A CASE FOR COMMUNITY RIGHTS

Tewolde Berhan Gebre Egziabher^*

BIODIVERSITY COLLECTING: IN THE SOUTH, OF COURSE!

1. INTRODUCTION

In the summer months of 1992, even though the Convention on Biological Diversity had already been signed, collecting biological materials in the South by Northern institutions continued as if nothing had happened. I realized that the initiative to conform to the Convention had to be taken by the South. In the months following the signing of the Convention, therefore, I wrote the following article to stimulate discussion on the issue. The world scene has changed little, and the article remains still valid. I have only added some information on the South-North flow of resources. I have also transferred here from the second article in this document, a description of the United Nations System negotiating process, which was originally developed for the Crucible Group discussions, because it sets the scene for the discussion which follows.

2. NEGOTIATIONS AMONG UNEQUALS

I attended the last intergovernmental negotiation session of the Convention on Biological Diversity, which took place in Nairobi from May 11 to May 22, 1992. I was a delegate from Ethiopia. When I started to participate in the negotiations, most of the articles had been finalized. But there were still some contentious outstanding issues. This gave me a taste of what the negotiations were like. I also attended negotiations for Agenda 21 and for the Convention on Desertification. It was immediately apparent that there were two camps: that of the delegates from the North, and that of the delegates from the South.

The delegates of the South felt their poverty in the negotiating rooms and in the bargaining that took place in the corridors. They were often too few to be effective. They had to deal with multitudes of disciplines for most of which they had no educational background. The delegates from the North came mostly in large multi-disciplinary teams. They also came equipped with a comprehensive database while those from the South had to rely only on their own knowledge and intuition. The delegations from the South were, in the eyes of the secretariats, lightweight and rules of procedure and bureaucracy could be applied on them strictly. But delegates of the North controlled the finances of the secretariats and the bureaucracy bent over backwards to accommodate them.

Given this setting, the negotiations were between Goliaths and Davids. The sling of the Davids was in their number. On issues in which they united under the umbrella of the Group of 77 (G-77) and China, therefore, they negotiated effectively. But the G-77 and China is a loose organization and on most issues, therefore, a common position had not been defined among its members and the South remained divided and at a great disadvantage.

But the South also had well-informed and highly organized allies in the Scandinavian countries, especially Sweden, which obviously understood fully the need for a world fair enough to be secure even when lightweight.

It is thus not surprising that the South lost more than the North in the give-and-take game of negotiating. The aspirations of the South were allowed to be expressed in the Preamble (paragraphs 4, 8, 11, 12, 15, 16, 17, 19), but most of these did not find their way into the articles. Of these, paragraph 4, which stipulates that states have sovereign rights over their biodiversity, has been accommodated in Article 3. Most of the others have also, at least nominally, been accommodated in Articles (paragraphs 8 & 11 in Article 9; paragraphs 15, 16, 17, 19 in Article 20). However, these provisions have been rendered meaningless by Article 39 which, at the naked coercion of the North, has stipulated that, for the time being, the financial mechanism described in Article 21 will be the Global Environmental Facility (GEF), which, though nominally under UNDP, UNEP and the World Bank, is directed from the World Bank and headed by a World Bank employee. Thus it remains in one of the institutions known to be most difficult for the South. Its decision-making has, contrary to the spirit of Agenda 21, remained totally outside of the influence of the parties to the Convention which are in the South.

3. THE BIODIVERSITY CONVENTION - INEQUALITY COUCHED AS AN EQUATION

The Convention on Biological Diversity is aimed at making industrialized and so-called developing countries fulfil specific obligations which, when combined, are expected to bring about the conservation and sustainable use of the Earth's biological diversity.

The owners of biological diversity, which are mostly in the South and are non-industrialized countries, are recognised as sovereign over their biological diversity (Articles 3 and 15.1 of the Convention). The industrialized countries, which are in the North, are recognised as the owners of biotechnology (Article 16) and finance (article 20). The more precise meaning of biotechnology in this context is genetic engineering as most other biotechnologies are found in the South in association with biodiversity. Biological diversity is seen as essential for making biotechnology useful (Articles 15.6, 15.7, 19.2).

