By Vandana Shiva
The proposed Biodiversity Convention was one of the big casualties at the Earth Summit, held in Rio in the first two weeks of June.
Negotiations on the convention were concluded on May 20 in Nairobi. Since most of the planet's biodiversity lies in the underdeveloped nations of the South, while most of the benefits from its commercialisation accrue to the North, these negotiations produced deep and intense conflicts between corporate interests and health and environmental security. These conflicts at times manifested themselves as a North-South conflict in intergovernment negotiations.
From many points of view, the text produced in Nairobi is not fully satisfactory. Among the weaknesses in the text signed by most states in Rio is a basic flaw in Article 3: "States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction".
Missing from this statement is the sovereign right of local communities which have conserved and maintained biodiversity, and whose cultural survival is linked intimately to the survival of biodiversity.
Another flaw in the convention is the assumption that biotechnology is essential for the conservation and sustainable use of biological diversity: Article 16 (1). Diverse species exist independently of technology; however, biotechnology depends on biodiversity to provide raw material for commercial objectives.
The United States announced in advance that it would not sign the Biodiversity Convention at the Earth Summit on the grounds that the text is "seriously flawed". However, it's not the above flaws that the US had in mind.
What Bush considers flawed are precisely those areas which from the citizens' point of view are positive elements, but from the corporate point of view are impediments. These include, in particular, provisions related to intellectual property rights (IPRs) and biosafety. That powerful corporate interests are at the heart of the Bush decision can be seen from the fact that the decision was first publicly announced at a meeting organised by the biotechnology industry.
Ownership of life
The issue of IPRs has been central to US foreign and trade s. Section 301 of the US Trade Act (known as Super 301) has been used to threaten or enforce unilateral actions against countries whose patent regimes are not conducive to the interest of US corporations because they protect the larger public interest. An example is the pressure being put on India to change its patent system because it does not allow the patenting of life forms or any health or food products.
The US has also forced IPRs into the ongoing General Agreement on Tariffs and Trade (GATT) negotiations.
In the area of biodiversity, IPRs create ownership over life forms and life processes, and are essentially legal instruments for monopoly profits and corporate control over natural resources and markets. Since most of the existing biotechnology industry is concentrated in the US, and the rest of the US economy is in crisis, the US is betting on rapid growth of the biotechnology industry to spearhead economic recovery.
In February 1992, Bush announced that he wanted to see the biotechnology industry grow from $4 billion a year to $50 billion. Ensuring monopoly through IPR protection is therefore essential for the US industry.
The Biodiversity Convention, in Article 15 (5), states: "Contracting parties, recognising that patents and other IPRs may have an influence on the implementation of this convention, shall cooperate in this regard, subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives".
This clause would require that the US change its domestic IPR regime, subjecting industry to environmental and health responsibilities. It also exposes the weakness of the US domestic regime with respect to environmental and health standards, and its strength in protecting and promoting the interests of industry. This could have frustrated US attempts to force its environmentally and socially irresponsible domestic IPR regime on other countries through Super 301 and the GATT. It was these potential impacts on industry that drove the Bush administration to reject the convention.
Access to technology
Patents are designed to ensure that industry profits through royalty payments. In the case of biodiversity and biotechnology, since the South is the origin of most biodiversity, it is the real donor of resources. Southern governments are therefore insisting that in return they should have access to relevant technologies, including biotechnology, on "fair and most favourable terms, including on concessional and preferential terms, where mutually agreed" (Article 16 of the Biodiversity Convention).
The US, however, would like to generate maximum profits through patents on technology, particularly biotechnology. Royalty payments expected to reap $5 billion in this sector. The US has been arguing that it is losing potential in the absence of legal protection of US industry's IPRs abroad. The South is already collapsing under the burden of transfer of billions of dollars annually to the North in debt repayment, terms of trade etc. Royalty payments would increase the net flow of funds from the impoverished South to the already wealthy North.
The US claims that countries not paying royalties in accordance with US law are "pirates". However, if the Southern contribution of biodiversity is valued appropriately, the pirate role is totally reversed. The US is then found to owe the South $2.7 billion for payments due to farmers for their seeds and forest communities for plant-derived pharmaceutical products.
Article 16 (2), which calls for fair terms of transfer for technology, is based on this reality. However, this effort at achieving some degree of equity in the area of biological resources is unacceptable to the US and its industry.
Safety sacrificed
The issue of biosafety and regulation of biotechnology was the second reason for the Bush decision. The recent record of the US has been a systematic dismantling of the regulatory framework for ensuring environmental and health security in this area. The regulations of the Food and Drug Administration (FDA) have been drastically weakened.
Instead, the White House Council on Competitiveness headed by Dan Quayle has urged all agencies to speed up clearances for genetically engineered products. As a result, the US Department of Agriculture approved 22 field tests of genetically modified organisms in the period from March 20 to April 21. Federal regulations, including those concerning biotechnology control, were suspended in a 90-day moratorium, which was extended for another four months on April 29.
More recently, the FDA has ruled that food products altered by genetic engineering raised no new or unique safety issues and will be regulated no differently than food created by conventional means. Thus foods which have had animal genes introduced into them are to be treated "as natural" and "safe". Already, human genes have been transferred to pigs, and pig genes to crops. In such instances, complex ecological, ethical, cultural and religious problems can emerge, which have been totally ignored and even suppressed.
Article 14 of the Biodiversity Convention would make it necessary to examine safety issues and render the ongoing deregulation in the US illegal under international law. On the other hand, the convention would strengthen regulations on human health and environmental safety. This clause is what George Bush calls a "serious flaw" since he is openly committed to the cause of industry. The Bush administration didn't want the Earth Summit to put in place any international regulation on biotechnology. Rather, it wanted to give industry a guarantee that it would have a licence to experiment with and manipulate life forms without any ethical, social or environmental responsibility.
This is the ruling philosophy of the US, which was shared at the Earth Summit by the Business Council for Sustainable Development, whose president announced that "green is the colour of profits". For the sake of the planet and its people, we cannot allow this to be the case.
[From Ngonet/Pegasus. Vandana Shiva is director of the Research Foundation for Science, Technology and Natural Resource Policy, India.]