Bioprospecting/Biopiracy and Indigenous Peoples

ISSUE: Biodiversity prospecting is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources. Bilateral bioprospecting agreements are sanctioned by the multilateral Convention on Biological Diversity. In the vast majority of cases, however, commercial bioprospecting agreements cannot be effectively monitored or enforced by source communities, countries, or by the Convention, and amount to little more than "legalized" bio-piracy.

IMPACT: A growing number of pharmaceutical corporations, biotechnology companies (and their intermediaries) are stalking the forests, fields and waters of the developing world in search of biological riches and indigenous knowledge. Northern-based institutions seek access to tropical biodiversity for the primary purpose of developing patented and profitable products. No matter how convincing the rhetoric, conservation and equity are secondary issues. Under the vast majority of current bioprospecting agreements, when indigenous peoples share information or genetic materials they effectively lose control over such resources, regardless of whether or not they are compensated.

FINANCIAL STAKES: RAFI estimates that medicinal plants and microbials from the South contribute at least $30 billion a year to the North's pharmaceutical industry.(1) It is conservatively estimated that the market for natural product research specimens (samples or extracts of biological materials) within the U.S. pharmaceutical industry alone is (US) $30-60 million per annum. Not surprisingly, biological bounty hunters are in feverish pursuit of the South's "green gold."

WHAT IS BIOPROSPECTING and How Does it Relate to Indigenous Peoples?

Biodiversity prospecting is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources. While it is true that biodiversity prospecting does not always involve the use of indigenous knowledge, it is clear that valuable chemical compounds derived from plants, animals and microorganisms are more easily identified and of greatest commercial value when collected with indigenous knowledge and/or found in territories traditionally inhabited by indigenous peoples. The following are just a few examples(2):

Between 1956 and 1976 the U.S. National Cancer Institute screened over 35,000 plants and animals for anti-cancer compounds. The program was terminated in 1981 because of its failure to identify a greater number of new anti-cancer agents. A retrospective study conducted on the project concluded that the success rate in finding valuable species could have been doubled if medicinal folk knowledge had been the only information used to target species.(3)

Scientists have found that 86 percent of the plants used by Samoan healers displayed significant biological activity when tested in the laboratory.(4)

Crude extracts of plants used by one healer in Belize, gave rise to four times as many positive results in lab tests for anti-HIV activity than did specimens collected randomly.(5)

It is generally acknowledged that about one in 10,000 chemicals derived from mass screening of plants, animals and microbes eventually results in a potentially profitable drug. By contrast, Shaman Pharmaceuticals, Inc., the U.S.-based company that collects plants by talking to indigenous healers and watching them work, claims a success rate of 50%. Shaman's formula for success: Where three different communities are found to use the same plant kind for medicinal purposes, Shaman targets the plant for further study. About half the plants collected by Shaman's researchers come up positive in screening tests, making the "filter" of indigenous knowledge 5,000 times more effective than random collection.

Today, there is greatly renewed interest in natural product screening--especially for medicinal compounds. In 1980, none of the U.S. pharmaceutical industry research budget was spent on research into higher plants. Today, it is estimated that over 200 companies and research organizations worldwide are screening plant and animal compounds for medicinal properties.

The renaissance of natural product screening and recognition of the value of indigenous knowledge is fueled, in part, by the realization that species, their genetic material, and the ecosystems of which they are a part are rapidly disappearing from the face of the earth. In the mid-1980s, pharmaceutical industry analysts warned that each medicinal plant lost in the tropical rainforests could lose drug firms possible sales of more than $200 million.(6)

With advances in molecular biology and the availability of more sophisticated diagnostic tools for screening, it is increasingly cost effective for pharmaceutical corporations and others to conduct natural product research. In high-technology laboratories, extracts from biological specimens undergo rapid and precise screening procedures that allow for the isolation of chemicals displaying a specifically targeted activity. As a result, the market for buying and selling exotic biological specimens is expanding rapidly. It is conservatively estimated that the market for natural product research specimens within the pharmaceutical industry alone is (US) $30-60 million per annum.(7)

Biodiversity prospecting is not new, of course. For decades, plant collectors from industrialized countries have ventured southward in search of valuable genetic material for agricultural plant breeding. But no money changed hands in the process, nor was recognition given to the indigenous farming communities who selected, maintained and improved traditional crop varieties. As recently as 1991, Monsanto Inc. (a U.S.-based agrochemical corporation) was recruiting company employees "who are traveling somewhere exotic and wouldn't mind digging up a few soil samples for the sake of science" to volunteer to pick-up specimens for Monsanto's agricultural screening programs. "You never know what you're going to find or where you're going to find it...Nothing's off limits," according to Monsanto spokesperson, Margann Miller-Wideman.(8)

You never know what you're going to find or where you're going to find it... Nothing's off limits.

