THE TREATY TO PROTECTTHE
We, the human race, hold thesetruths to be self-evident and indivisible;
That the Earth's gene pool exists aprioriand independent of any and all existing political, commercial and socialinstitutions and relations,
That the intrinsic value of the Earth'sgene pool precedes its utility and commercial value,
That the Earth's genes and the proteinsthey code for exist in nature and, therefore, are not human inventionseven in their purified and synthesized forms,
That the global gene pool is our most importantlegacy and, therefore, our ultimate collective responsibility,
Whereas, the great scientific advancesin Biology are opening up a new era of human discovery and accomplishmentsand preparing humanity to better understand the workings of the naturalworld of which our species is an intimate part and participant,
Whereas, our increasing knowledge of biologyconfers a special obligation to serve as a steward on behalf of the preservationand well being of our species as well as all of our other fellow creatures,
Therefore, the nations of the world declarethe Earth's gene pool to be a global commons, to be freely explored, shared,protected and nurtured by all peoples and further declare that genes orthe proteins they code for, in their natural, purified or synthesized form,will not be allowed to be claimed as either political or intellectual propertyby governments, commercial enterprises or other institutions.
The Parties agree to establish the genepool as a shared trust administered by the signatory nations. All of thegenes and the proteins they code for, in their natural, purified or synthesizedform, are to be freely shared for scientific and commercial uses. The abovementioned provision does not preclude individuals or institutions fromsecuring "process patents" for their work, but does prohibit "process toproduct" patents.
The Parties agree to establish a globaltax on all technologies, products, therapies and services using engineeredgenes. The revenues will be distributed, on the basis of an agreed uponformula, to developing nations. One half of the funds must be used by eachbeneficiary nation to preserve and promote its indigenous genetic resources,in a manner consistent with guidelines established by the Parties. Theother half of the funds must be used to foster social and economic developmentwithin each beneficiary nation.
The Parties agree to establish an equitableformula and payment to compensate all Parties who have already receivedpatents on genes and the proteins they code for in either the natural,purified or synthesized form.
The Parties agree to set up a Secretariatto carry out the mission and mandate of the treaty. The Secretariat shallbe headquartered in a developing nation and be composed of one representativeof each member nation to the treaty, said representative to be of the rankof minister or ambassador. The Member Nations shall meet at least oncea year to review operations, consider new proposals, and make amendmentsor other changes in the treaty.
Each Party to the treaty agrees to providea portion of the funds needed to operate the Secretariat, based on a slidingscale, adjusted to the gross domestic product of the respective nations.
The Secretariat shall consist of an administrativestaff, a policing authority and a scientific advisory committee. The administrativestaff shall be charged with overseeing the treaty, the policing authoritywill investigate and report on any violations of the treaty and the scientificcommittee will provide advice and counsel to signatory nations on mattersrelating to the preservation of their genetic resources.
If any dispute arises between two or moreof the Parties concerning the interpretation or application of the treaty,those contracting Parties shall consult among themselves in an effort toresolve said dispute by negotiations, remediation, conciliation, or arbitration.Any dispute that is not resolved by all the Parties to the dispute shallbe referred to the World Court of Justice for settlement.
HISTORICAL BACKGROUND TO:
THE TREATY TO PROTECT THE GENETIC COMMONS
In the years ahead, the planet's shrinkinggene pool is going to become a source of increasing monetary value. Multinationalcorporations already are scouting the continents to locate microbes, plants,animals and humans with rare genetic traits that might have market potential.After locating the desired traits, biotech companies are modifying themand seeking patent protection for their new "inventions".
While the technological expertise neededto manipulate the new "green gold" resides in scientific laboratories andcorporate boardrooms in the north, most of the genetic resources neededto fuel the new revolution lie in the ecosystems of the south.
Southern countries claim that what northerncompanies call "inventions" are really the pirating of local genetic resourcesand the accumulated indigenous knowledge of how to use them. The life-sciencecompanies, on the other hand, argue that patent protection is essentialif they are to risk financial resources and years of research and developmentbringing new and useful products to market.
