by Chakravarthi Raghavan

Geneva, 3 Oct 99 -- A United States biotechnology firm, Diversa has been accused of entering into a bio-prospecting agreement in Mexico with the country's National Autonomous University (UNAM), in violation of Mexican law, and paying one-twentieth of what Diversa has agreed to pay for a similar deal with the United States Yellowstone National Park.

The charge was made last week by a Mexican academic in an article in the most widely-read Mexican newspaper La Jornado, and at a press conference in Washington State (USA) at the Edmonds Institute.

The charge over the Diversa-UNAM agreement was made by Alejandro Nadal, Professor in the Center for Economic Studies and Coordinator of the Science and Technology Programme in El Colegio de Mexico.

The 3-year bioprospecting deal, apparently signed a year ago, and whose details were 'shared' with Nadal by an environment lawyer, Albergo Szekely who helped shape the deal, allows Diversa access to Mexico's rich genetic resources in exchange for equipment valued at $5,000, technical training in collection and categorization of samples, $50 per sample collected and royalties on net sales of products derived from the material collected - with royalty ranging from 0.5% in the case of pharmaceuticals and 0.3% on other products.

The royalty payments in Mexico are to be deposited in the special fund for bio-diversity of Mexico's Commission for Biodiversity.

According to Nadal, the details of Diversa's Yellowstone deal (which the US Interior Department has refused to disclose in US courts on the ground that it involves business confidentiality) was revealed during discussions with Szekely.

This showed that Diversa has agreed to pay 10% royalty for the resources in the Yellowstone Park.

The deal itself is an end-run around the law, charged Nadal, himself a lawyer, and violates the Mexican law requiring prior informed consent and fair share of benefits with owners, who in this case are the people of Mexico (and not UNAM).

Beth Burrows, President and Director of the Edmonds Institute, who is litigating the US Department of Interior over the deal by Diversa for bio-prospecting rights in the Yellowstone Park, said at the press conference: "The process of acquisition, (and) buying what is not for sale, is not much different than it was 500 years ago" when the Dutch came and purchased what is now Manhattan island from the native Indians there. "A middle man comes and offers a pittance to the first person he can convince to say that he has the right to negotiate for the owners," Burrows said. "The legend is they bought Manhattan by offering someone a handful of beads. I imagine they turned over the beads, winking and said to some not-fully-informed person, 'You are the one (wink, wink) who can sell us this island?' Not much has changed. It is as if some people cannot conceive that some things are not for sale, are un-ownable. The only thing that has changed is the diversity in the level of insult, offering to some a ten per cent insult and to others a one half of one per cent insult."

According to the UNAM-Diversa agreement, Diversa signed a deal with the Yellowstone National Park in the US, a deal which has been challenged in US courts by the Edmonds Institute.

Under Diversa's deal with UNAM, Mexico will allow Diversa access to the biodiversity of Mexico in exchange for equipment valued at $5,000, technical training related to the collection and categorization of samples, $50 per sample collected, and royalties on net sales of products developed from materials collected. The level of royalties will vary from 0.5% (one-half of one per cent) in the case of pharmaceuticals to 0.3% (three-tenths of one per cent) in the case of other products. Money from royalty payments is to be deposited in the special Fund for Biodiversity belonging to Mexico's Commission for Biodiversity (CONABIO).

According to Nadal, details of the Yellowstone deal were inadvertently revealed during discussions with Szekely. This showed that the US got 10% royalties in Yellowstone, about twenty times more than UNAM got for Mexico.

Commenting on the UNAM deal, Burrows said that the US court still has not allowed the people of the United States to see details of the Diversa deal in the US. If  the Yellowstone details were shared in Mexico while being kept secret in the US, "then what are we to think is meant by 'confidential business information'? Is it just the corporate way of keeping the legal nitty-gritty from the about-to-be-snookered owners?"

"And if the deal made in Mexico is as described in the documents that Nadal has shared, then apparently someone thinks Mexico's genetic heritage is worth twenty times less than that of the US. Not only is that insulting and outrageous but it's ridiculous as well. Mexico is one of the world's great centres of biodiversity; the US is not. If these kinds of deals were negotiated in the clear light of day wherever they are negotiated, then these kinds of outcomes would not happen."

Describing a scenario (in Mexico) surprisingly like that which followed the announcement of Diversa's deal with Yellowstone National Park and the US Department of the Interior, Nadal revealed that the "owners" of the diversity in the UNAM case, i.e., the people of Mexico, did not give their consent to or have prior knowledge of the deal. Nadal contends that the "there are serious legal problems in the UNAM agreement."

"In the first place," notes Nadal, "under Mexico's Federal environmental legislation, access to genetic resources can take place only through prior informed consent of the owners of the land on which the resources are located. This applies to individuals or communities. The legislation also specifies that the owners have a right to a fair share of the benefits and profits derived from the commercial exploitation of resources collected from their land. The important provision is Article 87 bis of the Federal Law on Ecological Balance and Protection of the Environment (the LPE)."

"Although the UNAM-Diversa agreement states that UNAM will obtain the legal permits that enable its technicians and scientists to collect samples for Diversa, the agreement fails to mention Article 87 bis of LPE. This omission has far-reaching legal implications."

The UNAM-Diversa agreement has other problems, according to Nadal: "Under the agreement, Diversa and UNAM each will own the rights to all components, including genes and DNA//RNA of the organisms which they identify. These clauses are contrary to Mexico's public law. There is no such thing in Mexican law as 'rights on genes, DNA/RNA'. "

"Further," according to Nadal, "these clauses run contrary to Mexico's Industrial Property Law. Under this law, living organisms are excluded from patents. Also excluded are biological and genetic materials as found in nature. Finally, Mexico's patent statute specifies that discoveries of something previously existing in nature, even though unknown to human beings, does not qualify as an invention and is not therefore patentable. Biological and genetic resources fall under the category of discoveries and as such are excluded from the realm of industrial property."

Although there is clear controversy regarding the patents, the royalties, and the extent of technology transfer implied by the UNAM-Diversa deal, Nadal points out that, "the important issues go far beyond access to genetic resources and equitable sharing of benefits. The crux of the matter is whether there can be private appropriation of genetic resources or of any form of living organisms and their parts. The breadth and scope of the international patent system is at the center of the debate. Although Mexico's legislation does not allow for the patenting of DNA/RNA sequences, the United States is engaged in a global offensive to change this, not only in Mexico, but on a global scale. The UNAM-Diversa deal sets a dangerous precedent in seeking to impose private property rights of biotechnology corporations over genetic resources in developing countries."

Nadal expects the UNAM-Diversa deal to be challenged in the courts. "After all, it is already a year into the agreement and the Mexican people are owed an explanation and an accounting. Frankly, I expect the courts to find the agreement null and void." (SUNS4522)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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