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Biopolicy International
African Centre for Technology Studies
Num. 12, 1993, pp. 1-37
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THE UNITED STATES AND THE BIODIVERSITY CONVENTION : The case for
Participation
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African Centre for Technology Studies (ACTS)
Biopolicy International Series no. 12
Gareth Porter
Environmental and Energy Study Institute
Washington, DC, USA
Series Editors
Calestous Juma
African Centre for Technology Studies (ACTS), Nairobi
John Mugabe
ACTS Biopolicy Institute, Maastricht, The Netherlands
Norman Clark
Science Policy Research Unit, University of Sussex, UK
Walter Reid
World Resources Institute, Washington, DC, USA
Biopolicy International Series
1. Bio-pesticides in Developing Countries: Prospects and Research
Priorities
by R. Gerrits and E.B.J. van Latum.
2. Genetic Resources and Sustainable Agriculture: Creating
Incentives for Local Innovation and Adaptation
by Walter V. Reid.
3. Conservation and Use of Agro-ecological Diversity
by Joel I. Cohen.
4. Intellectual Property, Biotechnology and Trade: The Impact
of the Uruguay Round on Biodiversity
by Rohini Acharya.
5. Conservation of Plant Genetic Resources: Grassroots Efforts
in North America
by Kevin Dahl and Gary Paul Nabhan.
6. Biodiversity Conservation in Chile: Policies and Practices
by Jubel R. Moraga-Rojel.
7. Property Rights, Biotechnology and Genetic Resources
by Mohamed H. Khalil, Walter V. Reid and Calestous Juma.
8. Tree Rights in Kenya: The Case of the Turkana
by Edmund G.C. Barrow.
9. Biotechnology in Mexico: Opportunities and Constraints in the
Agroindustrial Sector
by Rosalba Casas.
10. Biotechnology in Thailand
by Charles H. Davis, Thomas O. Eisemon, Yongyuth Yuthavong,
Kitiya Phornsadja and Anadi Chungcharoen.
11. Agrobiodiversity in Global Conservation Policy
by David Wood.
ACTS Press (logo)
African Centre for Technology Studies
Nairobi, Kenya
ACTS Biopolicy Institute
Maastricht, The Netherlands
1993
Environmental and Energy Study Institute and Gareth Porter, 1993
Published in Kenya in 1993 by ACTS Press,
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First published by Environmental and Energy Study Institute,
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This issue of Biopolicy International was published in
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Environment Institute (SEI), Swedish Agency for Research
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Printed by English Press Limited, P.O. Box 30127, Nairobi
Cataloguing in Publication Data
The United States and the biodiversity convention: the case
for participation/Gareth Porter.‘Nairobi, Kenya : ACTS
Press, African Centre for Technology Studies, 1993.
(African Centre for Technology Studies (ACTS)
Biopolicy International Series; no. 12)
ISBN 9966-41-062-7
Contents
Acknowledgments
Introduction
1. The negotiations: background and context
2. The biotechnology industry's view
3. Intellectual property rights in the biodiversity convention
4. Other Bush Administration arguments
5. Conclusion
Notes
References
Annex: Chronology of negotiations on a biological diversity
convention
Acknowledgments
The author would like to thank Walter V. Reid of the World
Resources Institute, Val Giddings of the US Department of
Agriculture, Richard Elliot Benedick of the Conservation
Foundation and Peter Jutro of the Environmental Protection
Agency for reading earlier drafts of this study and offering
helpful comments and criticisms. They do not share any re-
sponsibility for the author‘s analysis or conclusions. Chip
Barber of the World Resources Institute, Peter Thomas of the
State Department, Jonathan Temple of the British Embassy,
Peter Jutro and Val Giddings all generously provided official
documents on the negotiations. Others who helped by commenting
on the manuscript and by providing documents have asked not
to be identified.
This study has benefitted from the willingness of five
members of the US delegation to the biological diversity
negotiations to share their knowledge on the negotiations.
Assistant Secretary of State, Curtis Bohlen consented to
discuss with me the process of formulating US policy toward
the convention.
Ken Murphy, Executive Director of the Environmental and
Energy Study Institute (EESI), provided his usual firm
guidance in editing the manuscript in the final phase of
preparation. Production Manager Michael Fallon expertly and
patiently handled the production of the paper.
Finally, the author and EESI wish to express our
gratitude to the Ford Foundation and the W. Alton Jones
Foundation for making this study possible by their support of
EESI's International Program.
Introduction
The Convention on Biological Diversity, was signed by 153
countries and the European Economic Community (EEC) at the UN
Conference on Environment and Development (UNCED) in Rio de
Janeiro in June 1992. It is the first international treaty to
deal with the problem of conserving biological resources at
the global level. Although the conservation provisions of the
agreement are weakened by the phrase, "as far as possible and
as appropriate," they require a number of actions that are
central to a global approach to saving the earth's genetic re-
sources. Among them are:
* developing national plans, strategies or programs for the
conservation and sustainable use of biodiversity (species,
genetic resources and ecosystems) (Article 6).
* taking inventory and monitoring components of biodiversity
and processes affecting it adversely (Article 7).
*
restoring degraded ecosystems and recovering endangered
species (Article 8).
*
preserving indigenous and local systems of biological
resource management and equitably sharing benefits with
such communities (Article 8).
Perhaps even more important are the convention's provisions
on access to genetic resources, which are aimed at providing
economic incentives for developing countries to conserve those
resources. Article 15 of the convention recognizes that a
state has the sovereign right to determine access to the ge-
netic resources within its territory and that such access will
be on "mutually agreed terms." Moreover, it calls for "sharing
in a fair and equitable way the results of research and
development and the benefits arising from the commercial and
other utilization of genetic resources with the Contracting
Party providing such resources." Previously, developing
countries had no economic incentive for biodiversity
conservation efforts, because they had no way of capturing any
significant proportion of the economic benefits derived from
those resources. (1)
The Bush Administration's decision not to sign the
biodiversity convention (2) creates an unprecedented
situation: for the first time, a major global environmental
agreement lacks the participation of the world's most influ-
ential environmental actor. The United States was the only
country to reject the convention, spurring widespread
criticism. Even its commitment to the success of the Earth
Summit was called into question. Environmental Protection
Agency Administrator William K. Reilly later said, "In public
relations terms, we never recovered from it." (3) The US
decision sends a strong signal about the role the United
States intends to play in the global environment in the
future. The negative image that comes with a refusal to
participate is a heavy political burden which should be borne
only if it clearly advances vital US interests.
Countries participating in the convention. Venezuela already
has set a precedent by temporarily suspending the signing of
new agreements for scientific collaboration with US
institutions that have undertaken research on genetic re-
sources there in the past. This was in response to the US
rejection of the biodiversity convention. Other countries may
follow the Venezuelan lead. (4) Several countries are now
considering legislation regulating access to genetic
resources, and some may refuse to export genetic materials to
any country that is not a party to the convention. (5)
The United States was instrumental in getting the
negotiations on a biodiversity convention started, and after
announcing its decision against signing it, the Bush
Administration was quick to point out that the US supported
and would exceed the conservation objectives of the con-
vention. But US rejection of the convention could hurt the
financing of global conservation of biological resources. It
is not clear that the United States would make the same
financial contribution through the Global Environment Facility
(GEF) as a nonsignatory, that it would make if it were a party
to the convention. If the United States remains outside the
convention, it might withhold some or all of its contribution
to the global funding mechanism in an effort to leverage
changes in the text.
The initial State Department explanation of the US
unwillingness to sign the convention referred to three issues:
intellectual property rights (IPR), the financial mechanism
and biotechnology. But as the President prepared to go to Rio,
the administration framed the decision in more dramatic terms
as a choice to maintain American jobs. It argued that the text
of the convention would harm highly competitive US industries.
Then Secretary of State James A. Baker declared that the "so-
called biodiversity treaty . . . would put people out of work
in this country," because it would infringe on patent protec-
tion for biological inventions. (6) And then White House
Counsellor for Domestic Policy Clayton Yeutter, in a letter
published in The Washington Post, said the treaty "demands the
transfer of our technology to the developing world. We believe
it also could lead to the pirating of technology that we do
not transfer voluntarily." (7) Finally, President George Bush
himself declared in his address at the Earth Summit that the
biodiversity convention would "retard biotechnology and under-
mine the protection of ideas." (8)
This paper examines each of the three issues cited by the
Bush Administration as reasons for not signing the
convention: IPR, biotechnology safety regulation and the
financial mechanism. But the main focus of the paper is the
convention‘s provisions bearing on IPR. The paper analyzes the
text of the agreement and notes relevant points about the
negotiating history of the document‘the main method of
interpreting an international legal text when it is ambiguous.
It then puts them in the context of global negotiations on
IPR.
1. The negotiations: background and context
The negotiations for a Convention on Biological Diversity
which had begun in November 1990 under the auspices of the
United Nations Environment Programme (UNEP), required six
convention drafts and seven negotiating sessions (See Annex
1: Chronology of Negotiations on a Biological Diversity
Convention). Although political divisions did not always form
along North-South lines (Nordic countries and Australia
sometimes sided with developing countries), the negotiations
did produce acute conflict between developing country and
industrialized country interests. Developing countries felt
even more strongly about issues of North-South equity in this
convention than they did about similar issues in negotiations
on ozone depletion and climate change. This was in part
because they pertained to use of their own natural resources.
