Natural Properties versus WTO-Trips Agreement

Ma'azu Mohammed Yusif

Department of Political Science

Bayero University, Kano

 

Introduction

The topic of this lecture given by the organisers is, "The challenges posed by World Heritage Convention in Winning and Conserving a World Heritage Site". The contributions I am going to make is of a very important problem on this matter but is often not tabled for discussion in this kind of gathering. This is the relationship of natural properties including of Heritage and Bio-Diversity with international trade. Here, is a modest contribution on that, so the title of this paper is altered to read". Natural Properties and WTO-Regime TRIPs Agreement".

At the Seattle ministerial conference of the World Trade Organisation (WTO), in 1999, violent reactions by civil society groups disrupted the meeting. Representatives of the indigenous peoples expressed strong concern about Trade-related intellectual property rights Agreement (TRIPs) under the WTO-regime of international trade. The theft and patenting of biogenetic and other natural resources is facilitated by TRIPs agreement, said a declaration by indigenous people:

"Some plants which indigenous peoples have discovered, cultivated, and used for food, medicine, and for sacred rituals are already patented in the United States, Japan, and Europe. A few examples of these are ayahuasa, quinoa, and sangre de drago in forests of South America; Kava in the pacific; turmeric and bitter melon in Asia. Our access and control over our biological diversity and control over our traditional knowledge and intellectual heritage are threatened by TRIPs Agreement. Article 27.3b of this agreement allows the patenting of life forms and makes an artificial distinction between plants, animals, and micro-organisms. As far as we are concerned all these are life forms and life-creating processes which are sacred and which should not become the subject of private property ownership".

This episode has revealed very clearly the current conflict between natural/heritage and international corporate interests.

International Concerns on Natural Properties

Debo Areo (2006) has rightly observed that natural properties or heritage are among the priceless and irreplaceable possessions not only of each nation, but also of mankind as a whole.

This has justified the reason why in 1972, the United Nations Educational, Scientific and Cultural Organization (UNESCO) recognised the need to identify and permanently protect the Worlds Special areas and adopted the World Heritage Convention. It is founded on the principle of international cooperation, and provides for the protection and regulation of what is generally accepted to be a natural property.

The convention is titled "Convention Concerning the Protection of the World Cultural and Natural Heritage". It came into force in 1975 after being ratified by 20 countries.

Articles 1 and 2 give definition of the cultural and Natural Heritage. One i.e. the cultural is made up of "monuments: architectural works, works of monumental sculpture and painting, elements of structures of an archaeological nature, inscriptions, cave dwellings and combination of features, which are of outstanding universal value from the point of view of hi-story, art or science"; also groups of buildings: "of separate or connected buildings which, because of their architectural, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, and or science"; again sites: "works of man or the combined works of nature and man, and areas including archaeological sites which are outstanding universal value from the historical, aesthetic or anthropological point of view".

the second form is what is considered as "natural heritage". It consists of "natural features of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation"; also, "natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty".

A complementary but seemingly with a different objective is the convention on Biological Diversity.

This convention has shared a common goal and subject element with World Heritage Convention. Among the features of natural heritage that are covered by convention on Biological Diversity are: (i) biological formations, which are of outstanding universal value, from scientific point of view; (ii) certain marked species of animals and plants of outstanding universal value from the point of view of science.

Both conventions are "common concern of humankind", they are "global commons", protected by international law. The convention on Biological Diversity indeed covers all ecosystems, species and genetic resources. The convention on natural heritage indirectly covers the areas of these resources.

The conventions are torchlights that show that natural properties or resources are not infinite and so they must be carefully conserved for endless use. So, they are conserved and at the same time used for benefit of humans. However, this should be done in a way and at a rate that does not lead to the long-term decline of the resources.

Natural Resources under Threat

These resources are now calculatedly under siege and threat by WTO-regime TRIPs Agreement of Multilateral trading system. The WTO-trade regime came into force in January, 1995 after the Uruguay Round of trade negotiations.

The most contentious component of the negotiations, the agreement on Trade-Related Intellectual Property Rights (TRIPs) introduces Intellectual Property Rights (IPRs) into global trade. The form of IPRs protected by the agreement includes copy-rights, trade-marks, undisclosed information, industrial design, patents, etc.

Patents cover virtually all inventions of both a product and process nature. Governments may exclude certain products or processes from patentability for moral, health or environmental reasons so as long as this is done just because the commercial exploitation of the product or process is prohibited by its own laws. In other words, the exclusion must be for general reasons, not just for reasons of a country's own religion, culture or identity.

