UN moves to protect biodiversity and traditional knowledge

When more than 170 representatives of the Parties to the Convention on Biological Diversity met in Slovakia in May, they took some important decisions to protect global biodiversity and traditional knowledge. Chee Yoke Ling, who attended the meeting on behalf of the Third World Network, reports on its outcome and the challenges ahead.

THE first steps towards an international oversight of all the world's invaluable collections of genetic materials were taken by more than 170 governments at the May meeting of the Convention on Biological Diversity.

The fourth meeting of the Conference of the Parties to the Convention (governments that have legally undertaken rights and obligations under the agreement) was held from 4 to 15 May 1998 in Bratislava, Republic of Slovakia. Delegates worked through some of the most difficult issues facing the conservation and sustainable use of biodiversity.

Access to genetic resources and the fair and equitable sharing of benefits from using those resources, a cornerstone of the Convention, generated intense negotiations, with one controversial point resolved only late at night on the last day of the two-week meeting. This was the future of the germplasm collections acquired before the entry into force of the Convention in 1993.

All genetic materials under global scrutiny

In a historic move, developing countries led by Ethiopia and India managed to garner support from Europe, Canada, Australia and ultimately Japan (the country which held out until the last minute) for the Convention Secretariat to collect information on those pre-Convention ex situ collections so that the next COP meeting can decide on future work.

The United States objected, too, but since they have not ratified the Convention and are thus only an observer, they could not stop the process despite their attempts to get other delegations to resist the developing countries' initiative. Norway was an able chair of the small group that negotiated the substantive text.

One may wonder at the significance of this move. After all, isn't it just information gathering?

The reality is that industry, especially agribusiness and biotechnology companies, had worked hard during the Convention negotiations to ensure that there be minimum regulation over access to genetic resources and that existing germplasm collections be excluded from any new access regulation or benefit-sharing schemes.

Therefore the Convention contains a loophole in that it apparently excludes germplasm collected before the Convention's operation, and these are found in, for example, agricultural seed banks, microbial collections and botanical gardens.

These materials have been freely collected (some like the UK Kew Gardens were set up from the colonial period) from the wild and farmers' fields, especially from developing countries. Over the past 40 years these resources have brought billions of dollars' profits to the agriculture and pharmaceutical industries of the industrialised world which enjoy access to all the collections.

The Convention seeks to redress this imbalance with the creation of an international scheme that is based on regulated access (on the principle that States have sovereign rights over natural resources within their territory) and the fair and equitable sharing of the benefits arising from use of the genetic resources. Increasingly, this effort is embroiled in controversies over patent and privatisation issues.

To leave enormous collections outside the scheme of the Convention would have meant the continuing assertion of private ownership and patenting of those collections and their derivatives, at the expense of the countries that provided the resources in the first place and farmers who may be legally prohibited from planting related varieties.

For the first time, if the exercise is conducted comprehensively and honestly, there will be a more complete picture of the germplasm held in public and private collections. Although many of these are in international centres such as the Consultative Group on International Agricultural Research (CGIAR), national public centres and public research institutions, there are extensive collections held privately, mostly in industrialised countries.

This would be a crucial complement to the process that is ongoing at the Food and Agriculture Organisation (FAO). Realising that the exclusion of pre-Convention ex situ collections would be devastating, Ethiopia, supported by Sweden, managed to obtain an inter-governmental resolution in 1992 when the Convention was concluded, calling on the FAO to address this outstanding issue.

Since then, governments have been revising the International Undertaking on Plant Genetic Resources for Food and Agriculture to harmonise it with the Convention, and this is expected to be completed in 1999. The negotiations are fraught with controversies over farmers' rights and the proprietary rights claimed by industry and commercial plant breeders.

In Bratislava, India suggested that the revised International Undertaking may be considered for adoption as a protocol, and thus be a legally binding agreement, of the Convention. This was supported by the Netherlands as an important possibility.

A second important development in the FAO was the 1994 signing of agreements between 12 international agricultural research centres and the FAO under which about 500,000 samples of ex situ materials are now brought under the auspices of the FAO as part of its International Network of Ex Situ Collections.

Under these agreements, the collections are held 'in trust for the benfit of the international community, in particular the developing countries' and not 'to claim ownership' or 'to seek any intellectual property rights over the germplasm or related information'. The prohibition on proprietary rights claims was later extended to those who receive materials from the Centres, most of whom are industry or industry-oriented plant breeders.

However, the FAO's coverage is not complete. The latest move in Bratislava to bring all germplasm collections under the Convention's umbrella, if successful, would be crucial for resolving the contentious issues relating to access, intellectual property rights and benefit-sharing.

There will be an inter-governmental meeting in 1999 to prepare for the fifth meeting of the COP in 2000. Recommendations will be made on this issue, and the outcome will largely depend on the continuing solidarity of the developing countries.

