special release - biosafety-info.net filebilateral free trade agreements are seen by the...

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A Publication of Pesticide Action Network Asia Pacific (PANAP)and People's Coalition on Food Sovereignty (PCFS)

Bilateral Free Trade and Investment Agreementsand the US Corporate Biotech Agenda

Aziz Choudry

SPECIALRELEASE

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Bilateral free trade agreements are seen by the agricultural biotechnology industry as animportant conduit for spreading genetically modified organisms (GMOs) around the world.US agribusiness corporations are looking into bilateral and regional trade agreements “toexpand foreign understanding and acceptance of US regulations and standards, particularlywith respect to agricultural biotechnology.” Meanwhile, the US Administration sees theseagreements as useful political instruments to further its broader geopolitical interests.

These [bilateral trade] negotiations are much less visible and can easily slip beneath theradar of NGOs and popular movements that oppose the WTO. The business coalitions thatare the biggest driving force behind bilateral free trade and investment negotiations arequite open about their self-interest, and eager to keep upping the stakes and lockinggovernments into even tougher standards to ensure expanded profit margins and monopolycontrol. Through bilateral agreements, they seek to stitch up from below what they havebeen unable to achieve – so far - at the WTO.

PCFS is a growing network of various grassroots groups of small food producers particularly of peasant-farmerorganizations and their support NGOs, working towards a People's Convention on Food Sovereignty.

Pesticide Action Network Asia and the Pacific (PAN AP) is one of five regional centres of PAN, a global networkworking to eliminate the human and environmental harm caused by pesticides, and to promote biodiversity-based ecological agriculture.

“Our vision is a society that is truly democratic, equal, just, culturally diverse, and based on food sovereignty,gender justice and environmental sustainability”. Thus PAN AP asserts people’s food sovereignty based on theright to food for all, founded on the right to land and productive resources and the right of communities todecide on our own food and agriculture policies. We are committed to protect the safety and health of peopleand the environment from pesticide use, and genetic engineering in food and agriculture. We strive to protectand promote the rights, equality and dignity of women. We will promote and protect biodiversity basedecological agriculture. Our goal is to strengthen people’s movements to eliminate hunger and achieve foodsovereignty. We endeavour to achieve these goals by empowering people within effective networks at the Asiaand the Pacific, and global levels.

Based in Penang, Malaysia, Pesticide Action Network Asia and the Pacific is linked to more than 150 groups in18 countries in the Asia Pacific region.

Pesticide Action Network Asia-PacificP.O. Box 117010850 Penang, MalaysiaTel: 604-657 0271/656 0381Fax: 604-658 3960Email: [email protected]://www.panap.net

PCFSc/o PANAPE-mail: [email protected]://www.foodsov.org

This Special Release on “Bilateral Free Trade and Investment Agreements and the US Corpo-rate Biotech Agenda” is researched and written by Aziz Choudry, a New Zealand activistwho has been following the negotiations of bilateral free trade and investment agree-ments between the US and the countries in the South.

This issue is first of a series of Special Release published by the People’s Coalition on FoodSovereignty (PCFS) and the Pesticide Action Network Asia Pacific (PANAP). This publicationaims to provide critical analyses and raise awareness on Food Sovereignty issues.

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BILATERALS FREE TRADE & INVESTMENT AGREEMENT AND THE US CORPORATE BIOTECH AGENDA 1

Aziz Choudryi

1) IntroductionFrom Seattle to Doha, Cancun to Hong Kong, and

all points in between, World Trade Organization(WTO) negotiations have failed to deliver as muchas many of the corporations and governments whichdominate the world’s economy want. So the US anda number of other governments, urged on by theirbig business lobbies, have increasingly turned tobilateral free trade and investment agreements. Thesenegotiations are much less visible and can easily slipbeneath the radar of NGOs and popular movementsthat oppose the WTO. The business coalitions thatare the biggest driving force behind bilateral freetrade and investment negotiations are quite openabout their self-interest, and eager to keep uppingthe stakes and locking governments into ever tougherstandards to ensure expanded profit margins andmonopoly control. Through bilateral agreements,they seek to stitch up from below what they havebeen unable to achieve – so far - at the WTO.

Bilateral free trade agreements are seen by theagricultural biotechnology industry as an importantconduit for spreading genetically modified organisms(GMOs) around the world. US agribusinesscorporations are looking to bilateral and regionaltrade agreements “to expand foreign understandingand acceptance of US regulations and standards,particularly with respect to agriculturalbiotechnology.”2 Meanwhile, the US Administrationsees these agreements as useful political instrumentsto further its broader geopolitical interests.

Bilateral free trade and investment agreements arenow being used as a tool of choice, not merely as adefault option in the face of slow WTO talks. Theyallow precise targeting of specific countries and theirpolicies, allowing the pursuit of customised deals bythe US Administration and others, like the EuropeanUnion (EU).

Expanding the liberalisation agenda throughbilateral agreements is a stealthy step-by-stepapproach that could prepare a multiple launch pad

Bilateral Free Trade and InvestmentAgreements1 and the US Corporate

Biotech Agenda

i Aziz Choudry is a New Zealand activist, researcher and writer. He is a member of GATT Watchdog, sits on the board of directors of GlobalJustice Ecology Project (www.globaljusticeecology.org), and is also involved in a collaborative website project opposed to bilateral free trade andinvestment agreements, www.bilaterals.org.