To understand exactly how much potentialwealth is buried inside the genome map, consider the fact that the averageprice of being screened for genetic disease using one of the hundreds ofnon-patented genes discovered before the gene rush got underway was about$50. Today, if a patient wants to be screened to see if he or she has inheriteda gene and that gene has been patented, the test can cost as much as $2,500.Imagine the situation in 10 to 15 years when people will want to be screenedfor hundreds or even thousands of genes as part of their standard medicalcare. Medical insurance providers are likely to balk, largely because thecosts of screening are likely to be prohibitive. If health care providersrefuse, however, and patients become ill as a result of having a geneticpredisposition that could have been screened and treated, chances are likelythat the mounting litigation will cost the health care system as much inlosses as the patented gene screenings would have in the first place. Inthe final analysis, the only winners are likely to be the life-sciencecompanies because of their hold over the most valuable resource on Earth:the human genome.
Extending patents to life raises the importantlegal question of whether engineered genes, cells, tissues, organs andwhole organisms, are truly human inventions or merely discoveries of naturethat have been skillfully modified by human beings.
The discovery of chemical elements inthe periodic table, while unique, non-obvious when first isolated and purified,and very useful, were none the less not considered patentable as they wereconsidered discoveries of nature, despite the fact that some degree ofhuman ingenuity went into isolating and classifying them. The US PatentOffice has said, however, that the isolation and classification of a gene'sproperties and purposes is sufficient to claim it as an invention.
The prevailing logic becomes even morestrained when consideration turns to patenting a cell, or genetically modifiedorgan, or whole animal. Is a pancreas or kidney patentable simply becauseit has been subjected to a slight genetic modification? What about a chimpanzee?Here is an animal who shares 99% of the genetic makeup of a human being.Should he or she qualify as a human invention if researchers insert a singlegene into their biological makeup? The answer, according to the PatentOffice, is yes.
The patent issue is likely to become oneof increasing public concern as a result of the stunning breakthroughsin the government-funded human genome project. It is expected that in lessthan eight years, nearly all the genes that make up the genetic blueprintsof the human race will have been identified and become the intellectualproperty of transnational life science companies.
Companies also are patenting human celllines. PPL Therapeutics, the life-science company that cloned Dolly thesheep, has received a patent that includes cloned human embryos as intellectualproperty.
The increasing consolidation of corporatecontrol over the genetic blueprints of life, as well as the technologiesto exploit them, is alarming because the biotech revolution will affectevery aspect of our lives. The way we eat, the way we date, the way wehave babies, the way we raise and educate children, the way we work, eventhe way we perceive the world around us and our place in it - all our individualand shared realties will be deeply touched by the biotech revolution.
What might it mean for subsequent generationsto grow up thinking of all life as mere invention, where the boundariesbetween the sacred and the profane have all but disappeared?
Life patents strike at our core beliefsabout the very nature of life. The last great debate of this kind occurredin the 19th century over the issue of human slavery, with abolitionistsarguing that every human being has "God-given rights" and cannot be madethe commercial property of another.
Like anti-slavery abolitionists, a newgeneration of genetic activists is beginning to challenge the concept ofpatenting human life, arguing that human genes, chromosomes, cell lines,tissues, organs and embryos should not be reduced to commercial intellectualproperty controlled by global conglomerates and traded as mere utilities.
No one doubts for a moment the great potentialvalue in mapping the human genome and genomes of our fellow creatures.But, if we are to use this knowledge wisely, we need to begin by ensuringthat it be held as a collective trust, and not made the private preserveof a handful of life-science companies.
We should consider crafting a great globaltreaty to make the human gene pool - and the gene pool of our fellow creatures- a "commons" administered jointly by every nation on behalf of all futuregenerations. It would be a treaty similar to the one we established makingAntarctica a commons.
As for the corporations' very legitimateclaim that they need to recoup their investments, let them pursue processpatents for their work, but allow the products themselves -the genes- tobe held in the public domain as we did with the chemical elements.
The battle to keep the Earth's gene poolan open commons, free of commercial exploitation, will be one of the criticalstruggles of the biotech century.
Paged'accueil Introduction 18mars 1999 ICC99 15août 1999 CAGE Brevets SommaireFestival