As the Malaysian delegation chief said, "Climate was theirs;
biodiversity is ours." (9)
A key issue in the negotiations was the relationship between
IPR and developing countries' access to technologies derived
from their own genetic resources, which has been a source of
conflict between North and South for at least a decade. Plant
genetic resources found in tropical countries were regarded
in the past as a "common heritage of mankind," which should
be available to researchers and foreign companies without
restriction. But by the early 1980s, developing countries
increasingly felt that it was unjust to allow multinational
corporations to obtain free genetic resources in order to
develop patented products that were then sold back to the
developing countries at high prices. One response by de-
veloping countries was to try to expand the definition of
plant genetic resources that should be freely available to
include those created by plant breeders. Under that proposal,
the "elite lines" of seeds created by plant breeders which had
formerly been protected by IPR, would then lose such
protection and could be sold without any royalty.
Such an amended concept of the "common heritage of mankind,"
supported by virtually every developing country, was
incorporated into an "International Undertaking on Plant
Genetic Resources" that was adopted by the UN Food and
Agriculture Organization's Commission on Plant Genetic
Resources in 1983. Industrialized countries, most of which
have seed companies whose IPR were at stake, agreed to the
undertaking only after an "Agreed Interpretation" was issued
in 1989. They stated that the rights of plant breeders to
intellectual property protection "are not incompatible" with
the undertaking. That meant that the undertaking was no longer
a potential means for developing countries to gain prefer-
ential access to commercial products based on plant genetic
resources.
By the time the negotiations on the biodiversity convention
began in 1990, therefore, developing countries had abandoned
the "common heritage of mankind" strategy.(10) Instead, they
sought to link multinational corporations' access to genetic
resources in the South to developing countries' access to
products developed in the North from those genetic materials.
They argued that access to genetic resources should be a
matter for "mutual agreement between countries."(11)
The developing countries moved to place access to plant
genetic resources under the principle of sovereign control by
states, thus forcing corporations to negotiate with the state
itself for access to the resources. The success of that
strategy was reflected in adopting the biodiversity
convention's Article 15 of the recognition of the "sovereign
rights of states over their natural resources." The same
article gave national governments "authority to determine
access to genetic resources."
But the developing countries were not willing to rely
entirely on commercial deals between companies and national
governments. They wanted the biodiversity convention to commit
the industrialized countries to ensure that companies taking
advantage of developing countries' genetic resources share
their profits equitably. They also wanted to ensure the source
countries have access to technologies developed from those
resources. "They believe the companies are too powerful, so
the playing field will have to be tilted," said a US official
involved in the negotiations.(12)
The precursor to the first draft of the convention included
a proposal that industrialized countries have an "obligation"
to transfer technology to developing countries on a "non-
commercial" and "preferential" basis. It also demanded an
"undertaking by the parties, through national policy and
legislation, to ensure that private enterprises within their
jurisdiction transfer technology to the poorer developing
countries, while protecting the interests of the private
sector." (13)
This was not the first time that the developing countries
had tried to get industrialized countries to agree to use
their power over corporations to force the transfer of
patented technologies. In the negotiations on the amendments
to the Montreal Protocol on the Protection of the Ozone Layer
in June 1990, India, Brazil, China and Malaysia argued that
industrialized country governments should intervene to force
private companies to turn over patented replacement
technologies for chlorofluorocarbons (CFC's) to the developing
countries. Those countries led an unsuccessful effort to
include language in the text that would make fulfillment of
legal obligations by developing countries conditional on both
financial assistance and transfer of technology on
"preferential and non-commercial" terms. (14)
Many developing countries view patents and other IPR as a
way of both denying them access to technologies and raising
the prices of those technologies. As one observer has
commented, "There is a predilection among many of the
negotiators to view intellectual property protection as a
barrier to the transfer of technology, rather than as a basis
upon which such transfers can and do take place." (15)
As in the case of other industrialized countries, the United
States has long insisted that it cannot force private
companies to transfer technology and that adequate protection
of IPR is the most effective form of technology transfer.(16)
Also in keeping with most other industrialized countries
interests, the United States opposed the inclusion of any
obligation to transfer patented technologies in the
biodiversity convention. And as the negotiating draft took
shape in the second half of 1991, the US delegation was
dismayed at the provisions on technology transfer proposed by
the developing countries, led by India and Malaysia, because
they would have required just such coercion and curtailing of
patent rights. (17)
IPR and the GATT
Meanwhile, a related diplomatic struggle was being waged in
another arena - the General Agreement on Tariffs and Trade
(GATT). From the beginning of the GATT "Uruguay Round" of
negotiations in 1987, the United States acted to advance the
interests of the US business sector by pushing for an
agreement on "Trade Related Intellectual Property Rights"
(usually referred to as TRIPS). This agreement would impose
legal obligations on countries belonging to the GATT to
provide minimum standards of IPR protection. (18)
India and Brazil led the resistance by developing countries
in the Uruguay Round to the imposition of new norms for IPR
protection. They argued that the appropriate forum for
changing existing regimes was not the GATT but the World
Intellectual Property Organization.(19) Developing countries
such as India, Thailand and Brazil (and some industrialized
countries as well) permit the unlicensed reproduction and sale
of pharmaceuticals, audio and video recordings and other
patented products. They use "compulsory licensing" laws to
force companies to license their inventions to private firms
within their countries under a wide range of circumstances.
The US demand for a TRIPS agreement brought to the forefront
a long-simmering debate over the advantages and disadvantages
to developing countries of adopting strong IPR protection
systems. Some developing countries expressed the fear that
patenting and protecting proprietary technologies would
increase their royalties to industrialized countries sig-
nificantly, draining their foreign exchange reserves, and
increasing consumer prices dramatically. They viewed the
extension of stringent IPR protection regimes to developing
countries through the GATT as another massive transfer of
resources from poor people and nations to rich people and
nations. (20)
There was a major argument by industrialized country
officials for extending strong IPR protection to all
developing countries. It was that companies owning
technologies have little incentive to transfer their
proprietary knowledge, through licensing arrangements, to
countries that lack such protection. Another was that strong
IPR regimes stimulate innovation and increase domestic
research and development in developing countries. The validity
of these arguments varies from one developing country to
another, however, and from one type of technology to another.
For example, companies have done licensing in South Korea,
despite a lack of full IPR protection. Moreover, factors other
than IPR regimes appear to count more heavily in determining
the pace of technological innovation in developing countries.
Some economies, such as Taiwan, have achieved technological
dynamism prior to instituting such IPR protection. (21)
In 1989, the United States prevailed in getting TRIPS
included in the Uruguay Round negotiations.(22) And in
December 1991, the chairman of the GATT, Arthur Dunkel,
released a draft of a comprehensive Uruguay Round trade
agreement, including a detailed text on TRIPS.(23) As proposed
by the United States, the draft sharply restricts the freedom
of countries to infringe on IPR, establishing minimum norms
on which countries can base their national legislation. For
example, the draft narrowly restricts the circumstances under
which states can compel companies to license their
technologies.
After the Dunkel draft was distributed, the US delegation
to the biodiversity convention negotiations was acutely aware
of the potential value of the document to its objective of
strong guarantees of IPR protection in the convention. It was
also wary of any possible negative impact that the conven-
tion‘s provisions on technology transfer might have on the
TRIPS agreement and the whole GATT package. Several times in
the course of the final round of discussions, therefore, the
US delegation argued that technology transfer provisions
should be strengthened on the grounds that they were inconsis-
tent with the draft TRIPS agreement.(24) The Indian delegation
also was aware of a potential linkage between the two sets of
negotiations and tried to include language in the biodiversity
convention that it hoped would weaken the TRIPS agreement.
The US decision against signing
The US delegation went to the final round of negotiations in
the biodiversity convention in May 1992, hoping to obtain
concessions that would allow the United States to sign it in
Rio. But the pressure to get an agreement completed in time
for signature at the Rio conference in June was an obstacle
to the achievement of that aim. "It was the will of every
other country that we had to come to a decision before UNCED,"
recalls a member of the US delegation.(25) Although they
shared US concerns in some elements of the draft text, other
industrialized countries did not want to be in the position
of blocking the agreement in the final round of negotiations.
Those delegations agreed with the United States that there
were problems with the technology access and transfer provi-
sions of the agreement, but they expressed doubt that it would
be possible to get a satisfactory solution before going to
Rio. (26)
A number of developing countries felt strongly that the
United States should not be allowed to delay the completion
of the convention. They believed that the biodiversity
convention could be successfully implemented even without US
support.(27) So the developing countries resisted giving up
negotiating objectives to which they were most heavily
committed (a separate fund for biodiversity and language
favorable to greater access to patented biotechnology). This
was in order to get the US signature on the convention.
Despite these obstacles, the US did secure important conces-
sions from developing countries in the final round of
negotiations, with regard to biotechnology regulation, IPR and
other issues. The changes that were achieved on IPR-related
provisions were so significant that some delegations from
industrialized countries concerned with the text told the US
delegation they now found it acceptable. (28 )
On the provisions regarding the financial mechanism,
however, the developing countries actually hardened their
position in the final round. Developing countries wanted a
funding mechanism controlled by the "Conference of the
Parties" for each global environmental convention. They wanted
this contrary to having the Global Environment Facility (GEF),
the financial body administered by the World Bank, United
Nations Development Programme (UNDP) and UNEP, serve as the
funding mechanism, as favored by the industrialized countries.
