https://orcid.org/0000-0002-3268-9506
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ABSTRACT
This article focuses on an area that has not been systematically addressed but is of crucial importance to China, India and Brazil: the global governance of genetic resources. All three are biodiversity-rich and, ever since biotechnology promised to turn DNA into gold, have been significant players in the genetic-resources regime complex. Shortcomings notwithstanding, the establishment of a new access and benefit-sharing regime constitutes a rare instance where emerging countries have succeeded in becoming rule-makers of sorts. We analyse how these three countries have sought to pursue their interests in this area, especially after the extension of national sovereignty over previously ‘free’ genetic resources and the erection of a complex set of rules attempting to regulate access to and benefits from their utilisation from the early 1990s onwards. Despite presenting a generally unified front in international fora, their domestic implementation differs significantly and raises questions about the continuation of a common international position. The article adds to our understanding of emerging countries’ engagement with global governance by focusing on the concrete drivers and domestic processes that have motivated and shaped the agency of China, India and Brazil in this new policy regime.
Disclosure Statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Valbona Muzaka is a Reader in International Political Economy at the School of Politics and Economics, King’s College London. Her work focusses on the knowledge economy, intellectual property rights, global governance, public health, trade, development and the ‘emerging economies’, especially India and Brazil. She has published a number of articles and chapters on these themes and is author of The Politics of Intellectual Property Rights and Access to Medicines (2011) and Food, Health and the Knowledge Economy: The State and Intellectual Property in India and Brazil (2017).
Omar Serrano has been Research Associate at the Chair of European and Global Governance since July 2018. He holds a PhD in IR/Political Science from the Graduate Institute in Geneva and a MSc. in Global Politics from the LSE. Previously he was Visiting Fellow in Munich (TUM), Shanghai (Fudan), Rio de Janeiro (FGV), Mexico City (ITAM), New Delhi (JNU) and Beijing (UIBE), Senior Researcher and Lecturer at the universities of Geneva and Lucerne, Guest Professor at Hunan University, and Research Associate at the University of St. Gallen. He is author of The Domestic Sources of European Foreign Policy: Defence and Enlargement (Amsterdam University Press, 2013) and has published in Regulation & Governance, European Foreign Affairs Review and New Political Economy among others. He speaks various languages linked to his research interests including Spanish, German, French, Portuguese, and Mandarin. His work combines qualitative and quantitative methodologies.
Notes
1 See United Nations Environmental Programme: http://www.biodiversitya-z.org/content/megadiverse-countries, last accessed on 17 May 2017.
2 Traditional knowledge encompasses much more than knowledge associated with the use of genetic resources; it generally refers to know-how, skills and practices that are developed and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.
3 Indeed, they go back much further; although it is during the mid-20th century that issues pertaining to access to GRs and IP made a joint-entry into international policy regimes, they became inextricably linked from the 1500s onwards. A core feature of human history, the movement of plant genetic resources changed substantially with the rise of European colonialism and, especially, with the Great Columbian Exchange between the ‘New’ and ‘Old’ worlds from the early 1500s onwards.
4 See FAO Resolutions 4/98, 5/98 and 3/91 at http://www.fao.org/Ag/cgrfa/iu.htm, last accessed on 25 January 2017.
5 Apart from the fora discussed here, developing countries had been raising the issue of GRs in other international fora. Important among them was the conclusion of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRA) at FAO in 2001. Brazil and India (China remains outside the treaty) alongside countries such as Mexico played a central role in securing a treaty that provides multilateral access to a wide repository of agricultural GRs. Just as the latter is crucial to avoiding diseases affecting agricultural produce due to the extremely narrow genetic material used in global food production currently, access to new, ever-mutating pathogens is crucial to effectively responding to epidemics. But, as in the case of the SARS epidemics, developing countries like China, Indonesia and others who had deposited pathogen strains at the WHO in line with international practices, saw no benefits from making available these GRs and threatened to withhold pathogen strain sharing in the future.