-- Monsanto

THE CONVENTION ON BIOLOGICAL DIVERSITY: A Boost for Bilateralism and Biopiracy

The Convention on Biological Diversity entered into force in December, 1993. The Convention offers a multilateral facade for addressing conservation and sustainable use of biodiversity, but offers no multilateral mechanisms for making it happen. In reality, the Convention promotes bilateral deals (commercial contracts and other agreements for access to biodiversity) while failing to provide a strong plan of action based on broad, multi-country collaboration (especially South-South) for access to--and development of--biological diversity.

On the positive side, the Convention recognizes that states have sovereign rights over their natural resources, and that terms and conditions for access to these materials are within the domain of national legislation. The Convention also recognizes the "knowledge, innovations and practices of indigenous and local communities" and specifically "encourage[s] the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices" (Article 8(j) ).

The Convention sanctions bilateral agreements by making repeated reference to "mutually agreed terms" for access to genetic materials (Article 15.4), subject to "prior informed consent" of the State (Article 15.5). 3). The Convention's language on intellectual property rights (Article 16.2 and 16.5) is confusing, and subject to varying interpretations. One representative of the pharmaceutical/agro-chemical industry has commented that the Convention does not compromise intellectual property systems, and may even go further than GATT, in legitimizing industrial intellectual property systems.(9)

As it stands, the Biodiversity Convention offers passive endorsement of bilateral contractual agreements that will pit indigenous communities and countries against one another. While multinational corporations are free to patent bio-materials, there are no effective guidelines and conditions defined for recognizing and rewarding the contributions of indigenous peoples and other informal innovators who are responsible for nurturing, using and developing biodiversity worldwide.

BILATERAL CONTRACTS FOR BIODIVERSITY PROSPECTING--Bioprospecting Agreements

The first major bilateral contract for bioprospecting was made public in September, 1991 (prior to the Convention on Biological Diversity) when Merck & Co. (a U.S.-based pharmaceutical corporation) announced a 2-year, $1.135 million deal with the Instituto Nacional de Biodiversidad (INBio) of Costa Rica, a private, non-governmental research institute. INBio agreed to provide Merck's drug-screening programs with chemical extracts from wild plants, insects and microorganisms. In return, Merck agreed to give INBio a two-year research budget of $1.135 million, an undisclosed share of royalties on any resulting commercial products, and technical assistance and training to establish in-country capacity for drug research. INBio also agreed to contribute 10% of its up-front payment from Merck and 50% of any royalties it may eventually receive to Costa Rica's National Park Fund. Although the Merck/INBio agreement was hailed by some as a "model" agreement for bioprospecting, it ignores the rights and roles of indigenous peoples. According to Alejandro Argumedo of the Indigenous Peoples' Biodiversity Network, there is at least one indigenous reserve within the INBio collecting area. Among the para-taxonomists who have been hired by INBio to collect biological specimens are indigenous peoples.(10)

Costa Rica's rainforests are estimated to hold 5-7% of the world's remaining biodiversity. If the Merck/INBio deal were widely replicated, the South's biodiversity could all be auctioned off for the paltry sum of about $10 million per annum. Merck's sales in 1991 were $8.6 billion, while Costa Rica's GNP that year was $5.2 billion. Merck's research budget in 1991 was roughly $1 billion. Indeed, Merck has three drugs with sales in excess of $1 billion each. Given that pharmaceutical companies invest an average of $231 million on research for each new drug, the discovery charge for one single new drug arising from the deal is barely loose change. For Merck, the Costa Rica contract bought exceedingly cheap labour and access to unidentified biological treasures (and superb public relations). As if to underscore the bargain price negotiated by Merck in Costa Rica, drug company Pfizer recently paid nearly double the Merck/INBio sum to the N.Y. Botanical Garden to collect drug leads from plants in the United States..11 (While the United States may eclipse Costa Rica in geographic size, the United States is also known for its relatively meager stores of biodiversity.)