In the convention negotiations on climate that concluded in
May, the industrialized countries succeeded in getting
agreement to designate the GEF as the interim financial
mechanism. Some key developing countries (especially India,
Pakistan and Malaysia) felt that they had been pressured into
accepting that provision, and they were determined to achieve
the original aim of a separate funding mechanism in the final
round of biodiversity negotiations. (29)
UNEP Executive Director Mostafa K. Tolba played a key role
in crafting the final text of the biodiversity convention‘s
provisions on the financial mechanism. Two days before the end
of negotiations, he drafted his own version of that sec tion
and handed it to the US delegation. The United States objected
to Tolba‘s formulation of the financial provisions, but Tolba
was unmoved, and US officials concluded that he had already
sent it to be printed for the final text.
Different sections of the whole agreement were being
negotiated by subgroups without knowing what was being
negotiated in other subgroups. The full text of the agreement
became available only 30 minutes before the meeting that would
formally adopt the convention.(30) In its declaration at the
meeting to adopt the final text, the United States complained
that the "hasty and disjointed approach to the preparation of
this convention has deprived delegations of the ability to
consider the text as a whole before adoption."(31) The US
delegation also said it found the treatment of biotechnology,
IPR protection, finances and technology transfer in the text
"particularly unsatisfactory." (32)
Immediately after the negotiations, the US State Department
sent out cables to industrialized country governments to get
their reactions to the final text of the agreement. The
responses received from several governments indicated that
they had serious concerns as well. Based on those responses,
Assistant Secretary of State for Oceans, Environment and
Science, Curtis Bohlen, was convinced that the United States
would not be alone if it refused to sign the agreement at the
Earth Summit. (33)
As the Bush Administration moved quickly to make its
decision on whether to sign the final agreement, there was a
strong presumption against US participation. The Vice
President's office was strongly opposed to the biotechnology
and technology transfer provisions, and the Interior
Department, supported by the Vice President's staff, also
objected to one of the convention's conservation provisions.
(34 Moreover, Bohlen, normally the main advocate in the
Administration for global environmental agreements, believed
that the financial provisions were unacceptable.(35)
Meanwhile, Executive Branch officials who had helped overcome
resistance within the White House to signing the climate con-
vention a few weeks earlier were not prepared to make a
similar effort for what they regarded as a lesser treaty.(36)
Signing the agreement with reservations (the rejection of
specific provisions of a treaty) was ruled out by Article 37
of the convention, which prohibits reservations altogether.
With no bureaucratic interests engaged in counterbalancing the
pressures to reject the convention, the Administration's
position was a foregone conclusion. On May 29, the State
Department announced the US decision not to sign the
agreement. In the end, the other industrialized countries,
notwithstanding their concerns, decided to sign the agreement,
and US isolation at Rio became inevitable.
2. The biotechnology industry's view
The US biotechnology industry includes both long-established
pharmaceutical and chemical companies which manufacture a wide
range of products and new firms which produce only
biotechnology products. The US biotechnology industry is the
acknowledged world leader in this new high-tech field, with
an expected $4 billion in sales in 1992 and the prospect of
as much as $50 billion annually by the end of the decade. (37
The United States, for example, is far ahead of European and
Japanese companies in agricultural applications of biotechnol-
ogy. (38)
Biotechnology products, which range from oil-eating microbes
to improved seeds to medicines based on genetic resources, are
heavily dependent on the protection of IPR. Pharmaceuticals,
in particular, involve significant capital investment to
produce but once on the market, are very easily duplicated.
The pharmaceutical industry worldwide loses an estimated $6
billion annually from the pirating of patented medicines. (39)
Officials of the Industrial Biotechnology Association (IBA),
which represents 80 per cent of the US market in biotechnology
products, were convinced that the developing countries
intended to use the biotechnology industry to boost their
technological base and finance their development. According
to one industry official, they feared that the biodiversity
agreement would obligate the US government to force companies
to give away their patented technologies and trade secrets not
only to governments but to other companies based in the de-
veloping countries. (40)
Some in the industry were afraid US courts would find
something in the biodiversity convention text that would
obligate the United States to force transfer of technology
through compulsory licensing. They otherwise felt that lan-
guage in the convention would be used to justify legislation
to deny patents for plants and animals. "We had to think in
terms of a worst case interpretation of the convention,"
explained one industry official. (41)
Another industry fear was that the convention on
biodiversity would interfere with the goal of achieving
minimum standards of protection of IPR for their biotechnology
products in developing countries through the TRIPS
negotiations. Both biotechnology and pharmaceutical groups
were particularly pleased that the December 1991 draft text
on TRIPS would limit severely the use of compulsory licensing.
At the same time, they were unhappy that the text would allow
at least another decade of theft of US pharmaceutical
innovations and permit the export of counterfeit and
substandard drugs. The reason is that it would give all
developing countries a transitional period of five years
before full IPR protection would be enforced, with another
five years added for the least industrialized countries.(42)
The biotechnology industry also was upset that the Dunkel
draft allowed countries to choose not to patent plants and
animals (other than micro-organisms). (43)
Before the final round of biodiversity negotiations, the IBA
wrote to the head of the US negotiating team urging that
intellectual property should be addressed in the convention
"consistently [sic] with solutions agreed to in other more ap-
propriate international treaties, such as GATT." The IBA
wanted the United States to amend the draft biodiversity text
to state that "the provisions of this convention are
subordinate to these other agreements including GATT."(44) It
believed that, without such language, the convention would
condone existing violations of IPR, especially the misuse of
compulsory licensing laws, thus giving such violations new
legal status.
After the Administration had announced its position on the
convention and just before the President went to the Earth
Summit, trade associations representing biotechnology firms
wrote letters to the White House supporting the
Administration's decision against signing the biodiversity
convention.(45) In its letter to President Bush, the IBA
asserted that the text "contains provisions permitting
developing countries to disregard the patent rights of
biotechnology companies and mandates that companies transfer
their inventions to developing countries on "concessional,"
"preferential," and "most favorable" terms." A letter from the
US-based Pharmaceutical Manufacturers Association said that
"unclear language" on access to and transfer of technology
could be "code words" for "compulsory licensing and other
forms of property acquisition." The Association of
Biotechnology Companies, an international trade association
with 300 (mostly American) member companies, said in its letter
that the agreement would "reduce protection for
biotechnology."
This industry opposition to the final text of the convention
on the ground that it does not provide adequate IPR
protection, caused some Members of Congress to be very
cautious about calling for the United States to sign the
convention without revision. But it should not be assumed that
the industry's judgment was based on adequate understanding
of the text and its negotiating history or that its position
necessarily advances the best interests of the industry
itself. The IBA did not have access to the final text of the
convention until after the Bush Administration announced its
decision on May 29, so it had very little time to analyze the
text before adopting and announcing its position.(46) Its
reaction to the final text appears to reflect disappointment
that the language does not explicitly subordinate the
biodiversity agreement to the TRIPS agreement in regard to
IPR. This objective would not have been either realistic or
necessary to meet their most urgent concerns. In any case, the
industry's assessment of the legal implications of provisions
of the agreement on IPR is inaccurate in every case.
Biotechnology industry associations elsewhere in the
industrialized world did not share the US biotechnology
industry‘s dim view of the convention. While most European
and Japanese biotechnology companies apparently remained un-
familiar with the specific language of the text even after the
Rio conference, industry officials who were able to examine
it carefully did not see dire consequences resulting from its
ratification. The head of Britain's BioIndustry Association,
which represents more than 200 small biotechnology firms, re-
ported that his members initially supported the US biotechnol-
ogy industry's position on the convention. But they changed
their minds after seeing the text, because it did not seem
"drastic enough for a president not to sign."(47) Similarly,
the Italian industry association's Director-General said he
could find no basis for the US refusal to sign.(48)
3. Intellectual property rights in the biodiversity convention
There are two main arguments by Bush Administration and US
industry officials against signing the biodiversity
convention. They have been that, 1) the language of Article
16, dealing with "Access to and Transfer of Technology," could
force companies to give up patented technologies and trade
secrets and that 2) it could threaten the progress made in the
TRIPS negotiations. But these arguments gloss over the
considerable diplomatic victory won by the United States in
getting strong language on protection of IPR into Article 16.
They also fail to take account of the previous usage of key
phrases in the article, the interrelationships among different
provisions and the negotiating history. Finally, these
arguments ignore the larger political and economic context of
the debate over reforming systems for protecting IPR. When all
these factors are taken into account, the picture of Article
16 that emerges is very different from that painted by the
Bush Administration and the US biotechnology industry.
The US victory on IPR
In the final round of negotiations, the United States won the
most important diplomatic struggle over IPR protection by
securing a sentence in Article 16 that plainly rules out
violations of IPR in terms of access to or transfer of
technology. The sentence, in paragraph 2, provides that, "In
the case of technology subject to patents and other
intellectual property rights, such access and transfer shall
be provided on terms which recognize and are consistent with
the adequate and effective protection of intellectual property
rights."
The significance of this sentence can hardly be overstated.
