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Revista Semillas 40/41 | 27-10-2009
Biodiversity in the FTAs with the USA and Europe: the crisis of the Andean integration process
Catalina Toro Pérez, Colombia
translated by bilaterals.org
The recent negotiations around the association agreements between the Andean countries and the European Union have laid bare the crisis of the integration processes between countries of the region, and particularly the gaping divisions within the Andean Community. By the same token, they have exposed the consolidation of authoritarian regimes in countries like Colombia and Peru that give short shrift to social consensus. These governments defend at all costs the expansion of an extractive, privatization-centered model of governance over biodiversity, water, forests, mineral and energy resources, and other public goods. In so doing, they further entrench a system of exclusion that has historically affected and continues to affect the local communities of these countries, and especially the indigenous communities.
One of the strategic resources whose future is indubitably being played out in these negotiations is biodiversity. Its inclusion in the Andean free trade agreements (FTAs) sets in motion legal processes defined in global trade agreements with a view to facilitating and guaranteeing access to the region’s genetic resources as well as the privatization of traditional knowledge through intellectual property systems. This is essentially legalized biopiracy: the use of intellectual property rules to legitimize the control, exploitation, and use of genetic resources and traditional knowledge associated with biodiversity. As a tactic for privatizing life, shared traditional knowledge, and resources, this development violates not only the collective rights of the local communities in the Andean region but also the region’s scientific communities. The provision defining the term “access to genetic resources” does nothing to promote local technological development according to criteria of transparency and equity. On the contrary, these tactics for controlling and appropriating biodiversity are designed to limit the free flow and exchange of seed- and medicinal plant-related knowledge and practices among the peoples of the region. They introduce monopoly rights over the food and health systems, entrenching specific ways of consuming, exploiting, and trading in biological resources and worsening genetic and cultural erosion.
Because of their strategic importance to the Andean region, the negotiations around intellectual property and biodiversity in the USA and EU FTAs reveal one facet of the profound crisis looming over the Andean integration process, for the positions of the Andean countries on these issues are starkly divided. For Bolivia and Venezuela, agriculture, environmental services, biodiversity, and knowledge cannot be considered as mere merchandise. Ecuador, for its part, has a provision in its recently adopted constitution prohibiting the privatization of biodiversity and traditional knowledge. In contrast, Colombia and Peru defend at all costs the facilitation of access to biodiversity and traditional knowledge, as well as intellectual property rights (IPRs) protections for research centres and associated foreign companies. While for the first three countries it is essential for governments to recover “ownership and control over their resources, and thus to narrow the wide gaps of inequality and injustice… strengthening the community capacities of the population, which have long been suffocated by the logic of profit and competition” (Morales, Recalca, 2009), for the last two it is a matter of doing everything possible to maximize the use and commercialization of these resources, among other things by minimizing European companies’ “transaction costs” (read: any resistance governments or local communities may put up). While the diversity of positions around the integration process was at first seen as a problem of “two speeds” that would gradually give way to a furthering of regional integration in terms of the protection of IPRs and foreign investment, what we are actually seeing is a clash between different political visions of integration.
These differences were in evidence within the Andean Community throughout the negotiation of the FTAs with the United States and Europe, and they came to a head when the time came to revise and adapt Andean provisions on intellectual property and access to genetic resources (Decision 486 and Decision 391) to conform to the interests of the large hegemonic blocs. It can be said, then, that these FTA negotiation processes not only reveal the crisis in Andean integration processes, in terms of the existing Andean legal frameworks for biodiversity and traditional knowledge: they also highlight the status of the collective rights of the region’s indigenous and local communities. In short, the FTAs in the Andean region are leading the charge to privatize biodiversity.
Following the collapse of the Free Trade Area of the Americas, the Andean FTAs took on enormous importance for the United States and Europe in all spheres – economic, geopolitical, and military. The Andean region in particular was considered a gateway to all manner of resources: water, timber, mineral, energy, and genetic resources considered as raw materials. This is a defining characteristic of Latin America’s place in the international division of labour, as capitalism steps up its efforts at accumulation through dispossession (Harvey 2004: 100).