CURRENT TRENDS IN BILATERAL BIOPROSPECTING AGREEMENTS: Since the announcement of the Merck/INBio agreement, other contracts between Northern-based corporations/institutions and Southern-based research institutes/government agencies have followed. Unfortunately, there is no mechanism to monitor the number of contractual agreements that currently exist, or the countries/corporations/institutions that are involved. While it is possible to obtain some information about "high-profile" bioprospecting agreements such as the Merck/INBio agreement mentioned above, there may be hundreds of bilateral agreements that are shrouded in relative secrecy and receive no public scrutiny. It is often difficult for indigenous peoples' organizations to know precisely with whom they are negotiating, or to whom they are ultimately providing information and genetic materials."

INTERMEDIARIES: It is becoming increasingly clear that most Northern-based corporations do not bid directly for access to biodiversity, but instead work through intermediaries. Intermediaries may be private companies who are in the business of collecting and selling biological specimens, public sector institutions, non-governmental and non-profit organizations such as scientific research institutes, botanical gardens, conservation/environmental groups, or ethnobotanists employed by corporations under contract. Because of the wide range of private and public institutions involved (both for-profit and non-profit) it is often difficult for indigenous peoples organizations to know precisely with whom they are negotiating, or to whom they are ultimately providing information and genetic materials. The box entitled "Bio-Prospectors Hall of Shame or...Guess Who's Coming to Pirate Your Plants?" provides just a few outrageous examples.

U.S. GOVERNMENT-SPONSORED BIOPROSPECTING--National Cancer Institute: The U.S. government is involved in numerous bioprospecting agreements worldwide. In 1993, the U.S. government's National Institutes of Health devoted $60 million to biodiversity-related research on drugs and medical products from the natural world. In its search for natural products to treat cancer and AIDS, the National Cancer Institute has already collected approximately 50,000 samples derived from plants, microorganisms, and marine genetic diversity from 30 tropical countries. These samples are now held in NCI's Natural Products Repository, and are available to "qualified researchers" under material transfer agreements. Those receiving samples are "required to follow NCI policies with respect to fair compensation to source countries."(12)

NCI PLANT COLLECTIONS ARE CARRIED OUT BY THREE CONTRACTORS: The University of Chicago (in Southeast Asia); the Missouri Botanical Garden (in Africa); and the New York Botanical Garden (in Central and South America). The NCI has signed bioprospecting agreements with Bangladesh, Costa Rica, Ecuador, Guyana, India, the Philippines, Russia, Sarawak, Tanzania and Zimbabwe. As of 31 August 1994, agreements with four other countries were under negotiation.(13)

INTERNATIONAL COOPERATIVE BIODIVERSITY GROUP AWARDS:

In December, 1993 three agencies of the United States government (National Institutes of Health, National Science Foundation and the Agency for International Development) who collaborate under the name of the International Cooperative Biodiversity Group (ICBG), announced awards for the largest public-private biodiversity prospecting agreements in history. The ICBG's five awards for U.S.-government funded bioprospecting agreements are worth $12.5 million over 5 years. The ICBG awards involve public-private collaboration between diverse organizations, including pharmaceutical corporations, academic researchers, government representatives and environmental NGOs, in seven countries. All but one of the countries affected by the ICBG agreements are Latin American: Suriname, Costa Rica, Peru, Argentina, Chile, Mexico and Cameroon. (The ICBG initially received letters of interest from 63 parties, and chose its 5 grantees from 34 applicants.)

BIO-PROSPECTORS HALL OF SHAME...or Guess Who's Coming to Pirate Your Plants?!

PHARMACOGNETICS of Bethesda, Maryland (USA) supplies biological specimens from the tropical forests of Latin America to pharmaceutical, chemical, agricultural, and cosmetic companies. The company is partly-owned by the Pan-American Development Foundation (PADF), a private, voluntary organization which has provided technical assistance to indigenous and rural groups throughout Latin America for over 30 years. The company will use its connection with PADF to organize plant identification and establish contacts with indigenous groups.14 Will indigenous communities be fully informed that the non-profit PADF is also part-owner of a for-profit commercial business that will collect thousands of biological specimens each year, screen them for specified biological activity, and then isolate and obtain patents for the active compounds?

MAXUS PETROLEUM of Dallas, Texas is in the business of extracting not just petroleum, but also tropical plants, from Ecuador's primary tropical forest. The company is building a 120-km. road for oil exploration, and has contracted with the Missouri Botanical Garden to collect and catalogue plants it encounters along the way. Conveniently, the road traverses the Yasuni National Park and Waorani Ethnic Reserve. According to Maxus, 1200 plant species have already been gathered, 18 of which are new to the scientific world, and 200 new species in Ecuador.

