Anatole F. Krattiger


This paper reviews essential issues at the heart of the biodiversity debate, namely those that effect the sustainable use of biodiversity and particularly the reluctance of the private sector to play a major role in the implementation of the Convention on Biological Diversity. Those singled out here include access and trade in genetic resources including intellectual property rights, Farmers' Rights, biotechnology, and concepts of fairness and equity. Emphasis is placed on the perspective of business and industry but the issues are discussed in the wider context of north-south relations.

It is concluded that overall, the biodiversity "needs" of and interest by the corporate sector are smaller in the sort and medium term than generally expected. One of the reasons is that the demand is a function of the costs of alternative sources of material, risk factors, and other trade-offs. However, if a standard mechanism of access to and payment for genetic resources were established, the situation could change. Care must be taken in the development of such systems and their cost be kept low to increase participation. Biotechnology is generally perceived as a major factor in this context. It is argued here that overall, biotechnology in itself should not be a major stumbling block in the biodiversity debate although it is increasingly conspicuous in terms of international relations. Biotechnology however, merely being an instrument or tool that may strengthen sustainable use of biodiversity, enters into this field because applications are essentially proprietary and owned by the North, whereas highest needs for food production an sustainable agriculture are in the south which does not have ready access to biotechnology.

Intermediary entities and mechanisms are required to develop and strengthen the sustainable use mechanisms. It is concluded that governments have a role to play by facilitating involvement of the private sector. Government's role should extend to supporting in several ways the development of pilot projects and model mechanisms that demonstrate avenues for reaching agreement and resolution. In the longer term, however, the aim must be set higher; that is to bring about value change.


During the Earth Summit in 1992, residents of the industrialized countries received a considerable quantity of information regarding global environmental issues. Much of that information was relatively new, that is, that environmental issues should be understood in a global context. Previously, environmental matters were presented, and understood as being predominately local concerns. These include air and water pollution, certainly principal issues in industrialized countries, or deforestation, seen as matters related to environmental quality and of quality of life throughout much of the developing world. When, in this localized context, transboundary issues did occur, they were typically between near neighbors, as manifest in acid rain problems or the safety of nuclear power plants. Within this context, local action could resolve local problems. Expressed otherwise, local assistance could help alleviate localized problems within developing countries. In these ways, environmental problems could be made tangible for the citizens of industrialized countries.

The Earth Summit is associated with significant environmental issues which, nevertheless, do not directly fit that pattern. These include, to use the popular terms, global warming and the "ozone hole". In both instances, local actions are insufficient to combat the origins of the problems; the problems are global in nature or, more specifically, largely the creation of technologically-advanced societies. Yet while local actions are insufficient alone to correct the problems, no correction is possible without local actions. And responses have been made with the plans to decrease and eventually eliminate the production of CFCs over a period of time (i.e. through the Montreal Protocol). Less successfully, schedules for reductions in carbon dioxide emissions were debated but the instrument to implement such reductions were not developed. Still, global environmental policy has been successfully translated in limited cases into tangible local, personal, actions.

The biodiversity issue fits yet a third category. During the Summit (and over the two decades prior to that beginning with Norman Myers' claim that tropical rain forests were the lungs of the world), considerable information was presented about the alarming pace of species loss. This occurred at a time when the air in our cities began to deteriorate rapidly. As a consequence, the level of awareness and concern appears to have risen widely and substantially in the industrialized countries. What is nearly as clear is that the public in general lacked the opportunity, the ability, to translate those general concerns into some kind of meaningful local actions. Some see biodiversity conservation as habitat conservation, notably rain forests. But that has been an on-going concern for a number of people. Many clearly do not consider the matter as one applying to organisms found in temperate, industrialized countries. It has been presented as a matter for the tropics, of logging, of slash-and-burn agricultural practices, or of land clearing for agricultural use. Viewed domestically, biodiversity conservation is often perceived as the conservation of individual species, viable species like the remaining wild bears of Western Europe. Those species indeed have an identified role in the perceptions of wilderness which is increasingly an abstract notion to urbanized populations.

Beyond the individual species level, a recent targeted opinion study in the USA found significant obstacles to biodiversity conservation. These were first that the long-term consequences of species loss are not well understood, yet the immediate costs of conservation are rather evident. That matter is one of current sensitivity in the USA because of the spotted owl controversy. Substantial logging on US Federal lands has been halted, at a major cost to local jobs, to conserve the habitat for that rare species. That decision is not widely supported by the public, particularly in the near vicinity of the conservation area. The second obstacle to gaining support by the public is that the "facts" of biodiversity loss are questioned by some scientists (especially political scientists) and much of the public. This is because confirmed examples are of particular identifiable species but, presented in that way, the evidence is necessarily fragmentary and open to alternative interpretations. Finally, the public is puzzled by the sheer number of species, and by the uncertainty of their total number which is only known to an order of magnitude.


2.1 Loosing and Sustainably Using Biodiversity

Humankind has of course always and ultimately been completely dependent on biodiversity. For millennia the balance was sustainable; while there is evidence of human-induced extinction, the impact of people on the environment made relatively limited irreversible changes. That, however, has changed in the 20th century as a result of a combination and interaction of industrialization, rising living and consumption standards, and increasing populations. As a consequence, biodiversity began to be lost as our utilization of these resources was no longer sustainable, and species began to disappear at rates estimated at between 4 and 250 species per day.

