PUKUJ
BIOPIRACY IN CHIAPAS
(Part 3)
BIOTECHNOLOGY PROJECT ICBG-MAYA
-CASE STUDY-

ICBG CREATES ITS OWN COUNTERPART: PROMAYA

Now then, this project could not remain hidden from the eyes of a world concerned about biodiversity. It is taking place in a historical context that demands an ethical re-evaluation regarding the use of natural resources at an international level. The United States knows this well, since some agreements in this area have been made without it being able to prevent them; although it abstains from signing them. An example of this is the Biological Biodiversity Convention of June 5, 1992 signed in Rio de Janeiro, Brazil. This has been one of the most well-worn agreements during the ICBG-Maya project because it says that the contracting parties must be in mutual agreement in the planning and equal distribution of the benefits derived from biotechnology. The fundamental problem is that the indigenous people do not consider it to be ‘mutual’. The Convention entered into force on December 29, 1993, 90 days after the first thirty countries ratified it, according to what was decided in Brazil. In actuality, 150 countries have signed it. (CONSEJO de la Tierra, “Dialogue on the Biological Biodiversity Convention”, art. 1.8j, 15s, 19, pp. 34, 37, 39ss.).

ICBG considered the agreement in its own way in order to plan the distribution of profits that will result from the commercialization; indigenous participants were taken into account, but not on the basis of mutuality. It would promote the creation of its own counterpart: a civil association for the farmers that they named PROMAYA: “Protection of the Intellectual Property Rights of the Mayas”. This organization would receive the royalties for intellectual property rights to invest in economic development in the region through technical and legal assistance, promoting the production of plants, botanical gardens, cooperatives, internal markets, and scholarships for distinguished students.

PROMAYA would be composed of indigenous people recognized in their communities and by other members with technical and moral qualities belonging to distinct social organizations. In addition, ICBG would organize a Consultation Council for PROMAYA composed of academic directors. They imagined possible invitees like: Dr. Arturo Gómez-Pompa, director of the Instituto Nacional de Recursos Biológicos (National Institute of Biological Resources); Dr. Victor Toledo, director of the Centro de Ecología (Ecology Center) in Morelia, Michoacán; Dr. José Sarukhan, rector of UNAM; Dr. Xavier Lozoya, director of Investigaciones de Plantas Medicinales  (Research in Medicinal Plants) at IMSS; and, with pretension, bishop Samuel Ruiz (Cfr. ICBG-EU, loc. cit. pp. 42s.) And, “responsibility for assuring the protection of intellectual property of indigenous people, for watching over the management of resources of PROMAYA, including the appointment of audits, will be assigned to Dr. Pablo Farías, general director of ECOSUR, as the coordinator in Mexico, and representative of Mexican interests in legal matters.” All of this is part of program 3. In this way, ICBG designed, from the United States, a project for themselves, with their own objectives and procedures, naming the director and planning the distribution of profits without the participation of the Mexican government (much less ECOSUR or the indigenous people).

THE INTELLECTUAL PROPERTY CONVENTION OF ICBG-MAYA

This is how things are, everything was already previewed and planned. It only lacked the difficult point of intellectual property and the distribution of profits between the three parties of this project. Thus the three parties of ICBG-Maya prepared a convention on this matter, which they called  “Convention for the Protection of Intellectual Property Rights and Distribution of Benefits of ICBG-Maya”, signed on May 28, 1999. This convention is nothing other than a clumsy adaptation of various paragraphs from the original project in English that we have been describing. It consists of 21 clauses distributed in 5 or 6 pages and can be summarized in the following points:

a)      DECLARATIONS: The Research Foundation of the University of Georgia is owner of the intellectual property produced by the employees of this university (signing this convention as their representative). The three parties to the convention, the three specific objectives, and the three operating programs are set out.

b)      GENERAL PRINCIPLES: Royalties as compensation for indigenous people are recognized. Royalties can be delayed many years, so, in the meantime, it will promote local development projects (it does not say with what money). It foresees other conventions with Mexican authorities and indigenous communities to determine the procedures for collection, permits, and patent mechanisms.

c)      ACCESS TO GENETIC RESOURCES: The Biological Biodiversity Convention from Brazil (1992) will be observed. The purchase of material will be negotiated; and the Altos (Highlands) of Chiapas will be the area of priority, but they can look for other regions that meet the quantity and quality required by ICBG-Maya.

d)      INTELLECTUAL PROPERTY: Mexican laws and national sovereignty will govern over everything. There will be a special convention for each transfer of materials. A civil association called PROMAYA will be formed to negotiate the royalties and promote regional development. ICBG-Maya and PROMAYA will negotiate intellectual property for the inventions. There will be equal distribution to the indigenous communities for the commercialization in the form of royalties from the intellectual property right: 25% for each party of ICBG-Maya and 25% for PROMAYA. The royalties can vary according to whether the products are derived from indirect preparation processes. Royalties for indigenous communities will be kept in a fiduciary fund (conditional and on credit) by ICBG-Maya which will determine its use (the convention fails to state that initially there will be nearly 300 000 pesos in the fund, for works on cognitive and linguistic anthropology; in other words, it is for  accessing indigenous knowledge, not for economic development, (Cfr. BERLIN, loc. cit.). The parties of ICBG-Maya can patent separately. The income from regional commerce developed by PROMAYA will be destined for the fiduciary fund of ICBG-Maya.