KNOWLEDGE RECOVERY FOUNDATION INTERNATIONAL of New York City proposes to develop a medicinal plant extractive "library."15 The Foundation's long-term goal is to develop a well-documented, well-preserved library of plant extracts (including detailed information on local ethnomedical uses) that can be "rented" to pharmaceutical companies for screening. According to the Knowledge Recovery Foundation, entries could be screened for a nominal fee of $25 to $50 per extract, and the Foundation will guarantee the re-collection of any sample which the company wants to investigate in more detail. The Foundation proudly asserts that, "what the pharmaceutical companies are getting when they rent the extracts to screen is intellectual property, not material property." Companies will be required to sign an agreement that, if a drug should be developed based on one of the collections furnished from the library, they will return a small royalty (0.1 to 0.2%) to the indigenous peoples of the country where the collection was made.

Floating Bio-Pirates: The Knowledge Recovery Foundation Intl. also proposes to purchase a river-going vessel with a "mobile collection" laboratory. As the Foundation puts it, "This is preferable from a logistical point of view, in that it would enable collections to be made from any part of the Amazon that was accessible by river, and would not restrict us to working within a single extractive reserve."

THE CARNIVORE PRESERVATION TRUST is a small, non-profit organization based in the USA that "rescues" endangered wild animals from the tropics and puts them in captive breeding programmes. This wildlife conservation organization makes extra money on the side by collecting plant specimens for Glaxo Pharmaceutical in Laotian forests. According to the Bangkok Post, the Trust has made a deal with Glaxo to collect 100 plant samples for about (US) $65 each--but the project could expand to 1,000-1,500 samples per year.(16)

SHAMAN PHARMACEUTICAL INC., the U.S.-based company that collects plants by talking to indigenous healers and watching them work, currently holds patents on two drugs in chemical trials. According to Shaman, both drugs are derived from "a weed" that "grows abundantly" in at least seven Central and South American countries.17 The question for Shaman is: How can a plant employed by indigenous peoples for medicinal purposes be called a "weed"? For Shaman, it's all in the eyes of the patent holder.

With the exception of Costa Rica, all of the ICBG awards involve indigenous peoples and indigenous knowledge in the source countries, including (but not limited to): Surinamese "forest people" (indigenous community not specified); Aguaruna and Huambisa of the northeastern Andes; indigenous peoples of Oban hills in southeastern Nigeria and the Korup forest of Cameroon (indigenous community not specified); indigenous peoples inhabiting dryland areas of Mexico, Chile and Argentina (indigenous groups not specified).

The pharmaceutical corporations that will receive biological extracts from source countries under the ICBG awards include: Bristol-Myers Squibb; American Cyanamid; and Monsanto (Searle).

According to ICBG, the goals of the biodiversity grant programme are: 1) drug discovery; 2) sustainable economic activity; 3) biodiversity conservation. The ICBG claims that it will accomplish these goals by linking developing country organizations and indigenous peoples with U.S. academic and industry "partners."(18)

SHARING OF BENEFITS

According to the ICBG, intellectual property agreements have been negotiated among participating institutions so that discoveries are equitably shared and accrue to local communities and indigenous peoples involved in the discovery of the natural product. Although "benefit sharing agreements" are frequently mentioned, the specific terms of benefit sharing are strictly confidential.19 While the rhetoric is more than a little convincing, the reality is that indigenous communities can expect to gain very little and give up a great deal. By and large, the terms and conditions under which indigenous peoples might benefit financially are controlled by Northern corporations that are free to claim intellectual property on indigenous knowledge and biodiversity. Indigenous communities will find these same intellectual property systems culturally and ethically alien, as well as politically and economically inaccessible.

Pharmaceutical corporations participating in the ICBG programmes have agreed to profit sharing through "donation" of a percentage of royalties from the sales of products developed through the ICBG program, and inclusion of indigenous or local people as inventors on patents.20 Sounds good? For indigenous peoples, the dream of windfall profits is illusory.

Consider the royalty payment scheme negotiated by G.D. Searle and Co. (a subsidiary of Monsanto) and Washington University (St. Louis, Missouri, USA) for collection of Peruvian medicinal plant extracts (see box next page) under the ICBG agreement. RAFI received a copy of the confidential agreement from an anonymous source.

