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T H I R D W O R L D N E T W O R K
87 Cantonment Road
10250 Penang
Malaysia
Phone: (+604)373511
Fax: (+604)364505
Email: twn@igc.apc.org
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(Sample copy of letter sent to President Bill Clinton and Vice
President Al Gore to protest US stand on the Biodiversity
Convention)
Dear President/Vice President,
We are writing to reiterate several fundamental concerns
regarding your Administration's position on the Convention on
Biological Diversity, as contained in the letters of
transmittal and submittal which are now with the Senate
Foreign Relations Committee. We believe the proposed
"understandings", if they accompany any instrument of
ratification, threatens to undermine the Convention's value in
protecting biodiversity. The filing of such an interpretative
statement also conflicts with the spirit of multilateral
cooperation that is the essence of the Convention. We
therefore urge you to withdraw the statement.
Our objections to the interpretative statement or
understandings are based on the following.
First, the US has interpreted Article 3 of the Convention to
be "a principle to be taken into account in the implementation
of the Convention". This Article is a reaffirmation of the
Stockholm Declaration which requires States "to ensure that
activities within their jurisdiction or control do not cause
damage to the environment of other States". The US
interpretation signals a shift from recognition of this
principle as an obligation in international law into a mere
"guiding" principle. Thus, for example, oil spills by US
entities which damage the marine biodiversity of other States
will not be regarded by the US as its responsibility. Such an
interpretation is clearly contrary to the intentions of the
Convention.
Secondly, the US understanding of "fair and equitable sharing
of benefits" and technology transfer in Articles 1 (Objectives
of the Convention), 15 (Access to Genetic Resources) and 16
(Access to and Transfer of Technology) alters the hard-won
compromise reached by the negotiators of the Convention. In
particular, the US asserts that in realising the objective of
"fair and equitable sharing of the benefits arising from the
utilisation of genetic resources", which includes appropriate
access to those resources and appropriate transfer of relevant
technologies, voluntarily agreed contracts will be the most
effective vehicle. This understanding that transfer of
technology may only proceed at the discretion, and with the
voluntary participation of the owner of the technology runs
through to Articles 15 and 16. This is counter to the
intention of the Convention, which seeks to have an objective
meaning to be determined by the terms of the Convention for
the phrases "fair and equitable sharing of benefits" and
"access to and transfer of technology... to developing
countries....under fair and most favourable terms".
It is precisely the highly inequitable relationship between
those countries which own genetic resources and corporations
which have hitherto enjoyed free access to such resources or
commercial gain that led to the balance struck in Articles 15
and 16. The knowledge and contributions of local communities,
including farmers and indigenous peoples, and public research
institutions in the South which are tapped by the private
sector have also been unrewarded. Worse, such knowledge has
often been privatised into a corporate monopoly in the name of
intellectual property rights. The letter of submittal goes
further to reject the use of compulsory licensing laws under
the Convention, an instrument which seeks to balance private
corporate interests and the public interest.
Meanwhile, experiences with plant collection contracts which
exist have been largely negative, due to the unequal
bargaining and enforcement capabilities of the parties. Thus
mutually agreed terms can only be fair and equitable if
objective standards are established by the Contracting Parties
to the Convention, in open and democratic negotiations. The US
interpretation would amount to a rejection of this
multilateral cooperation in favour of private corporations.
The Convention recognises the adequate and effective
protection of intellectual property rights in Article 16(2)
but at the same time also recognises that patents and other
such rights may have an influence on the implementation of the
Convention. Our experiences tell us that there can be negative
impacts on biodiversity conservation. Contracting parties are
thus required by Article 16(5) to ensure that such rights do
not run counter to the objectives of the Convention, ie.
conservation of biodiversity, sustainable utilisation of its
components, and the fair and equitable sharing of benefits
arising out of the utilisation of genetic resources.
We are therefore shocked by the US interpretation which
dismisses Article 16(5), and blatantly protects corporations.
