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issue 1, January - February 2000



Newsletter index

Abdication of Responsibility for Biosafety in the Name of Free Trade

Already in 1992, when the negotiations on the Convention for Biological Diversity (CBD) were finalized, the world had become aware that modern biotechnology (genetic engineering) could pose risks to the environment and human health [Article 8 (g) and 19.3 of CBD]. It was also clear that the United States of America was going to fight those who wanted safety, as this was considered a stumbling block to its commercial interests. The United States, feeling confident of both a continued leadership in genetic engineering, and determined to control the global market in genetically engineered products, refused to make it possible to access these products even for purposes of biodiversity conservation without paying royalties.

Therefore, when access to technology was considered in Articles 16.1–16.4, the US insisted on the inclusion of the acceptance of patents and other intellectual property rights as a precondition. It was this insistence that led to the introduction of Article 16.5. This Article states that Parties recognize that patents and other intellectual property rights may influence the implementation of the Convention, and such rights should be made supportive of the objectives of the CBD and not be allowed to go counter to it. The implied criticism of patents and other intellectual property rights was so repugnant to the United States that it contributed substantially to its refusal to ratify the Convention on Biodiversity.

In 1993, the United Nations Environment Programme (UNEP) established a Panel of Experts (Panel IV) to explore the need for and modalities of a Biosafety Protocol and to make recommendations. The United States was included. Its delegation kept insisting that all genetic engineering did was mix genes from different individuals, which is what sexual reproduction does, and is thus as old and as well tried as life itself. This is the basic thinking behind ‘substantial equivalence’: when my wife's genes and my genes mix to give us a baby, that is considered the same as when a scientist introduces the gene for snake venom into the egg that will became our child. According to this logic, our venomous child would then be considered substantially equivalent to my wife and me!

In spite of the efforts of the USA to scuttle the process of initiating negotiations for a Biosafety Protocol, and in spite of its non-ratification of the CBD, it was included as a negotiating partner for biosafety by the 1995 decision of the Conference of the Parties, which took place in Jakarta.

It is this trend, which has continued throughout the biosafety negotiations and ended up in their collapse in Cartagena, Columbia, in February 1999.

In the first negotiation session for a Biosafety Protocol, the G-77 and China (developing countries) failed to make any headway. But in Cartagena, when Chile, Uruguay and Argentina joined the USA, Canada and Australia in creating the Miami Group, the G-77 and China once again became united and started focussing on what is important to developing countries. The newly united South gave itself the name, the Like-Minded Group.

Since 1992, Europe and some other members of the Organisation for Economic Cooperation and Development (OECD) have been taking a more inclusive attitude with regards to the use of modern biotechnology, and a more realistic view of the risks involved than that of the USA. Nevertheless, the whole of the OECD has used the power vacuum created globally by the collapse of the USSR to push for their political and socio-economic views, especially the Thatcher-Reagan version of " free trade". That is why they all supported the creation of the World Trade Organisation (WTO). However, Europe seems to have second thoughts about the suitability of the WTO for fully dictating the norms of trade in Genetically-Modified Organisms (GMOs). Thus there is a wish by Europe to prevent the subjugation of the Biosafety Protocol to the WTO agreements, and to introduce the essentials of trade into the Biosafety Protocol.

The thinking in the Like-Minded Group is that safety is paramount, especially since it is in developing countries where most unsafe things tend to be tried out first. Southern natural environments are warmer and more biodiversity-rich than those of the North. Therefore, if biosafety is subsumed by the WTO trade agreements, this global body would not display adequate sensitivity for safety in the marginalized South.

It is a clash among these trends of thinking that paralyzed the negotiations in Cartagena. The effort to revive the biosafety negotiations got off to a good start in the informal consultations which took place in Vienna in September last year.

Biosafety vs Free Trade

Many OECD members were pushing for the inclusion of trade in GMOs to be considered at the Third Ministerial Meeting of the WTO in Seattle at the end of last year. However, what makes trade in GMOs different from trade in other commodities is its biosafety and human health dimension. The desire to bring GMOs into the WTO must therefore be seen as an attempt to make the safety rules that govern them fall under this institution, thus confronting the Biosafety Protocol negotiations with an already established set of rules that cannot be changed. This will direct the outcome of the negotiations towards enhancing the Thatcher–Reagan version of free trade at the expense of safety.

