Tuesday, September 28. In an article in this morning's La Jornada, Mexico's most widely-read newspaper, Alejandro Nadal, lawyer, journalist, professor in the Center for Economic Studies and coordinator of the Science and Technology program in El Colegio de Mexico, revealed that one year ago the U.S.-based biotechnology company, Diversa, and Mexico's National Autonomous University (UNAM) signed a three-year bio-prospecting deal that allows access to Mexico's genetic resources in exchange for what amounts to a pittance and a violation of Mexican law.
According to the agreement shared with Nadal by Alberto Székely, an environmental lawyer who helped shape the deal with UNAM, Mexico will allow Diversa -- the same company that signed the controversial deal for the biodiversity of Yellowstone National Park -- 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 Székely. This is how Nadal learned that the U.S. got 10% royalties in Yellowstone, about twenty times more than UNAM got for Mexico.
Beth Burrows, president/director of the Edmonds Institute, one of the public interest groups litigating with the U.S. Department of the Interior over the Yellowstone deal, commented on the UNAM deal, "If indeed the details of Appendix B, which the U.S. court still has not allowed the people of the United States to see -- if those Yellowstone details were shared in Mexico while being kept secret in the U.S., 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?"
"Further," Burrows added," 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 U.S. Not only is that insulting and outrageous but it's ridiculous as well. Mexico is one of the world's great centers of biodiversity; the U.S. 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 surprisingly like that which followed the announcement of Diversa's deal with Yellowstone National Park and the U.S. Department of the Interior, Alejandro 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. Lawyer 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 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."
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Last Updated on 9/30/99
By Karen Lutz