Underlying the loss was the concept that biodiversity was the "common heritage of mankind". Operationally this meant it belonged to no one and hence few in decision-making positions valued it. And what is not valued is not fostered. This non-sustainable and irresponsible practice began to change in the latter part of this century in response to several key factors. First, with losses mounting, biodiversity gained attention as it could no longer be pretended it was unlimited. Through growing scarcity, value was implied. These concerns were reflected in the Earth Summit in 1992. In addition, biotechnology emerged during this period as a reality, enhancing both the speed and range of product development and increasing the value of genetic resources by making genetic transfers possible. Modern biotechnologies enable us to tap into biological resources in new and novel ways that give additional value to biodiversity.

It is appropriate here to make a distinction between "biodiversity", meaning the totality of species and variability within a given ecosystem, and the "components" of biodiversity. Whereas the latter is exploited in many different ways, by farmers, drug companies and local peoples alike, the former is more a concept than an entity in itself. Talking of "biodiversity conservation" hence means ecosystems conservation and includes species conservation. Pharmaceutical companies may use the components of biodiversity (i.e. species) for drug development; farmers, on the other hand, also use genetic resources (components of biodiversity) but additionally are dependent on healthy ecosystems. By extension, pharmaceutical companies are in principle also dependent on intact ecosystems, but for different reasons, namely that all possible drugs of benefit to humankind have not as yet been identified in the wild. With the advent of biotechnology, a new interest has been generated in these components of biodiversity as well as the conservation of ecosystems; an interest that local people nurtured for centuries and millennia, generally without destroying the environment.

2.2 The Connection with Biotechnology

Overall, biotechnology is not a major issue in biodiversity, but it is becoming so in terms of international relations. While the instrumental value of biodiversity to western societies is uncertain at best, the emergence of modern biotechnology has created a clear means for utilizing the genetic materials or species which constitute biodiversity. Likewise, for biodiversity, biotechnology products will be useful in the remediation of environmental problems. Indeed, one of the first biotechnology products to receive widespread attention, the modified bacteria which were the subject of the well-known Chakrabarty patent application, were formulated to assist in the rapid cleanup from oil spills.

Agricultural applications are also one area of great expectations for the benefits of biotechnology. Directly, biotechnology-derived products can replace, at a far higher degree of safety, many of the US$ 25,000 million worth of pesticides now in use worldwide. Indirectly, by increasing the productivity of cultivated land, biotechnology can assist conservation by reducing the need for further extensification, often into wild areas. Finally, biotechnology is a tool for studying the ecosystem, for species conservation, for reforestation, and for renewable energy production. Opportunities must be created for developing countries to access these biotechnology applications so that they can decide for themselves their utility and applicability in the national environment.

It has long been recognized that 70-80 percent of this biodiversity is in the South, yet it is the private sector in the North that invests US$ 9,000 million annually into biotechnology R&D- almost double the GNP of Costa Rica. A few biotechnological advances are applicable to biodiversity as well as to genetic resources. Hence the basis for exchange has been strengthened as a result of advances in biotechnology. As a generality, the South supplies the materials for applications in the North. South-South exchanges are possible in the more distant future, but investments in excess of US$ 200 million over a ten year period for the development of a single successful pharmaceutical product for western markets limit the number of developing countries which can become full players at this time and for some time to come.

The development of pharmaceuticals and other chemical substances (e.g. biopesticides, environmentally friendly chemicals such as resins) from biological organisms is known as bioprospecting. An event which occurred in 1991 focused attention on this form of use of biodiversity. That event of course is the agreement between Merck & Co. and the National Biodiversity Institute of Costa Rica (known by its Spanish acronym INBio) for the payment of collection fees and a subsequent royalty on any commercial products for the opportunity to screen samples from Costa Rica. The total value of the deal in today's dollar terms is estimated at approximately US$ 7 million provided a successful drug is indeed developed. The collection fee (or down payment) was US$ 1.135 million. Noteworthy is that Costa Rica sold the rights to develop a drug or possibly other compounds from one of its species, and not the species themselves. Extracts of the same species can again be sold to other companies after a 5 year exclusivity period.

Partly in recognition of this renewed interest in genetic resources, the Convention on Biological Diversity (hereafter the Convention) was drafted, stipulating that it is the right of sovereign governments to regulate access to their biodiversity. This means that more and more nations are now enacting laws whereby companies need to enter into agreements in order to have access to such genetic resources. This may be in the form of contracts or of material transfer agreements that stipulate (equitable) benefit sharing arrangements. The resulting effect of this mutual interest in biodiversity and biotechnology (the North being interested in biodiversity conservation and access, whereas the South being eager to access biotechnology), the Convention in Articles 15 and 16 refers to a north to south flow of biotechnologies and a south to north flow of genetic resources which has been interpreted to suggest some "implicit bargain" linking the two. This quid pro quo though, is more viewed as an overall bargain than a parity of exchange.