The royalty sharing agreement (see box) is a corporate patent lawyer's dream: It is riddled with loopholes, legal and technical jargon. Enforcement rests entirely with U.S.-based institutions pursuant to United States government laws. For example, the license option agreement states that, "in the event that the biological activity of an active agent was in the public domain or was known or otherwise available to Searle, as evidenced by Searle's written records, prior to Searle's discovery of the biological activity of the active agent in a Plant Extract," Searle is under no obligation to pay any fee, royalty or other compensation (but Searle retains the right to make, use or sell worldwide the active agent or any derivative)!" When all is said and done, if Searle determines that a valuable extract from Peru was "known or otherwise available to Searle" the company has no obligation to compensate the source country or community. But nothing prevents Searle from commercializing the valuable genetic material.

Bioprospecting contracts often promise "up-front" monetary payments to benefit source countries. In the case of the ICBG agreement mentioned above, Searle (Monsanto) agrees to pay $15,000 annually to Washington University for four years. Washington University "shall utilize these funds for the benefit of local inhabitants of the Collection Area as compensation for the collection and use of plant material." (Note: Monsanto's after-tax profits amounted to $494,000,000 in 1993.) Under these conditions, no direct monetary payment is guaranteed to indigenous peoples, and the distribution of funds is left up to the discretion of a Northern -based institution.

LET'S MAKE A DEAL:

A Closer Look at the Royalty Payment Agreement Negotiated by Monsanto Corporation and Washington University ICBG Bioprospecting Agreement for Collection of Peruvian Medicinal Plants(21)

According to the proposed license option agreement, royalty payments are based on a sliding scale, ranging from 1% to 0.2% of net sales of a licensed product. Searle (Monsanto) would pay the highest royalty fee (1%) only if the licensed product: 1) incorporates a Plant Extract, isolated or synthetic natural product or analog or isomer thereof present in such Plant Extract, and 2) is sold for the same use as the historical use by the Indigenous People of the plant from which the Plant Extract was obtained. Up to one-half of that royalty payment must first be used to reimburse individual ICBG member institutions for "any reasonable direct costs for research, development and invention management." Washington University may then equally distribute (25% to each group) the remainder of each royalty payment (after costs) between 4 groups. One of those groups is designated as "Indigenous People or Community, or other contributor(s) in and beyond the Collection Area from whom the original information was obtained, which leads to any patents which cover the Licensed Product."

TRANSFER SOURCING

In surveying close to one thousand examples of uses for 150 medicinal plant species, RAFI and the Indigenous Peoples' Biodiversity Network discovered that a substantial majority of the species used medicinally by one indigenous community are also used, often for the same purpose, by another community and, for 35% of the plants, in at least one other country.(22) Consider Anthurium tessmannii, used as a contraceptive in Colombia by three different indigenous nations. Whom among them should get the contract? The roots of Anthurium uleanum are used for headaches by two Panamanian communities. Dipteryx odorata is used by one indigenous community in Haiti and by another in Guyana/Brazil.

The fact that the same medicinal compound may be used in various indigenous communities (either for the same or different medicinal uses) enables bio-pirates to claim that they acquired their biomaterials from whatever country and community they choose--under terms and conditions most favorable to the bio-pirates.

When the time comes to commercialize a new plant-based pharmaceutical, it will be entirely up to corporate goodwill whether a company decides to acknowledge or compensate an indigenous community's contribution. In either case, indigenous communities will have no means of enforcing or controlling what benefits, if any, accrue to them.

In the section below, RAFI summarizes some of the issues that indigenous communities and others may wish to consider in reviewing the pros and cons of bilateral bioprospecting agreements.

COMPENSATION VS. CONTROL AND PARTICIPATION

Since the Convention on Biological Diversity entered into force, the principle of national sovereignty over genetic resources is recognized. In addition, virtually all high-profile contracts for biodiversity prospecting make reference to "equitable sharing of benefits"--thus tacitly recognizing the role of various groups, including indigenous and other rural people. The issue is no longer one of compensation, however, but rather the terms and conditions under which compensation will be made, and which groups have a right to participate in decisions which directly affect them.

Who will negotiate on behalf of indigenous peoples? Who decides? In the case of the ICBG program in Suriname, for example, a U.S.-based environmental NGO directs the "Shaman Apprentice Program" that is supposed to benefit local indigenous groups. Who determined the need for the program, and what local groups are involved? The same NGO established the indigenous peoples fund that receives contributions and payments from the pharmaceutical corporation.

While some developing country governments may respect the rights of indigenous peoples organizations, there is a long history of indifference and, in some cases, hostility between national governments and indigenous communities. The resources of indigenous peoples have long been a target of state governments and multinational corporations.