Content

Introduction 1

WTO TRIPS: Setting the Stage 3

Patent Power 4

World’s Top 10 Seed Companies + 1 4

US Bilateral Agreements imposing TRIPS-plusIPR on Biodiversity in Developing Countries 5

From TRIPS to TRIPS-Plus 5

US Corporate Agenda and Bilaterals 6

US Industry, FTAs and IPR 7

Geopolitics of Bilateral vs MultilateralAgreements 7

USAID: Handmaiden to Bilaterals andBiotech Agenda 8

Investment 8

Attacking biosafety – multilaterally andbilaterally 8

Monsanto and US-Thailand FTA 11

Egypt, the US FTA, the EU and GMOs 11

Bilateral Biotech and Biodiversity Lessons fromLatin America 11

Mexico GE corn contamination 11

Ecuador’s Biodiversity Bill 12

Resisting GMOs and Bilaterals Agenda 12

Appendices 13

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BILATERALS FREE TRADE & INVESTMENT AGREEMENT AND THE US CORPORATE BIOTECH AGENDA2

for more comprehensive regional or multilateralagreements. It is also a divide-and-rule strategy, tobreak up the kinds of alliances formed betweenSouthern governments in multilateral forums like theWTO to resist US, Japanese, and EU demands.

Bilateral agreements can serve as templates forbroader negotiations. Once countries are locked intobilateral free trade and investment agreements, witheven higher standards than the WTO, it will be harderto resist the introduction of new issues (likeinvestment) and new standards in WTO talks.Governments of smaller, poorer countries arestruggling to find the necessary resources tosimultaneously negotiate several complex deals.Meanwhile the US has a battery of experienced tradenegotiators to draw upon, who are far betterresourced for the war of attrition that they wageagainst their Third World counterparts on a numberof fronts. The powerful always have the luxury toshop around from forum to forum, searching for thebest deals to maintain and expand their power.

Strengthening intellectual property rights (IPR) isa central plank of bilateral free trade agreement (FTA)negotiations for the US. The Trade PromotionAuthority, under which the latest FTAs are beingnegotiated, explicitly states as a negotiating objectiveto promote intellectual property rules that “reflect astandard of protection similar to that found in UnitedStates law.”ii US corporations want countries tocommit to obligations that go even further than thosein the WTO Agreement on Trade Related aspects ofIntellectual Property Rights (TRIPS). Such obligationsare called “TRIPS-plus”.

Meanwhile, the elimination of existing tariffs onagricultural goods in FTAs threatens small farmers’livelihoods, unable to compete with floods ofcheaper, often subsidised imports, some of which maywell contain GMOs.

Bilateral strategies to promote biotechnology and“TRIPS-plus” intellectual property rights regimes arecarried out in a number of ways. These include: FTAs;unilateral trade policies; Bilateral Investment Treaties(BITs); Trade and Investment Framework Agreements(TIFAs –a prerequisite to full FTA negotiations withthe US); bilateral intellectual property agreements;bilateral scientific and technical cooperationagreements; development cooperation andpartnership agreements, and WTO accessionagreements.

In the Asia-Pacific region, a US – Singapore FTA isnow in force, and Washington is currently in FTAnegotiations with Thailand. It has bilateral tradeagreements (BTAs) with Laos and Vietnam. The UShas also signed bilateral TIFAs with Afghanistan,Brunei, Indonesia, Malaysia, Mongolia, Pakistan,Philippines and Sri Lanka. There is also a US-CentralAsia regional TIFA with Kazakhstan, Kyrgyzstan,Tajikistan, Turkmenistan, and Uzbekistan. US-Taiwan

TIFA talks have currently stalled, while in the case ofBangladesh and Cambodia, TIFAs with the US havebeen negotiated but are yet to be signed.

US policy stipulates the establishment of a Tradeand Investment Facilitation Agreement (TIFA) priorto negotiations on a BIT or FTA. The TIFAs areplatforms for discussing freer trade arrangements,stepping stones towards a fuller free trade agreement.They establish joint councils to expand and liberalisetrade and investment. As the US TradeRepresentative’s office puts it: “TIFAs can help focusattention on trade issues which often include barriersthat the US faces, and, therefore, can help expandUS access”.3

In 2004, Monsanto urged US trade negotiators toseek an end to Thailand’s moratorium on large-scalefield trials of GM crops either “in a parallel fashionwith the [US-Thai] FTA negotiations or directly withinthe context of the negotiations.” Monsanto says that“In the context of free trade … it is imperative thatthe US work with Thailand to eliminate the currentbarriers to biotechnology-improved crops andestablish a science-based regulatory system –including field trials of new crops – consistent withtheir international trade obligations in order to bringthe benefits of these products to market in Thailandand to further promote consistent access to Americanagricultural technologies and products.”4

The spread of GMOs and the aggressive expansionof the biotech industry directly threatens the foodsovereignty of millions of farmers, rural andindigenous communities throughout the Asia-Pacificregion and beyond. Agricultural biotechnologymoves the power and control over food anddecisions relating to food and farming away fromfarmers and into the hands of those who control theseeds. Increasingly this means transferring control ofthe seed supply into the monopoly control of largecorporations, who also own and control otherrequired agricultural inputs necessary for cultivatingtheir seeds. Meanwhile farmers’ rights to save, use,sell or exchange their own seeds are undermined bynew exclusive monopoly rights which are supportedby the intellectual property rights regime enshrinedin free trade agreements and other internationalinstruments. There are serious concerns about theimpact of GM crops and seeds on the environment,animal and human health, genetic contaminationand the destruction of biodiversity, especially incountries where agriculture remains such animportant part of life. Not surprisingly, small farmersand indigenous communities are at the forefront ofopposing GMOs and neoliberal economic agreementsaround the world.

