11:46 AM Jun 30, 1997

NGOS PROTEST US INTERVENTIONS OVER TRIPS

Geneva, 30 June (TWN) -- Over 60 leading international and national non-government environment and development organizations and individuals have expressed their concern over the way the US government is interfering in national democratic processes of other nations fashioning their domestic intellectual property laws to conform to international obligations.

The signatories complain that US diplomacy of using its commercial power and a 'might-makes-right bludgeon' to influence legislative processes abroad, encouraging trade wars and "destabilising fragile economies, democracies and ecologies."

"We hope under your leadership, the US Department of State will use its influence to establish the US position in the world community, not as a power-broker for commercial interests, but as a partner in a multilateral framework collaborating for human rights and peace in the 21st century," the signatories add in a joint open letter to US Secretary of State, Mrs. Madeline Albright.

They cite in this regard the US actions and moves in Thailand, Ecuador, India, Pakistan, Argentina, Ethiopia, Panama, Paraguay and Denmark.

While many nations are presently adopting new legislation to develop their intellectual property laws in ways consistent with various international agreements to which they subscribe, it is neither the United States's responsibility nor its right to interfere with their national democratic processes for doing so, the signatories say.

"The ability of a nation to develop its laws is a sovereign and inalienable right; indeed, it is one which the United States Congress absolutely defends for itself."

In fashioning their domestic laws, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is not the only international agreement with which nations may wish to conform.

The Convention on Biological Diversity, which the U.S. has yet to ratify, stipulates that parties cooperate to ensure that intellectual property rights "are supportive of and do not run counter to" the objectives of the convention: namely, the conservation and sustainable use of biodiversity, and the equitable sharing of its benefits. This Convention also obligates the parties, subject to their national law, to "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities."

The International Undertaking on Plant Genetic Resources of the United Nations Food and Agriculture Organization (FAO) provides for "Farmers Rights." It recognizes farmers as innovators entitled to intellectual integrity and access to the germplasm and technologies they have developed collectively over many generations.

"Each of these is an international agreement in which negotiators have balanced the trade-related aspects of intellectual property rights of the WTO with the community-related aspects of humanity's intellectual heritage."

The signatories also point out that the TRIPs Agreement itself allows each WTO member much discretion in formulating its domestic law to best serve the public interest.

"It allows members to exclude from patentability 'diagnostic, therapeutic and surgical methods for the treatment of humans and animals' and allows them to exclude inventions which, if commercially exploited, would threaten 'ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment.'

"The TRIPs Agreement also gives nations the substantive discretion whether to provide for patents or for a 'sui generis' system of protection for plant and animal varieties and procedural discretion regarding 'exhaustion of rights,' permissions for 'parallel imports,' and 'other use without authorization of the Rights Holder'.

"It is legally irresponsible and morally dishonourable for the United States to utilize its political leadership and economic might toward influencing the way in which each sovereign nation and its peoples interpret these provisions and develops domestic policy and law to implement these several international agreements," the signatories say.

They refer in this connection to the letter of 21 April this year sent by the U.S. Department of State to the Royal Thai Government (RTG) regarding draft Thai legislation allowing Thai healers to register traditional medicines.

In that letter the US State Department has advised the Thai government that "Washington believes that such a registration system could constitute a possible violation of TRIPs and hamper medical research into these compounds".

"This," the signatories note, "is despite the fact that Thailand is not obliged to comply with TRIPs until at least 2000 and medical practices may be exempted. The State Department letter requests a copy of the draft legislation and official responses to 11 questions, beginning with the question: "What is the relationship of the proposal to the granting of patent protection in Thailand?" and ending with the question: "Does the RTG envision a contractual system to handle relationships between Thai healers and foreign researchers in the future?" "We the undersigned believe that the US letter constitutes an inappropriate attempt to influence Thailand's domestic initiative towards balancing the objectives of TRIPs, the CBD, and the International Undertaking. The Department of State should withdraw the letter and issue an apology for interfering in Thailand's legislative prerogatives.