2.3 Accessing Biodiversity or Biotechnology?

As mentioned above, up to very recently, genetic resources have been treated as the "common heritage of mankind", that is as belonging to no one and everyone. That position changed fundamentally with the Convention which characterized the use of those resources as the "sovereign right" of the governments where they occur. Also until very recently, most agricultural technologies, at least those pertaining to genetic resources, have belonged primarily to the public sector, which says in effect they belong to everyone. Certainly, the products of the centers of the Consultative Group on International Agricultural Research (CGIAR) and their compatriot national research programs, which rely heavily on government sources (bilateral and multilateral), have been shared widely and without cost with developing countries. The exception has been hybrid seed, which is not easily copied, and thus has been the domain of the private sector since their invention in the 1920s.

Suddenly, the access issue has shifted to requiring direct contacts with the private sector, and especially multinational companies. Smaller national corporations are not inherently disinterested to accessing genetic resources, but often lack the means in terms of management time and local contacts to pursue them. This is an important factor that will limit the overall interest in accessing biodiversity and hence the total volume and value of biodiversity trade for prospecting is multifold below general expectations.

For plant breeding and pharmaceuticals alike, biotechnology not only widens the possibilities in the development of new products, but makes the product development process more efficient. In breeding, for example, diagnostics and marker-assisted selection may reduce time for a new maize variety to reach the market from eight years to five or lesss. But the technology has a cost, and the cost is expensed in capital investments as well as in trained personnel and the north, as a generality, can afford and does indeed afford the investment. This creates a further income disparity between north and south, a wider gap in agricultural productivity, and a widening gap in living standards.

Compounding the issue, perhaps better stated as defining it, is that the great bulk of those biotechnologies are protected by patents and other forms of intellectual property rights (IPRs), an area in which many developing countries, by corporate standards, have inadequate protection. Understandably, governments of many developing countries feel uncertain about entering this area.

The role of developed countries in technology transfer in Article 16 of the Convention seems to be a call for various forms of governmental assistance from that body with experience and, arguably, leverage with the private sector. What the framers of the Convention seem to have overlooked is the understanding of how market economies in developed economies operate. With few exceptions, those countries are democracies in which corporations are treated similarly to individuals in that they have specific rights and privileges. In short, this means government intervention in private business is strictly delimited. The challenge of developed country governments, like Germany's, is then to identify useful and permissible mechanisms, largely indirect ones, to offer assistance in technology transfer to developing countries.

Access issues for biodiversity presents a parallel problematique. In rough parallel with the role of developed country governments in assisting in technology transfer process, developing country governments are requested in the Convention to assist with the transfer of genetic resources (Article 15). Certainly, the mapping is not perfect, but as a generalization and for the present paper, developed countries will be supplying technologies and developing countries genetic resources, the two frequently forged into the selfsame final products through biotechnology. There is also a partial parallel with IPRs, as access to genetic resources is increasingly being controlled by national legislation. This issue will be discussed below in more detail where it will be indicated that traditional IPRs are unsuited to genetic resources, except for finished products such as drugs or varieties, and additional or new legislation is required.

In the long run, such new access legislation would, where acceptable, make access more systematic and assist in the regular transfer of genetic resources, as IPRs now assists with the transfer of traditional technologies. However, in the short run, in the absence of workable access regulations, transfer may be impeded. Clearly, faulty and non-existent access laws are not creating "conditions to facilitate access to genetic resources" as is required under the Convention (Article 15.2). These conditions, in addition, should allow the sharing of "the results of research and development and the benefits arising from commercial and other utilization of genetic resources ... in a fair and equitable way" (Article 15.7). This must present us with a formidable obstacle.

Fairness and equity, clearly, are in the eyes of the beholder and there has been no attempt to identify appropriate payment approaches nor a system for valuing germplasm for specific uses. In addition, the concept of equity is related to rights; and rights are very culture-based in their interpretation. Is there a general concept that can be applied? The answer is no. This is why we can only find broad agreement as to a general framework-as has been done with the Convention-but specificity needs to be added on a case-by-case bases.

2.4 From Fair to Equitable

Equity, in a wide sense, concerns primarily the way biodiversity is used; in a narrow sense, also the way funds are channeled back either into conservation activities or to the local people who may have contributed to that biodiversity. For practical reasons, this paper limits the discussion to the narrow sense. For example, if indigenous peoples provide access to genetic resources on their territories, the question, obviously, is how are they being compensated for their vital contribution in this area. Likewise, we may ask the question, how are they compensated, if at all, for their efforts in conserving biological diversity on their territories. Then comes the question of the use of funds. Concepts of ownership are different in different cultures and societies. To whom does one offer compensation or incentives? Is the resource communal or individual? Such questions must be considered carefully in order to make rights and incentives both effective and meaningful. Care must also be taken to ensure that indigenous rights are not simply being manipulated and used for broader political aims, and the concerns of such groups abused. The same arguments can be extrapolated to landraces and Farmers' Rights.

The situation of indigenous peoples provides a case in point. Recently, their plight is increasingly receiving world-wide attention (and partial understanding). This attention is due to the widening perception that indigenous peoples represent diversity in an increasingly interconnected and harmonized world operating broadly on models of western economics and cultural precepts. In this context, the parity of cultural contributions is becoming appreciated. At the same time indigenous peoples are taking more opportunities to express their expectations in world fora (witness, for example, the attention of the United Nations Working Group on Indigenous Populations that led the UN to declare 1995-2004 as the International Decade for the World's Indigenous Peoples). Additionally, indigenous peoples are specifically identified in the Convention in Article 8(j) for the respecting, conserving and maintaining of their knowledge.