The Like-Minded Group wants the trade and safety sectors to be developed in their own rights, so that if both sectors clash, states and governments retain the flexibility to decide for, or against one or the other based on their national interests and capabilities.

There are three important provisions in the negotiating draft of the Biosafety Protocol to consider in this context: Article 31 states:

"The provisions of this Protocol shall not affect the rights and obligations of any Party to the Protocol deriving from any existing international agreement to which it is also a Party, except where the exercise of those rights and obligations would cause serious damage or threat to biological diversity."

This Article [based on Article 22.1 of the CBD] would effectively subjugate the Biosafety Protocol to the World Trade Organization agreements, despite the qualifying phrase at the end. Legitimate domestic steps to protect human health and the environment, taken by a Party according to the first part of Article 2.4 of the Protocol, would then be liable to reversal by the WTO under the threat of trade sanctions authorized by the Disputes Settlement Mechanism. It could be argued that since the provision is the same as Article 22.1 of the CBD, it should be left in place. It should, however, be pointed out that the CBD came before the WTO agreements, and it is thus appropriate that the Biosafety Protocol should be updated in order to deal with the safety problems created by those agreements. In the opposite direction, the Miami Group wants to delete the words "except where...biological diversity" because they do not regard the present text as enough of a subordination clause.

Paragraph 2 of Article 22 states:

"The Parties shall also ensure that measures taken to implement this Protocol do not create unnecessary obstacles to international trade."

This paragraph stipulates that safety measures shall not "create unnecessary obstacles to trade". It does not invoke "existing international agreements", meaning WTO agreements, to determine what are "unnecessary obstacles to trade" and it is thus softer than Article 31.

Article 22.1, which was introduced by the European Group, states:

"The Parties shall ensure that measures taken to implement this Protocol, including risk assessment, do not discriminate unjustifiably between or among imported and domestically produced living modified organisms."

The Miami Group, understandably, sees this whole Article 22 as an effort to establish a set of trade rules under the Biosafety Protocol and outside the WTO. The Miami Group, therefore, wants the entire Article 22 deleted. It will be recalled that the European Union introduced this Article into the draft protocol.

For the Like-Minded Group, the provisions of Article 22 are also objectionable, though not to the same extent as those of Article 31.

The last clause of Article 2.4 is also on trade (Article 2 contains General Provisions). It states that any more stringent protection than is required by the Protocol can be taken, provided that it does not clash with "other obligations under international law", i.e. under the WTO agreements. This would mean that, in the event of a clash, trade rules would prevail. This may look benign since it is only the additional protection that can be affected, not what the Protocol has explicitly allowed.

But many members of the Like-Minded Group have warm tropical or semi-tropical environments which are both far more biodiversity rich, and more suitable for harbouring organisms that cause health problems than the harsher Northern environments. This clause could therefore have serious implications for the South where the necessity for more protective action is clearly higher.

If we were to imagine that Article 31 could be deleted without removing Article 22, we can assume that the European Group would be happy to have the last clause of Article 2.4 deleted as this would strengthen the trade rules created by Article 22 by enabling them to remain independent of the WTO.

Rights of Non-Parties

The United States knows that without being Party to the CBD it cannot be a Party to the Protocol. Therefore, it is insisting that trade with non-Parties be possible (Article 21), and is resisting any attempt to bring it within the ambit of the Protocol’s obligations. A number of countries from the South had earlier wanted a provision that prohibits trade with non-Parties, as in the Montreal Protocol on Ozone-depleting substances. The compromise scheme being proposed by the negotiating draft "encourages" Parties to enter into trade agreements with non-Parties which are "consistent with the objectives of this Protocol" and provided that such agreements "do not result in a lower level of protection than that provided for by this Protocol".

The USA is adamantly against this, insisting that its obligation should remain as only being "compatible with the objective" of the Protocol. The rest of the world, even the South, feels the USA should not be left out, but that its safety standards and responsibilities towards the rest of the world, which it targets as its market, should be as good as what the Protocol requires. The USA is opposed to this.