Millions of rural and indigenous peoples havecommunally used and cultivated resources forsubsistence rather than profit. These practices are seenas threats to be eliminated, and knowledge and

ii Bipartisan Trade Promotion Authority Act 2002. http://www.tpa.gov

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resources to be privatised and controlled for profitby industry.

Communities’ rights to make decisions about food,agriculture, the environment and biodiversity basedon their culture and traditions are being eroded bycorporate agribusiness and neoliberal economicpolicymaking at the national and international level.It is vital that movements and activists fighting forfood sovereignty and against neoliberalism are awareof the links between the corporate biotech agendaand the current onslaught of bilateral trade andinvestment agreements, and the grave threats posedby these relatively low-key deals.

2) The WTO TRIPS: Setting the StageTo get the full picture about the new threats posed

by bilateral free trade and investment agreements,we need to go back a few years, to the Uruguay Roundof the GATT (General Agreement on Tariffs and Trade)which established the WTO, which in turn came intobeing on January 1, 2005.

The WTO TRIPS Agreement really has nothing todo with “free trade”. It is a protectionist tool thatrequires all WTO members to guarantee theprotection of patents for at least 20 years. Duringthe Uruguay Round it was packaged as an anti-counterfeiting proposal for companies that wantedto stop fake brand name clothing, music and videos,but it prohibits measures commonly used to facilitatetechnology transfer such as compulsory licensing. Thisis when a government gives a manufacturer a licenseto produce something for which another companyholds a patent or exclusive rights, in return for thepayment of a royalty. Its goal is to introduce genericcompetition and to drive prices down. TRIPS alsocovers copyrights and related performance rights,layouts of integrated circuits, “geographical origin”indicators (as for wines and gourmet cheeses),trademarks, and industrial designs. Moreover, it setsthe stage for broadening patent rights for GMOs andother products of biotechnology.

The concept of intellectual property rights itself hasbeen strongly challenged, especially by peasantfarmers and indigenous peoples. It is based on aWestern scientific kind of reductionism – the tendencyto reduce all phenomena to their component parts.Maori researcher Aroha Te Pareake Mead says:“[E]ach level of reduction presents an increasedscientific opportunity. She explains that intellectualproperty laws “do not regard existent indigenousknowledge as being an intellectual property anddeserving of protection, rather they consider suchknowledge as ‘common’ and define humanintervention based on what non-indigenous peoples‘add’ to what has existed for generations.”5

The notion of intellectual property arose frominterlocking Western doctrines of commerce, scienceand the law, which were used to justify and expandcolonisation. The idea that knowledge can be

created, owned, bought or sold by a single inventorconflicts with many indigenous and non-Westernviews that knowledge is inextricably linked to culture,spirituality, identity, and place, and is createdcommunally over time. Intellectual property rightscommodify and privatise knowledge for exclusiveexploitation and private profit.

The Intellectual Property Committee (a coalitionof 13 large US corporations, including DuPont, Pfizer,IBM, General Motors, Rockwell, Bristol-Myers, andMerck) worked with US trade representatives on aproposal to standardise global intellectual propertylaws along US lines, and make them enforceableunder the WTO. This followed failed attempts duringthe 1980s to negotiate tighter rules and a globalpatent regime on intellectual property at the Geneva-based World Intellectual Property Organization(WIPO). There, Southern governments had claimedthat they needed the same rights to access knowledgeand technology that benefited richer, industrialisedcountries when intellectual property laws were weak.The TRIPS agreement ultimately discarded suchclaims.

Ninety-six of the 111 members of the USdelegation negotiating on intellectual propertyduring the Uruguay Round came from the privatesector. Diplomats in Geneva say that thepharmaceutical industry drafted much of TRIPS, whilethe US government was its lead advocate. At the startof the Uruguay Round, the US negotiator appointedto head the delegation on what was to become theWTO Agreement on Agriculture was Dan Amstutz,former vice-president of agribusiness giant Cargill,who recently headed the USAID-driven“reconstruction” of Iraq’s agriculture.

Robert Shapiro was chair of Monsanto while alsoleading the President’s Advisory Committee for TradePolicy and Negotiations. Mickey Kantor, US traderepresentative (USTR) for much of the UruguayRound, subsequently became a Monsanto boardmember. Marcia Hale, a former assistant to PresidentClinton and director for intergovernmental affairs,was director of international government affairs forMonsanto. Clayton K. Yeutter, a former secretary ofagriculture and US trade representative, who led theUS team in negotiating NAFTA and helped launchthe GATT Uruguay Round, joined the board ofdirectors at Mycogen Corporation. Mycogen’smajority owner is Dow AgroSciences, a wholly ownedsubsidiary of the Dow Chemical Company.6 The webof interconnections between industry and successiveUS administrations’ trade negotiators ensures thatprivate (often monopoly) interests will trump thoseof people and the planet.