6 For some early discussions along these lines see, for instance, communications from Brazil IP/C/W/228 (2000); ‘The Relationship Between the TRIPs Agreement and the CBD and the Protection of Traditional Knowledge’ submitted on behalf of China, Cuba, Dominican Republic, Ecuador, India, Pakistan, Peru, Thailand, Venezuela, Zambia and Zimbabwe, IP/C/W/356 (2002); submission by India IP/C/W/195 (2000) and Mauritius on behalf of the African Group IP/C/W/206 (2000).
7 See, for instance, India’s communications to the WTO, IP/C/W/161, WT/CTE/W/156 and IP/C/W/195 and in 1999 and 2000.
8 Thanks to the spread of Western IP norms, not least via TRIPS, the three criteria of patentability are that the invention be novel, non-obvious/involve an inventive step and be capable of industrial application.
9 These negotiations culminated with the Nagoya Protocol on Access and Benefit Sharing in 2010; in force since 2014.
10 Interview, two participants of the Mexican delegation to the Nagoya negotiations. Mexico City, 14. April, 2014.
11 See the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity, available at https://www.cbd.int/abs/about/, last accessed on 25 January 2017.
12 For a recent reiteration of these positions, see ICTSD Bridges 9 June 2016 ‘WIPO Committee Advances Working Document on Genetic Resources, Though Divisions Remain’, available at http://www.ictsd.org/bridges-news/bridges/news/wipo-committee-advances-working-document-on-genetic-resources-though, last accessed on 24 January 2017.
13 The idea of pushing for a WIPO diplomatic conference was proposed by the Like-Minded Group (LMG) in a Bali meeting in June 2011.
14 See http://www.wipo.int/export/sites/www/about-wipo/en/assemblies/pdf/2017_list_of_decisions.pdf, (p.11). Last accessed on 10th May 2018.
15 Interview, high-ranking Indian official, participant of CBD and TRIPS negotiations. New Delhi, 16 January 2012.
16 Ibid.
17 One of the most high-profile partnership of the latter type was that between Monsanto and the Hebei Provincial Seed Company on Bt cotton (Huang et al. Citation2002). Large Chinese state-owned enterprises have more recently sought to expand internationally through M&As, of which the largest was the acquisition of Syngenta for 44 billion USD by ChemChina.
18 Tu Youyou received the Nobel Prize in Medicine in 2015 for her work on artemisinin, which she considered a gift of traditional Chinese medicine for the world.
19 According to a senior Chinese economist involved in these negotiations, China is also making use of bilateral free trade agreements to extend the protection and export success of the traditional medicine sector (Interview, Beijing 12 May 2017). The ongoing discussions of these issues in an effort to deepen the Sino-Swiss FTA is a case in point.
20 Two interviews with Mexican negotiators involved in the CBD and other ABS negotiations. Mexico City, 8 April 2014. Additionally, interview with Indian diplomat involved in ABS negotiations, New Delhi, 16. January 2012.
21 Geographical Indications are a new form of IP; they are signs used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin, e.g. Switzerland’s Gruyère cheese, Mexico’s Tequila etc.
22 See Foreign Economic Cooperation Office: https://www.cbd.int/business/nri/china.shtml, last accessed on 29 December 2016.
23 This important new initiative includes twelve departments of both the Central Committee and the State Council and has been overseen by the Leading Group on Financial and Economic Affairs headed by president Xi Jinping himself. See: China's New Blueprint for an ‘Ecological Civilization’, available at: http://thediplomat.com/2015/09/chinas-new-blueprint-for-an-ecological-civilization/, last accessed on 18 January 2017.
24 This group included L. K. Jha, Abid Hussain, Shankar Acharya, Montek Singh Ahluwalia and the long-serving PM Manmohan Singh.
25 Interview, representative WIPO’s regional office, Rio de Janeiro, 13 August 2014.
26 The contract in question was a joint venture between Bioamazônia and the pharmaceutical multinational Novartis in which the latter would claim all IP titles that could be realised by the bio-prospecting project under contract, while Bioamazônia was only entitled to 1% of subsequent royalties and an upfront payment of US$ 4 million (Coutinho et al. Citation2001)
27 These efforts are still ongoing and have not yet produced any noticeable change.
28 Interview, Official of the Ministry of Agriculture, Brasilia, 8 July 2013; Interview, Official of the Brazilian Environmental Ministry, Brasilia, 6 August 2014.