Protection of traditional knowledge

The protection of the traditional knowledge, innovations and practices of indigenous peoples and local communities was taken a step further with the setting up of a Working Group to address the key issues in this important and controversial area.

Government delegates, closely observed by indigenous people, representatives of farmers' organisations and NGO representatives, worked hard over a week to thrash out the nature of the Working Group and its terms of reference.

Negotiations were based on the report that emerged from a workshop held in Madrid in November 1997, hosted by the Government of Spain. A large number of participants were from various indigenous people's organisations and some farmers' organisations.

The focus was on implementation of Article 8(j) of the Convention which obligates Parties to: *respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity, * promote the wider application with the approval and involvement of the holders of such knowledge, innovations and practices, and encourage the equitable sharing of the benefits arising from the use of such knowledge, innovations and practices.

The ad hoc Working Group will be open to all governments, including non-Parties, and one meeting is scheduled before COP5. The WG will report directly to the COP.

Observers will particularly include those from indigenous and local communities, and participation will be 'to the widest possible extent' in accordance with the rules of procedure, during the discussions of the Working Group.

At the Bratislava meeting, participation of indigenous peoples actively participated in the negotiating group although there were moments of tension, with strong protests from the indigenous peoples present, when Brazil objected to the presence of the observers at a certain sensitive stage.

Due to inability to consult with its government, the Brazilian delegation reserved its position at the final plenary when the COP adopted the decision on the setting up of the Working Group. In its closing statement, the Brazilian de legation said it 'never intended to exclude representatives of indigenous peoples and local communities from negotiations' but it 'firmly believe[d] that this is an inter-governmental process, for decision-making by governments'. However, it is expected that Brazil will support the decision to set up the Working Group.

As a priority, the WG shall provide advice on the application and development of legal and other forms of protection for indigenous/local knowledge, innovations and practices. It is significant that legal protection is accepted for the first time at the international level since the encroachment of IPR regimes developed for industrial application of knowledge is increasing.

Secondly, the WG shall advise the COP on the implementation of Article 8(j) and related provisions, in particular on a work programme at the national and international levels.

Thirdly, it will identify objectives and activities under the Convention and recommend priorities as well as identify which work should be directed to the Convention's scientific and technical advisory body and which to other international bodies and processes. This is to ensure collaboration and coordination rather than duplication of work in different fora.

Lastly, the WG shall also advice the COP on how to strengthen cooperation at the international level among indigenous peoples and local communities.

A short-term activity proposed by the COP is for governments, international agencies, research institutions, representatives of indigenous peoples and local communities and NGOs to provide case studies and other relevant information to the Secretariat as background information for the WG.

These include:

  • interactions between traditional and other forms of knowledge relating to the conservation and sustainable use of biodiversity;

  • the influence of international instruments, IPRs, current laws and policies on knowledge, innovations and practices of indigenous and local communities on those subjects;

  • the extent to which traditional knowledge of indigenous peoples and local communities has been incorporated into development and resource-management decision-making processes;

  • documented examples and related information on ethical guidance for the conduct of research in indigenous and local communities about the knowledge they hold; and

  • matters of prior informed consent, fair and equitable sharing of benefits and in situ conservation in lands and territories used by indigenous peoples and local communities.

The COP also proposed closer cooperation with the World Intellectual Property Organisation (WIPO), which has included biodiversity-related issues under its 1998-99 work programme. The Executive Secretary of the Convention was requested to seek observer status at the WIPO.

A number of government delegations and participants from among indigenous peoples reiterated the need for more involvement from representatives of local communities. According to the Indian delegation, local communities are an inalienable component of Article 8(j) and in the context of India, they include communities of farmers, fishermen, women and several others who all participate in activities and knowledge relating to biodiversity. The richness of the contributions of Indian local communities, it added, is known worldwide.

Towards this end, a necessary step is the institution of an international system which recognises the value and standing of the knowledge, innovations and practices of local communities. Protection and IPR issues are important to them as they often feel threatened in the absence of an internationally recognised system that secures this protection.

India therefore proposed that a concrete first step in ensuring benefits for use of this knowledge would be to make the granting of IPRs subject to disclosure of information on prior art, whether oral or written, and the origin of the biological resources used in the patent application.

Accordingly, the Clearinghouse Mechanism of the Convention should maintain a database of the patents filed in different parts of the world for products and processes based on biological resources and associated knowledge. Parties can then examine patent applications and the sytem can be made more transparent and contribute to the realisation of the third objective of the Convention, i.e. the fair and equitable sharing of benefits.

