Latin America Data Base
| 15 Aug 2006
FTA PAVES WAY FOR
CAFTA, indigenous heritage becomes
intellectual property for the United States
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
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
In Guatemala, there is no clear codification of environmental crime,
such as patenting these resources without consulting the affected
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 discovered.
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
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
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.