Article 24 as presently drafted, does not enable the inclusion of socio-economic considerations in risk assessment. It seems that it is the fear of the Miami Group that the ability to include socio-economic variables in risk assessment would favour the efforts of the Europeans who want trade rules outside the WTO (see section 3.1 above).

Even the provision that "Parties, in reaching a decision on import, may take into account, ... socio-economic considerations ..." in Article 24.1 is predicated by the proviso "consistent with their international obligations", which is obviously meant to invoke WTO trade rules and influence decision-taking. The current negotiating draft of the Biosafety Protocol has left out a provision on import substitution which the South wanted to keep. The wording was:

"A Party that intends to produce, using a living modified organism, a hitherto imported commodity, shall notify the affected Party or the Party likely to be affected sufficiently in advance to enable the affected Party to undertake appropriate measures for conservation of potentially affected biological diversity. The Party substituting such product shall provide financial and technical assistance to the affected Party for undertaking these measures if the affected Party is a developing country."

If the OECD is to honour its commitments under Agenda 21 and the CBD, this text has to be re-instated into the Protocol. But both the Miami and European Groups are seeing this wording as a potential instrument in their trade wars. When two elephants fight, the grass gets trodden underneath.

Scope of the Biosafety Protocol

When the CBD was negotiated, the participating governments saw the Advance Informed Agreement (AIA) procedure (Article 19.3 of the CBD) as the mechanism for ensuring safety in the transboundary movement of GMOs. This mechanism has the following essential elements:

a) Notification by making available accurate and complete information to the country of import and by taking full responsibility for the completeness and accuracy. This is to be done by the Party of export or to be required by law of the Party of export.

b) A risk assessment to evaluate possible consequences in the Party of import together with an evaluation of all information is to be undertaken.

c) An explicitly written consent or refusal is to be given by the National Competent Authority of the Party of import to the National Competent Authority of the Party of export.

d) A regulatory system in each Party is to ensure that the AIA procedure is strictly observed.

The Miami and European groups and the other OECD countries (the Compromise Group) in the Biosafety Protocol do not want the AIA procedure to be followed when dealing with GMOs used as pharmaceuticals, under containment (the term "contained use" itself is broadly defined), and in transit.

They argue that pharmaceuticals are adequately regulated outside the Biosafety Protocol. But this may be true only to the extent that pharmaceuticals can be dangerous to human health on an immediate cause-and-effect relationship. It is not so on their impact on changes to the nature of human cells or to the nature of the many associated micro-organisms. These pharmaceuticals will also inevitably come into contact with the open environment. What changes would they induce, for example, on soil bacteria?

The OECD group argues that GMOs under containment (i.e. surrounded by barriers meant to prevent contact with the outside world) cannot come in touch with the open environment. But, though it sounds credible to argue that a well-managed laboratory can be safe most of the time, it would be naÔve to assume that, for example, a genetically modified yeast will always be confined to the brewery precincts. It is only the desire for trade at any cost that is the motive behind this insistence on exempting from the AIA procedure GMOs designed for contained use.

GMOs in transit can be accidentally released into the environment of the transit country. Ideally, therefore, the transit country should give its consent through the AIA procedure. Developed countries all argue that this would kill trade. The minimum substitute for the AIA procedure should be a detailed notification including information on risk management. But even this is being resisted.

The only category of GMOs all countries seem to agree should go through the AIA procedure are those meant for planting in the field or for application on the soil, in the mine, or in open waters (i.e. "intentional introduction into the environment").

Perhaps the most blatant disregard of the interests of the South is shown by the Miami Group who are insisting that GMOs meant for food, feed and processing (commodities) move about completely unregulated, and the AIA procedure should not apply to them. They suggest that they will put information on the GMOs that they release into the environment on a web site and it is up to countries to notify themselves by referring to it. Of course they do not say how those countries can, if they do not want a particular GMO, prevent it from coming into their country as the Miami Group also insists that they will not label their GMOs. While consumer pressure is growing for labelling in the US, and Australia has agreed to domestic consumer labelling, these Miami Group countries are still against any international legal obligations under the Protocol that would require labelling.