Thirdly, the US interpretation on the Convention's provisions
for funding biodiversity conservation fails to recognise that
any funding mechanism must be closely supervised so that the
primacy of the objectives of the Convention prevails. Article
21 clearly sets out the nature of this mechanism: it shall
function under the authority and guidance of, and be
accountable to, the Conference of Parties for purposes of the
Convention; and it shall operate within a democratic and
transparent system of governance.
The Global Environmental Facility (GEF) led by the World Bank
was the accepted interim financial institution, provided that
it has been fully restructured in accordance with the
provisions of Article 21. The GEF is also subject to review at
the first meeting of the Conference of Parties or until a
permanent institutional structure is determined. However, the
US interpretative statement presumes the continuation of the
GEF as the Convention's permanent financial institution and
makes no mention of the condition of "a democratic and
transparent system of governance" for the GEF restructuring
and negates any effective oversight by the Conference of
Parties.
It should be strongly noted that the independent assessment
and evaluation of the GEF's pilot phase has revealed
fundamental flaws, including a lack of clear strategies and
objectives, the unhealthy dominance of the World Bank, and in
particular the trail of mistakes in biodiversity conservation
projects. The restructuring negotiations have reached an
impasse due to disagreements on the governance issue, and
there are growing doubts that the GEF can be an effective and
adequate institutional structure for the financial mechanism
of the Convention. The US interpretation which promotes a GEF
free of oversight by the Conference of Parties ignores these
realities and denies the right of the Conference of Parties to
decide on other options.
The understandings and interpretations in the letter of
submittal from the US Administration to the Senate threatens
the Convention's protection of biodiversity and its attempt to
reach fair and equitable economic relations among countries.
It is extremely disappointing that the US shows itself as a
willing party in the Convention's process only to the extent
it can govern the rules of agreement. It will not only be an
affront to the spirit of the Convention, but also erode the
confidence and good faith of other countries who are willing
to abide by the Convention.
We therefore urge you to withdraw the interpretative
statement.
Thank you.
Yours sincerely
SM Mohd Idris
Coordinator
==============================
(Sample copy of letter sent to the senators and to Mr Rafe
Promerance)
Dear Senator,
We are writing to emphasise several fundamental concerns
regarding the United States Administration's position on the
Convention on Biological Diversity. We believe that the
interpretation contained in the letter of submittal for the
consideration of the Foreign Relations Committee threaten to
undermine the Convention's value in protecting Biodiversity.
The filing of such an interpretative statement with any
instrument of ratification also conflicts with the spirit of
multilateral cooperation that is the essence of the
Convention. We therefore urge you to have the statement
withdrawn.
Our objections to the interpretative statement or
understandings are based on the following.
First, the US has interpreted Article 3 of the Convention to
be "a principle to be taken into account in the implementation
of the Convention". This Article is a reaffirmation of the
Stockholm Declaration which requires States "to ensure that
activities within their jurisdiction or control do not cause
damage to the environment of other States". The US
interpretation signals a shift from recognition of this
principle as an obligation in international law into a mere
"guiding" principle. Thus, for example, oil spills by US
entities which damage the marine biodiversity of other States
will not be regarded by the US as its responsibility. Such an
interpretation is clearly contrary to the intentions of the
Convention.
Secondly, the US understanding of "fair and equitable sharing
of benefits" and technology transfer in Articles 1 (Objectives
of the Convention), 15 (Access to Genetic Resources) and 16
(Access to and Transfer of Technology) alters the hard-won
compromise reached by the negotiators of the Convention. In
particular, the US asserts that in realising the objective of
"fair and equitable sharing of the benefits arising from the
utilisation of genetic resources", which includes appropriate
access to those resources and appropriate transfer of relevant
technologies, voluntarily agreed contracts will be the most
effective vehicle. This understanding that transfer of
technology may only proceed at the discretion, and with the
voluntary participation of the owner of the technology runs
through to Articles 15 and 16. This is counter to the
intention of the Convention, which seeks to have an objective
meaning to be determined by the terms of the Convention for
the phrases "fair and equitable sharing of benefits" and
"access to and transfer of technology...to developing
countries...under fair and most favourable terms".