Financial resources, to supplements those of the South, are seen as coming from North to South in a fair and equitable sharing of the benefits from the commercialization of biological diversity from the South (Article 15.7), and to enable Southern countries to fulfil the obligations put on them by the Convention (Article 20.2). These obligations include:

The development of national strategies, plans or programmes for the conservation and sustainable use of biological diversity (Article 6);

The identification and monitoring of biological diversity (Article 7);

In-situ (Article 8) and ex-situ (Article 9) conservation and sustainable use of biological diversity (Article 10);

Research and training for (Article 12), and public education and awareness about (Article 13), biological diversity; Assessment of the impact on biological diversity of development projects; and

Exchange of information about (Article 17), and technical and scientific cooperation on, biological diversity (Article 18).

Biotechnology is seen as coming from North to South in exchange for biological diversity (Articles 15.6, 15.7, 16.1, 16.3, 18.2 19.1 19.2) and to help in the conservation and sustainable use of biological diversity (Articles 16.1), "under fair and most favourable terms, including on concessional and preferential terms ..." (Article 16.2). Some biotechnologies are also visualized as flowing from South to North (Article 18.2).

Biological diversity is also seen as coming from South to North in exchange for the promise of sharing in the benefits arising from its commercialization by the North (Article 15.7) and through bilateral agreements (Article 15.2 & 15.4). The bilateral agreements will presumably be based on exchanges of biodiversity for financial resources, technology, or human resources development. Though the North does not have much biological diversity to make available, the South can have access to whatever little it has (Article 15). Since biological diversity is amenable to pilfering, an advance informed agreement with the country of origin is required if possessing it is to be legal (Article 15.5).

Information is seen as flowing from South to North associated with biological diversity (Articles 8.j and 17) and from North to South associated with biotechnology (Articles 15.6, 17.7, 16.3, 17, 19.3, 19.4).

The obligations of North and South according to the Convention can thus be summarized as shown in the following figure in which the major flows are represented as thick arrows, and the minor flows as thin arrows.

From this scheme, it can be seen that biological diversity balances against biotechnology. But financial resources are seen as flowing only from North to South. Yet the responsibility of South and North in providing for biological diversity conservation is meant to be about equal.

The Convention hopes that the flow of financial resources will be from North to South. In practice, the flow is already from South to North, as shown by Fowler and Mooney (1990 pp. 42-53) who point out the massive value in the North of the commercialized crop biological diversity from the South. By controlling money, legal system as the world's international law, the industrialized countries ensure that resources flow from South to North. According to Childers and Urquhart (1994, p.54) the richest 20 per cent of the world, consisting of the industrialized countries, have 82 per cent of the GDP, control 81.2 per cent of the trade, and 94.5 per cent of the commercial lending, accumulate 80.6 per cent of the domestic savings and deploy 80.5 per cent of the domestic investment of the world. In contrast, the poorest 20 per cent of the world, consisting of the least industrialized countries of the South, have only 1.4 per cent of the GDP, control only 1 per cent of the trade, and a mere 0.2 per cent of the commercial lending, accumulate only 1 per cent of the domestic savings, and deploy only 1.3 per cent of the domestic investment of the world.

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The attempted equation of the conservation of biological diversity emerging from the Convention on Biological Diversity thus understandably aspires to be lopsided in favour of the South. In practice, the situation is still lopsided in favour of the North, and it can be expected that in the next few years, there will be much manoeuvering by the North to maintain the status quo, and by the South to try and use the Convention to modify that very status quo.

4. "BREAD AND A POTTAGE OF LENTILS"

A Southerner who appreciates both the prevailing North-South relationships and the biodiversity conservation equation, or more precisely inequality, would naturally expect a Northern push on the South to let go of its biological diversity for as little as can be negotiated from a position of strength. This is a gain for the South since it replaces the usual direct grabbing with the new agreed exchange, at worst unfair. And the worst is to be expected.