The Miami Group is joined together by the commonality of being global grain exporters. Grain travels within a developing country unprocessed. It is cleaned at home and often processed at home, or in a small village mill. All this makes it certain that grain will be spilt, and grow and pollute any genome (genetic make-up) of the same or related species. Worse still, there is nothing to stop farmers from planting the imported seed in their fields. Therefore, for developing countries, commodities have to be regulated by the AIA procedure. If this is not done, the AIA will have no value for a developing country. This is because what the AIA procedure is meant to regulate, i.e. imported genetically modified seed for planting, can come into the country as food without going through the proper AIA procedures.

The Southern strategy should thus be to keep safety considerations in the fore, where life is what counts. We should not allow ourselves to fall into an increasingly deleterious state where the risks to life are seen to be constantly increasing. With this in mind, it is imperative that GMOs and the associated safety issues are considered under the rubric of the CBD and that all effected parties, especially the poor and powerless communities of the South are afforded maximum meaningful participation in the entire process.

Mr Tewolde Berhan Gebre Egziabher
Chief Negotiator for the Like-Minded Group
Failure of WTO Talks in Seattle

The failure of the Third Ministerial talks of the World Trade Organisation (WTO) held in Seattle late last year was seen as a victory for all developing countries. According to the Zimbabwean Minister of Industry and Commerce, the failure of these talks sent out a clear warning that Africa will need to be taken seriously in the next round of negotiations.

African countries feel vindicated. After four days of talks, protests by civil society and rights groups, there was no new Round, no Declaration, not even a brief joint statement to thank the hosts or decide on the follow up process.

For the first time in the history of the WTO, developing countries spoke with one voice and never swayed from their positions.It was a memorable victory for them. But, as the negotiations return to Geneva, where the WTO representatives will continue to negotiate on a draft declaration, Yash Tandon of the Zimbabwe- based International South Group Network (ISGN) warns that having lost the battle, ''we are likely to witness much arms-twisting and carrot-dangling at developing countries by industrialised countries.''

''Those that are hard to co-opt are likely to face further isolation,'' warns Tandon, who attended the Seattle parley. ''Those that are easy to co-opt will be sucked in with tangible rewards.''''At Seattle, the Organisation of African Unity (OAU) could stand together in a moment of shared anger at being marginalised. They could unite on the issue of process. However, when issues of substance come to the fore they are likely to get divided. The same is likely to happen to the Caribbean and Latin American countries.''

''At the same time, the power holders, mainly the US and the EU (European Union), will now seek to reconcile their differences much more earnestly. They have seen that when they quarrel, the proletarian nations of the world unite in rebellion,'' says Tandon.

According to Martin Khor, director of Third World Network, the more basic cause of the Seattle debacle was the untransparent and undemocratic nature of the WTO system, the blatant manipulation of that system by the major powers, and the refusal by many developing countries to continue to be on the receiving end.

Tandon, however, says that even though the developing countries united against the undemocratic nature of the WTO, the experience of Seattle will not lead to immediate democratisation of the WTO. ''The big players have much to lose by that,'' he says.

''Seattle was a challenge not simply to the WTO; it was a challenge to the whole process of liberalisation and globalisation,'' says Tandon. ''Much more work needs to be done at the institutional level, such as in the Southern African Development Community and in the OAU at the continental level.''Noting that the unity of the OAU at Seattle was a product of largely conjectural factors, Tandon warns the pan-African body against >reverting to ''its usual fractious passivity.''

''The SADC, on the other hand, is already a divided house, with South Africa going along with the global power brokers rather than with the rest of its membership,'' he says.To forge unity, Tandon calls for the strengthening of the institutional capacity of African organisations to protect and serve the interests of Africa rather than those of either global corporations or their local agents.

Khor says the main message of the protesters in Seattle was heard loud and clear, that the WTO has gone much too far in setting global rules that "lock in" the interests of big corporations at the expense of developing countries, the poor, the environment, workers and consumers.''The impact of grassroots protests against globalisation, already evident in the campaigns on the multilateral agreement on investment (MAI) and against genetic engineering, had its coming- of-age in the street battles of Seattle,'' says Khor.