US negotiators had insisted on the phrase, "adequate and
effective protection," because it has become a term of art in
international trade law. The most important document in which
the phrase is used is the text on TRIPS in the Dunkel draft
of the Uruguay Round multilateral trade agreement. The first
sentence of that text refers to the need to "promote effective
and adequate protection of intellectual property
rights . . . "(49) The United States used the "adequate and
effective‘ standard and spelled out what it meant in specific
terms in a May 1990 draft TRIPS agreement and in previous
submissions to the group negotiating TRIPS. (50)
The phrase, "adequate and effective protection" was also
used in the introductory paragraph of a "model IPR agreement"
that was developed by the United States as it defined its
negotiating position in TRIPS. Based on that model, the United
States has signed a series of bilateral agreements on improved
IPR protection and IPR annexes to scientific and technical
cooperation agreements.(51) All of those documents begin with
the statement that the parties "agree to provide adequate and
effective protection and enforcement of intellectual property
rights . . . " The most recent bilateral IPR agreement was
signed with Sri Lanka in September 1991. (52)
The same "adequate and effective protection" phrase is in
Section 301 of the Omnibus Trade and Competitiveness Act of
1988, which has been used to retaliate against countries whose
IPR laws do not conform to US standards. The term was defined
by the office of the US Trade Representative, through a series
of findings, that various countries had failed to provide such
"adequate and effective protection." (53)
All US documents elaborating on its "adequate and effective"
standard for IPR laws as well as the bilateral IPR agreements
include detailed norms on issues of greatest concern to the
US biotechnology industry. They include patentable subject
matter, terms of protection, transitional protection and
compulsory licensing. These documents spell out the same kind
of stringent limitations on the use of compulsory licensing
as are in the draft TRIPS agreement.
The "adequate and effective protection" phrase in US and
bilateral trade documents had been used for several years to
signify a demand that other countries' IPR protection laws be
brought into conformity with US law.(54) India, Brazil and
other developing countries involved in the biodiversity
convention negotiations clearly understood, therefore, that
their acceptance of this sentence in the convention was a
major concession to the United States. (55)
US obligations under the convention
The fear that the convention's technology transfer provisions
could be used to force US companies to transfer technology is
not borne out by a careful reading of the text. In fact, the
obligations in the convention to facilitate technology
transfer require only policies that the United States already
has accepted and gives wide latitude in choosing when, or
whether, to carry them out.
Paragraph 1 of Article 16 requires that each contracting
party "provide and/or facilitate access for and transfer to
other Contracting Parties of technologies that are relevant
to the conservation and sustainable use of biological
diversity or make use of genetic resources . . . " This access
to and transfer of technology is to be "provided and/or
facilitated," according to paragraph 2, under "fair and most
favorable terms, including on concessional and preferential
terms where mutually agreed . . . " The phrase "concessional
and preferential terms," meaning that companies would obtain
less than a fair market price for a licensing arrangement or
other technology transfer, is neutralized by the phrase "where
mutually agreed." This means that it cannot happen without
the consent of the party transferring the technology. (56)
The phrase "fair and most favorable," which applies to all
terms for access to or transfer of technology, has been
criticized by US government and industry officials as being
so ambiguous that it opens the door to demands for noncom-
mercial terms for technologies. But the use of the phrase
already has a precedent in international environmental law,
having been adopted in the 1990 amendments to the Montreal
Protocol on protection of the ozone layer. The text of the
protocol requires industrialized countries to "ensure that the
best available, environmentally safe substitutes and related
technologies are expeditiously transferred . . . under fair
and most favorable conditions . . . "(57) The head of the US
delegation to those negotiations, Richard Elliot Benedick,
confirms that the phrase was clearly understood by the
negotiators of that text to refer to conditions that depended
on the operation of a free market, without government co-
ercion. (58)
The obligations in paragraphs 3 and 4 of Article 16 are even
less stringent than those in the first two paragraphs, because
they have huge loopholes through which industrialized
countries can escape. Paragraph 3 states that contracting
parties are to "take legislative, administrative or policy
measures, as appropriate, with the aim that Contracting
Parties, in particular those that are developing countries,
which provide genetic resources are provided access to and
transfer of technology which makes use of those resources, on
mutually agreed terms . . . " Paragraph 4 calls for "measures,
as appropriate, with the aim that the private sector
facilitates access to, joint development and transfer of
technology referred to in paragraph 1 above for the benefit
of both governmental institutions and the private sector of
developing countries . . . "
The phrase "as appropriate" used in both paragraphs gives
parties to an international agreement wide discretion in
deciding whether or how to carry out the terms of the
provision to which it applies. In negotiations on the scope
of the TRIPS agreement, for example, developing countries
agreed only to "elaborate as appropriate new rules and
disciplines" (emphasis added) regarding intellectual property
protection. The developing countries insisted on that phrase
in order to allow themselves maximum freedom to decide which
new rules and disciplines, if any, they would accept as nego-
tiable.(59) It is clear, therefore, that states are under no
obligation to apply the "measures" referred to in any case
which they might feel is not "appropriate."
The United States and other industrialized countries could,
if they choose, fulfill the terms of paragraph 3 without any
coercion of the private sector by purchasing patents or
licenses on commercial terms for sale to developing countries
on noncommercial terms. The United States had endorsed that
form of government-to-government technology transfer in
negotiating the chapter on "Transfer of Environmentally Sound
Technology, Cooperation and Capacity Building" of the UNCED's
Agenda 21 workplan. (60)
Another measure that could fulfill the terms of the
paragraph is financial assistance to developing countries for
commercial purchases. This is strongly suggested by references
in both paragraph 2 and paragraph 4 to the financial mechanism
established in Articles 20 and 21. Or the United States could
create or enhance fiscal or other economic incentives for
transferring technologies. The United States and other
industrialized countries would then be legally obligated by
the present draft GATT agreement on TRIPS to provide just such
incentives to private enterprises for the transfer of technol-
ogy to the least industrialized countries. (61)
Compulsory licensing and the Indian ploy
During the negotiations, India and some other developing
countries suggested an entirely different interpretation of
paragraphs 3 and 4 in Article 16. They declared that they
would interpret the convoluted text of paragraphs 3 and 4 to
give them the authority to use compulsory licensing laws and
other limitations on IPR for different purposes. These are
such as a means of providing access to, and joint development
and transfer of, technology to developing countries and their
private sectors. (62)
Although the sentence in paragraph 2, requiring "adequate
and effective protection" of IPR in any transfer of patented
technology, would appear to bar such measures, India and other
developing countries tried to undermine that statement. They
insisted on adding another sentence at the end of paragraph
2. The sentence states, "The application of this paragraph
shall be consistent with paragraphs 3, 4 and 5 below." India
argued that this sentence vitiates the language in paragraph
2 requiring "adequate and effective protection" of IPR in
terms of all transfer of technology. (63)
Nothing in paragraphs 3 and 4, however, suggests that those
provisions represent exceptions to the "adequate and effective
protection" requirement. Indeed, the end of paragraph 4
explicitly says that each contracting party shall abide by the
obligations in paragraph 2, which include the "adequate and
effective protection" sentence.(64) And paragraph 3 ends with
the requirement that the measures to be taken must be
"consistent with paragraphs 4 and 5," thus incorporating by
reference the obligations in paragraph 2. The sentence added
to paragraph 2 that the IPR protection requirement is to be
applied "consistent with" those later paragraphs does not,
therefore, nullify its applicability to them.
Article 16. Access to and Transfer of Technology
1. Each Contracting Party, recognizing that technology
includes biotechnology, and that both access to and transfer
of technology among Contracting Parties are essential
elements
for the attainment of the objectives of this Convention,
undertakes subject to the provisions of this Article to
provide and/or facilitate access for and transfer to other
Contracting Parties of technologies that are relevant to the
conservation and sustainable use of biological diversity or
make use of genetic resources and do not cause significant
damage to the environment.
2. Access to and transfer of technology referred to in
paragraph 1 above to developing countries shall be
provided and/or facilitated under fair and most favourable
terms, including on concessional and preferential terms
where mutually agreed, and where necessary in accordance
with the financial mechanism established by Articles 20
and 21. In the case of technology subject to patents and
other intellectual property rights, such access and
transfer shall be provided on terms which recognize and
are consistent with the adequate and effective protection
of intellectual property rights. The application of this
paragraph shall be consistent with paragraphs 3, 4 and 5
below.
3. Each Contracting Party shall take legislative,
administrative or policy measures, as appropriate, with
the aim that Contracting Parties, in particular those that
are developing countries, which provide genetic resources
are provided access to and transfer of technology which
makes use of those resources, on mutually agreed terms,
including technology protected by patents and other
intellectual property rights, where necessary through the
provisions of Articles 20 and 21 and in accordance with
international law and consistent with paragraphs 4 and 5
below.
4. Each Contracting Party shall take legislative,
administrative or policy measures, as appropriate, with
the aim that the private sector facilitates access to,
joint development and transfer of technology referred to
in paragraph 1 above for the benefit of both governmental
institutions and the private sector of developing
countries and in this regard shall abide by the
obligations included in paragraphs 1, 2 and 3 above.
5. The Contracting Parties, recognizing that patents and
other intellectual property rights may have an influence
on the implementation of this Convention, shall co-operate
in this regard subject to national legislation and
international law in order to ensure that such rights are
supportive of and do not run counter to its objectives.