The recognition of the vital knowledge of indigenous peoples for the benefit of present and future generations in the text of the Convention adds a further dimension to the protection of the rights of indigenous peoples. There is no question about the invaluable contribution of indigenous peoples and their knowledge to the richness of cultural practices and the understanding and conservation of ecological systems. What has been difficult, and sometimes contentious, is recognizing and accrediting this knowledge, as well as enforcing rights. This has been particularly true for the use of genetic materials, notably for medicinal purposes, and expressions of cultural practices in music and dress.

These are both the commercially more valuable expressions of indigenous knowledge and the culturally most sensitive, making a broadly agreeable resolution both difficult and important. Various efforts are on their way to protect the cultures that uphold this knowledge and to encourage wider identification of the sources of such knowledge with ensuing compensation. Emphasis on funding the collection of indigenous knowledge, however, seems one-sided and gives rise to many ethical questions. Knowledge cannot be seen only as an economic entity for use by western societies. Why is there no patenting or legal mechanism involved in this process? Simply because the two systems are not compatible in their present form.

Identifying sources of indigenous knowledge, with ensuing compensation, raises equity issues. Equity, and the question of rights and their recognition, have several components. Firstly, payment of compensation which, if satisfactory, will be quite elaborate and complicated, but of great relevance, as it involves an access system with its ramifications. Typically, payment of compensations is achieved through contracts such as the Merck-INBio agreement in Costa Rica, as there is currently no other world-wide system. Because of this, a limitation is that such contracts are binding only for the direct signatories, and they do not deny access to those not bound by the agreement. This leads to a much broader issue, since if contracts dominate the compensation system, this has little significance for access for other people not a party to such contracts. In other words, access should not be determined by contracts solely among two or three parties.

Access, in this context, at least from the perspective of a corporation, has to do with the market mechanism. If access to one source of biodiversity is hindered and beset with obstacles and risks, then corporations (or public research institutes alike) will go to other sources where access is more predictable, where the market is more efficient. The access cost itself is not the major determining factor, but the predictability or risk. Hence the availability of appropriate information is critical.

An example of uncertinties and rsks that will deter any corporation from entering into an agreement on bioprospecting is the reently passed Executive Order of the Philippines on access to genetic resources. It stipulates, among other things, that the local resource seller may opt out of an agreement with a company at any time during the development process. This means a company has no guarantee that it can exploit, protect and market what it has acquired and developed even if agreed payments were made. Nevertheless, theis regulation is among the first of its kind and will be a useful learning experience for others.

2.5 Towards Equitable Market Mechanisms

At the moment, countries seeking to market their genetic resources, as well as corporations seeking access to these materials, are uncertain on how to proceed under the new expectations brought about to a large extent by the Convention. The number of requests for assistance received by INBio is indicative of this factor, namely the complexities of such agreements, particularly from the perspective of the countries rich in biodiversity.

Despite these problems, large corporations will soon have found all the tropical country partners they can accommodate. Attention must then move to the large number of smaller corporations in the North as well as in the South. Making arrangements for these smaller corporations will entail a series of additional steps: prospects must be identified as part of a marketing effort; IPRs must be extended and reinterpreted to meet the combined new needs of the technology and the position of the marketer, now a developing country; and means must be found to instigate and reapportion risks implicit in new ventures among sellers, buyers and specialized intermediaries.

Unfortunately, prospecting is often presented as something new. This is not strictly correct, but the considerable interest in it is recent. The excitement stemming from prospecting revenues is having an unfortunate side effect in emphasizing the perceived newness of this opportunity. Newness implies uncertainty, which attracts risk takers. This is an important issue with biodiversity prospecting, because the continued emphasis on newness will tend to discourage participation until a less risky standard practice emerges. Hence the author of this paper together with a colleague, Bill Lesser, proposed the creation of a facilitating mechanism, for convenience called "the Facilitator", to contribute to, and hasten, the emergence of that standard practice.

In recognition of the likely benefits of voluntarily sharing expertise on a regional basis, and to facilitate technology transfer, the proposed facilitator would need to be a non-profit entity that could provide the following three types of services: a) honest broker services linking sellers and buyers, and underwriting agreements; b) identification of agreements to provide for the necessary technical training of national marketing specialists, scientists and policy makers; and c) assistance to governments, on request, in the identification and implementation of IPR legislation suited to the country's role as a "technology seller".

For simplicity, genetic resources can be treated as a "technology", for it is the means of developing a range of new products; it is productive capacity in an unrefined form. But its sale is technology transfer with significant differences, the major differences being the transfer is predominately south-north and secondarily south-south as opposed to the familiar north-south movement; and the materials are natural products which create technical and institutional complexities. Before the transfer of genetic technology can be made routine, the consequences of these differences must be identified and a procedure established for testing and practicing transfer mechanisms.

