Latin America Data Base
PUBLICATION: Latin America Press
DATE: 15 August 2006
URL: http://tinyurl.com/n66dn
Latin America Data Base - 15 Aug 2006

Under CAFTA, indigenous heritage becomes intellectual property for the
United States.

Indigenous communities and environmentalists call it biopiracy;
international pharmaceutical companies and academic researchers call it
bioprospecting. Whatever one chooses to call it, the Free Trade
Agreement between the United States and Central America and the
Dominican Republic (CAFTA) has opened the door to foreign ownership of
the right to exploit the region's abundant and diverse tropical flora.

Under the intellectual-property provisions of CAFTA, the US has forced
legislation in member countries that potentially legalizes patenting the
biological resources of the region to the benefit of pharmaceutical and
agroindustrial companies.

These institutions can now seek plants with properties previously
unknown to them, and then legally claim ownership of the processes to
which they are put. These rights completely ignore the prior use and
even dependence of these plants by local and indigenous communities,
which may have been using them for centuries and consider them part of
their heritage.

These researchers and companies arrogate the biodiversity of
underdeveloped countries to themselves, as well as the knowledge of its
use, a trend that has come to be called biopiracy. It goes on under a
virtual blackout by the media and is publicized almost exclusively only
by some scientists and environmental organizations.

This arrangement puts those vulnerable to dispossession of their
ancestral knowledge at a distinct disadvantage when it comes to
protecting their rights. The director of the Technical Biodiversity
Office of the National Council of Protected Areas in Guatemala, Fernando
García Barrios, explained, "The governments of Central America do not
create the administrative and legal mechanisms for their genetic
resources and associated traditional knowledge."

What is needed, he says, is a "common, coordinated regional regimen that
supports regional and national initiatives" on questions of intellectual
property and access to these resources and knowledge bases.

In Guatemala, there is no clear codification of environmental crime,
such as patenting these resources without consulting the affected local

Lawmakers make little progress

Panama passed a Law of Protection of the Spiritual and Traditional
Medicine Knowledge in 2002, but even there, said Kuna biologist Heraclio
Herrera, the law has significant loopholes and does not provide rules
against biopiracy. Panama's General Environmental Law requires previous
consent of indigenous communities for bioprospecting, but Hererra said,
"the investigators have avoided the consultative process by going
directly to a person in the community possessing knowledge of
traditional medicine and buying information."

The idea behind this market-driven approach to conservation is that, if
only these people were aware of the economic value of the environment
and were given jobs exploiting that value, they would take better care
of a goose that lays golden eggs.

Nicaragua has the Law of Environmental Crime that defines extraction of
resources as a crime, which went into effect in June.

Julio Sánchez, coordinator of the Humboldt Center's Biodiversity
Program, said that this and other laws regulating access to these
resources could challenge the intellectual-property clauses of CAFTA,
"preventing the potential effects of CAFTA."

But this remains uncertain at best. Under the terms of the pact, the US
can decertify any CAFTA member that attempts to legislate away the
odious aspects of the agreement. This is a one-way street as CAFTA can
pre-empt any Central American national legislation.

Costa Rica has not yet ratified CAFTA. Newly inaugurated President Óscar
Arias is committed to ratification, but National University of Costa
Rica professor Silvia Rodríuez warned, "Upon ratifying the treaty, the
communities of Costa Rica will perhaps soon find out that the statutes
of the law of biodiversity are condemned to become 'a restriction of
market access.'"

Costa Rica has already given away much of its botanical patrimony. In
1991, the pharmaceutical company Merck contracted with the National
Biodiversity Institute. For US$1.1 million the company bought the rights
to some 500,000 species and microorganisms in the country's national
parks. The contract, which has been renewed three times, gives Merck
patent rights to any medicine or product developed from any substance

The meaning behind the conflict

This situation clearly highlights issues of sovereignty and, for the
indigenous communities, stacks the cards against indigenous ideas that
diverge from property relations as understood by the dominant cultures.
But ethnobiologists recognize that there is more at stake and that there
is a clear correlation between biodiversity and ethnic and cultural

Italian anthropologist Luisa Maffi studied the extinction of indigenous
languages and said that ethnic diversity is threatened by the same
global forces that attack biodiversity.

Sporadic attempts to defend against this encroachment had some limited
success in the region before CAFTA. In 2003, a group of professors and
students of the agronomy department at the University of San Carlos in
Guatemala rejected a relationship with the University of Chicago
somewhat like the Panama arrangement because it lacked provisions for
indigenous consultation on plans to go bioprospecting in their localities.

"The project was rejected because the university wanted the right of
intellectual property and we would have had to pay for the information,"
said University of San Carlos agronomist Walter García.

But now, said García, some 15 professors are linked to transnationals,
including Monsanto, Syngenta, and Cristiani Burkard, seeking to start
bioprospecting projects in Guatemala.

Local communities in Guatemala have been burned by these deals already.

A plant known in Quiche as cardo santo has been patented for cancer
treatment. Elsewhere in the country, natural medicines have been
appropriated for tuberculosis and for malaria.

In the Merck deal in Costa Rica, the regions where the company has
patent rights to everything alive is also home to eight indigenous
cultures whose people were never consulted, nor were they party to the
negotiations, nor considered as beneficiaries.

But several indigenous families were displaced from project areas.



"¿Por qué deben ser consultados los pueblos indígenas en relacion con el
Tratado de Libre Comercio Estados Unidos-Centro América-República
Dominicana (TLC)?", San José, Costa Rica, 23 de agosto de 2006.

GRAIN in collaboration with Dr Silvia Rodríguez Cervantes, "FTAs:
Trading away traditional knowledge", GRAIN briefing, March 2006.
Version en español: http://www.grain.org/briefings/?id=198

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