Furthermore, the negotiating history of these paragraphs
again indicates that the US position on protection of IPR was
upheld against efforts to subvert it. India and other
countries had proposed in earlier negotiating sessions to add
to paragraph 3, after "on mutually agreed terms," the phrase
"notwithstanding patents and other intellectual property
rights." It indicates that access and transfer of technology
should not be conditioned on protection of IPR. But that
clause was subsequently dropped from the text because of
objections by the United States and other industrialized
countries had objected to it. (65)
The argument that Article 16 does not protect IPR rests
heavily on paragraph 5 of the article, which US officials have
claimed "subordinates" IPR to the objectives of the conven-
tion, including technology transfer.(66) But while India
intended that the final paragraph do precisely that, the text
as adopted does not. The one-sentence paragraph states, "The
Contracting Parties, recognizing that patents and other
intellectual property rights may have an influence on the
implementation of this Convention, shall co-operate in this
regard subject to national legislation and international law
in order to ensure that such rights are supportive of and do
not run counter to its objectives."
Those who would reject the convention argue that this
sentence means that such rights stifle technology transfer and
must be given less protection in order to avoid a clash with
the objectives of the convention. That is indeed the point of
view asserted by some developing countries. But the text also
can be read as suggesting that IPR regimes that are too weak
would be an obstacle to technology transfer, as the United
States and other countries had argued during the negotiations.
(67)
The negotiating history does not support the claim that the
parties intended to nullify the "adequate and effective
protection" standard when they accepted paragraph 5. The
negotiators had eliminated from the text an earlier Indian
formulation that called on contracting parties to "minimize
any negative effects‘ of patents and other IPR on the
‘implementation of the present Convention."(68) And in an
earlier draft, paragraph 1 had included a sentence formulated
by the Indian delegation that required that "Contracting
Parties shall also eliminate . . . and refrain from imposing
restrictions such as patents and property rights that run
counter to the principles of this Convention." (69)
The United States tried unsuccessfully to amend paragraph
5 to state that "intellectual property rights are essential
for the successful transfer of proprietary technology." The
text proposed by the United States would also have stated that
international cooperation should "ensure that such rights are
recognized and given adequate and effective protection by
Contracting Parties to this Convention."(70) This formulation
would have gone further than paragraph 2 (which only required
IPR protection standards acceptable to the United States in
regard to any technology transfer under the convention) to
endorse the US demand for the adoption of IPR laws based on
the US model.
The formulation that was accepted in the final draft, with
slight modification, was submitted as a compromise by Norway.
(71) The negotiating history shows, therefore, that the
language adopted in paragraph 5 was crafted in an effort to
paper over fundamental differences between developing
countries and the United States on the relationship of
intellectual property rights to the aims of the convention.
Given the compromising nature of the final text, neither side
can make a convincing case that the other had accepted its
views. That the final paragraph is deliberately opaque on the
issue of whether stronger IPR protection facilitates or
obstructs technology transfer does not, however, alter the
decided tilt in Article 16. It leans toward safeguarding IPR
in any technology transfer.
At the conference adopting the text in Nairobi, the United
States chose not to make an interpretive declaration that it
understood Article 16 as providing protection for IPR in any
terms of technology transfer. This was despite the fact that
it could have done so legitimately. Instead, its interpreta-
tive declaration said that "Article 16 fails to recognize the
positive role of intellectual property systems in facilitating
technology transfer and cooperative research and development
by private entities."(72) That statement was unnecessarily
negative. It did not reflect the fact that efforts to include
anti-IPR language in the agreement had failed and that the
United States prevailed on the most crucial issue of IPR
protection in the agreement.
The biodiversity convention and trade negotiations
One of the main arguments for US rejection of the text by the
biotechnology industry was that the text condones existing
violations of IPR and gives them international status by not
taking a stronger stand on the issue. Industrial Biotechnology
Association President Richard D. Godown asserted that, if it
signed the biodiversity agreement, the United States would
"weaken its intellectual and moral position." This was in
reference to when pushing for enhanced patent protection in
the TRIPS agreement and in bilateral agreements. Developing
countries wanting to maintain regimes that permit violations
of IPR are certain to cite the biodiversity convention as an
excuse for wanting to narrow the scope of IPR protection in
these negotiations, according to Godown. (73)
As noted above, some developing countries that would like
to avert a new IPR regime such as that called for by the TRIPS
agreement. They have already indicated that they will argue
that the biodiversity convention text authorizes their
continued restrictions on IPR. Godown is suggesting that the
United States would disarm itself in resisting that argument
by signing the agreement. However, because the biodiversity
convention has become international law, despite the US
refusal to sign, the most effective US riposte to the argument
would be to assert that the agreement does not support the
claims of India and others. Rejecting the convention and sug-
gesting that the Indian interpretation of Article 16 may well
be valid does exactly the opposite of what the biotechnology
industry has asserted.
In the final analysis, however, a tortured interpretation
of the biodiversity convention by the developing countries
would not be enough to water down the Dunkel draft on TRIPS.
Neither would it be enough to alter the outcomes of negotia-
tions of US bilateral agreements with trading partners on IPR
protection. The outcome of both kinds of negotiations will be
determined by the economic interests of the participating
countries, rather than by the tortured arguments of some
countries to portray the biodiversity convention as upholding
their view of IPR. India and other countries that have
resisted the kind of IPR protection norms in the current draft
of the TRIPS agreement will go along with that agreement. This
is however if, and only if, they feel they are getting
sufficient economic benefits from other parts of the GATT
Uruguay Round package in return. And similarly, developing
countries wishing to take advantage of market-opening benefits
will have to accept the TRIPS agreement as part of the price.
(74)
The Dunkel draft of the GATT agreement was proposed with the
explicit understanding that, "No single element of the draft
final act can be considered as agreed [until] the total
package is agreed."(75) In other words, developing countries
are likely to go along with the TRIPS agreement and other
parts of the package of interest to the industrialized
countries, primarily because of their fear of growing
tendencies toward protectionism in industrialized countries.(76)
Some of the most important economic benefits to developing
countries from the Uruguay Round package, should contracting
parties to the GATT finally adopt it, will come from the
phase-out of the Multifiber Arrangement (MFA) by the end of
the century. It is now included in the Dunkel draft.(77)
Textiles are the single largest source of manufacturing em-
ployment in the developing world. Phasing-out the MFA within
a relatively few years would do more to create jobs in textile
and apparel exporting countries, than anything else that could
happen in North-South economic relations. Significantly, some
of the countries, including India and Brazil, that have
continued to resist strong protection of IPR, would also
benefit the most from a phase-out of the MFA. (78)
Another significant economic benefit to developing countries
by the adoption of the Dunkel draft would be the
liberalization of worldwide agricultural trade. This would
occur by reducing subsidies for industrialized country
agricultural exports and import barriers. That would make
developing country agricultural exports more competitive in
the world market and raise incomes for farmers in those
countries. Developing countries could expect an increase in
income from agricultural exports estimated by some specialists
at $60 billion annually by removing these barriers, and again
India would be one of the big winners.(79) Those countries
know that both the United States and the EC have made the
acceptance of the TRIPS by the developing countries one of the
conditions for agreeing to phasing out the MFA and
liberalizing agricultural trade. (80)
The policies of developing countries toward protection of
IPR also have been heavily influenced by the US threat to deny
their access to US markets under a provision in the US trade
act known as "Special 301." Under this provision, the United
States targets trade retaliation countries that do not meet
what the United States considers adequate standards of
protection of IPR. The United States has used that provision
to put pressure on developing countries to adopt patent pro-
tection compatible with US law. Once a country has been named
as having inadequate protection of IPR in its laws, it has six
months to demonstrate progress toward resolving the issue. It
can either do this through effecting changes in its laws or
through negotiation of an agreement on IPR protection. During
the Uruguay Round, the United States Trade Representative
(USTR) identified 25 countries on either a "priority watch
list" or a "watch list" in this regard. Included on these two
lists have been all the major developing country trading
states: India, Brazil, China, Mexico, Chile, Egypt, Columbia,
Indonesia, Malaysia, Pakistan and Venezuela.
In October 1988, the United States imposed a 100 per cent
punitive tariff increase against $39 million in goods imported
from Brazil. This was as the result of a complaint by the US
pharmaceutical industry and an investigation of Brazil's
refusal to grant patent protection to pharmaceuticals. The
United States has also threatened to take away trade benefits
under the Generalized System of Preferences (GSP) to
developing countries, in retaliation for failing to protect
IPR. Since 1986, US economic pressures have helped persuade
a number of developing countries, including Korea, Taiwan,
Indonesia, Chile, China and Mexico (as well as Canada) to pass
legislation to improve IPR protection. Other countries,
including Brazil, Argentina, Thailand and Venezuela, have also
considered some reforms in their IPR laws in response to those
threats. (81)
The United States holds strong cards in multilateral and
bilateral negotiations on IPR protection. Arguments made by
India and others about the alleged meaning of the
biodiversity convention cannot change the broader forces that
are shaping their outcomes. The irony of the present US
posture is that by refusing to recognize the language of the
convention as a US victory, the Bush Administration only makes
it awkward for the United States to refute the arguments by
India and others that the TRIPS agreement should be weakened.
A decision by the new Administration to sign the biodiversity
convention and to adopt the analysis outlined above would put
the United States in a stronger position to protect its in-
terests on IPR protection.
