Bioethics and biopiracy issues in the Pacific

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Bioethics and biopiracy issues in the Pacific

• DG409 The Moving Pacific
• P. E. Manoa

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Outline

• Part I Introduction and background
• Part II International and regional institutions
• Part III Bioethical issues recognised
• Part IV Pacific Initiatives and Frameworks for
  protection
• Part V Way ahead

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Part I Introduction

• Bioethics all ethical issues related to life.
• Biopiracy - the appropriation by foreign entities
  (including corporations, universities and
  governments) without compensatory payment.

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• Samoa has signed a landmark agreement with a
  US research group that will guarantee 20 of
  revenues received from the development of an
  anti-HIV/Aids compound called Prostratin, which
  is extracted from the bark of a Samoan tree
  called mamala (Homolanthus acuminatus). For
  centuries traditional healers in Samoa have
  ground up the stem of the plant and steeped it in
  hot water as a treatment for the yellow fever
  virus.

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• Modern developments in biotechnology and the
  continuing expansion of global trade have allowed
  society to gain greater access to, and to derive
  benefits from, the worlds biological and genetic
  diversity.

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• In the early 1990s, the US government filed
  patents on DNA cells taken from the Hagahai tribe
  in Papua New Guinea and the Solomon Islands. The
  patent application was eventually dropped, but
  cell lines derived from their unique DNA remain
  in use and for sale.
• T-cells from the Hagahai tribe in Papua New
  Guinea can be purchased today on the internet for
  216 dollars.

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"Genes are a key resource of the new world
bio-economy and our isolation and diversity makes
the Pacific Islands particularly attractive,"
writes contributor Te Tika Mataiapo - Dorice
Reid, a traditional chief from the Cook
Islands. In 2002, Cook Islanders were nearly
subject to a US experiment to transplant pig
parts into humans
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The Pacific region has long been a favourite
target of gene hunters, unethical bio-researchers
and "patent bottom trawlers" looking to profit
from its unique flora, fauna - and human beings.
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• Bioprospecting may be defined as the
  systematic search, classification, and research
  (with commercial purposes) of new sources of
  chemical compounds, genes, proteins,
  microorganisms, and other products that have
  present or potential economic value with
  commercial purposes.

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• Biopiracy and bioprospecting illegal or
  unethical bioprospecting vs legalised and ethical
  bioprospecting
• Affects rights and interests of sovereign nations
  and peoples
• Genetic resources are no longer the common
  heritage of mankind

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Part II International Regional Institutions
and Instruments
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• Relevant international and regional institutions
• United Nations CBD Secretariat WIPO FAO
• Secretariat of the Pacific Community Secretariat
  of the Pacific Regional Environment Programme

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Part II International Instruments

• The United Nations Convention on Biological
  Diversity and the International Treaty on Plant
  Genetic Resources for Food and Agriculture
  recognized the sovereign rights of countries to
  control the use of their genetic resources.
• Both agreements also stressed that the authority
  to determine access to genetic resources rests
  with national governments and is subject to
  national policies.

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• Convention on Biological Diversity
• Adopted at the United Nations Conference on
  Environment and Development, Rio, 1992
• The objectives of this Convention, to be pursued
  in accordance with its relevant provisions, are
  the conservation of biological diversity, the
  sustainable use of its components and the fair
  and equitable sharing of the benefits arising out
  of the utilization of genetic resources,
  including by appropriate access to genetic
  resources and by appropriate transfer of relevant
  technologies, taking into account all rights over
  those resources and to technologies, and by
  appropriate funding.

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• Convention on Biological Diversity
• Article 8j (j) Subject to its national
  legislation, respect, preserve and maintain
  knowledge, innovations and practices of
  indigenous and local communities embodying
  traditional lifestyles relevant for the
  conservation and sustainable use of biological
  diversity and promote their wider application
  with the approval and involvement of the holders
  of such knowledge, innovations and practices and
  encourage the equitable sharing of the benefits
  arising from the utilization of such knowledge,
  innovations and practices

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• The International Treaty on Plant Genetic
  Resources for Food and Agriculture (ITPGR) under
  the auspices of the Food and Agricultural
  Organization (FAO) is another important element
  of the international framework for access to
  genetic resources and benefit sharing.
• The objectives of the Treaty are the
  conservation and sustainable use of plant genetic
  resources for food and agriculture and the fair
  and equitable sharing of the benefits arising out
  of their use, in harmony with the Convention on
  Biological Diversity, for sustainable agriculture
  and food security.
• Sovereign rights of States over their own genetic
  resources are recognized, and it is agreed, in
  the exercise of these rights, to establish an
  open multilateral system of exchange.