Conflicts with World Trade Organisation

At previous meetings of the COP, the developing-country Group of 77 and China had raised the issue of intellectual property rights, seeking the recognition of the Convention's primacy over the GATT/WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

Industrialised countries, especially the non-Party United States, have consistently resisted such initiatives under the Convention, arguing that IPRs are the speciality of the WTO and other 'more relevant' fora.

In Bratislava, the Ethiopian delegation initiated a move to get the COP to concretely deal with this issue by proposing that an ad hoc working group, open to all governments, be set up to deal with the relationship between the two agreements. This group should identify conflicts and recommend actions to COP5, bearing in mind the supremacy of the Convention.

Given the proposed 1999 review of the TRIPs agreement provision that relates to biological resources and biotechnology, Ethiopia sought a resolution from COP4 to the WTO, calling for the review to be deferred until the COP makes its recommendations.

As expected, industrialised Northern countries strongly opposed these suggestio ns. Many of them even objected to the use of the word 'conflicts'. Ethiopia, supported by Indonesia, argued that the Convention itself recognises that there are potential conflicts, which is why Article 16(5) obligates Parties to ensure that patents and other intellectual property rights are 'supportive of and do not run counter to' the objectives of the Convention.

The delegates also cited a number of cases where patents granted in some countries are already causing controversies and could undermine the Convention.

The COP also acknowledged that some Parties to the Convention, particularly many developing countries, are not members of the WTO, and are therefore limited in their abilities to present their concerns regarding biodiversity at the trade organisation.

Although the Ethiopian working group proposal was not accepted, it was agreed by the COP that the Convention's Executive Secretary will 'analyse the development and experience of other conventions and agreements and their potential relevance to the work' of the Biodiversity Convention. This analysis will then be presented to the three- day meeting in preparation for COP5.

The analysis should examine the relationship between IPRs and relevant TRIPs agreement provisions, and the Biodiversity Convention, in particular issues relating to technology transfer and conservation and sustainable use of biodiversity as well as the fair and equitable sharing of benefits, including the protection of knowledge, innovations and practices of indigenous and local communities. This is an area that the COP emphasised as requiring further work.

In lieu of the language of 'conflicts', the COP stressed the 'need to ensure consistency in implementing' the Biodiversity Convention and the WTO agreements, including the TRIPs agreement, 'with a view to promoting increased mutual supportiveness and integration of' biodiversity concerns and protection of IPRs.

The COP called on the WTO to consider how to achieve these objectives in the light of the Convention's Article 16(5) which calls for IPRs to be supportive of, not counter to, the Convention, taking into account the planned review of Article 27.3(b) of the TRIPs agreement in 1999.

Many developing country delegates said that this was a significant step forward in addressing the IPRs issue, given the strong resistance of some countries, especially the US, its being raised in the COP, except to ensure compliance with TRIPs.

On the only occasion when the Convention Secretariat had prepared a background paper to review existing IPR regimes and their implications for protecting trad itional/indigenous knowledge, innovations and practices, criticisms were openly directed at it by the US. This was in 1994, during the preparatory stage for the first meeting of the COP. A former Secretariat staff member said later that there was pressure on the Secretariat to not even present the paper to the governments. Since then, there has been no attempt to prepare any detailed or comprehensive analysis despite calls from the G77 and China to do so.

The nature of the analysis that will be prepared for COP5 thus remains to be seen.

At the same time, developing countries, through the COP, have also been seeking to increase the liaison between the Convention and the WTO so as to ensure that the objectives and provisions of the Convention are not undermined by the trade regime.

At the request of the COP in 1996, the Convention Executive Secretary has obtained observer status in the WTO Committee on Trade and Environment in order to represent the Convention on matters that relate to the Convention. One important area is the relationship between the Convention's benefit-sharing provisions and the TRIPs agreement.

At the Bratislava meeting, governments again asked the Executive Secretary to link up with the WTO to ensure the Convention's interests are represented, this time through obtaining observer status in the WTO Committee on Agriculture.

Meanwhile, the Executive Secretary was also asked to report to the COP on the impact of trade liberalisation on the conservation and sustainable use of agricultural biodiversity in consultation with bodies such as the WTO.

Ministers' dialogue

The Ministerial Roundtable, which was chaired by the Slovak Minister of Environment, took place at the beginning of the meeting, as a parallel event. It focussed on three themes: the integration of biodiversity into sectoral activities; tourism and the participation of the private sector.

Many delegations, especially those from developing countries, privately expressed concerns over the selection of topics for the Roundtable. As one delegate observed, the integration of biodiversity into sectoral activities is obvious and an underlying principle of the Convention. 'If political momentum for the implementation of the Convention was sought, this discussion was not significant,' she said.

Emphasis was put on the role of the private sector and securing their integration in national activities, and guidelines were suggested to assist them in the sharing of benefits. It was acknowledged that there is potential conflict between conservation and sustainable use of biodiversity (along with the sharing of benefits), and the private sector.