TRIPS strengthens the hand of private companiesin claiming monopoly rights and securing hugebenefits from biopiracy. Private sector researchers,agribusiness and pharmaceutical corporations areappropriating indigenous communities’ heritage,while those who developed and nurtured them

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receive no benefits. TRIPS forces all WTO membercountries to comply with a minimum standard set oflaws protecting the technological monopoly oftransnational corporations (mostly fromindustrialized countries), which own most patents,including patents on seeds and genetic sequences.

TRIPS goes hand in hand with WTO commitmentsto “liberalise” agricultural trade, further expandingagribusiness control over food systems andbiodiversity. It was the first international instrumentto require intellectual property rights protection overlife-forms.

Patent PowerThe US case law set the international precedent for

patenting genetic material. In 1980, the US SupremeCourt allowed the patenting of microorganisms. In1985, life patenting was extended to include plants.In 1987, the US Patent Office ruled that all animals,including human embryos and foetuses, were alsopatentable. TRIPS and similar – or even more radical- provisions in other regional and bilateral free trade(and investment) agreements are being used toextend and implement US-style patent lawworldwide, along with pressure exerted throughagencies such as the US Agency for InternationalDevelopment (USAID). According to the US,countries failing to adopt such laws are engaging in“unfair trading practice” using “non-tariff tradebarriers”, and deserve trade sanctions. Early TRIPStargets were Japan and newly industrialising countriesin East Asia that had copied US technology, especiallyin the automotive and computer industries. But theongoing plunder of the South’s biodiversity, withoutany compensation or benefits for the communitiesfrom which the “raw material” originated, is notconsidered unfair.

Before the Uruguay Round, most nations chose notto recognise patents on food, pharmaceuticals, orother products considered basic human needs. Thepolicies of manygovernments wereshaped by specific ethicaland socio-economicconsiderations. TRIPSrequires governments toallow microorganismsand microbiologicalprocesses (as well asbiological processes) tobe patented. It requiresgovernments to ensurethat plant varieties beprotected by patents or asui generis system (i.e.some other form of plantvariety protection) or acombination of the two.Many governments have

had to enact domestic plant variety protection lawsbased on the model of UPOV (International Unionfor the Protection of New Varieties of Plants). Whileunder TRIPS a country may exclude from patentabilityplants, animals, and “essential” biological processesfor the production of plants and animals, the outcomeof a pending WTO review of TRIPS could change that.The integrity of life is now deemed to be a merebarrier to trade and scientific progress.

‘Developed’ WTO member countries wererequired to apply TRIPS by January 1, 1995.‘Developing’ member countries had until January1, 2000. ‘Least Developed” country (LDCs) memberswere originally set a January 2006 deadline for TRIPSimplementation, but in November 2005, this wasextended by the WTO TRIPS Council by 7.5 years toJuly 2013. (Nothing in this recent decision protectsLDCs from bilateral pressure; this “concession” canbe understood as a largely symbolic gesture designedto give an impression that WTO negotiations areresponsive to concerns raised by LDC governmentsin the lead-up to the Hong Kong WTO MinisterialMeeting in December.)

Current intellectual property systems rewardindividual “inventors” for products, processes, orinnovations relating to genetic material derived fromplants, animals, or organisms – but not communalknowledge, such as that shared and handed downin indigenous or rural communities. When geneticmaterial is processed in corporate labs it is named,called an “invention,” and usually patented,bestowing exclusive marketing rights on its “owner”.Broad patents are being granted for plant varieties,covering ownership of “traits” and “characteristics”.Seed companies stand to benefit greatly from thismonopoly, while innovations in the use of such plantsor trees by small farmers and indigenous peoplesremain unrecognised and unrewarded. Increasingly,they will be prohibited from using and saving their

World’s Top 10 Seed Companies +1

Source: ETC Group13 : Based on 2004 seed sales (US) millions

No. Seeds Country Millions 1. Monsanto + Seminis (acquired

by Monsanto 03/05) (US) pro forma

=$2,803 2. Dupont/Pioneer (US) $2,600 3. Syngenta (Switzerland) $1,239 4. Groupe Limagrain (France) $1,044 5. KWS AG (Germany) $622 6. Land O’ Lakes (US) $538 7. Sakata (Japan) $416 8. Bayer Crop Science (Germany) $387 9. Taikii (Japan) $366 10. DLF-Trifolium (Denmark) $320 11. Delta & Pine Land (US) $315

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have access to a particular lake, but to wateranywhere, and to the use of the chemical formulafor any purpose.”14

TRIPS and similar, even more radical, IPR provisionsin bilateral and regional free trade agreements areall tools to expand, intensify, and lock in a regime ofmonopoly control over life itself. Since intellectualproperty rights are often included in the definitionof “investment” in bilateral investment agreements,any perceived failure to comply with corporatedemands for patent protection on genetic materialin a signatory country could lead to an investor-statedispute. This is where a company can bring a claimagainst a government (in effect a corporate lawsuit)before a special dispute settlement body that meetsin virtual secrecy but has enforceable powers.Threatened with such claims, governments can bepressured to change, drop or scrap laws or regulationsthat might be targeted by litigious corporations withprofit and control their driving interest. We willreturn to this issue in the section on investment.