Does the Seatlle debacle give hope for reform to the WTO’s decision-making system?

'That depends really on whether the developing countries can now make use of the impasse to press for a democratic system'' says Khor.

Excerpts taken from an article by Lewis Machipisa and Remi Oyo

Trips, Technology Transfer and Biodiversity

The World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated during the Uruguay Round, under strong pressure from major industrialised countries. This Agreement has nothing to do with trade, but is all about the protection of intellectual property rights (IPRs). Initial objections by a large number of countries to the inclusion of this topic during the Uruguay Round led to a compromise to only deal with "trade-related" aspects of IPRs. However, in the course of negotiating the entire package of agreements, all issues related to IPRs, including the standards of protection, were accepted.

The TRIPS Agreement imposes minimum standards for countries to adopt in almost all areas of IPRs. However, these standards are derived from the legislation of developed countries, thus the TRIPS Agreement imposes the form and level of protection of the industrial world to all WTO members, which are far tighter than existing legislation in most of the developing countries. This means that such countries will have to create or amend national laws to comply with the TRIPS obligations. It is also the first international instrument to require IPRs protection for life forms.

Developed countries had until January 1, 1996 to implement the TRIPS obligations. Developing countries had an additional period of 4 years for implementation (i.e., until January 1, 2000). Least developed countries will not be required to apply TRIPS provisions on intellectual property rights until 2006; i.e., 10 years from the date of application for developed countries. These time frames do not include obligations concerning national treatment and most-favoured-nation treatment, which became applicable in 1996.

Intellectual Property Rights (IPRs)

Perhaps the best-known form of IPRs is the patent. Other IPRs include copyrights, trademarks and trade secrets. Patents vest exclusive, monopoly ownership rights over the patented subject matter. This means the patent holder has the right to exclude anyone else from using, making, and selling the patented subject matter for a certain period of time. Under the TRIPS agreement, the minimum period of patent protection is 20 years.

The concept of IPRs and patents, in particular, must be seen in the context of the corporate concentration and consolidation of the multinational corporations (MNCs). In the 1990s, there has been a trend of "mega-mergers" of MNCs in the life sciences industry, that is, transnational enterprises involved in the commercial sale of seeds, pesticides, food and pharmaceuticals. As a result of these mergers, a small number of the MNCs dominate and control the life sciences industry.

For example: UNDP's Human Development Report 1999 states that in 1998, the top ten corporations in the commercial seed industry controlled 32% of the US$23 billion industry; in pharmaceuticals, 35% of the US$297 billion industry; in veterinary medicine, 60% of the US$17 billion industry; and in pesticides 85% of the US$31 billion industry. Such monopoly means that the MNCs are able to control the supply of the products. By controlling the supply, they also have the means of controlling the prices of such products. To increase their profits, they can increase the prices. More than just a pricing issue, the control of essential resources such as seeds, drugs and food translates into the MNCs having control over fundamental rights of access to food, health and nutrition.

The above scenario of corporate concentration is a key reason for the MNC initiation and support of the TRIPS Agreement. For the MNCs, global outreach of their business requires global protection. The TRIPS Agreement imposes obligations on WTO member countries to make, in many cases, substantial changes to their national laws to afford protection for the inventions and technologies generated by the MNCs. There are also elaborate enforcement procedures in the Agreement, backed by a right for a "victim" country to apply cross-retaliations against a "non-complying" country. For example, failure to meet a TRIPs standard could result in a reduction of the export quota of the non-complying country. This means the effective protection of MNC interests, and the maintenance of their dominance in the international market.

Implications for Technology Transfer

The TRIPS Agreement will have important implications for developing countries regarding the conditions for their access to and use of technology, and their economic and social development. The concern is that TRIPS will not facilitate technology transfer - the strengthening and expansion of IPRs are likely to have adverse effects on the conditions for technology transfer. The concept of patenting itself makes technology transfer difficult and certainly more costly. Strengthened IPRs may lead to increased royalty payments required by technology-holders. In fact, technology-holders may simply refuse to transfer the technology and block industrial initiatives by other parties. These factors will restrict the prospects for economic and industrial development in developing countries.

