US tries to block Thai moves on traditional knowledge
A move by the Thai government to recognise the country's traditional healers and regulate access to their knowledge and traditional medicinal genetic resources has drawn protests from the US government. Although the move is fully consistent with Thailand's obligations under UN Conventions and World Trade Organisation accords, the US has moved to intervene even as Thai legislators are debating a bill to give effect to this initiative.
by Chakravarthi Raghavan
AN initiative by the government of Thailand to draft a bill to recognise and protect the knowledge of traditional healers and Thailand's medicinal resources from private appropriation by pharmaceutical companies appears to have drawn the ire of the United States government.
The Thai move is in the context of the UN Convention on Biological Diversity (which enables country-members to regulate the conditions of access to their genetic resources, and knowledge based on them, and for a share in the benefits arising from bio-tech uses based on the indigenous plants and their genes), as also the WTO's TRIPs accord.
According to information received from the Thailand Working Group on Farmers Rights, Genetic Resources and Traditional Medicine, while the Thailand government is still drafting the bill (and its contents are not public), the US embassy in Bangkok has intervened and fired off a diplomatic note in effect warning the government that this move would be in violation of the TRIPs accord. The US note, 'seeking' information and the details of the draft bill being considered, has been fired off by one Robert Pollard, First Secretary of the Economics Affairs Section of the US Embassy in Bangkok and has been sent to Mr Banphot Hongthong, Director-General of the Department of Intellectual Property in the Thai Commerce Ministry.
Within the terms of its own domestic law, the United States has recently asserted its right to take trade sanctions against countries on grounds of inadequate intellectual property protection, even if the country concerned is in fact implementing the WTO's TRIPs.
The United States has not so far become a party to the UN's Convention on Biological Diversity, though it has been attending the meetings of the contracting parties as an observer, and attempting to influence that process, and dilute the rights of countries, both through the processes of the COP and through the secretariat and its expert groups and committees.
US protest before sight of bill
A In a communication via the internet to NGO groups worldwide, the Thai working group points out that a letter to the Director of Thailand's Intellectual Property Office (Ministry of Commerce) claiming that Thailand's initiative to draft a bill which would recognise and protect traditional healers and medicinal genetic resources could violate the WTO TRIPs Agreement, was shot off, and the allegation that its contents would violate TRIPs was made without the US embassy having even seen the draft bill.
The US embassy letter questions Thailand's legal, moral and political integrity - not to mention authority - in wishing to claim benefits for traditional herbalists and healers without having ratified the CBD. It equally asserts US fears that registering traditional health care knowledge and resources in a country like Thailand will block medical research.
Thailand's moves are within the terms of the right of countries under the WTO's Trade-Related Intellectual Property Rights (TRIPs) to exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes.
However, WTO members (while excluding from patentability) should provide protection of plant varieties either by patents or by an effective sui generis system.
A number of developing countries are weighing this option, and environment and development groups of the South and the North are trying to persuade the South countries to use this option, and to prevent the traditional knowledge of farming communities and healers, and the genetic resources and plant materials, from being appropriated by pharmaceutical enterprises which are appropriating what could be viewed as community and traditional knowledge into private IPRs.
The US embassy action in Bangkok appears to be part of the US government's pre-emptive move on behalf of its TNCs.
According to the Thai NGO group, the US embassy letter in effect questions 'Thailand's legal, moral and political integrity - not to mention authority - in wishing to claim benefits for traditional herbalists and healers without having ratified the CBD'.
It equally asserts US fears that 'registering traditional health care knowledge and resources in a country like Thailand will block medical research.'
Free public use
The Thai Working Group on Genetic Resources and Traditional Medicines in an email message to environment/development NGOs across the globe, emphasises that:
* The objectives of this law are to encourage the conservation and utilisation of herbal plants and genetic resources including categorising them for the use of public benefits, research and commercial purposes.
* Traditional knowledge will be registered and verified by the State. As a consequence, the rights holders will have the rights to earn benefits over their knowledge only for commercial aspects. For the public use, it will be utilised free.
* The organisations, with the participation of local healers, communities, academics and NGOs, who monitor research on herbal plants, registration and verification of traditional knowledge, will be established by this bill.
Additionally, these units will act as organisations which will help healers or communities holding their rights to fully realise what is set out under just, mutually-agreed terms.
Thai civil society organisations - representing farmers, ethnic communities, the urban poor and other sectors - which have been working on the draft bill in collaboration with the Ministry of Public Health, lawyers and academics, have issued a series of press releases to express concern about 'US interference' in national biopolicy development.
The matter has also been forwarded to the attention of the intergovernmental Commission on Genetic Resources at FAO in Rome.
Further, the Thai groups are encouraging the government to file a formal request for clarification with the TRIPs Council and the CBD Secretariat regarding the US government's interpretation of the two treaties.
In the letter to Director-General Banphot (which the Thai group has posted via the internet to concerned NGOs), the US embassy says that Washington agencies recently learned that the Royal Thai Government (RTG) has drafted a bill that would allow Thai healers to register traditional medicines in order to claim benefits before Thailand ratifies the United Nations Convention on Biodiversity and for use when researchers seek access to these medicinal resources in the future.
Since Washington believes that such a registration system could constitute a possible violation of TRIPs and hamper medical research into these compounds, the US Government seeks further information on the Thai proposed registration system. Washington would appreciate receiving a copy of the draft bill, and responses to the following questions:
1. What is the relationship of the proposal to the granting of patent protection in Thailand?
2. What is the relationship of the proposal to register Thai medicines to the granting of plant variety protection in Thailand?
3. Given that it appears that only Thai entities will be able to: take advantage of the registration process under the proposal, the proposal could violate the WTO's national treatment provisions. How does the RTG plan to address this and any other potential WTO violation?
4. What can be registered under the proposal? Furthermore, how are 'traditional medicines' identified? Must they be specifically identified with the traditional practices of a given ethnic or regional group within Thailand or could registration also include practices learned or incorporated from other cultures/countries? Will registration of practices that may have been integrated into Western commercial ventures be applied retroactively?
5. Has the RTG determined who would be permitted to register a traditional medicine, i.e. the leader of a group, a practitioner, or other individual? How were guidelines on this subject determined?
6. How will the registration process work and which RTG entity would have responsibility for the process and resulting registry? Would the registry be made fully available to the public?
7. Will the registration of the same traditional medicine by two unrelated and possibly competing Thai applicants who may not be filing at the same time, but would both be in possession of the same compound, be allowed? It so, how would this potential conflict be addressed by the Thai government?
8. What rights are provided as a result of registration and what is the duration of such rights? 9. Which Thai government entity or entities would enforce the registration of traditional Thai medicines or medicinal compounds?
10. Washington understands the proposal is aimed at allowing Thai applicants who register a traditional benefit the right to claim benefits in the future from medical or scientific researchers. What is meant by claiming benefits? What types of acts must take place and where must they occur for a Thai entity to claim the benefits envisioned under the proposal? From what entities can the benefits be claimed?
11. Does the RTG envision a contractual system to handle relationships between Thai healers and foreign researchers in the future? (TWR No. 84, August 1997)
Chakravarthi Raghavan is the Chief Editor of the South-North Development Monitor (SUNS) from which the above article first appeared.