Peoples's Commission on Biodiversity, Indigenous Knowledge and People's Rights
From: Vandana Shiva vshiva@giasdl01.vsnl.net.in
For 3 days we have carefully listened to depositions by citizens
from all walks of life about the role of biodiversity in their
lives and the impact of its erosion and its piracy on their livelihoods.
We have listened to farmers and the seed industry, representatives
of tribal groups as well as parliamentarians, women as well as
students, experts of raditional systems of knowledge as well as
scientists with western training.
Our observations and opinion are based on what we have heard from
the people are tentative.
The Trends
Biodiversity is fast eroding under the combination of habitat
destruction, replacement of diversity by monocultures and the
over exploitation of endangered species.
Even though India is a major centre of biodiversity, and our systems
of agriculture and medicine are based on the maintenance of conservation
of its diversity, diversity is under threat and is undermining
the livelihood base of two thirds of our people. 70 per cent of
our health care is still provided by medicinal plants and indigenous
systems of medicine. 70 per cent of our seed is still provided
by farmers varieties and their own conservation and breeding strategies.
The FAO Leipzig Plan of Action on Plant Genetic Resources had identified replacement of traditional crops by modern varieties as the most significant reason for erosion of agricultural biodiversity. The global trade in medicinal plants is leading to over exploitation and extinction of medicinal wealth. 50 species have been prohibited for trade due to the threat of extinction. The export of another 48 species which are endangered could not be prevented due to pressure from commercial interests. Can corporate
earnings be equated with national wealth? Can profits justify
species extinction?
Representatives of the farmers' organisations told us about the
deep crisis of survival that Indian farmers are facing with the
onslaught of new seeds, intensive chemicalisation of agriculture
and excessive withdrawal of ground water. They pleaded for an
agriculture that preserves the natural resource base and protects
the livelihoods of the rural communities. Often, seeds that are
sold as bringing prosperity to farmers become seeds of destitution
and destruction as is the example of the tomato crop in southern
Karnataka. Farmers bought new expensive seeds from Multinationals
with the hope of having bumper harvests. However, there was a
crisis of overproduction and the collapse of prices leading to
farmers dumping tomatoes on highways at Rs.1 a kilo, they could
not even recover the costs of the transport to the cities. While
intellectual property rights on seed material is demanded by seed
companies on ground that their seed brings prosperity to farmers,
the link between corporate seed breeding and farmers well-being
is weak ,tenuous and unpredictable.
Women from the slums told us that even in cities they depend on
biodiversity for their survival and for their health care. Commercialisation
and commodification of human body and body parts is also a new
threat to women's health and integrity. For example, the placenta
is normally buried in the earth according to traditional practice.
However, hospitals are now removing the placenta without prior
informed consent for trade purposes thus violating the cultural
and ethical norms. The patents on hormone relaxin which allows
contraction during labour as well as patents on blood from the
umblical cord are examples of patents that violate the most basic
norms of what can be counted as an invention and values of ethics
and public morality.
The knowledge of some of our biological wealth has been compiled in 60 volumes of the Wealth of India Series published by the CSIR. Since 1990, this work has been stopped. Now a Canadian company has been given all rights to the Wealth of India series. People of India will have to pay the Canadian company for their own knowledge. The wealth of India is no more India's wealth. This transfer of knowledge is then converted into private
property and is creating poverty in an area in which we have been
rich - i.e. biodiversity and knowledge of its utilisation. The
following issues emerged from the public hearing:-
1. The Conversion of Public Domain into a Private Domain through
IPRs.
Unlike in the west, biodiversity and innovation and knowledge
related to biodiversity in India has been a shared resource. Hence
rights related to it have to be community/collective rights, not
private/individual rights. While all tribal representatives, farmers
representatives and representatives of women's groups and most
scientists called for protection of the public domain and collective
rights, the Seed Industry asked for recognition only of individual
rights of farmers. The privatization of the public domain is therefore
a necessity for the commercial sector but a threat to the people.
The public domain of biodiversity and innovation has to be protected
both to recognize the collective innovation and genius of our
farmers, our healers, our tribals and our women . It is also necessary
to meet the basic needs of the present and future generations
of Indian citizens which is guaranteed under the constitution.
2.Cross Cultural Transactions between Indigenous Knowledge Systems
and Western Knowledge System
The biodiversity knowledge in the field of medicine or agriculture
is different in indigenous systems and western industrial systems.
However, in the international trade regime,our knowledge systems
are not treated as knowledge but merely as a source of "raw
material" for western commercialised and industrialised systems.
On the one hand this is leading to biopiracy. It is also leading
to biopiracy or trivial changes being counted as innovations.
In certain situations it is replacing safe and reliable cures
of the indigenous system by unsafe and unreliable therapies in
the western allopathic system. For example, an ayurvedic remedy
called Trikattu has been used for improving "agni" in
the indigenous tradition.
The RRL Jammu has interpreted this to mean improved bio-assimilation.
An active compound has been extracted from one of the ingredients
of Trikattu - long pepper, and has been patented for improvement
of assimilation. An active compound has been extracted from one
of the ingredients of Trikattu - even though long term use of
long pepper is contra-indicated in the traditional system of medicine.