The Convention on Biological Diversity, though to a lesser extent than does the Convention on Desertification, emphasizes the use of bilateral arrangements on "mutually agreed terms" instead of on clear-cut arrangements that apply internationally, e.g. on access to genetic resources (Article 15.4), on the sharing of benefits accruing from the use of genetic resources (Articles 15.7, 19.2) and on access to technology (Article 16.2). When good will prevails, such bilateral arrangements work well. But in a tussle, the stronger party's wish will prevail. The Bible (Exodus 25: 29-34) tells us that Esau, returning hungry from an unsuccessful hunt, sold his birthright as the eldest to his younger brother Jacob for "bread and a pottage of lentils". This is an appropriate parable of our time, as the South could easily sell its biological diversity for a shipload of wheat flour or even less to feed the ever-hungry components of its population. It is no wonder then that a Belgian delegate in the first meeting of the ICCBD (Inter-Governmental Committee on the Convention on Biological Diversity), Geneva, 11-15 October 1993, as a spokesperson of the European Union, opposed the suggestion by the UNEP Secretariat for establishing an office of an Ombundsperson for the Convention. His stated reason was that a bilateral agreement needs no such office. If his intentions had been to work for a fair deal, why fear such an office?

It is thus with the story of Jacob and Esau in the background that we, from the South, should examine propositions for cooperation. This would not be to oppose cooperation. We are the weaker party and we should welcome it. It is only to be on our guard so as not to be enticed by a meal when we are hungry into giving up our future base for securing food and exchanging our hunger of today for starvation next year.

There are various ways through which we could be disinherited of our genetic resources.

Seeds are easy to steal and smuggle out. This is happening and it will continue to happen. Article 15.5 of the Convention stipulates that an advanced informed agreement is required for access to biological diversity. This means that not only stealing, but even buying, and exporting biological material for germplasm without explicitly stating that it is to be used for germplasm, and getting the approval of the government of the country of origin is illegal. Given a world that would not tolerate theft, this article could help. In theory it is possible to use genetic fingerprinting and possibly other biotechnological techniques to trace the country of origin of plants and animals and thus expose theft. This would require both a worldwide information network to help identify the whereabouts of suspected plants and animals or their products and a certain minimum biotechnological capability in the hands of the South. Usually, such capacity does not exist.

The strategy to minimize such loss of germplasm could, therefore, have the following three prongs:

m All exits from a country should be well guarded to reduce illegal export of germplasm, and laws and their enforcement should be in place to deal with offenders.

m Southern countries should work together to build up the capacity for tracking germplasm, including the requisite biotechnology, and to exchange information.

m Countries should push for the establishment of a worldwide open system for tracking the movement of biological materials.

However, since most Northern institutions want legally unfair deals to help them maintain a "civilized" image, the most important channel for loss of germplasm is probably not theft, but ill-informed and ill-advised deals.

Various kinds of deals practised have been surveyed in a book by the World Resources Institute (1993). In the Context of the present discussion, it would be useful to distinguish between two types of compensation for biodiversity taken. For the collection of samples for pharmaceutical companies, Laird (1993) has described once-off advance payments, usually ranging from US$ 50 to US$ 200 per kilogram of sample. She has also stated: "However royalties, rather than advance payments, have become the company-collector rallying point for many who question the equity of company collector contracts ....". The reason for choosing royalties rather than fixed payments, however high the fixed payments might be, is a reflection of the issue of the selling of a birthright in the Jacob-Esau story.

Since it is only a small number of the samples collected that would lead to some form of a property right protection which could fetch royalties, individual collectors may find it more convenient, perhaps even more cost- effective, to ask for fixed advance payment and forget the issue of royalties. But it would be unwise for a country to allow that and thus condone the selling of a birthright.

Such a sale of birthright would be contrary to the stipulations of the Convention (Articles 3 and 15.1) which state that countries have sovereign right over their biological diversity, and that authority to determine access to it rests with national governments. Of course, since national governments are sovereign they could grant access to individual citizens who could then sell the samples to foreign companies. Legally this could be correct. But it would be tantamount to giving a community heirloom to individuals. The situation is not changed even if the individuals are members of the community from which the sample is collected. Even the most ardent adherents believe in privatizing public enterprises only through government selling them off rather than giving them away to private individuals! The collecting and selling off of samples of biological diversity by private individuals is thus morally indefensible. When possible, local communities should organize themselves, the organization including all member of the community or communities among which the plant, animal or micro-organism occurs. The national government should then give their organization power to transact its biological diversity for royalties. Some advance payment could also be negotiated in addition to royalties, but not the foregoing of royalties. If community organization is not realistic, the national government itself should do the transacting, but then it should ensure that the appropriate communities benefit from the royalties.