Transferring technology to smaller corporations in the north will require a more substantial effort. A clearing house is needed for the identification of sellers and buyers, the most basic function of a broker. Additionally, participants will require information on exchange terms so that sellers are assured of equitable terms and buyers of avoiding expenses which would render them non-competitive. An exchange of general price information not associated with any specific transactions is a common role for a trade association. In this case, a not-for-profit entity must initially take on the task while the access and payment issues are worked out (i.e. while the market/industry develop). Moreover, contract terms are more complex than simple prices, so that information on other terms of trade components and training must be provided as well.

2.6 Access to and Trade in Genetics Resources

Corporations are less supportive of the need for biodiversity conservation in the short term than might be expected given their potential importance as sources of drugs and non-synthetic agrochemicals and other products. The principal reason is the perceived abundance of source materials for the next 20 years or so, the normal corporate planning horizon. For plant breeding, many of these resources are already in private and public collections. Because, at this stage of development of screening processes, much is done on a random basis, one source is potentially as valuable as another. Additionally, corporations are divided on the merits of screening materials from the wild, some corporations preferring to synthesize molecules in the laboratory or develop new compounds through recombinant chemistry. Hence genetic resources are seen at best as but one source of new products.

Under these prevailing circumstances, corporations also see but a limited role for the contributions of local communities, and hence for sharing benefits with them although examples do exist (Shaman Pharmaceuticals, for example, was created to develop drugs directly on the basis of local and indigenous peoples' knowledge). When such access does occur, corporations expect to pay for the materials and indeed by and large prefer to do so. That makes the arrangements more direct and less vulnerable to criticism by certain advocacy groups, an issue about which corporations are very sensitive. There are frequently wide differences on what the value of the community contributions are; hardly a surprising fact but probably requiring a longer working relationship for a generally accepted system to be accepted.

Where corporations are united is regarding the importance of strong IPR protection. Many of the products developed from genetic resources, such as pharmaceuticals, plant varieties and more, are easily copied so that corporations consider strong IPR protection essential for investing in the development of such products and for providing access to these materials. A possible exception is very large markets for which corporations are sometimes willing to make an exception. It should be noted though that this position applies to finished products. For genetic resources in an unrefined form, and for that matter for any non-conventional inputs, no real standardized property rights system has as yet evolved nor a practical one devised. From the perspective of this paper, IPRs are significant primarily as they affect access to new technologies, especially from the private sector. Most new applications derived from new technologies are held by corporations. One of the key aspects of the decision to make investments in R&D that leads to new applications/products is the appropriability of the benefits from the resulting products. One indication of incomplete appropriability is the large gap between estimated total (social) and private returns to research. As IPRs are a key aspect of appropriability of returns from easily copied technologies, they become a central aspect in the transfer of biotechnology and access to biodiversity.

As fundamental as is the technology transfer component of the Convention (Article 16), it does not stand alone among international agreements. The most pertinent recent agreement which relate to and potentially affect the biodiversity issues is the GATT in the Uruguay Round (of secondary importance is Agenda 21). GATT is to minimize impediments to trade among member countries and for this, as but one instrument, proposes the strengthening of IPRs, under the so-called Trade-Related Aspects of Intellectual Property Rights (TRIPs). IPRs were incorporated as their absence was seen as a trade barrier. IPR traditionally refers to, at minimum, patents, Plant Breeders' Rights (PBRs), copyright, trademarks, and trade secrets, all potentially significant in promoting trade. The general concept was that developed economies increasingly export technology rather than products, and as technologies can be copied, the absence of legal protection from copying acted as a trade impediment, a barrier. This was, and is, an issue because in 1988, for example, some 54 countries prohibited patents or PBRs for plant varieties and slightly more for animal varieties. Similarly 49 countries did not allow patents for pharmaceutical products while only 27 countries, including only three developing countries, are presently members of UPOV (the international convention for plant variety protection). The TRIPs agreement is intended to remedy some of those gaps.

Even with this legislation, restrictions will remain for a long time to come. In practice, countries opposed to IPRs may under TRIPs have to make limited changes, and none in the immediate future, unless and until countries are convinced change is in their benefit (several exclusions are permitted, including those on moral grounds, leading the door open for any possible interpretation). Yet change is underway with Chile and Colombia having applied for UPOV membership and India, Pakistan and the Philippines, among others, expected to in the near future. Canada is presently undergoing a review of the consequences of plant and animal patents, the latter to date having been issued only in the USA and Australia.

But do IPRs influence trade? There are indications which do suggest that certainly the presence of PBR does indeed enhance trade. A strong motivation for the recent adoption of Plant Breeders Rights by Canada was access to improved, protected potato varieties from Holland. As well within Canada there was a reluctance to export varieties to the USA because of the concern that they would be transported back into Canada. Similarly, cut flower producers experiencing difficulties with accessing new varieties were major proponents of the Colombian national law and subsequent application for succession to UPOV. Uruguay adopted PBR largely to prevent trade disruptions with Argentina, to which its economy is closely tied. Overall, however, it is recognized that the greatest restriction on the exchange of germplasm is with countries outside the UPOV system.