3) From TRIPS to TRIPS-PlusTRIPS-plus provisions strengthen patent rules and

facilitate the patentability of lifeforms andbiotechnological inventions. TRIPS-plus goes evenfurther than TRIPS towards the commodification andprivatisation of food, agriculture and biodiversity,and the imposition of GMOs on communitiesthroughout the world. Typically, TRIPS-plusprovisions severely limit the grounds for allowingthe use of compulsory licensing of medicines, andeffectively extend 20-year drug patent monopoliesfor an additional five years, threatening access to

US Bilateral agreements imposing TRIPS-plus intellectual property rightson biodiversity in Asian developing countries. Source: GRAIN15

US-Cambodia IPR Agreement 1996: Cambodia must join UPOVUS-Korea IPR Agreement 1986: Korea must join Budapest TreatyUS-Laos BTA 2003: Laos must join UPOV (1978 or 1991 Act) “without delay”.Laos must also provide for patents for inventions in all fields of technology,without exclusion for plants or animals.US-Mongolia Agreement on Trade Relations 1991: No exclusions for plantsor animals from patent law permitted.US-Singapore FTA 2003: Singapore must join UPOV (1991 Act) within sixmonths of entry into force or by end 2003, whichever sooner. Singaporemust also allow patents on all forms of plants and animals (“each Party mayexclude inventions from patentability only as defined in Articles 27.2 and27.3 (a) of the TRIPS Agreement”).US-Sri Lanka IPR Agreement 1991: No exclusions for plants and animalsfrom patent law permitted.US-Vietnam BTA 2000: Vietnam must implement and make best effort tojoin UPOV. Viet Nam must also provide patent protection on all forms ofplants and animals that are not varieties, as well as on inventions thatencompass more than one variety.

own seed and forced to buy them from companieslike Monsanto, along with other agricultural inputs.

GRAIN (www.grain.org) points out that WIPO hasplayed a key role in implementing TRIPS standardsin the South. This has included drafting andrecommending “TRIPS-plus” legislation. West Africancountries were advised to implement TRIPS wellahead of their extended compliance schedule as LeastDeveloped Countries (LDCs), and advised againstusing the rather limited flexibilities TRIPS allows incompulsory licensing or parallel imports.7 Forexample, as a 2003 Médecins Sans Frontières reportnotes, WIPO did not inform Cambodia’s governmentthat, as an LDC, it was not obliged to grant patentson pharmaceuticals before 2016 and insisted that itadopt a 2007 deadline as part of its WTO accessionprocess.8 GRAIN warns that WIPO is another arenafor the fight over intellectual property rights; a newinternational patent treaty, the Substantive Patent LawTreaty, is currently being negotiated.9

A US proposal to establish a WTO Working Partyon Biotechnology, and for the 1999 SeattleMinisterial declaration to accept the safety of GMproducts and recognise the future viability of GMOswas opposed by many Southern delegations and wasnot successful.10

Meanwhile, consolidation of the biotech industryhas continued, creating mega-corporations withglobal tentacles. In 1996, Robert Fraley, thenpresident of Monsanto’s Ceregen Division, explainedto the US magazine Farm Journal the company’sstrategy of taking over scores of plant-breedinginstitutes and smaller biotech firms. “What you areseeing is not just a consolidation of seed companies,it’s really a consolidationof the entire food chain,”he said.11 According tothe ETC Group,Monsanto’s seeds andbiotech traits accountedfor 88% of the total areaplanted in geneticallymodified seedsworldwide in 2004.12

Owning a lifeformpatent has a far greaterreach than owning anindividual sheep or tree.US researchers HopeShand and Martin Teitelsay that the distinction“can be likened to thedifference betweenowning a lake andowning the chemicalformula for water. Apatent holder for water’schemical formula wouldhave the legal right notonly to decide who could

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affordable medicines, including HIV/AIDS drugs.Moreover, this “TRIPS-plus” approach does not allowfor plants and animals to be excluded from the patentlaws of signatory countries. While TRIPS sets aminimum standard for intellectual propertyprotection, these bilateral agreements are imposingan industry-driven agenda through the backdoor,locking countries into even more stringentintellectual property standards.

For example, Article 16.7 on Patents of the US-Singapore FTA reads as follows:

“Each Party shall make patents available for anyinvention, whether a product or process, in all fieldsof technology, provided that the invention is new,involves an inventive step, and is capable ofindustrial application. For purposes of this Article, aparty may treat the terms “inventive step” and“capable of industrial application” as beingsynonymous with the terms “non-obvious” and“useful” respectively. Each Party may excludeinventions from patentability only as defined inArticles 27.2 and 27.3 (a) of the TRIPS Agreement.”16

TRIPS provides that members can establish a suigeneris system of protection of plant varieties. In FTAswith the US however, the developing country isrequired to accede to UPOV, with many mentioningUPOV 1991 (the latest version of the treaty that hasespecially “high” standards of plant breeders’ rightsthat severely restricts the farmers’ rights to save andre-use seeds). UPOV is an international agreementwhich sets rules for patent-like monopoly rights overcrop varieties. It is highly biased toward industrialagriculture. Two-thirds of UPOV’s members areNorthern countries. Thai intellectual property expertand law professor Jakkrit Kuanpoth notes that joiningUPOV restricts government’s options for protectingplant varieties and would prohibit the inclusion ofprovisions requiring applicants to prove that a plantvariety is safe and does not cause any harmful effectsto the environment.17