According to a study by Harvard Business School referred to by Laird (1993), royalties from collections for pharmaceutical companies range from 1 per cent to 15 per cent of net sales depending on the amount of information made available on the sample and on the work of purification already carried out on it. She also reports royalties of 50 per cent of net profits (not of net sales) as offered by the Royal Botanic Gardens Kew.

I have not read of any comparable information on agricultural biodiversity. It could be genuinely because I have not come across such information even though it may exist. More likely, it is because it does not exist as Northern breeders have access to gene banks in their respective countries, and these gene banks have collections already made and not governed by the Convention on Biological Diversity (Article 15.3) so that the breeders do not have to make advance payments or agree to shares in royalties in order to secure access to germplasm.

5. THE MAJOR ELEMENTS OF A CONTRACT FOR ACCESS TO BIOLOGICAL DIVERSITY

From the above considerations, it becomes obvious that a Southern country needs a contract for access to its biological diversity to bind the person(s) seeking access with conditions that will ensure the fulfilment of the stipulations of the Convention on Biological Diversity.

A contract should safeguard the country's interests in benefits from royalties, in biotechnology, in capacity development and in access to information. The contract should also ensure that there will be no eventual involvement of third parties unless all three parties have negotiated and agreed to do it. All this would be useless if not sealed by an endorsement of the contract by the government of the country of the person(s) seeking access so that it enforces the contract in cases of dereliction by the collector(s). This is needed because, as stipulated in Article 15.1, it is states that own biological diversity, and any arrangements on access would thus work best if they were between states.

The following draft has been prepared to translate these considerations and the stipulations of the Convention into a contract. This draft is meant only to show the important elements. It has not been examined by professional lawyers and it is thus not to be used as it is. Its aim is only to serve as a technical input for lawyers to work from in developing specific contracts suited to their respective countries.

In the draft given, the contract is designed to apply to a person or persons who have come to a country of origin of biodiversity to collect and take the materials collected to his/her/their country. It will also happen that it is a local institution that does the collecting or that has already got it collected and stored (e.g. a gene bank). The components of this draft contract would also apply in this case except that the provisions for collecting would become unnecessary. Permits that are given to local collectors and exporters of germplasm and contracts which their clients abroad have to sign, can also be derived from this draft contract.

References

Childers, Erskine and Brian Urquhart, 1994. Renewing the United Nations System. Dag Hammarskjöld Foundation: Uppsala, Sweden.

Fowler, Cary, and Pat Mooney, 1990. Shattering-food policy and the loss of genetic diversity. The University of Arizona Press: Tucson.

Laird, Sarah A., 1993. "Contracts for biodiversity prospecting", in World Resources Institute, Op.cit. pp. 99-130.

World Resources Institute, 1993. Biodiversity Prospecting. World Resources Institute: Baltimore.

SAMPLE

CONTRACT BETWEEN .............. (Name of institution of country of origin) AND ........... (name(s) of collector(s) OF .............. (Institution & Country)

This contract is made on ...... day of ...... 199.. between (the institution in the country of origin) ..............., hereinafter referred to as the Institution, and (name(s) of collector(s)) ............... of (institution) ............... in (Country) ............... hereinafter referred to as the Collector.

1. This contract, based on the sovereign right of (Name of country of origin) ............... over its natural resources as stipulated in Article 3 of the Convention on Biological Diversity, and, in particular, over its biological resources as stipulated in Article 15.1, aims to implement the Said Convention as required by its Article 9(d) which demands that collections of biological resources be regulated and managed. In so doing the Institution is mindful of Article 15.2, which stipulates that no restrictions that run counter to the Convention be made.

2. Any applicant who wants to be based at the Institution and collect samples of organisms living or dead or parts thereof per se or as parts of soil, air or water samples shall fulfil the following requirements before being allowed to collect.

2.1. She/he/they shall sign this contract.

2.2. She/he/they shall have the contract endorsed by a recognized authority of the Ministry of Foreign Affairs or equivalent body representing the authority of the government of her/his/their country. This signature shall be verified by the appropriate authority of the Ministry of Foreign Affairs of the Government of (the country of origin) ...............

2.3. She/he/they shall acquire or shall be assigned a counterpart institution from (the country of origin) ............... which will assist her/him/them in organizing the collection trips and supervise the collection and dispatch of specimens to ensure that they are all done according to this contract.