4. Other Bush Administration arguments
Biotechnology safety regulation
The only statement by the Bush Administration on the
biotechnology safety provisions of the convention was in the
State Department‘s May 29 press release, announcing the US
decision not to sign. The statement simply said, "The
convention does not treat biotechnology and biosafety appro-
priately." IBA President Richard D. Godown commented in his
letter to President Bush that the convention "contains
regulatory provisions that would tend to delay the development
of new products." (82)
One industry official noted that the concern of the IBA was
focused on the provision regarding international regulation
(paragraph 19.3) rather than on the one dealing with domestic
regulation (paragraph 8 (g)). According to this official, the
IBA did not believe that the domestic regulation paragraph
would require any change in the domestic regulatory system but
feared that the international regulation could do so. (83)
The language of paragraph 19.3 represents another compromise
between two diametrically opposed views on the issue of
biotechnology safety. The United States has long disagreed
with most of the other countries in the world, including
European countries and developing countries. They differ on
the question of whether biotechnology poses fundamentally
different risks from those posed by other types of technology,
to health or the environment. Other countries have argued that
genetically modified organisms require special regulations to
ensure their safe use. The US position has been that the risks
arising from biotechnology have been exaggerated and that no
special regulations are required. (84)
In the biodiversity negotiations, countries which took the
former view proposed that the conference of the parties have
the authority to adopt procedures for obtaining "prior
informed consent." This applies to the introduction of geneti-
cally modified organisms which may have an adverse impact on
the environment of a contracting party.(85) That provision
might indeed have delayed introducing new biotechnology
products by creating some international mechanism for studying
those products. The United States tried unsuccessfully to
remove the entire paragraph from the text. (86)
But after intensive negotiations in the final round, US
negotiators achieved a significant modification of the text.
Sweden offered a compromise that calls for parties to
"consider the need for and modalities of a protocol" to deal
with that issue. In effect, the issue of a protocol is to be
considered later by the parties. The United States accepted
the language with a statement interpreting it as making no
presumption that such a protocol is actually needed. Other
countries disagreed with that interpretation and suggested
that the need for a protocol was presumed. (87)
What is clear is that the whole subject of a protocol is to
be discussed further, and the United States and other
countries will continue to have differences over whether there
should be a protocol. US refusal to sign the agreement will
not prevent other countries from agreeing on such a protocol
in the future if they choose to do so. Some biotechnology and
administration officials concede privately that the United
States could protect its interests better by participating in
those future discussions in the conference of the parties
rather than by being absent.(88) Even if such a protocol were
adopted, however, the United States would have the option of
not participating in it, since it would be a separate legal
instrument.
The IBA objected to this language, according to an industry
source. This was because the IBA believed that the members of
the Organization for Economic Cooperation and Development
(OECD), comprising the industrialized countries of the world,
were making progress on international harmonization of
national principles on biotechnology regulation. These
principles were based on the US model. Therefore, the industry
did not want a separate forum, in which developing countries
also would be represented, to consider the issue.(89) However,
as in so many other issues, refusing to associate the United
States with a process does not mean that it will not go
forward.
The financial mechanism
The provisions of the biodiversity convention on a funding
mechanism do create a serious practical problem. They appear
to conflict with the general thrust of the relationship,
envisioned at an April 1992 meeting of Global Environment
Facility (GEF) participants, between the GEF and the confer-
ences of the parties to global environmental conventions. They
also leave open the possibility that a developing country
majority could determine funding levels for the convention.
Finally, they leave the door open for the conference of the
parties to the convention to create an entirely new fund for
biodiversity independent of the GEF. This occurs because the
GEF is designated as the financial mechanism only on a
temporary basis until the conference of the parties to the
biodiversity convention meets (no later than one year after
the convention's entry into force).
Article 21.1 of the biodiversity text would have the
financial mechanism "function under the authority and guidance
of . . . the conference of the parties . . . " The
relationship between the GEF and the conferences of the par-
ties to global environmental conventions was not decided by
GEF participants at their April 1992 meeting. Also, donor
countries have no objection to each convention's conference
of the parties determining policy and program priorities for
funding within its issue area. But they do envision the GEF
as having some authority independent of the conference of the
parties as well.(90) What the United States and other donor
countries fear is that the developing country-dominated
conference of the parties to the biological diversity con-
vention would assume the authority to make decisions regarding
funding levels and specific projects. This would be on the
basis of one-country, one-vote without the consent of the
donor countries. (91)
Article 21.1, provides that "contributions" will be "in
accordance with the amount of resources needed to be decided
periodically by the conference of the parties . . . " It can
be read as giving the conference of the parties the power to
decide what levels of financial resources must be contributed
by contracting parties which are industrialized countries. The
donor countries all agreed that the provision would be
unacceptable if given that interpretation. Eighteen delega-
tions, including the US delegation, joined in a declaration
made after the adoption of the agreed text on May 22. They
stated that their "understanding that the decision to be taken
by the conference of the parties under Article 21.1 of the
convention refers to the "amount of resources needed" by the
financial mechanism, not to the extent or nature and form of
the contributions of the contracting parties."(92) British
Secretary of State for Environment Michael Howard repeated
that understanding of the text of Article 21.1 in a
declaration when he signed the agreement in Rio. (93)
Those declarations cannot by themselves eliminate the
possibility that a majority vote in the conference of the
parties could determine the amount of assistance to be
provided by the donor countries. Neither can they usurp some
of the authority of the GEF participants' assembly or the GEF
implementing agencies (UNEP, UNDP and the World Bank).
Developing countries could seek to bring the final GEF
agreement on governance into conformity with the language of
the biodiversity convention. Or they could propose at the
first meeting of the conference of the parties to create a new
financial mechanism clearly under the authority of the
conference of the parties.
But donor countries in the GEF cannot be forced to put the
GEF under the authority of the biodiversity convention. Under
the plan agreed to by GEF participants in April 1992, a
participants' assembly would be established with a voting
system in which the "funding efforts" of donor countries would
be given "due weight," such as a "double majority mechanism".
It would require a majority vote both of all participants and
of donor countries.(94) The details of the system of GEF
governance are to be worked out at a conference in Cote
d'Ivoire in December 1992. But it is clear that the GEF par-
ticipants' assembly will not make decisions by simple majority
and that any changes would have to have a majority of
industrialized countries to pass.
Nor can the developing countries impose on donor countries
a new financial mechanism, under the authority of the
conference of the parties to the biodiversity convention, that
would make decisions by majority vote. There is no provision
in the convention for decision-making by majority vote. As
noted by the United Kingdom (UK) in signing the biodiversity
convention in Rio, the conference of the parties must,
according to Article 23, adopt its rules of procedure "by
consensus," meaning that they must have the concurrence of all
the parties. The UK said it was "possible to argue that
decisions on financial issues arising under the convention
should . . . be subject to consensus so as to avoid the danger
of financial obligations being imposed on us beyond what we
are prepared to agree." (95)
The requirement for consensus gives the donor countries the
power to bargain for amending the convention's financial
mechanism to bring it into line with the GEF participants‘
agreement. The donor countries could insist that decisions
regarding the creation of the funding mechanism must be made
by consensus. This move would be in order to force a
reconsideration of the provision that the funding mechanism
is to be subordinated to the conference of the parties. In
short, Article 23 provides sufficient safeguards for the
United States to sign the agreement without prior
renegotiation of the text.
The UK's argument about the veto power inherent in the
requirement for adopting rules of procedure by consensus, was
not made until the Rio conference itself. It came too late to
influence US decision-making on whether or not to sign the
convention in Rio. It is unlikely, however, that it would have
made any difference in US policy, even if had been made
earlier. The State Department remained wary of any policy that
would depend on other donor countries joining the United
States in a united front in international negotiations.(96)
By then the UK had already staked out a public position on the
issue, and the time-factor of the Rio conference was no longer
significant. It would, therefore, appear to be in the obvious
self-interests of other donor countries to co-operate with the
United States in taking advantage of the requirement for
consensus on the rules of procedure in the conference of the
parties. As a result, the risks to the United States from the
financial provisions, appear to be minimal or nonexistent.
5. Conclusion
The Bush Administration's argument that the biodiversity
convention signed in Rio failed to protect the IPR of US com-
panies, ignores the main features of the text in question as
well as the broader political and economic realities of the
issue. The convention does not obligate any contracting party
to compel private industry to transfer patented technologies.
Nor does it give international legal status to misusing
compulsory licensing as a means of technology transfer. The
convention's text will not materially affect the outcome of
the TRIPS and bilateral trade negotiations, which will
determine whether or not many countries will provide stronger
IPR protection in the future. This is with the exception that
the United States decides, unnecessarily, to accept the Indian
interpretation of the text.
The other problems with the convention cited by the
Administration in its initial announcement of the decision
against signing (i.e., the biotechnology regulation
provisions and the financial mechanism) do not justify the US
decision either. The United States would be in a better
position to protect the interests of the biotechnology
industry against regulatory procedures that would delay
product development by being a signatory to the pact than by
staying outside it. And the provision on the financial
mechanism, which remains to be clarified and spelled out, is
rendered harmless by the requirement for adopting rules of
procedure by consensus.