Thus not only are our knowledge systems being pirated and hijacked,
they are being degraded. Instead of treating such "biopiracy"
as "bioprospecting", it should be seen as access to
an evolved, sophisticated system and its resource base.
We need clear norms for cross-cultural transactions which respect
the ethical and epistemological integrity of our knowledge systems.
This is not just a cultural necessity but it is a necessity for
people's survival.
3. Sovereignty:Biodiversity is the People's Reource
The Convention on Biological Diversity recognises the sovereign
rights of countries to their biodiversity. However, this does
not mean that biodiversity is the property of the state. Biodiversity
is public property under the trust of the State. The State is
the trustee of people's resources.
There should therefore be no interference of the state in the
local use of local resources. However, all commercial links between
the local communities and the outside world should be regulated
by the state.
Steps towards such arrangements of sovereignty of the people at
the local level in combination with co-ownership with the state
at the national and global levels have already been taken by the
introduction of the Provisions of the Panchayats (Extension to
the Scheduled Areas) Act 1996. Such steps toward local democracy
are necessary for the conservation of biodiversity as well as
the defense of people's rights and indigenous knowledge in the
face of piracy.
In the context of pending legislation we propose the following
to the Government.
Biodiversity Laws.
Even though India signed the Biodiversity Convention in 1992,
the National Biodiversity legislation has till to be enacted.
Since biodiversity is our most important source of wealth and
livelihood generation, biodiversity laws should be formulated
and implemented as a top priority.
The erosion and endangering of biodiversity should be immediately
brought to a halt through appropriate action under the Environment
Protection Act.
The biodiversity laws should be based on community ownership,
with the state as trustee for non-local, commercial and trade
flows of biodiversity and knowledge.
Indigenous knowledge systems need to be recognised, strengthened
and defended in the National Biodiversity legislation. While the
framework laws at the national level should be enacted immediately,
their implementation and operationalisation at the local level
should be carried out through local institutions and full people's
participation. This must necessarily be a constantly evolving
process of democratisation.
Plant Variety Legislation and Farnmers' Rights Legislation
Any Indian legislation on Plant Variety Legislation needs to be
centered on farmers rights which recognise that farmers are conservers,
breeders and consumers of seed. This has been recognised both
at the FAO Conference at Leipzig on Plant Genetic Resources as
well as the FAO Undertaking on Plant Genetic Resources.
The rights of the local and national seed industry involved in
seed multiplication need to be protected to ensure cheap and adequate
supply of seed for farmers. Staple food crops should be excluded
from IPR protection to ensure food security.
A system having the above principles can be evolved using the
sui generis option in TRIPs. India does not need to mimic UPOV
which is relevant to the industrialised countries but totally
inappropriate to our context. Our legislation needs to be guided
by the imperative of protection of livelihoods of millions of
peasants and small farmers and the protection of the food security
of our people, 50 per cent of whom are already deprived of adequate
nutrition.
Since TRIPs allows upto 1.1. 2000 for introduction of plant variety
legislation and since the TRIPs clauses related to plant varieties
will be reviewed in 1999, it is strategic for national sovereignty
and national interest to prepare for the review and revision of
the TRIPs clauses with a focus on farmers rights and biodiversity
conservation instead of rushing through anti-national legislation
which we may have to change again after the review.
Patent Act
India has upto 1.1.2004 for changing patent laws to introduce
product patents in pharmaceuticals and agri-chemicals. We should
use this period to evolve an adequate IPR regime for the defense
of our indigenous knowledge, plant based drugs and plant based
agri-chemicals such as Neem.
We should also use the 1999 TRIPs review for calling into question
the U.S. Patent law which through Section 102 allows prior foreign
knowledge, use and invention to be excluded from the definition
of "prior art" related to a U.S. patent application.
Our own Patent Act should not be amended before 2004. Meantime
we should do our home work to evolve legislation suited to our
needs and one endowment. "Invention" is not defined
in article 27.1 of TRIPs. Our National Laws should recognise the
fact that biodiversity, biological organisms and their products
and processes are not inventions, hence not patentable even if
isolated and purified.
We can also ensure that the following exclusions are built into
our patent laws to protect our biodiversity, our public morality
and the survival and health of our people. These exclusions are
allowed even in the WTO/TRIPs agreement.
a) Inventions whose use would be contrary to order public or morality,
or injurious to human, animal or plant life or health or to the
environment.
b) diagnostic, therapeutic and surgical methods for the treatment
of humans or animals.
c) plants and animals on whole or any part thereof, including
DNA, Cells, Seeds, varieties and species.
g) products based on extraction or purification of a documented
herbal preparation for medicine or pest control known in indigenous
knowledge systems
The positive observations and suggestions we have made are provisional.
We are taking further evidences from other parts of the country
and from other persons, experts and public figures concerned with
the biodiversity preservation issue. We will make our conclusions
and recommendations to the public and the government and to the
parliament only after completing our survey and study. We are
willing to hear other points of view and other sources of information
and wisdom.