It is precisely the highly inequitable relationship between
those countries which own genetic resources and corporations
which have hitherto enjoyed free access to such resources or
commercial gain that led to the balance struck in Articles 15
and 16. The knowledge and contributions of local communities,
including farmers and indigenous peoples, and public research
institutions in the South which are tapped by the private
sector have also been unrewarded. Worse, such knowledge has
often been privatised into a corporate monopoly in the name of
intellectual property rights. The letter of submittal goes
further to reject the use of compulsory licensing laws under
the Convention, an instrument which seeks to balance private
corporate interests and the public interest.
Meanwhile, experiences with plant collection contracts which
exist have been largely negative, due to the unequal
bargaining and enforcement capabilities of the parties. Thus
mutually agreed terms can only be fair and equitable if
objective standards are established by the Contracting Parties
to the Convention, in open and democratic negotiations. The US
interpretation would amount to a rejection of this
multilateral cooperation in favour of private corporations.
The Convention recognises the adequate and effective
protection of intellectual property rights in Article 16(2)
but at the same time also recognises that patents and other
such rights may have an influence on the implementation of the
Convention. Our experiences tell us that there can be negative
impacts on biodiversity conservation. Contracting parties are
thus required by Article 16(5) to ensure that such rights do
not run counter to the objectives of the Convention, ie.
conservation of biodiversity, sustainable utilisation of its
components, and the fair and equitable sharing of benefits
arising out of the utilisation of genetic resources.
We are therefore shocked by the US interpretation which
dismisses Article 16(5), and blatantly protects corporations.
Thirdly, the US interpretation on the Convention's provisions
for funding biodiversity conservation fails to recognise that
any funding mechanism must be closely supervised so that the
primacy of the objectives of the Convention prevails. Article
21 clearly sets out the nature of this mechanism: it shall
function under the authority and guidance of, and be
accountable to, the Conference of Parties for purposes of the
Convention; and it shall operate within a democratic and
transparent system of governance.
The Global Environmental Facility (GEF) led by the World Bank
was the accepted interim financial institution, provided that
it has been fully restructured in accordance with the
provisions of Article 21. The GEF is also subject to review at
the first meeting of the Conference of Parties or until a
permanent institutional structure is determined. However, the
US interpretative statement presumes the continuation of the
GEF as the Convention's permanent financial institution and
makes no mention of the condition of "a democratic and
transparent system of governance" for the GEF restructuring
and negates any effective oversight by the Conference of
Parties.
It should be strongly noted that the independent assessment
and evaluation of the GEF's pilot phase has revealed
fundamental flaws, including a lack of clear strategies and
objectives, the unhealthy dominance of the World Bank, and in
particular the trail of mistakes in biodiversity conservation
projects. The restructuring negotiations have reached an
impasse due to disagreements on the governance issue, and
there are growing doubts that the GEF can be an effective and
adequate institutional structure for the financial mechanism
of the Convention. The US interpretation which promotes a GEF
free of oversight by the Conference of Parties ignores these
realities and denies the right of the Conference of Parties to
decide on other options.
The understandings and interpretations in the letter of
submittal from the US Administration to the Senate threatens
the Convention's protection of biodiversity and its attempt to
reach fair and equitable economic relations among countries.
It is extremely disappointing that the US shows itself as a
willing party in the Convention's process only to the extent
it can govern the rules of agreement. It will not only be an
affront to the spirit of the Convention, but also erode the
confidence and good faith of other countries who are willing
to abide by the Convention.
We therefore urge you to address these critical issues during
the Senate Foreign Relations Committee's upcoming hearings on
the ratification of the Convention.
Thank you.
Yours sincerely
SM Mohd Idris
Coordinator