Global trade rules on patents permit huge companies to gain control over natural properties. In the 1990s, big corporations began to take out patents on plant species, most of which are found in Africa, Asia, and Latin America. Under the legal cover of WTO regime, these corporations are also preparing to take control of forests across the globe. Among non-governmental organisations, however, there is broad agreement that patents are not appropriate for life forms such as plants, forests and similar natural properties which have been developed over centuries.

Yes! The WTO-regime TRIPs Agreement legalised systematic destruction of history, human life and other things of great value to human society. Such destruction includes:

1. Patenting of life forms. This means that if a process to produce a plant is patented, the owner of the patent has exclusive rights over the plants obtained during the process. Farmers are not allowed to use any seeds coming from such a plant. Again, through the patenting of seeds, big corporate business organisations will gain control over the food crops of the poor.
   
2. The WTO rules recognise patents that have been developed through biotechnology using plant varieties that themselves are the result of years of cross-breeding by farmers. This implies that the WTO agreement does not recognise communities' rights over their resources.
   
3. Another problem of the WTO agreement on patenting is that it is a contravention of the Biological Diversity. These conventions seek to protect and establish indigenous rights respectively to the biological resources of the people of Third World Countries. However, WTO promotes the privatisation of these resources.
   
4. There is a concern by developing countries that patenting some of their indigenous resources also affect public health, as the patenting of these substances denied them use of them to make cheaper medicine. However, in view of difficulties faced by the public health authorities in Third World Countries in dealing with the public health problems due to provisions of WTO rules, the organisation adopted on 6 December , 2005 an amendment to the TRIPs incorporating a waiver, to enable developing countries to issue compulsory licenses to obtain cheaper generic versions of patented medicines. But still this does not mean that they are in control of their indigenous resources and knowledge.
   
5. In another different provisions of rules under WTO regime i.e. General Agreement on Trade in Services (GATS), tourism falls under international trade in services and so special rules to be agreed by member countries is being debated to extend monopoly control by big business, of these sites wherever they exist.
   
6. That the plan of global, control of Tourist sites is to complement with another interest of extension of control of geographical heritage to monopoly enterprises.
   

Conclusion

The list of the negative consequences could continue on and on without an end. The question is, it looks like Nigeria is not aware of these and that, may be is already in this conflict.

What is to be done? Laws and measures governing and checking what can be patented and on the outflow of indigenous knowledge and other resources vary from country to country. While some countries do not raise concern, some are pro-active and worth emulating. India, for example, which has around 15,000 plant varieties unique to the country, does not allow patents to be taken out of them. The Indian patent Acts of 1970 makes it clear that inventions relating to agricultural and horticultural process are not patentable on the grounds that socially valuable products ought not to be privatised or proceed out of the reach of the general public. Furthermore, India's council of Scientific and Industrial Research has launched a Traditional Knowledge Digital Library project to codify and disclose writings in ancient scriptures even from the 12^th century B.C. This project has already got a group of experts working and creating a database on various traditional resources and properties. These must have created the awareness that, as international agricultural development magazine reported in 1993, that farmers in Karnataka State burnt down an administrative building belonging to Cargill because they were fearful that the WTO-TRIPs provision could make it illegal for them to replant seeds that their ancestors have used for centuries without paying royalties to patent holders. Peru and china have similar legislations to identify and protect their natural properties from being appropriated by any business organisation.

Those governments that do not feel concerned must rise to the challenge to identify, conserve and protect their indigenous resources and knowledge from being unacknowledgebly taken away from them.

Reference

Conservation International (2010). Post-2010 Strategic plan of the Convention in Biological Diversity. Tenth Meeting of the Conference of the Parties 18 – 20 October, 2010, Nagoya Japan

Debo Areo (2006). Criteria for the Inclusion of Natural Properties in the World Heritage List. Capacity Building Workshop on Winning More World Heritage Sites for Nigeria. Organised by Department of Monuments, Heritage, and Sites National Commission for Museums and Monuments

UNEP, Convention on Biological Diversity

UNESCO, Convention Concerning the Protection of the World Cultural and National Heritage

RIS (2009). World Trade and Development Report 2009. Oxford University Press

Tom MeDonnel, Technical Review of the UN Environmental, Scientific and Cultural Organisations Convention on World Heritage