There is an obvious imbalance of legal expertise and financial power between multinational corporations and developing country governments and indigenous peoples. In the event that there is a disagreement 10 years from now regarding the country/community of origin of a plant species, or whether or not a patented product results from a natural plant extract or a synthetic version, or from which community it originated, who will decide? How will transnational pharmaceutical corporations be held accountable? If indigenous peoples organizations do not currently have the right to actively participate in negotiating the terms and conditions of bilateral contracts, how are they to know if the contracts will be honored 15 or 20 years from now?

RESPECT FOR INDIGENOUS KNOWLEDGE OR COMMODIFICATION OF THE SACRED?

Northern-based institutions seek access to tropical biodiversity for the primary purpose of developing profitable products. No matter how convincing the rhetoric, conservation and equity are secondary issues. Once indigenous peoples share information or genetic material they effectively lose control over those resources, regardless of whether or not they are compensated. If genetic material derived from plants, animals or microorganisms is eventually patented, access to this material can be legally restricted by monopoly patents. No matter what the circumstances, indigenous communities must have the right to say "no" to bio-pirates or legitimate bio-prospectors."Some people believe that current levels of technology will allow Northern-based institutions to undermine the importance of traditional medicine and respect for indigenous knowledge.(23) This may ultimately increase medical costs and create new dependencies on multinational drug companies for up to 80% of the population in developing nations who currently rely upon traditional medicine for their primary health care needs.

As chemicals derived from natural sources are identified and isolated, corporations may be able to take over or destroy markets for some natural, medicinal tropical products.24 One U.S.-based company , Phytera, Inc., advertises that it can provide "abundant quantities of a compound" based on a small tissue from a plant's seed, leaves, or roots.(25)

OPPORTUNITY FOR TRANSFER OF TECHNOLOGY OR EXPLOITATION OF CHEAP LABOR?

Some biodiversity contracts claim to ensure that access to biological materials generates long-term as well as immediate benefits for source countries and communities. Under terms of the Suriname ICBG agreement, for instance, laboratory equipment was donated so that the Surinamese could develop technical capacity to prepare plant extracts, that are later shipped to U.S.-based laboratories for further analysis. Technicians are also trained to prepare plant extracts and collect biological specimens. As part of the Merck/INBio agreement in Costa Rica, about 60 collectors (among them farmers, fishermen, and students) have already collected 1.3 million specimens of insects and 55,000 specimens of plants.26 The National Cancer Institute also promotes the concept of technology transfer by inviting (under certain conditions) a senior technician or scientist from the source country to participate in drug discovery activities in NCI laboratories in the United States for up to one year.

Despite the appeal of technology transfer and training offered by some bioprospecting agreements, however, most Third World nations will continue in their historic role as suppliers/exporters of raw materials for the accumulation of wealth in industrialized nations.(27) For example, while preparation of plant extracts may provide jobs and technical expertise in source countries, it is also more efficient and cost-effective for these extracts to be prepared close to the areas where they are collected. Most plants begin to deteriorate within 24-hours after collection, and initial extraction procedures can be done more cheaply where labor costs are low. The most sophisticated analysis of plant extracts will continue to be done in high-technology laboratories in the North, utilizing expensive, proprietary equipment and procedures.

BILATERAL VS. MULTILATERAL

The emphasis on bilateral agreements between North and South may undermine future negotiations to establish stronger multilateral approaches for supporting conservation and use of biological diversity. Industrialized nations will be less likely to contribute to multilateral programmes (such as the establishment of a United Nations fund to support global conservation of biodiversity) if their transnational corporations already have access to the resources they want through bilateral contracts.(28)

Bilateral contracts may also endanger the free flow of genetic resources and information that is so vital to all nations of the world for development, health and food security. Representatives from African nations who met at a African Ministerial Conference on the Environment in Nairobi, October 24-26, 1994, proposed a temporary ban on access to African biological resources until there are effective mechanisms in place to ensure fair and equitable sharing of benefits through the Convention on Biological Diversity.29 This example illustrates how information and genetic resources will be restricted in the absence of strong multilateral mechanisms. Under this scenario, everyone loses. No single nation is self-sufficient with respect to genetic resources. Even the most abundantly endowed countries look beyond their own borders for at least half of the germplasm required for their staple foods, for example.

Many nations in the tropical world suffer under a crushing burden of external debt. Desperate for foreign exchange, some countries may be lured by the promise of monetary gain, and could even enter into "bidding wars" with other tropical countries, selling off their biological resources for a pittance. This scenario also undermines opportunities for regional cooperation (South-South) to benefit from free exchange of genetic resources.