3. When a collector applies and her/his/their application is endorsed by a counterpart institution of (the country of origin) ..............., the Institution shall fulfil the following requirements before allowing her/him/them to collect.

3.1. The Institution shall check with the appropriate office of the Ministry of Foreign Affairs of the Government of (the country of origin) ............... to authenticate the signature of the authority of the Government of the Collector's country.

3.2. If the Collector's counterpart institution is within the Institution, then the Institution shall nominate a person who will be responsible for supervising the collection of specimens and their dispatching. If the counterpart institution is outside of the Institution but the Institution still hosts the Collector, then the counterpart institution shall sign an agreement with the Institution to the effect that it will ensure that this contract is respected. The Institution shall then check to its own satisfaction that the contract has been honoured before it authorizes the export of the collected specimens or the exit of the Collector from the country.

3.3. When the Collector enters (the country of origin) ..............., the Institution shall notify the customs, immigration and post office authorities to ensure that Article 15.5 of the Convention, which stipulates that advanced informed agreement by (the country of origin) ............... is required for any biological material to leave the country. The Collector shall not leave the country or take or send baggage or parcel or any other form of conveyance of biological material out of the country without the written permission of the Institution.

4. While collecting and processing collections within (the country of origin) .............. the Collector agrees to abide by the following.

4.1. Unless otherwise agreed with the Institution, she/he/they shall bear the costs of the deployment in the collection trips she/he/they make(s) of 2 persons assigned to go with her/him/them by the counterpart institution.

4.2. She/he/they accepts that any sample collected is the minimum size required for the purpose for which it is collected. If there is any doubt on the issue, the decision of the counterpart institution will prevail.

4.3. She/he/they will deposit at least one duplicate specimen and copies of field notes and reports with the counterpart institution. In the event that there is no duplicate to a collection, the said single collection shall be deposited in the counterpart institution or in any other institution of (the country of origin) ............... named by the counterpart institution. However, the said sample will be available to the Collector at any time for any study within (the country of origin) ............... that does not involve destructive treatment of the collection. A destructive treatment may be allowed only through a specific agreement made in writing by the counterpart institution and endorsed by the Institution.

4.4. Unless otherwise agreed she/he/they shall make available the equipment, supplies and consumables required to ensure the safe keeping or curation of the specimens to be left in (the country of origin) ...............

4.5. She/he/they shall observe constraints to collecting set by the laws of the country or by the regulations of the Institution or counterpart institution.

4.6. Consistent with Article 15.5 of the Convention on Biological Diversity, the Collector agrees not to transfer the specimens collected to any third party whether within (the country of origin) ............... or abroad without the third party signing a separate contract with the Institution or any other body designated by the Institution.

4.7. Consistent with Article 15.6 of the Convention on Biological Diversity, the Collector undertakes to carry out all the study and experimentation involving the specimens within (the country of origin) ............... with the full participation of the counterpart institutions or any other institution in (the country of origin) ............... determined by the Institution. In cases where there is disagreement as to whether the experiments or studies could be made in (the country of origin) ..............., the decision of the Institution shall be final.

5. After leaving (the country of origin) ............... the Collector shall fulfil the following obligations:

5.1. She/he/they shall submit to the Institution any report or writing of any kind concerning studies made on any specimen collected under this contract.

5.2. Consistent with Articles 15.7, 16.1, 16.4, 19.1, and 19.2 of the Convention on Biological Diversity, the Collector shall ensure that scientists nominated by the Institution shall join in the work in the laboratories or trial sites where any specimen collected through this contract is being subjected to any biotechnological experimentation. To make this possible, the Collector shall make the necessary funds available.

5.3. Consistent with Article 15.7 of the Convention on Biological Diversity, the Collector agrees that of any royalties or other profits accruing to her/him/them, or to her/his/their heirs, or to her/his/their institution, or to any party to whom she/he/they transfers any of the specimens or progenies in whole or in part or derivative thereof, 50% of royalties from intellectual property rights and 20% of net sales from other forms of commercialization, shall be handed over to the Government of (the county of origin) ...............

6. In case of bad faith as revealed through the acquisition of information by the (county of origin) ............... including through the use of genetic finger printing or any other appropriate technique, the Government (of the Collector's country), by endorsing this contract, agrees to indemnify the Government of (the country of origin) ...............