The evidence for access under patents is more diffuse because of the range of technologies affected. In general, however, while the evidence is limited, IPRs do seem to enhance trade. GATT/TRIPs can then be seen as in concert with and supportive of the technology transfer articles of the Convention on Biological Diversity. Likewise, Agenda 21 can be read as being highly supportive of technology transfer, not surprisingly in concert with the Convention. Satisfying the mandates of the Convention would simultaneously satisfy Agenda 21. What Agenda 21 adds to this assessment is two principal points, one that technology transfer is clearly a mechanism, a means to an end. Thus it should be organized on the basis of its contributions to the goal of sustainable use and development. Second, technology transfer as used in this document is not a sale, an exchange; it is a composite, ongoing transfer of capacity.

Corporations, of course, must distinguish between legislation and effective legislation, the latter being cases which can be brought and decided on a meritorious basis within a reasonable time frame. It is in the adjudication that many developing country IPR systems break down. The extent, however, has been documented only by hearsay evidence. The possible German role in this is again indirect, assistance to developing countries with understanding the roles and functioning of IPR in technology transfer.

2.7 The Case of Farmers' Rights

Related issues, Farmers' Rights, have deliberately been left out of the Convention because they are neither an impediment to biotechnology transfer nor a facilitating mechanisms. The term has been developed by the FAO under the so called Revised Undertaking for Plant Genetic Resources. In Resolution 5/89 Farmers' Rights are defined as "rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources ...". Farmers' Rights are to be "implemented through an international fund on plant genetic resources which will support plant genetic conservation and utilization programs, particularly, but not exclusively, in the developing countries." No further details on the implementation and operation of this fund are included.

In concept, Farmers' Rights operate more as a moral obligation than an economic incentive. They are not connected with any specific future action but rather with a general conservation and equity objective. Thus is said without prejudice but only to note that the objectives, and hence the likely results, of the system are quite different from IPR.

Perhaps the major comment which can be made is the lack of action on the fund since its proposal. The time span has been short, but there are few indications to date that such a fund will be constructed, at least under these specific auspices. The entire International Undertaking process received much negative attention in the developed countries early on due the interpretation of "plant genetic resources" to refer to both unimproved and improved genetic materials. Private firms have not made their products available without charge, and while it is a matter of interpretation if that was specifically required by the Undertaking, it did poison the atmosphere. Subsequently, the proposed tax on seed sales was never supported. Concerns have also been voiced that Farmers' Rights will bypass rights of the local communities where the plants originated. Certainly, much more planning is needed on how specifically funds would be used to encourage conservation; certainly a difficult task.

It is of course possible the concept of Farmers' Rights could be pursued more readily under a different name and institutional structure, possibly the Convention. But there is little evidence to date that the major donor countries would support such a fund, as necessary for equity as it may be, or that a general fund would be an efficient means of achieving the conservation objective. To involve the private sector directly in such endeavors would be counterproductive as a directly "levy" (or tax) on seed would reduce the development of improved germplasm, of demand for genetic resources, and overall of germplasm flow. Progress in this area, however, is required and the Convention would seem to be a good focus of activity by appropriate groups and provide a venue for possible consensus but overall, changing attitudes are required.


3.1 Changing Attitudes

Changing attitudes would seem to respond to two related approaches. First, for northern countries, biodiversity needs to be understood better in terms of the degree and significance for the lives of individuals in industrialized countries and their offspring. One means of accomplishing this would be to present the issues in tangible terms emphasizing actions which can be taken in industrialized countries. Biodiversity needs to be understood as a global issue, not a responsibility of southern nations. Examples abound. The mold for penicillin, for example, was discovered in North America, and a major Swiss pharmaceutical company has found useful soil organisms in Scandinavia. Yellowstone Park in the USA, a center of hot spring activity, is the leading source of heat-resistant microbes. Yet care must be taken as biodiversity needs to be presented as a concept, not as a group of individual organisms. This message can be enhanced by the second approach, the advancement of environmental stewardship. Individuals, even those with limited contact to natural environments in their daily lives, seem to understand the need to conserve natural systems as the basis for life. This can be explained in terms of a legacy for future generations. Known as stewardship, biodiversity can be presented as a component of that process, the total of living organisms. Again care must be taken that the public is made well aware that not all organisms can be saved; extinction being a natural process (and anthropocentrism a common position).

The entering into force of any Convention provides the international community and particularly the private sector with formidable obstacles. This is particularly applicable to the Convention on Biological Diversity as it is a framework convention with details to be elaborated by those countries that have ratified the Convention. Hence the Convention is nothing but "soft" international law and does not provide details on how objectives are to be achieved. Much political bargaining will still be required to add the desired specificity, generally through protocols. In practical terms, mechanisms will have to be devised that are pragmatic and feasible to meet the objectives. But our objectives are too often contradictory and hence some groups desire mechanisms that do not work in order to insert road blocks to meet their objectives.

The challenge is to bridge the gap between economic realities in the North and the aspirations of the billions of people living in developing countries, largely in the South. Clearly, the first problem to overcome is the communication gap due to the different social and political heritage we all carry. Organizations that do speak (or claim to speak) for local or indigenous communities, however, are often, and merely, of reactionary type with no or little support by these communities. Such are also the most vocal in international political fora with the effect of further delaying the "rapprochement" between the systems, i.e. the establishment, corporations and local/indigenous communities.