CONCLUSION: Unfinished Business for COPs

In preparation for the First Conference of Parties (COPs) meeting to the Convention on Biological Diversity in the Bahamas (Nov-Dec. 1994), RAFI and the Indigenous Peoples' Biodiversity Network outlined key principles relating to biodiversity, indigenous peoples and intellectual property rights that must be incorporated as protocols to the Convention. These issues are now scheduled for debate in 1995-1996. Governments meeting in the Bahamas decided that the issues of access to genetic resources and intellectual property rights will be debated at the second COPs meeting in Geneva, November 1995. The topic of indigenous knowledge is slated for COPs in 1996.

There are already proposals coming forward for the development of a special protocol to the Convention to cover agricultural biodiversity. Such a protocol should be strongly supported, and must incorporate the following principles:

* Rather than sanction bilateral, beggar-thy-neighbor, barter and bickering, the Biodiversity Convention must become the multilateral framework for South-South collaboration and South-North negotiation over access to--and development of--germplasm. The benefits to the South in general, and to indigenous communities in particular, should be great. But the economic returns will have to come through South-South cooperation. The solution for governments of the South and indigenous/farming communities is not to adopt industrial intellectual property regimes but to strengthen the community innovation capacity--the collective integrity--of indigenous communities.

* Intellectual Integrity: The intellectual integrity of indigenous and other rural peoples must be confirmed within the Biodiversity Convention. This includes the right of indigenous peoples, collectively, to benefit from their traditions and genius, and to be compensated for their ongoing role in conserving and creating useful biomaterials.

* PIC and NIC: Intellectual integrity also means the right of indigenous communities to say "no" to bio-pirates, or to legitimate bio-prospectors. While it is proper and necessary to upgrade international accords related to "prior informed consent" (PIC) for the collection of biomaterials and indigenous knowledge, it is urgent that the Convention also acknowledge the right of nations and communities not to consent. Indeed, the assumption should be that communities have NO INTENTION OF CONSENTING (NIC).

* Moratorium: In the absence of a convincing global ethic or clear intention on the part of the international community, indigenous communities and national governments have every right and reason to declare a moratorium on further collecting and new agreements. This is both unfortunate and unavoidable. Once equitable institutional and financial mechanisms are operational and supported by a strong multilateral umbrella, the measured flow of germplasm could resume (within the context of PIC·NIC).

* No Patenting: There is no reason, at any time, to permit the patenting of living products or processes. There is even less reason for the South to allow intellectual property over biomaterials when their own medicinal plants and indigenous knowledge lies unprotected and pirated by corporations. Current intellectual property systems do not, and will not, protect the interests of informal community innovators.

* Participation: The institutional mechanisms established by the Convention must recognize the minority contribution of the donors of funds, and the majority contributions of the donors of germplasm. It would be unacceptable for the North to argue, or for the South to accept, that financial support for conservation and sustainable use of biodiversity and its attendant decision-making are a foreign aid activity. and, therefore, that some voting structure other than one country--one vote is appropriate.

* Indigenous Peoples: International and regional indigenous peoples' organizations must receive financial support to ensure their full and effective participation in all decision-making fora that affect the conservation and use of bio-materials and indigenous knowledge. Political, scientific, technical and administrative organs of the Convention must guarantee the effective membership of indigenous peoples' organizations at all times. Funds allocated at all levels must ensure that substantial financial resources are made directly to the indigenous communities involved in projects, and not through intermediaries.

For further information:

In September, 1994 the United Nations Development Programme published an independent study by RAFI entitled, "Conserving Indigenous Knowledge: Integrating Two Systems of Innovation." The document is available in Spanish and English. To receive a free copy, write:

UNDP Bureau for Policy and Programme Support

One United Nations Plaza

New York, NY 10017

RAFI has compiled a list of companies/institutions/intermediaries who are active in biopropsecting/biopiracy in the South. The 12-page table is free to NGOs in the South, and available for $5.00 to others upon request. Write: RAFI-USA, P.O. Box 655, Pittsboro, NC 27312 USA.

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(1) See RAFI's independent study published by the United Nations Development Programme, "Conserving Indigenous Knowledge: Integrating Two Systems of Innovation," UNDP, New York, September, 1994.

(2) It should be noted that these examples may actually under-estimate the actual "success rate" of specimens collected using indigenous knowledge. This is because specimens collected by scientists/bioprospectors are often taken "out of context,: they do not always take into account the traditional uses (methods of preparing or combining biomaterials), or might not be collected at the appropriate time or season.