EPA Administrator Reilly has suggested that the solution to
the present US predicament is to revise those paragraphs of
the text that allegedly threaten US interests. They could be
presented in the form of a protocol that could be agreed to
before the convention itself comes into force. He also has ex-
pressed his belief that the parties to the convention will
accommodate US concerns by revising the agreement.(97) But
such a policy would be very risky. Reilly's effort at the
Earth Summit to explore, through a Brazilian diplomatic
intermediary, the possibility of getting agreement on some
changes to the text was aborted by the White House before any
extensive consultations took place.(98) But even had the
effort gone forward, there is no reason to believe that Brazil
could have gotten agreement from the Group of 77 to make
changes to satisfy the United States.
Many developing countries feel that they have already made
significant compromises to accommodate US concerns, only to
have the resulting agreement rejected by Washington. Moreover,
those countries tend to feel that the convention does not
require US adherence to operate successfully. Demanding that
they acquiesce in further changes in the text merely to sat-
isfy the United States could invite an embarrassing rebuff.
UNEP Executive Director Tolba warned the US State Department
in September 1992 that the signatories to the agreement would
not accommodate US demands for renegotiating the convention
text. (99)
There is no need for the United States to demand
renegotiating the text of the biodiversity agreement before
signing it. US interests would be better served by signing the
convention first and then seeking adjustment or clarification,
where necessary, through diplomatic efforts. It could work
with other industrialized countries to seek adjustments in the
financial provisions in the negotiations on adopting rules of
procedure for the conference of the parties. Not signing the
convention, moreover, carries substantial risk of being denied
access to genetic resources by signatory states.
On the issue of a protocol on biotechnology safety, the
United States could make a more persuasive argument as a
contracting party participating in the debates in the
conference of parties. And on the IPR issue, the United States
could best protect the interests of the biotechnology industry
by signing the agreement and by making the following statement
clearly at the time it signs: It does not accept the view that
Article 16 offers any legal support to violations of IPR in
the name of technology transfer. The new Administration should
make signing the biodiversity convention one of its high
priorities in foreign policy.
The US stance on the biodiversity convention underlines a
lesson that the United States must learn well in the new world
order of the 1990s and beyond: US withdrawal from active
participation in regimes for global environmental protection
and sustainable development is not only bad for the rest of
the world, but bad for the United States. When the United
States is tempted to defy the rest of the world and reject a
global environmental agreement, it is probably ignoring the
considerable opportunities it has to protect its interests
through participating in the agreement.
Notes
1. See Sedjo, 1988, pp. 293-324.
2. In April 1993, the Clinton Administration announced that
the US would sign the Convention on Biological Diversity.
3. William Reilly, "Memorandum to All EPA Employees," July
15, 1992, reprinted in Daily Environment Reporter, July
29, 1992, p. E2.
4. Letter from Brian M. Boom, Vice-President for Botanical
Science, The New York Botanical Garden, to EPA
Administrator William Reilly, July 22, 1992.
5. Walter V. Reid, "Bush Biodiversity Policy Risks Dangerous
Side Effects," Wall Street Journal, October 8, 1992, p.
A15.
6. The Washington Post, June 7, 1992, p. A28.
7. "The President's Trip to Rio," The Washington Post, June
12, 1992, p. A22.
8. See "Excerpts from Speech by Bush on "Action Plan"", New
York Times, June 13, 1992.
9. Telephone interview with a member of the US delegation to
the biodiversity convention negotiations, August 4, 1992.
10. This shift in view is described in "Report on the UNEP
Ad hoc Working Group of Experts on Biological Diversity,"
by Eleanor Savage, US Department of State, March 12, 1990.
The report describes the meeting that took place in
Geneva, February 19-23, 1990.
11. Genetic Resources Action International, "Overcoming the
Obstacles to a Global Agreement on Conservation and
Sustainable Use of Biodiversity," Briefing on Biodiversity
no. 2, Barcelona, February 1992, p. 6; David Cooper,
"Towards a New Convention," Ecoforum (Nairobi) 14,
November 1990, pp. 1, 3.
12. Interview with member of the US delegation to the
biodiversity convention negotiations, July 8, 1992.
13. Ad hoc Working Group of Legal and Technical Experts on
Biological Diversity, First Session, Nairobi, November
19-23, 1990, "Elements for Possible Inclusion in a Global
Framework Legal Instrument on Biological Diversity,"
UNEP/Bio.Div/WG.2/1/3, September 24, 1990, VII (a) and
(b), pp. 15‘16.
14. Benedick, 1991, pp. 188‘189.
15. Richard C. Wilder, "Note: Negotiations Concerning the
Convention on Biological Diversity: Implications for
Intellectual Property Rights," unpublished, no date.
Wilder is with the law firm of Finnegan, Henderson,
Garbow, Garrett and Dunner, Washington, DC.
16. Statement by Deputy Assistant Secretary of State Jane
Becker to UNCED Preparatory Committee 2 regarding
Technology Transfer, August 17, 1990; "Statement by the US
Delegation on Technology Cooperation," UNCED Preparatory
Committee 3, August-September 1991, Paper 53.
17. Hoyle, 1992, p. 848.
18. Bale, 1991, p. 21.
19. Wells, 1989, p. 7; Sek, 1990, p. 6; Raghavan, 1990, pp.
120-132.
20. Wells, pp. 2-3
21. For a survey of the literature on this issue, see Braga,
1990, pp. 69-87.
22. Wells, p. 7.
23. Draft Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations, MTN. TNC/W/FA,
December 20, 1991.
24. Interview with member of the US delegation to the
biological diversity convention negotiations, July 8,
1992.
25. Telephone interview with member of the US delegation to
the biological diversity convention negotiations, August
4, 1992.
26. Interview with member of the US delegation to the
biological diversity convention negotiations, July 8,
1992.
27. International Environment Reporter, May 20, 1992.
28. Telephone interview with member of the US delegation to
the biological diversity convention negotiations, August
4, 1992. Some developed country delegations, however, told
the US delegation privately that they would sign the
agreement but might not ratify it.
29. Telephone interview with member of the US delegation to
the biological diversity convention negotiations, August
4, 1992.
30. Interview with member of the US delegation to the
biological diversity convention negotiations, August 4,
1992.
31. "Declaration of the United States of America" at the
Diplomatic Conference for the Adoption of the Convention
on Biodiversity, May 22, 1992.
32. Ibid.
33. Interview with Bohlen, August 25, 1992.
34. These officials argued that Article 8 (f), which provided
that each Contracting Party shall "rehabilitate and
restore degraded ecosystems and promote recovery of
threatened species . . . ," went beyond what is practical
or appropriate, since it does not specify that the
ecosystem must be severely degraded. Despite the "chapeau"
for the Article, which qualifies the obligation with the
phrase "as far as possible and as appropriate," the
Interior Department feared that the text of Article 8 (f)
might be used by environmentalists to argue for new US
conservation laws, particularly to manage old-growth
forests so as to save the spotted owl. Telephone
interviews with four officials involved in interagency
meetings on the biodiversity convention, all of whom spoke
on background.
35. Interview with Bohlen, August 25, 1992.
36. For further discussion of the politics underlying the
Bush Administration's decision not to sign the agreement,
see Hoyle, 1992, pp. 848-849.
37. Browning, 1992, p. 1828.
38. Interview with Val Giddings, US Department of
Agriculture, August 18, 1992. See also OTA, 1991, pp.
19-21.
39. Private communication from Tom Bombelles, Pharmaceutical
Manufacturers Association, August 3, 1992.
40. Interview with official of the Industrial Biotechnology
Association, July 21, 1992.
41. Ibid. As an example of what it feared, the IBA cited the
success of Green Party delegates to the European
Parliament, who have opposed patenting of biological
inventions, to get an opinion from the legal affairs
committee on whether a draft European Community directive
on patenting such inventions would be inconsistent with
the biodiversity convention‘s provisions on technology
transfer. Biotechnology Newswatch (New York), August 17,
1992, p. 14. One problem with the opponents' efforts to
derail the draft directive by this means, however, was
that the convention text takes no position on patenting
biological inventions.
42. Bale, 1992, p. 3.
43. Letter from IBA President Richard D. Godown to Deputy
Assistant Trade Representative Emory Simon, March 30,
1992.
44. IBA Memorandum to Eleanor Savage, US Department of State,
April 30, 1992.
45. Congressional Record, June 17, 1992, pp. S8375-8376;
letter from William E. Small, executive director of
Association of Biotechnology Companies, to President Bush,
June 10, 1992.
46. Telephone interview with a biotechnology industry
official, July 30, 1992.
47. Galina Vroman, "Europe Drug Firms Say Bio-Diversity Pact
Harmless," Reuter dispatch, London, June 22, 1992
48. "Industry Officials Call Biodiversity Treaty Vague, See
Little Impact on Competitiveness, Other Areas,"
International Environment Reporter, July 29, 1992, p. 512.
49. "Agreement on Trade Related Aspects of Intellectual
Property Rights, Including Trade in Counterfeit Goods,"
MTN.TNC/W/FA, in Draft Final Act, p. 58.
50. See "Uruguay Round Negotiating Group on Trade-Related
Intellectual Property Rights, Including Trade in
Counterfeit Goods: Submission by the United States,"
MTN.GNG/NG11/W/7, May 29, 1987; "Draft Agreement on the
Trade-Related Aspects of Intellectual Property Rights,"
MTN.GNG/NG11/W/70, May 11, 1990; "Suggestion by the United
States for Achieving the Negotiating Objective,"
MTN.GNG/NG11/W/14/rev. 1, October 17, 1988. All documents
of the Multilateral Trade Negotiations, The Uruguay Round.