What is likely to happen is transfer of the production of some goods, the production of which employs the protected technologies. This is the situation where MNCs locate their production facilities within developing countries, in order to take advantage of the cheap labour or natural resources. In many such cases, the protected technology itself is not transferred, only the production facility. The developing countries do not acquire the protected technology. They would only be involved in the producing the goods using the patented technology.

TRIPS and Biodiversity?

The provision of TRIPS which relates to biodiversity is Article 27.3(b), one of the most controversial parts of the agreement, which has major implications for biodiversity and the ownership of life itself. This provision is so controversial that it was agreed during the Uruguay Round negotiations that a review of the provision would be built into the agreement.

Article 27.3(b) states:

Members may also exclude from patentability …

(b) plants and animals other than microrganisms, and essentially biological processes for the production of plants and animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or an effective sui generis system or by any combination thereof. The provisions of this paragraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

There are two key issues involved here: 1) issue of patenting of life forms; and 2) the protection of plant varieties.

The first relates to the process of "biopiracy", that is the theft of biological resources and traditional knowledge. Examples of biopiracy abound - the case of the US patent on the use of tumeric for healing wounds is a well-known one. The second aspect is the advent of biotechnology. The ability to identify, isolate and move genetic materials across species types has aroused great commercial interest and investment in biotechnology. Genetically engineered crops and foods are being produced with the global market as their target; thus the need to obtain IPR protection for such "new" products.

In relation to the patenting of life forms, Article 27.3(b) provides that countries may exclude from patenting: plants, animals and essentially biological processes, but countries must patent: microorganisms, microbiological and non-biological processes.

What is the rationale for the distinction made between the different types of life forms, and of natural processes? There is no scientific or legal rationale for the distinction. Such distinction goes against the basic principle of patent laws in many countries; i.e., that "discoveries" are not patentable. The artificial distinction, which has been drawn, is motivated by the corporate interests that are involved in biopiracy and biotechnology, so that these corporations are able to obtain protection for their products and processes.

The second aspect of Article 27.3(b) is the protection of plant varieties. Countries must protect plant varieties through the patent system, or through the establishment of an effective sui generis (i.e., unique or of its own kind) system or any combination of the two.

As with the issue of patenting of life, there is no clear distinction, which can be drawn between plants and plant varieties from the scientific or legal perspectives. However, there is a history of protection for plant varieties, in order to protect the interests of commercial plant breeders, which sought protection for their crop varieties but found it difficult to meet the requirements of the patent system. The International Union for the Protection of New Varieties of Plants (UPOV), adopted its first convention in 1961 between European states to promote the protection of breeders' rights over new plant varieties (Plant Breeders' Rights).

The original UPOV convention has gone through several revisions, the last of which took place in 1991. The successive revisions have strengthened the protection offered to plant breeders. In fact, the 1991 revision was intended to grant rights for plant breeders, almost akin to rights granted by the patent system. Under UPOV 1991, breeders who register rights over varieties can claim full commercial control over the seed or propagating material of their protected variety. This means that farmers are prohibited from selling the seeds they harvest from the crop, and indeed from saving and exchanging the seeds on a non-commercial basis, without first paying royalties to the breeder. Even when the farmer had saved the seed from his previous harvest - royalties have to be paid each time the seed is used. In this way, plant breeders obtain exclusive and private ownership rights over biodiversity. And also in this way, the rights of farmers to use, save and exchange seeds are negated.

The WTO, the World Intellectual Property Organisation (WIPO) and UPOV have joined together to convince developing countries that the sui generis system required by Article 27.3(b) can only be provided by UPOV 1991. The three organisations have been organising a "road show" to developing countries to persuade them to sign on to UPOV 1991.

Another new development is the creation of the "Terminator Technology", where biotechnology is used as a means of exerting control and ownership rights over biodiversity. Terminator technology is a set of new genetic engineering techniques used to create sterile plants with infertile seeds that cannot be replanted. It is thus able to protect the interests of the corporation or plant breeder by killing the seed after one generation. This means farmers will be forced to purchase seed every growing season. In this scenario, patents are no longer needed to protect the MNC interests. The technology has in-built protection. However, patents are still being used - not against the farmers, but against the rival corporations to ensure corporate dominance in the market.

