rica cannot be done in Nigeria… The kind of deal that India and Nigeria [etc.] will negotiate has to recognise the multi-ethnic nature of our own societies.

3) A company like Merck will tend to seek cures for therapeutic groups that are major concerns in developed countries, but which may be relatively less important in developing countries where other diseases and infections take higher priority. According to Iwu (in Baker et al., 1995:1343): Screening strategies should include parasitic infections and diseases (e.g., malaria) to aid in the search for new treatments for diseases of primary concern to source country inhabitants, and proper objectives should not be limited to the generation of pure chemical isolates as pharmaceutical leads, but should include the standardization of phytomedicines for the benefit of traditional healers and their patients. The inclusion of such measures will contribute to an improvement of the quality of life of source country inhabitants.

Indigenous initiatives for self-determination of bioprospecting rules

Indigenous peoples are concerned that bioprospecting expeditions, even those carried out with good intentions, will infringe their rights. To a large extent, the rules of the game are those of multinationals and nation states, and indigenous peoples still find it difficult to get their voices heard. In response, a growing number of groups, such as the Kuna of Panama, the Awa of Ecuador and the Inuit of the Arctic have developed their own regulations which visiting scientists must adhere to (Laird, 1995; Posey, Dutfield and Plenderleith, 1995; Posey and Dutfield, 1996). In India local communities are setting up community registers of local knowledge of biodiversity to revitalise traditional knowledge systems for the benefit of future generations and to protect them from piracy (FRLHT, 1995; Bhatia and Khotari, 1996; Dutfield and Ghate, 1997). Such initiatives are being carried out independently of governments and companies. Other indigenous peoples have declared their opposition to bioprospecting. Participants at the UN Development Programme-sponsored Regional Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights held in April 1995, called for a moratorium on bioprospecting in the Pacific region and urged indigenous peoples:

not to co-operate in bioprospecting activities until appropriate protection mechanisms are in place.

Indigenous peoples demand that their right to self-determination be recognised beforethey are prepared to enter into negotiations over access to their territories and resources. Given the vital role indigenous peoples play in the conservation of biodiversity it is vital for us all that national laws to implement the CBD and GATT be enacted which uphold this right.

References

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