No matter how worthwhile the claimed aspirations of such activistic entities may be, they contribute little in today's world but polarize the debates. True change in attitudes does not and will not come from the actions of environmental pressure groups, but from a systematic sensitization of the public. This, in turn, will influence policy makers and corporations alike and yield results in the longer term.

3.2 Protecting Conservation Areas or Conserving Biodiversity ?

Most biodiversity exists outside public conservation areas, and there is little specific protection for it outside them. In addition, existing protected areas often have little meaningful, effective control. It is fair to say that from the point of view of the environment at large, protection mechanisms have not worked very well, and this is partly due to the absence of effective incentive system. Such systems are required for those who make daily decisions on conservation and exploitation as well as for policy makers. The mechanisms must be clear and evident but do not necessarily need to involve only monetary flows.

It is wise not to devote many new resources to research on species variation, as so little is known about species variation in space and time, and scientifically speaking this is a little understood field. Also, it must be noted that global and local extinction is not necessarily the same and is often confused. Too many deductions and extrapolations are made about the available information, and in reality much remains largely unknown; we still lack the biological foundations for conservation. It is therefore most important to work on tangible aspects of biodiversity conservation and use such as agriculture (especially its genetic diversity), the contribution of ecosystems to water and soil integrity, or biosafety. The value of comprehensive national inventories can also be questioned, as there is little compatibility among them, each using different surveys, classification of material (taxonomic, chemical) and sampling methods. Such inventories are also prone to political influences, cost much and have little instrumental value.

These statements are undoubtedly controversial (and qualifying statements could be added for each argument). The point made here is that biology has always been attentive to classifying and we may argue about the best strategy to devise inventories, and how much should be devoted to them. The paper does not question whether or not we should have inventories at all, but we should not degrade the Convention in terms of its scope. The Convention is not site specific as there are already many site-specific activities, programs and conventions and the effectiveness of many of these can and should be questioned. Hence the Convention broadens the conservation scope by dealing with real issues of access, property rights, and the sharing of benefits.

There is a great need to understand contracting mechanisms in tropical developing countries. Some think they should "lock up" biodiversity until development of a national capacity to exploit it, so as to avoid exploitation by multinationals or other self-interested parties. There are developing countries who do negotiate for something often out of a political position. What the Convention says indirectly (and for which it also provides the framework), is that it is time to negotiate out of a strategic position. The "old" north-south debate has been based on "likes" and "dislikes" (e.g. "I don't like this, therefore I am against it" and, by extension "I don't like multinationals, therefore, I am against IPRs"). However, when questioned, what they really want is a mechanism of controlling access to their biodiversity or associated knowledge, and a either payment or recognition of some sort if the material or knowledge is used for commercial purposes. IPRs, as we know them are not appreciated in such circles because obtaining protection is costly and outside the reach of many groups (in addition to the fact that they are not suitable for unrefined genetic resources as was demonstrated above). The challenge is to devise a modified protection system, or new systems, for these materials and for those who already protect and conserve biodiversity.

3.3 The Need for Model Projects

An accelerating factor to bring about mutual understanding are pragmatic problem-solving projects that a) illustrate the complexities of the issues and b) demonstrate avenues for reaching agreement and resolution. Neither the first, nor the last, of such projects will ever be the perfect model, but gradually improve and advance the process. The Merck-INBio deal has been severely criticized by certain vocal NGOs but these activists have rarely presented a viable alternative. For all its shortcomings, the Merck-INBio deal was a milestone in North-South relations (although not the first of its kind) and paved the way for a multitude of improved projects and programs. The deal has yielded direct benefits to Costa Rica through the receipt of payments, through the strengthening of its sustainable biodiversity use capacity, and by attracting a dozen additional deals. Direct benefits to the international conservation community also abound as the deal served, and still serves, as a point of reference, as model project for debate, that focused peoples' attention and thought on the specific issues that need resolution.

If the deal had not taken place (or if it had not been so widely publicized), many new and significant projects and initiatives would not have taken off. The people of Costa Rica involved in the deal, both of INBio and of the Government, had to overcome enormous internal pressures and demonstrate much courage to proceed. Significant is that the deal was essentially "brokered" by an independent and not-for-profit organization, the Cornell Research Foundation, under Walter Haeussler. It was this fact that an independent broker was available who represented the interest of the deal (as opposed to the interests of one or the other contracting party) that the deal took off.

More such ground-breaking demonstration projects are needed, together with the courage to proceed even before having resolved all the issues. Maybe the proposed Facilitator is a modest step in this direction. Intellectually, it is impossible to think through all possible variables and anticipate all possible obstacles. Hence framework agreements must be struck first, with details left to be worked out as the projects proceed. International politics proceeds in much the same way with framework agreements (most conventions are but framework agreements) that are essential for any future results.

The proposed Facilitator is intended to enhance an existing and ongoing process, the sustainable use of germplasm. By hastening the practice of exchanging this material, human beings will benefit from earlier access to new products, including medicines. Germplasm providers will receive funds for what was previously given free of charge, which will indirectly provide an incentive for biodiversity preservation. Germplasm buyers will be allowed access to materials on a systematic and uniform basis, which will facilitate the development of new genetic technologies.