e)      INFORMATION AND RESULTS OF THE PROJECT: Information about the results of the project will be given under the Confidentiality Agreement between ICBG-Maya and PROMAYA. The benefits found in the species they will utilize for the communities. The University of Georgia will keep all of the information that results to give to the government of the United States.

f)        LENGTH OF THE CONVENTION: This convention terminates only when the three parties of ICBG-Maya agree.           

COMPITCH INTERVENES

The Consejo Estatel de Organizaciones de Médicos y Parteras Indígenas Tradicionales de Chiapas (State Council of Organizations of Traditional Indigenous Doctors and Midwives of Chiapas) (COMPITCH) formed in 1994 and includes as many as 100 000 members from 11 organizations in 7 regions of the state. It forms part of the National Council of Traditional Indigenous Doctors of Mexico, made up of 43 organizations that belong to 17 states of the republic.

Given the importance of COMPITCH, ECOSUR appeared before them on January 20, 1998 to give them a document overviewing the project, inviting them to “participate”. They had little interest and responded that insufficient legislation existed on this matter. Thus ICBG withdrew, making assurances that they would not start anything until there was an adequate legal framework, even if this took two or three years (COMPITCH, Oficio al Personal de ECOSUR, October, 1999, Archive).

Six months later, the project was approved in the United States, but COMPITCH did not find out until the following year. Then, on May 28, 1999, the three members of Berlin’s camp signed the convention on intellectual property mentioned above. COMPITCH found out two months later, again by their own effort. They analyzed the document and a series of remarks confirmed their lack of interest (ECOSUR, Convention for the Protection (...) internal memorandum, May 28, 1999). In addition, they received, via SEMARNAP, a photocopy of the original in English, bound with the pages reversed and with 31 pages missing.

Bothered by the manner that ICBG was proceeding, they informed the communities of the biopiracy that was behind it, urging them not to make agreements with the project. They also communicated with the offices of the government, and divulged the information by internet and other means of communication, putting it in the highest spheres with the support of internal consultants. Soon, all the world was informed, and they made a fuss.

Since then there has been an exchange of defamations, explanations, proposals, counterproposals, denunciations and diplomacy between COMPITCH, ICBG and the Mexican government. Among the first denunciations by COMPITCH, the following were pointed out:

• ICBG-MAYA PROJECT: The biotechnology was prepared in the United States, behind the backs of indigenous people and national sovereignty.
  
• CONVENTION: A convention on intellectual property was signed that compromises resources that are vital sustenance for indigenous people, again without prior information or consent from farming communities.
• COLLECTIONS: Collection of plants with scientific objectives were begun in Oxchuc, Tenejapa, Chenalhó and Las Margaritas, as well as in Huixtán, Cancuc, and Simojovel, without authorization from the indigenous communities or Mexican authorities. This was an affront to national sovereignty. (COMPITCH, Oficio de denuncia a SEMARNAP, September 7, 1999; see also, COMPITCH, 1 and 2 Volates).
• NATIONAL INFRINGEMENT: As a consequence, Article 87-A of the Ley General de Equilibrio Ecológico y Protección Ambiental (General Law of Ecological Balance and Environmental Protection), which established the requirement of previous and informed consent from the communities for legal authorization, was violated. A federal offense was committed, according to Article 420, part IV of Penal Code (...).
• INTERNATIONAL INFRINGEMENT: Similarly, Article 8-j of the Convention on Biological Biodiversity was violated.
• ETHICAL INFRINGEMENT: Equally, the statutes of the “Código de Etica para la Investigación, Colecciones, Bases de Datos y Publicaciones” (Code of Ethics for Research, Collections, Databases, and Publications)of the International Society of Ethnobiology was violated- of which Brent Berlin is a member-, which were contemplated for this project, were violated (Cfr. Belem Declaration 1988, Brazil; ICBG-EU, Appendix 1).

