The Crop Genetic Resource Rights Debate

December 10, 2001

As an ideological and policy force, globalization is driven by two contradictory tendencies. Whereas it seeks to convert the resources of nation-states into "global property" by removing them from under domestic state control, through deregulation, and bringing them under global management, it also promotes their expropriation and monopolization by private multinational corporations. In a sense, this is the main ideological stratagem of globalization, by which nation-states around the world, especially those in the less-developed regions, are persuaded to allow the liberalization and "globalization" of their resources, only to have them privatized and expropriated by international corporate forces. It is within this context of false globalization that one must locate the current international struggle for control over the world’s crop genetic resources.

Many of us who grew up in rural African societies are practically aware of the meaning and importance of crop genetic resources. Whenever you got sick, your parents would go into the bush and fetch some plants and roots to be prepared and administered to you as cure for your sickness. In many cases, such traditional plant-based medicines worked more effectively than western pharmaceutical drugs. Scientists have now confirmed that these folk crop and plant varieties do have certain genetic codes or DNAs that confer on them specific traits, such as cures for ailments and resistance to disease or pest infection. Today, an increasing number of multinational biotech corporations, based largely in industrialized countries, are financing expeditions across the developing world in search of these rare genetic resources that have some commercial value. Moreover, when they find such unusual plants and crops, they are able to identify and isolate their DNA codes, through genetic engineering techniques, on which they then claim intellectual property rights protection. Now, a growing number of non-governmental organizations and individuals around the world are calling this practice "biopiracy", because most of these genetic resources are found in the Southern Hemisphere of the developing world. While it is true that the technological expertise needed to manipulate these resources resides in the scientific laboratories of the industrialized countries, it is through several centuries of the traditional knowledge and practices of local farmers and villagers that such resources have been preserved. Therefore, if there are any intellectual property rights to be claimed in them, they should be given to the indigenous farmers who are their true discoverers and breeders.

A few examples will clarify. Local villagers in West Africa have for centuries used the thaumatin plant protein as sweetener for food. This protein, which is the sweetest substance on Earth (about one hundred thousand times sweeter than sugar), is also low-calorie, making it highly commercially valuable, as the market for low-calorie sweeteners grows in the US and other Northern countries. In 1993, a Korean pharmaceutical firm, Lucky Biotech Corporation, and the University of California received U.S. and international patents for genetically modifying the thaumatin plant sweet protein, thus awarding these organizations effective monopoly over the use of the genetically engineered protein, the biotechnology technique used in creating it, and the gene sequences of the plant itself. Meanwhile, as Jeremy Rifkin (1998) has pointed out, West African villagers, whose ancestors are the real discoverers and breeders of thaumatin, are not likely to share in the good fortune of the plant. Another example is the case of Endod, commonly known as the African soapberry plant. This perennial has been selected and cultivated for centuries in many parts of Africa, including Liberia, where its berries are used as laundry soap and shampoo. Endod is also used by rural communities in many African countries, such as Ethiopia, as intoxicant to trap and kill edible fish. As far back as 1964, the biologist Aklilu Lemma discovered that Endod was an effective medicine against schistosomiasis, a tropical disease that causes some 200,000 deaths per year in the developing world. Although Dr. Lemma’s discovery proved promising, attempts to support his research and make Endod available to African communities were repeatedly stalled during the 1970s and 80s, due to biases on the part of some individuals and organizations in the West, "who find it difficult to accept that any good science can come from our part of the world" (RAFI, 1993). In late 1990, however, the University of Toledo applied for a U.S. patent on the use of Endod to control zebra mussels in the U.S. Thus, according to the Canadian-based Rural Advancement Foundation International (RAFI), if any commercial product is developed from Endod in the future, the University of Toledo will share 50% of the royalties.

The international debate on crop genetic resource rights may be seen as revolving around three positions: the multilateral approach, the national sovereignty position, and the private corporate agenda. The multilateral approach is embodied by the FAO’s International Undertaking on Plant Genetic Resources for Food and Agriculture (IU), a treaty which has been seeking to establish a "multilateral system" into which all plant genetic resources will be pooled and managed for "benefit sharing" under IU rules. The IU treaty, with its own governing body known as the Commission on Genetic Resources for Food and Agriculture (CGRFA), was first agreed in 1981 by the member states of the FAO, classifying genetic resources as a "common heritage of humanity". Its supporters, including non-governmental organizations, as well as governments, argue that a multilateral system is better to have than the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization (WTO), which places private commercial and international trade interests over and above agriculture and local food security. They believe that such a system will protect global plant genetic resources from the intellectual property rights claims of private commercial interests.