Jakkrit Kuanpoth also observes that US bilateralFTAs demand effective and adequate protection forinventions in all technological fields without anyconsideration of possible negative implications.“Under FTAs, developing countries are obligated topatent the by-products of genetic engineering andother biotechnological methods without linking thepatentability issues to ethical, social, economic andenvironmental considerations.”18

FTA intellectual property chapters usually alsorequire countries to become members of WIPOtreaties, and the Budapest Treaty on the InternationalRecognition of the Deposit of Microorganisms forthe Purposes of Patent Procedure19 .

US agribusiness and pharmaceutical corporationsare both the scripters and cheerleaders of TRIPS-plusprovisions. The Industry Functional AdvisoryCommittee on Intellectual Property Rights for TradePolicy Matters (IFAC-3), in its April 2004 report on

the Intellectual Property Provisions of the US-Morocco FTA, states that it “welcomes the pledgemade by Morocco to provide patent protection forplants and animals and the confirmation made byboth Parties that patents shall be available for anynew uses or methods of using a known product fortreating humans and animals. This will make availablepatent protection for transgenic plants and animalsthat are new, involve an inventive step and arecapable of industrial application. IFAC-3 notes thatthis is a significant improvement over thecommitments made by Chile and CAFTA in their FTAsand urges US negotiators to insist in all future FTAsthat patent protection be made available to bothplants and animals.”20 It is very clear that this is aglobal, not merely a case-by-case strategy for USindustry.

IFAC-3 is a veritable powerhouse of US corporatepower. Its members include Pfizer, Merck, Eli Lilly,BIO (The Biotechnology Industry Organization),PhRMA (Pharmaceutical Research and Manufacturersof America – a coalition of leading USpharmaceutical research and biotech companies),Time Warner, Anheuser-Busch, and the private sectorcoalition for US copyright-based industries, theInternational Intellectual Property Alliance (IIPA).21

4) US corporate agendas and bilateralsThe US is using bilateral and subregional free trade

and investment agreements to set tougher standardsfor future trade and investment negotiations. It wantsmaximum concessions from developing countries,because this will make it harder for governments tooppose US demands at the WTO. Once a number ofcountries are already committed to tougher trade andinvestment rules through a bilateral agreement, itwill be more difficult to mount the kind of concertedopposition to US proposals which Brazil helped tolead at the WTO Ministerial in September 2003 inCancun, Mexico. What impact will these bilateraldeals have on opposition to the introduction of the“new issues” such as investment at the WTO, or criticalpositions taken with regard to the implementationand review of the TRIPS agreement? And what aregovernments being offered in terms of trade-offs foradopting US-style patent laws, patents on life andgenetically-engineered (GE) imports– more emptypromises of better access to the US market for exports,and cuts to subsidies to US agribusiness? After all,that is the kind of horse-trading and bullying thathas characterised US tactics in the international tradearena for so long.

In a letter of support for the US-Chile FTA, theInternational Intellectual Property Alliance states thatthe agreement “builds on the standards currently inforce in the WTO TRIPS Agreement and in NAFTA[North American Free Trade Agreement], with thegoal to update and clarify those standards to takeinto account not only the experiences gained sincethose agreements entered into force, but also the

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significant and rapid technological and legaldevelopments that have occurred since that time.”22

The report of the US Industry Trade AdvisoryCommittee on Intellectual Property Rights (ITAC-15)on the US-Bahrain FTA states that: “Our goal in thenegotiation of an FTA is to set a new baseline for allfuture FTAs, including the FTAA. This baseline iscontinually reflected in the model FTA agreements,which are constantly changing based on what welearn through negotiating each of the FTAs.”23

Industry places extremely high demands on BITsand FTAs. Corporations are demanding full nationaltreatment24 without exception in the intellectualproperty field25 , and they are pushing for extremepatenting requirements. As already mentionedabove, the US-Morocco FTA already provides forpatent protection for animals as well as plants andthe US-Singapore FTA requires patenting of bothtransgenic plants and animals.

As the Monsanto/Thailand FTA case illustrates (seebelow), trade associations are correct in asserting that“free trade agreements can serve as an importantvehicle for advancing US global interests in the fieldof agricultural biotechnology.”26

The Secretariat of the US-Thailand FTA BusinessCoalition comprises the US-ASEAN Business Council,representing US corporations with interests in ASEAN,and National Association of Manufacturers (NAM),the USA’s largest industrial trade lobby group. NAMboasts: “Our voice is not compromised by non-industry interests.”27

FedEx, General Electric Company, New York Life,Time Warner and Unocal are US-Thailand FTA

Business Coalition corporate chairs. SteeringCommittee members include: AIG, Cargill, Caterpillar,Citigroup, Corn Refiners Association, CSI, DowChemical, Ford, National Pork Producers Council,PhRMA, PricewaterhouseCoopers, SIA, UPS, and theUS Chamber of Commerce.28 Missouri RepublicanSenator Christopher “Kit” Bond, who is a ferventadvocate of biotechnology and whose electioncampaign was heavily supported by Monsanto, is akey US lobbyist for the US-Thai FTA.29