(3) Congressional Research Service Report for Congress, "Biotechnology, Indigenous Peoples, and Intellectual Property Rights," April 16, 1993, p. 11.

(4) Cox, P.A. and Balick, M.J., "The Ethnobotanical Approach to Drug Discovery," Scientific American, June, 1994, p. 84.

(5) Ibid.

(6) "Medicinal Plants Lost?" Scrip-World Pharmaceutical News, October 1, 1986, p. 22.

(7) Pharmacognetics, Executive Summary, letter and background information on the company was provided to RAFI via facsimile from Neil A. Belson, 29 July 1994.

(8) Heine, Kathy, 1991, "Treasure in the Jungle," Monsanto Magazine, April, No. 1, p. 22.

(9) Duesing, J. 1992. "The Convention on Biological Diversity--Its Impact on Biotechnology Research." Agro-Food Industry Hi-Tech. 3, p. 19-23.

(10) Personal communication with Alejandro Argumedo, December, 1994. The Indigenous Peoples Biodiversity Network is an association of indigenous peoples in all regions of the world who have expressed a common interest in nurturing and developing biological diversity at the eco-system, species and genetic levels for their own benefit, and for that of humankind. IPBN is active in indigenous knowledge and intellectual property issues, and strongly promotes the protection of indigenous peoples' cultural integrity.

(11) According to Industrial Bioprocessing, October, 1993, Pfizer and the NY Botanical Garden entered into a $2 million, 3-year research collaboration to identify possible drug leads.

(12) Grifo, Francesca T., "Chemical Bioprospecting An Overview of the International Cooperative Biodiversity Groups Program." In Press. Emerging Connections: Biodiversity, Biotechnology and Sustainable Development in Health and Agriculture. Proceedings of Pan American Health Organization Conference, San Jose, Costa Rica, 1994. Dr. Julie Feinsilver, editor.

(13) Letter from Kate Duffy Mazan, Technology Development Specialist, NIH, to Hope Shand, dated August 31, 1994.

(14) Pharmacognetics, "Executive Summary," Provided by Neil A. Belson, President, July, 1994.

(15) RAFI received a copy of the Knowledge Recovery Foundation International's proposals (dated 1994 ) from an anonymous source.

(16) SEARICE, an NGO based in the Philippines, alerted RAFI to the bioprospecting activities of Carnivore Preservation Trust. The information appeared in The Bangkok Post, "Preserving Laos's Rare Wildlife."

(17) Freeman, Karen. 1994. Shaman Pharmaceuticals Follows an "Eco" Approach to New Drug Development," Genetic Engineering News, May 15, 1994, p. 14-15.

(18) Grifo, op cit., p. 4.

(19) RAFI filed a Freedom of Information Act request to the U.S. govt. requesting these confidential "benefit sharing agreements." We have been notified that the materials will be sent to RAFI but that "trade secrets and commercial or financial information" will be exempted. Letter to RAFI from Frances Anderson, , U.S. Dept. of Health & Human Services, dated November 25, 1994, FOIA Case 17609.

(20) Grifo, op. cit., p. 9.

(2) 1"License Option Agreement between G.D. Searle & Co. (licensee) and Washington University (Licensor) for Peruvian Plant Extract Collection" under the International Cooperative Biodiversity Group Agreement. RAFI obtained this document from an anonymous source.

(22) For more detailed information, see RAFI Occasional Paper prepared by RAFI and the Indigenous People's Biodiversity Network, "COPs...and Robbers: Transfer Sourcing and Indigenous Knowledge and Pirating Medicinal Plants, November, 1994.

(23) For ideas used in this analysis, RAFI acknowledges the contribution of Jose Souza Silva, and his paper: Silva, Jose de Souza, "From Medicinal Plants to Natural Pharmaceuticals: The Commodification of Nature," A Paper presented at the Pan American Health Organization--InterAmerican Institute for Cooperation in Agriculture, Symposium on Biodiversity, Biotechnology, and Sustainable Development, April 12-14, 1994, San Jose, Costa Rica.

(24) Silva, Jose Souza, op cit., p. 21.

(25) Industrial Bioprocessing, April, 1994, p. 6.

(26) Yoon, Carol Kaesuk, "Drugs from Bugs," Garbage, Summer, 1994, p. 22-29.

(27) Silva, Jose Souza, op cit., p. 20.

(28) Silva, Jose Souza, op cit., p. 19.

(29) "African Common Perspectives & Position on the Convention on Biological Diversity," October 24-26, 1994, African Ministerial Conference on the Environment, Nairobi.