On the other hand, it was recognised that it is the Governments which are ultimately responsible for securing the objectives of the Convention.

Ministers also emphasised that the involvement of the private sector does not in any way substitute for the responsibility of developed-country Parties to provide the necessary financial resources and technology transfer to developing-country Parties.

However, it appeared that the thrust of the Roundtable was to promote a detailed work programme on tourism under the Convention, a move by the German delegation that sparked objections from many countries.

'No' to global tourism guidelines

Attempts by the German Government to have global guidelines on biodiversity and sustainable tourism under the Convention were resisted by many countries, including some Europeans.

Representatives from small-island developing states, for whom tourism is a major activity, were vocal in their rejection of the proposal from the German Ministry of Environment.

The seventh session of the United Nations Commission on Sustainable Development (CSD) in 1999 will be examining this topic as part of its monitoring of the implementation of Agenda 21, the programme of action adopted at the 1992 Earth Summit. It was therefore expected that COP4 may wish to contribute its views on the relationship between the Convention and Agenda 21's chapter on Sustainable Tourism.

However, many delegations and observers were surprised by the insistence of the Germans on getting the COP to start work on global guidelines and an implementation strategy on biodiversity and sustainable tourism, and to seek endorsement of those guidelines from the CSD.

The proposal was made during the Ministerial Roundtable. An offer of funding was also made during the ministerial discussions for an experts' group to work on the proposed global guidelines.

Many delegates at the Roundtable expressed concerns over the relevance, objectives and funding of such guidelines. Yet the Chairman's summary of the discussions placed prominence on the detailed German proposals.

This was seen by some as an attempt to pre-empt the CSD from possibly setting up a more stringent framework for the tourism industry, and to pave the way for an industry-led and industry self-regulated scenario.

The heavy emphasis in the Roundtable on the private sector reinforced concerns that sustainable tourism activities would facilitate the privatisation of biodiversity and further alienate indigenous peoples and local communities from their land and resources. As the Austrian minister acknowledged, 'sustainable tourism offers new market opportunities'.

With the spread of adverse impacts of commercial tourism over the years in many countries, especially in developing countries catering to tourists from industrialised countries, the industry and some governments have heavily promoted notions of 'eco-tourism' and 'sustainable tourism' in the last few years. The reality of many of these projects has generated considerable criticism: in almost every case, such projects have facilitated commercial access to ecologically sensitive areas such as coral islands and biodiversity-rich forests. Negative social and cultural effects have also followed.

Increasingly, there have been reports of biopiracy activities where germplasm collectors have entered countries as tourists. Even human cell and blood samples have been taken from indigenous peoples for genetic mapping and medical research, resulting in a number of cases where human cell lines were patented. Earlier meetings of the COP had seen the condemnation of such moves by NGOs and many government delegates.

The promotion of the German tourism industry's interests at the international level by the German Government has been increasing, and this was evident from its official stance at COP4. Observers noted that some European Union delegations were unsupportive of the unrelenting German efforts to pursue the matter of global guidelines in almost every group discussion or negotiation. In the end, the German delegation was speaking for itself, rather than relying on the European Union spokesperson.

At the final plenary, the delegate from Samoa reiterated that sustainable tourism is a complicated issue that will be addressed by the CSD next year. 'We are not in favour of some of the top-down approaches we have seen here,' he stressed.

The final decision of COP4 was a request to Parties to submit information to the Convention Secretariat on matters including:

  • current threats to biodiversity from tourism activities;

  • ways that demonstrate where tourism and conservation/sustainable use of biodiversity are mutually supportive;

  • the involvement of the private sector, local and indigenous communities in establishing sustainable tourism practices;

  • infrastructure planning and regional and land use planning for tourism that have incorporated consideration of the Convention.

The aim is to start a process of exchange of experiences, knowledge and best practices on sustainable tourism and biodiversity under the Convention's scientific and technical body.

Future meetings

A three-day meeting open to all governments and observers will be held in 1999 to prepare for COP5 which is scheduled for the year 2000. The scientific and technical body of the Convention will meet twice, over five days each, before COP5.

Regional meetings for similar preparation will be conducted as usual. In addition, regional biosafety training workshops by the United Nations Environment Programme (UNEP), financed by the Global Environment Facility (GEF), will also take place.

In addition to matters arising from COP4, Governments at COP5 will examine dryland, Mediterranean, arid, semi-arid, grassland and savannah ecosystems as a cluster; sustainable use of biodiversity, including tourism; and access to genetic resources. (Third World Resurgence No. 99, November 1998)

Chee Yoke Ling, a former university law lecturer, is an Environment representative of Third World Network.