The geopolitics of bilateral vsmultilateral agreements

Bilateral negotiations are being used strategicallyto advance not only US corporate interests, but alsothe US administration’s broader foreign policy,“security” and geopolitical goals. While Iraq andAfghanistan are being bombed and occupied into‘liberty’ and free market economics, US allies in thewar on Iraq and the ‘war on terror’ like Australiaand Thailand have been ‘rewarded’ with promisesof enhanced access to US markets throughcomprehensive bilateral free trade and investmentagreements. The US uses these agreements to signalthe policies that it expects from other countrieseconomically, militarily and politically. As former USTrade Representative Robert Zoellick stated just afterthe September 11, 2001 attacks: “America’s light andmight emanate from our political, military andeconomic vitality. Our counteroffensive must advanceUS leadership across all these fronts.”33

Patrick Cronin, senior vice president ofWashington-based Center for Strategic and

US Industry’s dirtyhands, FTAs and IPR

“In the case of agreementsthat relate to intellectualproperty the technical detail ofthese agreements is monitoredby a third tier committee, theIndustry Functional AdvisoryCommittee on IntellectualProperty Rights for Trade PolicyMatters (IFAC). Themembership of IFAC is made upof 20 members drawn fromIndustry Sector AdvisoryCommittees and another 20drawn from the private sectorareas who provide thecommittee with technicalexpertise in intellectualproperty…. Under its charterIFAC is to provide detailedtechnical advice on trade

agreements negotiated by theUSTR.30 In the case of the US-Singapore FTA, IFAC, in thewords of its report, “advised U.S.negotiators on, and revieweddraft texts, of the U.S.-SingaporeFTA intellectual propertychapter”.31 Importantly, IFACreviewed the US-Singapore FTAin the context of othermultilateral and bilateralagreements and initiatives thatthe US had achieved. In otherwords, IFAC is a committee thatgets its hands dirty by reviewingand drafting specificagreements. It does thistechnical work across all UStrade initiatives in intellectualproperty, whether bilateral,regional and multilateral. It isthus able to co-ordinate at atechnical level the work it does

across these different fora,thereby ensuring that US tradenegotiating initiatives pushintellectual property standardsin the direction that US industrywould like. The technicalexpertise on IFAC, as well as theexpertise available to it from thecorporate legal divisions of itsmembers means that, forexample, it can evaluate acountry’s intellectual propertystandards in detail when thatcountry seeks WTO accessionand it can provide detailedassessments of the standards thatUSTR negotiators must bringhome in a negotiation.” PeterDrahos, Regulatory InstitutionsNetwork, Research School ofSocial Sciences, AustralianNational University, Canberra,Australia.32

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International Studies told the Daily Yomiuri: “Withthe setback to WTO reform at Cancun , the [Bush]administration is now focused like a laser beam onregional and especially bilateral trade accords.”34

Zoellick divided the WTO members into “can-do”and “won’t-do”35 countries — those who are seriousabout trade liberalisation and those who are not.Right after Cancun, he abrasively announced that theUS would push ahead with free trade and investmentagreements with “can-do” countries on a subregionalor bilateral basis. Earlier that year Zoellick hadexplained that, “By pursuing multiple free tradeinitiatives, the US is creating a ‘competition forliberalisation’ that provides leverage for opennessin all negotiations, establishes models of success thatcan be used on many fronts, and develops a freshpolitical dynamic that puts free trade on theoffensive.”36

Through its bilateral agreements, the US securescommitments that overcome the deficiencies – fromthe point of view of its corporations – of WTO’s TRIPSagreement. The EU is right behind. As Pascal Lamy,the EU’s Trade Commissioner until late 2004 (nowDirector-General of the WTO), put it, “We alwaysuse bilateral free trade agreements to move thingsbeyond WTO standards. By definition, a bilateraltrade agreement is ‘WTO plus’.”37 In this way, asPeter Drahos argues, a “global ratchet for IP” hasbeen set up, consisting of “waves of bilaterals(beginning in the 1980s) followed by occasionalmultilateral standard setting (such as TRIPS or theWIPO Copyright Treaty)”.38

USAID a handmaiden to bilateralsand biotech agenda

USAID is a key promoter of biotechnology in theThird World and its work goes hand in hand withboth US corporate agendas and Washington’sinternational trade priorities. It offers “technicalassistance” to countries engaged in bilateral free tradedeals with the US. For example, legislative changesto Vietnam’s IPR laws have been made under theUSAID-funded STAR-VIETNAM technical assistanceproject which is supporting implementation of theBilateral Trade Agreement with the US.39

The USAID website states that the “principalbeneficiary of America’s foreign assistance programshas always been the United States. Close to 80% ofthe USAID contracts and grants go directly toAmerican firms. Foreign assistance programs havehelped create major markets for agricultural goods,created new markets for American industrial exportsand meant hundreds of thousands of jobs forAmericans.”40 So much for “foreign assistance”!

USAID functions to facilitate the introduction ofGM crops in a number of countries, working withlocal officials and influencing the regulatory climateto make for corporate-friendly rules that USagribusiness needs to create global markets for GMcrops, and building relationships with biosafety

officials. It also supports public relations campaignsto promote propaganda about the benefits of GMcrops.