Review of Article 27.3(b)

The deadline for implementation of the TRIPS Agreement obligations for most developing countries was up on January 1, 2000. However, the mandated review of Article 27.3(b) is still on-going, without a clear resolution in terms of the nature and scope of the review. Some developed countries in the WTO, particularly the US, argue that the review of Article 27.3(b) should only be about the implementation of the provisions therein, whilst developing countries say that the review must address the substance of the Article itself. It must be clarified by Members that the review mandated to be carried out refers to a review of the provisions of Article 27.3(b) and not merely to the implementation process.

An important development in this respect is the proposal of the African Group of WTO members as part of the preparatory process for the Seattle WTO Ministerial Conference. The proposal of the African Group is significant, as it questions the TRIPS Agreement's requirement for mandatory patenting of some life forms and some natural processes. It calls for a clarification that plants, animals and microorganisms should not be patentable, and that natural processes that produce plants, animals and other living organisms should also not be patentable.

The paper also puts forward the view that by stipulating compulsory patenting of micro-organisms (which are natural living things) and microbiological processes (which are natural processes), Article 27.3(b) contravenes the basic tenets of patent laws: that substances and processes that exist in nature are a discovery and not an invention and thus are not patentable. It adds: "Moreover by giving Members the option whether or not to exclude patentability of plants and animals, Article 27.3(b) allows for life forms to be patented."

The paper calls for the review process to clarify why Article 27.3(b) does not allow Members to exclude microorganisms and microbiological processes from patentability. It says an artificial distinction was made between what can be excluded from patents (plants and animals; biological processes) and what must be patented (microorganisms and microbiological processes).

The above points made by the Africa Group are very significant and crucial, and correspond to the concerns raised by many citizen groups, farmers' organisations, environmental groups and development groups around the world. These groups have been campaigning against the patenting of life forms and biological materials, because such patents would allow the private monopolisation of life and biological resources, and have serious adverse effects on development, food security, the environment and the livelihoods of millions of farmers. Such patents are also facing objections from the public on ethical, religious and moral grounds.

The Africa Group paper also gives a clear direction to the review of another part of Article 27.3(b), which specifies that Members shall provide for the protection of plant varieties either through patents or an effective sui generis system.

The paper says that the review must:

  • clarify that developing countries can opt for a national sui generis law that protects innovations of indigenous and local farming communities (consistent with the Biodiversity Convention and the FAO’s International Undertaking);
  • allow the continuation of traditional farming practices, including the right to save and exchange seeds and sell their harvests; and
  • prevent anti-competitive rights or practices that threaten food sovereignty of people in developing countries.

It adds that the review should harmonise Article 27.3(b) with the provisions of the CBD and the FAO’s International Undertaking, which take into account the conservation and sustainable use of biological diversity, the protection of the rights and knowledge of indigenous and local communities, and the promotion of farmers rights.

These points made by the Africa Group are very important in recognising the rights of people in developing countries (as well as in developed countries) to protect the traditional knowledge and biological resources of indigenous, farming and local communities.

These points also correspond to the demands of civil society and farmers groups around the world, that patenting of plant varieties should not be allowed, and that there should be a proper system for protecting the knowledge of indigenous peoples and local communities on the use of biological resources. This system should prevent biopiracy that is now prevalent as more and more multinational companies are being granted patents on plants and other biological resources as well as for their traditionally-known uses and functions.

Countries must have the option of a national system of plant varieties protection that protects the rights of indigenous, farming and local communities and their knowledge. The review process must clarify this so there is no mistake in interpretation on what constitutes an effective sui generis system. WTO Members must be allowed to introduce systems of their choice, including those that adhere to the principles of recognising the rights of these communities, in order to ensure food security, livelihoods and the development of sustainable agriculture.

The essential parts of the Africa Group position has been endorsed by the Like-Minded Group of developing countries that has been formed to consolidate common positions on a range of issues relating to the Seattle WTO Ministerial Conference.