The full intensity of this race for raw materials is especially striking in the Andean-Amazonian countries, made up of the Amazon and Andes strategic areas (Barreda: 2004: 5-36) and possessing great strategic importance for the biotech industry. These two regions account for 20% of the world’s water resources (Ruiz-Caro 2005) and harbour 25% of the world’s total biodiversity (GEO Andino 2003: 72). Such mega-diversity is a consequence of a convergence of geographical and climatic factors giving rise to a wide variety of natural ecosystems: marine, tropical forest, Andean forest, páramo, Caribbean plains, wetlands, and mangroves (Van der Hammen 2003: 23).
Mega-diversity is the prize to be captured by a coalition of some fifteen pharmaceutical corporations, eight of them based in the United States, three in England, three in Switzerland, and two belonging to French-German consortiums. It is estimated that five “biodiversity companies” involved in identifying genes and their properties now have patent applications in the works that would give them control over more than 50% of all patented agricultural biotechnologies (Suárez 2005: 204)
In particular, Pfizer, the world’s number one manufacturer of pharmaceuticals, spent more than $2.8 million on lobbying the US government to seek an extension of patent protection in the context of the Andean FTA (El Tiempo 2008).
The FTA with the USA: beyond the Andean Community
As far as biodiversity is concerned, the main innovation of the FTA with the United States is the facilitation of access to genetic resources and the patenting of plants and animals, as well as the extension of the period of patent protection: “The United States is calling for the patenting of plants and animals; diagnostic, therapeutic, and surgical procedures for treatment of humans and animals; so-called “second uses”; protection of test data, and lengthening of the patent period, and it does not accept the protection that the Andean countries want” (El Tiempo, 2004).
This means modifying existing Andean law. Andean Decision 391 of 1996 rejects, as does the World Trade Organization (WTO), the possibility of living beings and their parts as they are found in nature, or natural biological processes or existing biological materials, acquiring the status of “inventions.” Furthermore, Decision 486 expressly prohibits the patenting of “plants and animals and essentially biological processes that are not nonbiological or microbiological processes” (Comunidad Andina 2000).
Another “advance” presented by the FTA with the United States has to do with regulation of access to traditional knowledge, something not fully developed by the Andean Community. It is prudent to remember, however, that Andean Decision 391 of 1996 on genetic resources ignored the positions of the indigenous communities who were invited to “give input.” These positions emphasized the collective nature of traditional knowledge, the community’s veto over research processes, and the rejection of the privatization of their knowledge and practices. The final language of the decision merely contemplated the possibility of “entering into related agreements in which associated traditional knowledge could be a component,” leaving the decision up to the competent national authority.
When negotiations got underway for the FTA in 2004, the United States had new conditions it wanted to impose. One is for the Andean countries to join UPOV 91 (Union for the Protection of New Plant Varieties), the plant variety protection system. A country’s accession to UPOV 91 prevents its farmers from producing, breeding, or propagating material protected by a type of intellectual property right known as “plant breeders’ rights,” or selling this material without the consent of the rightsholder. It means that the rightsholder has an exclusive right in the harvest, including whole plants or plant parts and processed products made from the harvest, and can charge a royalty for their use.
The USA also wants the signatories to ratify the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (viruses, bacteria, fungi, and amebas, which play a crucial role in the development of prescription drugs and bioremediation technologies). This treaty extends to cell lines of plant embryos and to genes and transgenes of plants, animals, or humans.
Biodiversity in the Andes: what the European Union wants
The European Union’s strategy refers back to a 2006 document, Global Europe: Competing in the World (Recalca, 2009). It calls for signing WTO-plus free-trade agreements, deregulating other countries’ economies, eliminating trade barriers, increasing access to raw materials and cheap labour, and protecting intellectual property.
Relations between Europe and Latin America are tied to the interests of pharmaceutical, communications, water, and mining multinationals. The people’s tribunals in every country have heard complaints regarding environmental damage, labour rights violations, exploitation and, in some cases, violence as a means of controlling social protest.
For the European Union, the FTAs already signed by the Latin American countries, particularly the US-Colombia and US-Peru agreements, constitute the basis for the negotiations. The EU’s strategy is, in essence, to ask for everything the United States got. In the treaties with the USA, where intellectual property is concerned, any advantage, favour, privilege, or immunity granted by a party to nationals of any other country is immediately and unconditionally granted to nationals of the other party. Thus, any incremental benefit secured by the European Union in these negotiations would automatically be obtained by the United States.