The tangible benefits are the provision of training services for technology marketing and contract negotiation, and arrangements for scientific and technical training. Additionally, the Facilitator provides an informational "honest broker" role in pairing suppliers and buyers, and in the assembly of price and terms of trade information. The intangible benefits are, however, equally important if standard mechanisms of exchange were developed. These are an instillation of trust between the providers and users of genetic resources, whether they are in the north or south. Trust in this case will be based on several factors. These are principally the experience of having completed mutually beneficial arrangements, and the confidence to negotiate is based on that knowledge and experience.

The development of a technology-flow mechanism, based on genetic technology, requires the technology to be openly available and on uniform terms. There are short-term profits to be made from special arrangements, but the real benefits for conservation will come from the increased use of genetic technology. It is really to the facilitation of that sustainable use that the Facilitator is directed.

3.4 Equitably Equitable

The problems associated with biodiversity loss, and the challenge to sustainably use it, are increasingly global in nature. Yet our comprehension has basically not adapted to this fundamental change as the newly discovered complexities are daunting. Overall, we realize, nevertheless, that we cannot solve global problems with a narrow understanding. In addition, the societies themselves are increasingly complex with different societies having different aspirations. Mutual understanding and consensus building became more challenging.

First, mutual understanding between different cultures has to be developed. To "learn" internlinkages is difficult at any stage in our lives, but certainly easier when young. Why not send our youngsters for a period of time as interns to developing countries where they can learn the lives of other cultures, of small villages, of resource poor farmers? It cultivates tolerance and later, when they see the pictures of reality on television, they may remember and realize that local action has global effects. That is where value change begins; must begin. With value change, equity will have a different interpretation and meaning.

Not surprisingly, the Convention does not attempt to define equity. In arrangements that involve the private sector and, say, indigenous peoples, equity in a narrow sense can only be defined in terms of the value of the input provided by such indigenous peoples. In a wider context, equity may be interpreted as a sharing of the wealth of the north with less wealthy groups. This, however, is an area where governments have a role to assume. To involve the private sector in this wider interpretation of equity would deter participation precisely in an area where corporations do have a contribution to make.


The paper demonstrates that there is not one, not several, but a multitude of views worldwide, including in the North. Therefore the options on how to progress from a northern perspective are equally multiple. Likewise, there is not one, but a multitude of experiences in the South. Each view from the North or the South finds an adversary, and a counterpart.

In a world that is increasingly polarized with ensuing conflicts of increasingly severe consequences, we must cultivate rapprochement wherever possible. In the context of the debate today, the worlds of difference between indigenous peoples and corporations, between the landless and poor in developing countries and the affluent in industrialized countries, the differences are so large that we cannot even understand our differences. Intermediary entities and mechanisms are required to help us first discover what our mutual aspirations are. Fundamentally, these are certainly not differing widely, but our socio-political heritage and socio-economic systems make them appear to be heading in opposite directions. To start with, the terminology we use connote different things to different groups. We even lack a common understanding of terminology. How then can communication be fruitful?

The first conclusion from this discussion should be, and probably is, that the issues are complex at best. Indeed, the issues are complex, not so much in themselves, but because they all meet at one place: biodiversity. But biodiversity itself is not alone but finds itself, in the context of this post-modern world, at the nexus with biotechnology.

Here we come to the importance to rapprochement, to the importance of meeting somewhere, but not necessarily in the middle. And here emerges the importance of the model projects mentioned above, model projects that evolve into new improved systems, model projects that demonstrate new avenues.

The lack of a system means the lack of standards or business practices. To change business, we need to change standards since standards are predictable and business can adapt. Some corporations will conform to minimal standards. It is the so-called resistant strategy. Other companies go a step further, they embrace the changes, but do not really bring any innovation. What this strategy is called is to "pick the low-hanging fruit", leave the higher ones for others. And the third one is the idealistic or the pre-realistic attitude, and that means trying to turn a loose-loose situation into a win-win situation. AT&T, for example, with the phasing out of CFCs, invested a total of US$55 million into substitutes in the early 1990Æs. Three years later, their annual saving is over US$25 million. Surely, there was a high cost of adaptation and adaptation means trade-off. The task for any corporation really is to get smarter and finer at making these trade-off. That leaves then the "smarter" business to have a competitive advantage. The problem with biodiversity is that for a corporation to devote much time to the issue is costly with small potential returns. Few are prepared to make trade-offs that leaves them vulnerable in other areas. Here is where governments with a wider vision and longer term obligations have a leadership role to play.


The ultimate objective must be to bring about "value change". The people that make up our societies must nurture values that constitute the fundamentals to change and to an improved relationship with our environment. Complexities arise in todayÆs global world in that the relationship between societies equally affects the environment. The Convention on Biological Diversity is an attempt in clarifying these complexities and in preparing a framework for progress, but it is a modest step.

Yet this is the essence also of the Convention: The Convention on Biological Diversity is not a Convention of rich vs. poor, nor is it a Convention of the rich for the poor. It is a Convention for those who want to do something, whether rich or poor; it is for those who have the courage to forge new partnerships without fear of making mistakes along the way.

Because biodiversity is at the heart of the long-term sustainability of our environment, of Mother Earth; because biodiversity is at the heart of our survival in the long term; it represents an opportunity today to forge new partnerships for tomorrow.

© Friedrich Ebert Stiftung | technical support | net edition fes-library | März 1998

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