"Moreover, we are concerned that the questions asked in the State Department letter imply an interest on the part of the U.S. government to facilitate the transfer of traditional Thai knowledge to US researchers, and their eventual solicitation of patents on this knowledge.

"In the first place, we do not believe any government should encourage the privatization of knowledge already in the public domain. In the second place, we believe the use of patents to commercialize and monopolize living material rests on ethically and environmentally unsustainable foundations.

"The letter also illustrates a fundamental contradiction in United States policy. On the one hand, the US has insisted at meetings of the FAO Commission on Genetic Resources for Food and Agriculture that Farmers' Rights are a matter of national policy, and need not be recognized at the international level. On the other hand, the US is interfering as Thailand takes steps to develop national law recognizing the rights of farmers and local communities."

The letter points out that recently that the US government has threatened the Ecuadorian government with the cancellation of trade preferences if Ecuador's national Congress does not ratify a bilateral agreement on intellectual property rights negotiated between the executive branches of the two countries.

According to a June 1, 1997 article in Ecuador's newspaper "El Universo," these threats affect some 400 products of export interest to the Ecuadorian economy, and the possible loss of $80 million worth of income from its exports to the US of uncanned tuna and fresh fish.

"We believe these commercial threats interfere in Ecuador's domestic democratic process, and in any case are an inappropriate tool for reaching harmony in the development of international law.

"We are well aware that the US utilizes its commercial power to achieve its own objectives quite frequently. Ecuador is not the only target of US trade sanctions aimed to influence other countries' congressional or parliamentary processes. On March 31, the Office of the United States Trade Representative (USTR) released its 1997 National Trade Estimate Report on Foreign Trade Barriers, and added Ethiopia, Panama and Paraguay as well as Ecuador to its list of countries which the USTR believes limit U.S. commercial interests.

"Earlier this month, the U.S. Ambassador to India announced that 'certain areas of research and training will be closed to cooperation' if India fails to amend its patent laws, threatening some 130 scientific projects presently supported by the US-India Fund. The US has also filed formal complaints with the WTO against India as well as Pakistan regarding their national patent laws governing pharmaceutical and agricultural chemical products. And last April, the United States unilaterally cancelled half of Argentina's trade benefits, valued at $260 million, under the General System of Preferences on grounds that Argentina's intellectual property laws did not comply with 'international standards.'

"Nor are countries of the South the only countries to be so threatened. We have learned from the WTO that on May 21, the Permanent Mission of the United States notified the Permanent Mission of Denmark and the WTO Dispute Settlement Body that 'Danish law would appear to be inconsistent with its obligations under the TRIPs Agreement' and that the U.S. was requesting consultations with the Government of Denmark 'regarding the making available of provisional measures under Danish law.'

"We the undersigned believe it is neither the right of the United States nor its responsibility to utilize its commercial power to influence legislative processes in other countries. By using a 'might makes right' bludgeon, U.S. diplomacy encourages trade wars and destabilizes fragile economies, democracies, and ecologies.

"We hope that, under your leadership, the United States Department of State will use its influence to establish the U.S. position in the world community not as a power-broker for commercial interests but as a partner in a multilateral framework collaborating for human rights and peace in the 21st century."

The initial list of signatories include the Alliance of Northern People for Environment and Development, the Asia Indigenous Women's Network, Ecoropa, European Coordination on 'No Patents on Life', Friends of the Earth (FOE-International), Genetic Resources Action International (GRAIN), People-Centered Development Forum, Pesticide Action Network North American Regional Center (PANNA), the Third World Network; the Canadian Environmental Law Association and the Rural Advancement Fund International; Accion Ecologica and Co-ordination of the Indigenous Organisations of the Amazon Basin, Ecuador; Solagral, France; the Tebtebba Foundation of the Philippines, and a number of leading national NGOs and academics from Australia, Canada, Italy, Mexico, New Zealand, the Philippines, Spain, Sweden, Switzerland, the UK and the USA and Uruguay.