51. Telephone interview with the Office of the US Trade
Representative (USTR), September 23, 1992.
52. Copies of the "Model IPR Agreement" and the IPR agreement
between the United States and Sri Lanka were provided by
the USTR.
53. Telephone interview with Carmen Suro-Bredie, Assistant
US Trade Representative for Intellectual Property and the
Environment, September 17, 1992.
54. See Wells, p. 5.
55. Interview with member of the US delegation to the
biological diversity convention negotiations, Rio de
Janeiro, June 8, 1992.
56. Richard D. Godown, President of the IBA has said that
this language would "tie the hands of negotiators: when
they sat down to make a deal there would be an enormous
slub of mandatory contract language . . . it would result
in a bum deal for food and agricultural companies." Quoted
in Usdin, 1992, p. 9. This comment appears to ignore the
key conditional phrase "where mutually agreed."
57. Congressional Record, June 17, 1992, pp. S8375‘8376.
58. Telephone interview, July 28, 1992.
59. Raghavan, Recolonization, pp. 126-127.
60. That document calls on governments to "promote,
facilitate, and finance, as appropriate, the access to
and transfer of environmentally sound technologies and
corresponding know-how . . . " One of the means agreed
upon to accomplish that objective is the purchase of
patents and licenses "on commercial terms . . . taking
into account the need to protect intellectual property
rights." UNCED Agenda 21, Chapter 34, A/CONF.151/4 (Part
IV), Paragraph 34.18 (i) and (iii), pp. 6-7.
61. Draft Final Act, Agreement on Trade-Related Aspects of
Intellectual Property Rights, Including Trade in
Counterfeit Goods, Article 66, p. 87.
62. Telephone interview with member of the US delegation to
the biological diversity convention negotiations, August
26, 1992.
63. Ibid.
64. India intended in drafting paragraph 4 to make the
private sector abide by all of the obligations assumed by
states in the previous three paragraphs. But because the
parallelism in this tortured sentence is between the first
verb phrase ("shall take . . . measures") and the last
verb phrase ("shall abide by . . . obligations"), the
paragraph actually provides that the contracting parties,
rather than the private sector must abide by the
obligations in the first three paragraphs - including the
obligation that the terms of technology transfer must
provide "adequate and effective protection" for IPR.
Interview with member of US delegation to the biodiversity
negotiations, August 26, 1992.
65. Fifth Revised Draft Convention on Biological Diversity,
UNEP/Bio.Div/N7-INC.5/2, February 20, 1992, Article 17.3,
p. 18. Developing countries were dissatisfied with the
formula that was adopted. The head of the Malaysian
delegation to the negotiations, Ambassador Ting Wen Lian,
declared at the Earth Summit that her government was still
considering whether it would sign the convention, because
it did not assert "special and concessional rights" of
developing countries to patents. "South wants a price for
biodiversity," Earth Summit Times, June 2, 1992, p. 11.
66. Briefing for US House of Representatives delegation to
the Rio Conference by members of the US delegation to the
biodiversity negotiations, June 5, 1992; Interview with
member of the US delegation to the biodiversity nego-
tiations, July 8, 1992.
67. Interview with member of US delegation to the
biodiversity negotiations, Rio de Janeiro, June 8, 1992;
appendix to letter to Curtis Bohlen from Richard Wilder,
June 2, 1992, p. 3. Wilder, who is with the law firm of
Finnegan, Henderson, Farabow, Garrett and Dunner in
Washington, DC, presents what he admits is a "worst case"
interpretation of the convention regarding intellectual
property rights.
68. For the Indian formulation, see "Third Revised Draft
Convention on Biological Diversity,"
UNEP/Bio.Div/N5-INC.3/2, October 9, 1991, Article 15.4, p.
18.
69. Ibid. Article 15.1, p. 17.
70. "United States of America proposed changes to the Fifth
Revised Draft Convention on Biological Diversity,"
UNEP/Bio.Div/N7-INC.5/CRP.3, May 11, 1992, p. 2.
71. "Third Revised Draft Convention on Biological Diversity,"
note 10. The Nordic countries had joined the United
States, Japan, the EC, and Switzerland in advancing
proposals on intellectual property rights protection in
the GATT negotiations. See Raghavan, 1990, p. 121.
72. "Report of the Intergovernmental Negotiating Committee
for a Convention on Biological Diversity on the Work of
its Seventh Negotiating Session/Fifth Session of the INC,"
UNEP/Bio.Div/N7-INC.5/4, May 27, 1992, p. 35.
73. Telephone interview, June 26, 1992.
74. Page with Davenport and Hewitt, 1992, p. 47.
75. Draft Final Act (cover page).
76. See Tucker and Saborio, 1991, pp. 5‘6.
77. "Draft Final Act," Agreement on Textiles and Clothing,
Article 8C, p. O4.
78. See Cline, 1990, p. 143.
79. Chatterjee, 1990, p. 14. For a carefully documented
estimate that the total gain to developing countries of
liberalized trade in food would be $33 billion annually,
see Anderson, 1992, Figure 8.2, p. 151.
80. Raghavan, 1990, p. 285,
81. Bale, 1992, p. 1; Raghavan, 1990, pp. 271-273; Braga,
1990, p. 84.
82. Letter to President George Bush, June 8, 1992.
83. It should be noted, however, that the international
regulatory issue was much less a concern for the
biotechnology industry than IPR protection: the IBA's
letter to the US delegation prior to the final round of
negotiation did not even refer to the issue of regulation
as a significant concern. IBA memorandum to Eleanor
Savage, US Department of State, April 30, 1992.
84. These differences were outlined by Eleanor Savage, head
of the US delegation to the biodiversity negotiations, in
conversations during UNCED Preparatory Meetings in Geneva
and New York in 1991 and 1992, in which the same issue had
to be negotiated out.
85. "Fifth Revised Draft . . . " Article 20.3, p. 20.
86. Telephone interview with Val Giddings, US Department of
Agriculture, who negotiated on the biotechnology
provisions of the convention for the US delegation, August
18, 1992.
87. Ibid.
88. Telephone interview with IBA official, July 30, 1992;
Telephone interview with member of the US delegation to
the biodiversity convention negotiations, August 17, 1992.
89. Telephone interview with IBA official, July 30, 1992.
90. GEF, 1992, p. 8.
91. See UNCED, 1992a, p. 2.
92. "Declaration Made After Adoption of Agreed Text of the
Biodiversity Convention, Nairobi, 22 May 1992. To be
Included in the Final Act."
93. "Declaration by the United Kingdom of Great Britain and
Northern Ireland at the Time of Signing the Convention on
Biological Diversity," June 12, 1992. Document provided by
the British Embassy, Washington, DC.
94. GEF, 1992 p. 7.
95. "Note to Editors" appended to UK Department of
Environment News Release no. 405, "Convention on
Biological Diversity," June 9, 1992.
96. Interview with Bohlen, August 25, 1992.
97. Reilly suggested the possibility of a protocol to the
biological diversity convention, to be negotiated prior to
the convention itself coming into force, at a meeting with
non-governmental organizations in Rio, June 10, 1992,
attended by the author. His statement about revision to
accommodate US concerns is in his "Memorandum to all EPA
Employees," in Daily Environment Reporter, July 29, 1992,
p. E3.
98. For an account of Reilly's attempted probe, see The New
York Times, June 4, 1992. The text of the revisions
proposed by Reilly, without authorization from the White
House are found in an attachment to the cable from William
K. Reilly to Clayton Yeutter, June 3, 1992 (Declassified
by Reilly on June 4 and made available to the press in
Rio).
99. Remarks by Tolba at an informal meeting with NGO's in
Washington, DC, September 21, 1992.
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Annex Chronology of Negotiations on a Biological Diversity
Convention
1987
June: UNEP Governing Council resolution
forming
an ad hoc working group to explore
the
idea of a convention on biological
diversity.
1988
November: First meeting of ad hoc working
group.
1989
May: UNEP Governing Council Resolution
initiating work to negotiate a
convention.
July: IUCN draft document presented to ad
hoc
group.
1990
February: Second meeting of ad hoc working
group.
July: Third meeting of ad hoc working
group.
August: UNEP Governing Council reaffirms
priority
of convention.
November 19-23: First Negotiating Session of the Ad
hoc
Working Group of Legal and Technical
Experts (AHWG).
1991
February 25-Mar. 6: Second Negotiating Session of AHWG.
June 24-July 3: Third Negotiating Session of
AHWG/First
Session of Intergovernmental
Negotiating
Committee for a Convention on
Biological
Diversity (INC).
September 23-Oct. 3: Fourth Negotiating Session of
AHWG/Second
Session of INC.
November 25-Dec. 4: Fifth Negotiating Session of
AHWG/Third
Session of INC.
1992
February 6-15: Sixth Negotiating Session of
AHWG/Fourth
Session of INC.
May 11-21: Seventh Negotiating Session of
AHWG/Fifth
Session of INC.
May 22: Conference for the Adoption of the
Agreed
Text of the Convention on Biological
Diversity.
1993
April 21: US announcement to sign the
Convention on
Biological Diversity.
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