In the late 1980s, the same governments that had adopted the IU treaty drafted the Convention on Biological Diversity (CBD). Originally intended to be a framework for conserving biological resources in national parks and protected areas, the CBD gradually assumed the political concerns of FAO’s member states, especially those from the developing world, which were dissatisfied with the IU classification of genetic resources as a "common heritage" to be managed multilaterally. Thus, when the CBD was finalized in 1992, it incorporated provisions reframing the status of genetic resources from a common heritage to "national sovereignty". The main argument of supporters of the sovereignty position was that plant genetic resources, like other types of natural resources such as iron ore, oil and tropical timber, should be managed under the regulatory authorities of the individual governments of states within which they are found. Bringing their management under a multilateral authority is a circumvention of national sovereignty. It is worth noting that the sovereignty position shares a fundamental assumption with the private corporate agenda, which is the willingness to commercialize genetic resources, nevertheless the former wants this to be done under the regulatory authority of the state.

Consequently, for the past eight years FAO member countries have been negotiating an appropriate revision of the old IU treaty to bring it into harmony with the CBD. On July 1, 2001, a new global treaty aiming to establish this harmony and "ensure food security through the conservation, exchange and sustainable use of plant genetic resources" was roughly agreed to at the FAO Conference in Rome. However, two crucial and contentious issues were left unresolved: whether and to what extent the IU should allow monopolistic intellectual property rights, particularly the rules of the WTO TRIPS agreement, to apply to genetic resources accessed through the multilateral system; and how many crops should be covered by the system. Both items, described as the "make or break" points of the IU, were the subject of the 31st Conference of the FAO that took place last month. Advocates of the multilateral system argue that if FAO member governments agree on the IU provisions banning intellectual property rights claims on genetic materials accessed through the system, this will neutralize the force of the WTO in obliging every country to privatize biodiversity. But if the IU allows for intellectual property rights, the system will be promoting biopiracy and privatization. The compromise treaty that governments finally agreed on last month in Rome contains a paragraph which, in essence, allows for the patenting of seeds and other genetic materials governed by the Treaty, as long as such genetic resources are modified in some way.

The national sovereignty position, as described above, represents a genuine concern on the part of developing country governments. Even if the multilateral system were to be able to discourage the privatization and monopolization of the world’s plant genetic resources, it is akin to a global expropriation of individual national powers and resources. On the other hand, in a world where the doctrine and policies of globalization are being vigorously pursued, and the increasing use and degradation of resources has intensified competition over them, multilateral approaches to managing such resources may be inevitable. Moreover, the national sovereignty position, depending on how "national sovereignty" is defined, may be facing a double jeopardy. By subscribing to the new multilateral framework, developing countries will surrender substantial national control over their biological resources. However, if they do not join this framework, and instead choose to deal bilaterally with individual transnational corporations and Northern governments, under WTO TRIPS rules, private corporate control over their genetic resources will also intensify, thus impinging upon their ability to independently manage these resources. Thus, either way, the national sovereignty position faces a difficult challenge.

The real challenge to the new international treaty is whether the powerful developed countries (e.g. the United States and Australia who have been adamantly opposed to any prohibition of intellectual property rights) will be able to allow a system that equitably benefits both developed and developing countries. It is unlikely that this new treaty will effectively discourage the commercialization and privatization of crop genetic resources. Already, the private corporate has substantially won over both the multilateral and national sovereignty positions in the crop genetic resource rights competition. This is evident in the increasing transnational corporate control of genetic resources through the monopolization of patents on genetically modified seeds, crucial biotechnological processes, and the gene sequences of plants themselves. A future article will demonstrate this fact.

This article is a rough summary of parts of a major research essay submitted by the author in the Humanities Doctoral Programme of Concordia University, Canada, on November 20, 2001. References include various sources from the Genetic Resources Action International (GRAIN, 2001) and the Rural Advancement Foundation International (RAFI, 1993).