The Way Forward

Endorse the positions taken by the Africa Group on both aspects of the review of Article 27.3(b) of TRIPS, i.e. the patenting of life, and the sui generis systems for plant varieties protection.

Call on all other Members States of the WTO to support the positions of the Africa Group on the review of Article 27.3(b), major parts of which have been endorsed by the Like-Minded Group of developing countries.

Call on the WTO Members to support the relevant sections in the Ministerial Declaration of the forthcoming WTO Ministerial Conference in Seattle, that call for a substantive review of Article 27.3(b) and appropriate revisions to be made to the TRIPS Agreement to reflect this.

Call on the WTO Members to amend the TRIPS Agreement as soon as possible to remove its present ambiguities and objectionable provisions that now oblige Members to change their national laws to enable patenting of life forms, effectively promoting biopiracy or the private appropriation of traditional knowledge and community resources. This should be a priority objective for the Seattle WTO Ministerial Conference.

Call on WTO Members to extend the deadline for implementing Article 27.3(b) of TRIPS from the present date of January 2000 to five years after the completion of the review of this Article (as has been proposed by the African Group and the Like-Minded Group).

Cecilia Oh
Third World Network, Malaysia
Successful Adoption of a Protocol on Biosafety, 29 January 2000

After many years of talks and political wrangling, the world finally has a legally binding document covering the risks inherent in the transboundary movement of living modified organisms (LMOs) created by modern biotechnology.

The resumed session of the Extraordinary Meeting of the Conference of the Parties (ExCOP) for the Adoption of the Protocol on Biosafety was held from 24-28 January in Montreal, Canada. It was however, only in the early hours of the morning of the 29, that the Cartagena Protocol on Biosafety was successfully adopted. One of the sticking points of earlier negotiations, namely the relationship between the Protocol and other international agreements was resolved by making the Protocol mutually supportive of them. This means that signatory countries would have to abide by the regulations of the Protocol, but at the same time the Protocol could not affect the rights and obligations of governments under any existing international agreements.

The Cartagena Protocol addresses the safe transfer, handling and use of LMOs that may have an adverse effect on biodiversity with a specific focus on transboundary movements. The Protocol establishes and Advanced Informed Agreement (AIA) procedure for imports of LMOs, incorporates the precautionary principle and details information and documentation requirements. At the end of the day, identification and documentation actually proved to be the final point of contention in the drafting of the Protocol. In terms of the final agreement, governments will now signal to the world community via an internet-based Biosafety Clearing House whether or not they are willing to accept imports of agricultural commodities that include LMOs. On the exporters side, shipments of commodities that may contain LMOs have to be clearly labelled. In the case of seeds, live fish and other intentionally introduced LMOs into the environment, exporters are forced to provide detailed information to the importing country before the shipment can be authorised by them.

Having finally settled on an agreed text, the Biosafety Protocol will now be opened for signature at the occasion of the Fifth Session of the Conference of the Parties to the Convention on Biological Diversity to be held in Nairobi from the 15 – 26 May 2000.

Ugandan Environment Minister adopts tough stance on Biosafety

The Ugandan Minister of State for the Environment and a member of GLOBE Southern Africa, Dr. Kezimbira Miyingo, has called for a law to protect biodiversity and ensure environmental conservation. This statement was made at a meeting of stakeholders gathered to discuss the issue of biodiversity ahead of the extraordinary meeting of the Conference of the Parties to the Convention on Biological Diversity that would be seeking to agree upon a biosafety protocol. Miyingo expressed concern that genetically modified materials were beginning to find their way into Uganda and that this was likely to negative impacts on biodiversity and biosafety in the country.

The Minister also lamented the fact that Uganda had no policy in place regarding access to genetic materials. He said anybody disguised as a researcher can come into the country and take whatever they want without any questions being asked of them.

"There are no mechanisms in place to check on these practices that will likely infringe on our biodiversity. A law ought to be put enacted soon. I will personally take it up at the political level," he said. "As we struggle to make laws, genetically modified materials are beginning to come into the country. I am informed that countries which produce GMOs are rejecting them and they will end up with us here."

He further criticised genetic modification, saying that it would enslave farmers, who will not have their own seeds to plant and will be forced to rely on their suppliers.