In addition, Article 27 of the Constitution was transgressed insofar as it refers to the fortalization of communitarian life; as was Article 28 concerning monopolies on articles of necessary consumption. Similarly, Convention 169 of OIT relating to the rights of indigenous communities, Resolution 5-89 of FAO regarding the rights of farmers over genetic resources, and other normative instruments have been violated. Thus, the first conclusion was that ICBG-Maya is an illegal project, as much in terms of positive rights (established by laws) as in the consuetudinario (established by use and customs); and, it amounts to biopiracy

OBSERVATIONS OF COMPITCH ON THE CONVENTION

a)      ON THE DECLARATIONS: The convention on intellectual property is independent of PROMAYA so that only those belonging to ICBG-Maya have signed it.

b)      ON THE GENERAL PRINCIPLES: The royalties can be delayed for up to 15 years or more (the normal period from the initiation of research to commercialization is 12 to 15 years, with a cost of between $400 million to $500 million). (See also, ICBG-EU, loc. cit. p. 44). The anticipated conventions with indigenous people on intellectual property are annulled with clause XIV, that permits the three parties to patent separately.

c)      ON ACCESS TO GENETIC RESOURCES: The government of the United States will keep all of the information and plant extracts. It can withdraw from the convention when it is convenient; there will be no way to obligate it to comply because the United States has not signed the Convention on Biological Biodiversity of 1992. Benefits are contemplated only for the 16 municipalities in the Altos (Highlands) of Chiapas- excluding 19. There will not be just distribution. Thus a competitive system of trading will be introduced for negotiations to buy the plants which will obligate only the seller to lower prices and benefits. Market competition will be permitted such that a regional producer can be displaced if their are better offers, in terms of quality and quantity, in other regions or countries. These market disadvantages make it hard to believe that the farmers accept this project. It is dubious whether there is previous and informed consent in the manner established in Article 87-A (Cfr. SEMARNAP, General Law of Ecological Equilibrium and the Protection of the Environment, pp. 111ss.).

d)      ON INTELLECTUAL PROPERTY: If ICBG recognizes our sovereignty, it should recognize that we have a right to decide that which we want to do, for example in regards to the distribution of benefits. But, what is actually occurring? The ICBG-Maya project was prepared by the government of the United States according to its interests. Clause VII, on property agreements, is annulled by the contemplation of separate patenting. ICBG-Maya understands equity in a numeric way, while indigenous people understand it based on the real needs and feelings of each person, region or group. The fiduciary fund is uncertain, given that it will await the commercialization of potential new biotechnology products at an indefinite date in the future, and, it will not be managed by indigenous people (The idea of the Fiduciary Funds for Communal Conservation was made by the corporation Shaman Pharmaceutical, Inc., established in 1990 with the same biotechnology and commercial objectives). As with everything else, the fund is poorly managed by ICBG; it immediately granted resources managed by its own beneficiaries. (see n. 26) 

e)      ON THE INFORMATION AND THE RESULTS OF THE PROJECT: The information that is given is inconsistent and confusing. An example is the title of the project, changed after from: “Biodiversidad, Medicina Tradicional y Desarrollo Sustenable in la Region Tzeltal, Tzotzil, y Tojolabal” (Biodiversity, Traditional Medicine and Sustainable Development in the Tzeltal, Tzotzil, and Tojolabal Region), given that tojolabales inhabit the Fronteriza (frontier) and Selva (jungle) regions. All of the participants are obligated to maintain confidentiality, while the University of Georgia has the right and obligation to give all information to the government of the United States. The project for control of biological resources is not new for the indigenous doctors. They have been working for more than 20 years in ecological conservation for agricultural production.

DISTRIBUTION OF PROFITS TO INDIGENOUS PEOPLE

Similarly, COMPITCH observes that the royalties for indigenous people for intellectual property rights are a pittance in comparison to the profits of the pharmaceutical industries, which usually give only 1% for such purposes.  In actuality, the communities will be assigned a quarter of this 1% (the convention says 0.25%). This will be destined for regional development. What is significant is not the amount that this could signify, but the huge disparity of this amount in relation to the profits of the agrochemical and pharmaceutical industries.

The profits of the corporation are 400 times greater that which PROMAYA will receive; and even more disproportionate in relation to that which each community will receive, not to mention each family or person. Brent Berlin states that all will be paid equally, regardless of whether they participate. Moreover, some communities will not receive anything, because the convention states that the distribution of royalties only applies to the Altos (Highlands) of Chiapas. This means that at least 7 519 communities from other regions will only be covered with envy.

The inequalities proposed by ICBG-Maya are also illustrated in the fact that they have failed to say, We are two counterparts, ICBG-Maya and COMPITCH, such that there  will be 50% for each. We also believe that they do not accept that COMPITCH represents the indigenous communities for this matter. Thus, neither does anyone imagine that they will propose: “We are one counterpart, you are 11 organizations, 11/12ths of the royalties will be for you.” Rather, they casually planned things primarily for their own benefit. In addition, the indigenous organization asks, who can believe that they will share all the information from their discoveries and inventions?.

Note: this study has been possible thanks to the collaboration of the Red Mexicana de Acción Frente al Libre Comercio (RMALC) (rmalc@apc.org), the Centro de Investigaciones Económicas y Politicas de Acción Comunitaria (CIEPAC), and the Consejo Estatal de Organizaciones de Médicos y Parteras Indígenas Tradicionales de Chiapas (COMPITCH) (compitch@correoweb.com). Soon you will be able to find the complete version on our web page with maps.