In the association agreement with Europe, as in the agreements with the USA, the Colombian delegation is proposing the inclusion of provisions on biodiversity, traditional knowledge, and intellectual property. While the Andean countries initially called for a balance to be struck between IPRs and the Andean countries’ interests – in particular education, culture, research, access to medicines, public health, food security, environmental protection, access to information, and technology transfer – Europe proposes new measures to further entrench the intellectual property protection aspects of regional integration.
This means adapting domestic and Andean legislation to conform to the FTAs. During the first half of 2008, Peru not only fast-tracked 99 legislative measures for the FTA with the United States (Barandiarán, 2008), it also proposed to the Andean Community, with Colombia’s backing, that Andean Decision 486 be amended as it relates to intellectual property and the negotiating text for the association agreement with Europe in the area of biodiversity and traditional knowledge. Its proposal corresponds to one of the most complex commitments made under the FTA with the United States: compensation for unreasonable delays at the patent office and protection of geographical indications according to the principle of "first come, first served"; that is, the product would be marked as originating from the company recognized as the first to “discover” the resources, not from the actual country of origin. Europe is also calling for new provisions for effective observance of IPRs and obligations so as to avoid “unnecessarily complicated or cumbersome processes, unjustifiable timetables, or unnecessary delays” in obtaining patents.
In addition, Europe makes signing of the FTA conditional on the Andean countries’ accession to UPOV 91, the Patent Cooperation Treaty, the Patent Law Treaty, and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.
The obedient Colombian and Peruvian delegations readily accepted and began to advocate for the proposal to revise the already weak Andean legislation. In this they demonstrated that the plundering of biodiversity in the Andean countries is only possible with the backing of a national elite that answers to the interests of the metropolitan capitalist states, where the biotech corporations and their partners are headquartered. While these proposals are presented in the name of sovereignty over genetic resources, a principle enshrined in our constitutions, in practice they protect the sovereign power of the states and their national elites to facilitate and grant access to genetic resources and to protect foreign companies’ IPRs over plants, animals, and other species. They repeatedly recognize the importance of components of biodiversity, genes, species, and ecosystems and their strategic value (read monetary value) in meeting the dietary, health, and other needs of the world’s population, though they never mention the importance of food sovereignty for the Andean countries. In this sense, linking these issues to the trade agreements takes them beyond what is being discussed at World Intellectual Property Organization and the WTO.
Acknowledging that the Andean Community does not have a general provision regulating access to traditional knowledge, Peru and Colombia proposed the creation of a special regime governing access to traditional knowledge, innovation, and practices of the indigenous communities and the development of a mechanism to legitimize it: prior informed consent, which, they clarify, would be discretionary and not mandatory, and hence its absence would not imply a questioning of the patent’s validity. This is an “advance” in that it would allow for traditional knowledge to be patented by a European or US third-party investor. Finally, the Andean proposal put forward by Peru and Colombia proposes a fair and equitable distribution of the benefits deriving from access and use by foreign companies, which is clearly rejected by Europe. For the latter, compensation would consist of training for patent examiners in the review of applications relating to biological and genetic resources, their derivatives, and associated traditional knowledge, in order to preclude subsequent disputes relating to violations of the terms and conditions under which access is granted.
What emerges from all this is that under the prevailing IPR provisions in the world and in the Andean countries, it is impossible to protect and defend biodiversity and traditional knowledge from biopiracy. This is only possible by outright rejecting the application of IPRs to any form of life and to knowledge (Semillas 38, 2009:47). The position of Colombia and Peru, at the behest of the United States and Europe, seeks to convert the Andean Community into a mere advisory body (once its intellectual property and access rules are modified) for the promotion of the FTAs, thereby flouting the constitutional provision requiring that priority in international relations be given to Andean and Latin American integration. In this regard, the Bolivian and Venezuelan governments have spoken out about noncompliance with the part of Decision 598 that obligates the Andean partners to consider one another’s respective positions when signing treaties with third countries.
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