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• What is WIPO?
• The World Intellectual Property Organization
  (WIPO) is a specialized agency of the United
  Nations. It is dedicated to developing a balanced
  and accessible international intellectual
  property (IP) system, which rewards creativity,
  stimulates innovation and contributes to economic
  development while safeguarding the public
  interest.
• WIPO was established by the WIPO Convention in
  1967 with a mandate from its Member States to
  promote the protection of IP throughout the world
  through cooperation among states and in
  collaboration with other international
  organizations. Its headquarters are in Geneva,
  Switzerland.
• WIPO Intergovernmental Committee on Intellectual
  Property and Genetic Resources, Traditional
  Knowledge and Folklore

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• WIPO Intergovernmental Committee on Intellectual
  Property and Genetic Resources, Traditional
  Knowledge and Folklore developing provisions for
  the enhanced protection of TK and traditional
  cultural expressions against misappropriation and
  misuse.

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Part III Recognised Bioethical issues
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• Patenting of Lifeforms
• Collection and research into human genetic
  materials
• Pacific Treaty (1995) the sanctity and
  integrity of life even in its smallest form

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• Illegal bioprospecting But is it illegal if not
  provided in law in the first place?
• Lack of awareness
• Is there a need for urgency?
• How can one keep track?

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Part IV Pacific Initiatives Framework for
Protection
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Part IV Pacific Initiatives

• Treaty for a Lifeforms Patent-Free Pacific and
  related protocols (1995)
• Model Law on Traditional Biological Knowledge,
  Innovations and Practices (2000)
• Model law for the Protection of TK and
  Expressions of Culture (2002) endorsed by the
  Regional Meeting of Ministers of Culture in 2002
• Conference declarations and resolutions

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Model Law on Traditional Biological Knowledge,
Innovations and Practices (2000)

• Defines TBKIP
• Assigns economic and moral rights to it
• Provides penalties to deter infringement of
  rights
• Encompasses knowledge and resulting products and
  practices
• Covers plants, animals and microorganisms

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Model Law on Traditional Biological Knowledge,
Innovations and Practices (2000)

• Ownership of rights vested in a trust instrument.
• Database (rather than a register) records
  information
• Identity of owner and Prior Informed Consent
• Access and Benefit Sharing Agreement

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National examples

• Environmental Management and Conservation Act no.
  12 of 2002 (Vanuatu)
• bioprospecting means any activity undertaken to
  harvest or exploit all or any of the following
• - samples of genetic resources
• - samples of any derivatives of genetic
  resources
• - the knowledge, innovations, and customary
  practices of local communities associated with
  those genetic resources
• for purposes of research, product development,
  conservation or industrial or commercial
  application, and includes investigative research
  and sampling, but does not include customary uses
  of genetic resources and derivatives.

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National examples

• Environmental Management and Conservation Act no.
  12 of 2002 (Vanuatu)
• Section 32 Bioprospecting to require permit
• A person who
• undertakes or attempts to undertake any
  biodiversity prospecting without a bioprospecting
  permit or
• exports or attempts to export any specimen
  obtained from biodiversity prospecting without a
  bioprospecting permit or
• imports or attempts to import any foreign
  organism that may have a significant adverse
  impact on Vanuatus native flora or fauna without
  a bioprospecting permit or
• contravenes any law relating to the protection of
  Vanuatus native flora and fauna
• is guilty of an offence punishable on conviction
  to a fine of not more than 1,000,000 vatu or to
  imprisonment for a period of not more than 2
  years, or both.

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National examples

• Samoa
• Intellectual property laws
• Village Fono Act

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Useful Questions

• What is the subject matter of protection?
• What is the criteria for protection?
• Who are the beneficiaries of protection?
• What is the scope of protection?
• What are the exceptions and limitations regarding
  rights?
• How will rights be managed?
• What is the term of protection?
• What are the formalities for protection?
• What are the legal proceedings for taking
  actions?
• How will rights be enforced?
• What processes can be used for dispute
  resolution?
• What is the relationship with intellectual
  property protection?
• How will international and regional protection be
  addressed?

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Part V Way ahead
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• Recognition and protection of rights and
  interests critical
• Extensive consultation, Prior Informed Consent,
  Meaningful participation
• Equitable benefit sharing arrangement
• National mechanisms essential to ensure that
  protected rights and interests may be safeguarded
  internationally.