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Sharing bioprospecting benefit: Fight a losing battle?
The world’s attention will be on Japan soon as representatives of governments from 193 countries will gather in Nagoya from Oct
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he world’s attention will be on Japan soon as representatives of governments from 193 countries will gather in Nagoya from Oct. 18-29. The meeting will discuss how pharmaceutical companies and rich biodiversity countries to share the profits of drugs and other useful products developed from natural resources, a process known as bioprospecting.
The idea of sharing fair benefits from bioprospecting is rooted in the 1993 United Nations Convention on Biological Diversity (CBD). The convention establishes sovereign national rights over biological resources and commits member countries to conserve and develop them for sustainability and share the benefit resulting from the use.
According to a patent specialist, Michael A. Gollin, “the basic bargaining of the CBD passage was that sovereign rights would be tempered by providing access to genetic resources in exchange for a share of benefits”.
But nearly two decades on, a fair sharing remains a tough challenge in bioprospecting. This calls the impact of this month CBD meeting in Nagoya into question. Is the Nagoya’s meeting strong enough to bring developing countries (the South) and developed countries (the North) closer together on this issue?
In fact, benefit sharing from bioprospecting remains a controversial issue heavily debated between the South and the North. The South accuses the North of pirating its biodiversity (biopiracy) and claims the recent unfair benefit sharing from bioprospecting as new colonialism.
Unlike past colonialism, this time the North is accused of exploiting rich biodiversity of the South using advanced technologies instead of guns.
For thousands of years and many generations, the Indians have used neem trees for their traditional medicine, cosmetics and agriculture. But in 1994, the US agribusiness corporation W.R. Grace patented the method on the use of the neem tree, sparking a storm of protest in India and worldwide. After a long battle, India finally revoked the patent in 2000. India also successfully overturned the patent on the use of turmeric in wound healing in 1998. But, there are still 90 patents based on neem granted worldwide that India needs to fight against.
Biopiracy has also been fiercely challenged by many countries in South America. Brazil, Peru and Bolivia have also joined India at the forefront of biopiracy debate. These countries have tried to overturn patents related to the use of their natural resources such as cinchona from Peru or ayahuasca from Brazil, but so far their efforts have not come to fruition yet. Peru even has the image of the cinchona tree on its flag, constantly reminding the Peruvians of their unrewarded contribution to one of most important breakthroughs in medical history, the antimalarial drug quinine from the cinchona tree.
The rich biodiversity in Southeast Asia is one of the mostly biopiracy targeted, but has the least heard case compared to South America or India. In Indonesia, biopiracy dates back to the early 19th century when the Dutch smuggled cinchona trees from Peru and planted them in Java. Recently, most cases are based on hearsays with only two patents granted to foreigners are known in public domain (Inside Indonesia, Sept. 29, 2010).
However, Indonesia’s decision to refuse to provide samples from avian flu victims to the World Health Organization in February 2007 and chose to collaborate with Baxter Company has stunned the world.
But it was a sign of the South’s frustration, in this case Indonesia, at unfair benefit sharing on the use of its resources. It also proved that the South indeed has a bargaining power over its biodiversity. The Australian E-Journal and Debate Online wrote “Chicken Come Home to Roost” as a response to this action.
The trouble with the CBD is that it has been ratified by 193 countries but has not been ratified by the US yet. The US refuses to ratify the CBD because it was seen as an obstacle for the implementation of intellectual property rights (IPR). These two systems are also different in nature and are impossible to emend as many countries from the south have been trying to do. The CBD recognizes natural resources and its accompanying cultural values and sees traditional technology patentable. With the IPR system, however, traditional knowledge belongs to the public domain and cannot be patented.
The CBD also does not provide a specific mechanism on benefit sharing, creating ambiguity in its worldwide application. The end result is that every country has its own benefit sharing mechanism, which turns out to be very problematic for a country such as Indonesia. According to the Indonesian Constitution, the state owns all resources in Indonesia but specific areas are under regional authority according to the 2004 Regional Administration Law. This may open up different interpretations, leading to the infringement of natural resources rights (Inside Indonesia, Sept. 2010).
Nonetheless, the CBD has also contributed to a good practice of bioprospecting in Costa Rica. This practice is always hailed as the best example of searching for drugs or other useful products from natural resources while conserving the environment. As environmentalist E.O. Wilson said, “useful products cannot be harvested from extinct species”. But many people from the South remain skeptical of the North’s willingness to share the “pie from bioprospecting” equally.
The CBD also increases global awareness of the importance of natural resources. India responded by developing its own Access Benefit Sharing Agreement (ABA) and the Biological Diversity Act 2002.
India even moved one step forward by creating electronic databases for its 230,000 formulations of traditional medicines last year. Meanwhile, Brazil is currently putting in place the strictest laws and regulations regarding the use of its biodiversity.
However, overzealous strict laws and regulations may be dangerous because they prevent research and development as well as conservation efforts in several countries. The cataloguing system is also good, but it may be counterproductive as in the case of London’s joined physician patent backed in 1618. The patent was intended to protect the formulas in the book, but the book itself ended up being pirated as pirates always have their ways.
Nearly 20 years on, the uphill battle of fair benefit sharing from bioprospecting persists, making its long and winding way through Rio de Janeiro Brazil to Nagoya Japan.
It’s time for participants of the meeting to look at the main source of the problem. They need to create the lacking specific benefit sharing mechanisms in CBD and synchronized laws and regulations with CBD in their own countries.
They also need to create conducive policies on bioprospecting at their home countries to encourage bargaining power and equal benefit sharing. Raising the awareness of stakeholders of bioprospecting impacts is also important, but trying to embed the CBD in the IPR may break our hearts.
The writer is a PhD student at the University of Queensland, Australia.