In a recent letter to the journal Issues in Scienceand Technology Online, Andrew Natsios, USAIDAdministrator, wrote: “USAID has already renewedits focus on agriculture programs, and …biotechnology is fully a part of this focus. Ourrenewed emphasis includes a more than fourfoldincrease in support for biotechnology to contributeto improving agricultural productivity. USAIDcurrently supports bilateral biotechnology programswith more than a dozen countries ….Tangibleexperience with biotechnology among moredeveloping countries is a prerequisite to achieving[the] goals of global scientific regulatory standardsand open markets. We will not succeed untildeveloping countries have more at stake thanacceptance of U.S. and European products and havethe scientific expertise to implement technicalregulations effectively.”41

InvestmentFTAs and BITs contain broad definitions of

investment, which throw the door wide open fordisgruntled corporations based in one signatorycountry to take a case against the other signatorygovernment to a dispute tribunal. Perhaps mostnotoriously, such disputes have become one of themost controversial feature of NAFTA, since cominginto force in 1994. Chapter 11, NAFTA’s powerfulinvestment chapter provides foreign corporationswith rights to sue governments for enacting publicpolicies or laws which they claim to affect theirprofitability. Too bad if they protect the environment,health and safety, support local small businesses orjobs. All three NAFTA members have foundthemselves targeted by corporations under theseprovisions. To cite one example, US chemicalcorporation, Ethyl Corp, used NAFTA to sue Ottawaover a 1997 federal ban on imports of a fuel additive,MMT, because it was toxic and hazardous to publichealth. Canada backed down, removed the ban, paidthe corporation US $13 million (it had demanded$250 million) and apologised. Meanwhile, severalgovernments in Latin America, Asia, Europe, theMiddle East and Africa have had investor-statedispute proceedings launched against them underbilateral investment agreements which hardlyanybody knew about. The investment provisions ofthe latest wave of free trade and investmentagreements promoted by the US go even further thanthe NAFTA model.

In the US-Morocco FTA, “investment” is definedas “every asset that an investor owns or controls,directly or indirectly, that has the characteristics ofan investment, including such characteristics as thecommitment of capital or other resources, theexpectation of gain or profit, or the assumption ofrisk”.42 Article 15.1 (13) of the US-Singapore FTA

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text defines investment as: every asset owned orcontrolled, directly or indirectly, by an investor, thathas the characteristics of an investment. Forms thatan investment may take include: a) an enterprise; b)shares, stock and other forms of equity participationin an enterprise; c) bonds, debentures, other debtinstruments and loans; d) futures, options and otherderivatives; e) turnkey, construction, management,production, concession, revenue-sharing, and othersimilar contracts; f) intellectual property rights; g)licenses, authorizations, permits and similar rightsconferred pursuant to applicable domestic law, andh) other tangible or intangible, movable orimmovable property, and related property rights, suchas leases, mortgages, liens and pledges.”43

Thus far, investor-state disputes are often relatedto conflicts after the privatisation of state-ownedenterprises and public utilities such as water. But withthe inclusion of intellectual property in the sweepingdefinitions of “investment” in BITs, and its explicitapplication to biodiversity, it may not be long beforean investor launches a dispute around IPR issues, beit a pharmaceutical corporation, an agrochemicalfirm, or a biotech seed company. National measuresto prevent biopiracy or to promote public healthcould be open to potential dispute. For example,compulsory licenses on drugs or the enforcement ofdisclosure of origin rules on plant patent holderscould become grounds for legal action by investorsunder these treaties, even if the host country’s law isWTO-compliant.

In an August 2004 paper published by GRAIN,Carlos Correa, law professor at University of BuenosAires, warns that grey areas in bilateral investmentagreements leave “room for investment-relateddisputes to induce changes in national IPR legislationof developing countries, even if that legislation isTRIPS-compliant”.44 Bilateral investment treaties orthe investment chapters in the US model bilateralFTAs which are being imposed on countries givecorporations potentially far greater powers than thoseafforded them in IPR sections of trade agreements.Correa believes that under the broad definition of‘investment’ contained in these agreements,biological materials collected under access permitsor contracts (both forms of “investment” for thepurposes of such agreements) may be viewed as the“property” of the collector, who could claim investorstatus and therefore protection as an investor in theevent of a government requesting the return ofsamples. He also suggests that when a governmentdeclares a GE moratorium or prohibits the sale andcultivation of transgenic seeds, forcing thecancellation of a license to commercialise atransgenic variety, a company could claim loss ofpotential income and launch an investor-state disputeas an investor.

In a speech to the Inter-American DevelopmentBank in October 2000, US lawyer William Rogersargued that investment treaties are “an open

invitation to unhappy investors, tempted to complainthat a financial or business failure was due toimproper regulation, misguided macroeconomicpolicy, or discriminatory treatment by the hostgovernment and delighted by the opportunity tothreaten the national government with a tediousexpensive arbitration.”45 The mere existence of suchagreements likely has a chilling effect ongovernments as they consider policy amendmentsor new legislation.

Attacking biosafety – multilaterallyand bilaterally

Some countries, especially the major biotechproducers, say that labeling should only be requiredfor biotech foods that are substantially different,arguing that any additional labelling requirementsfor foods that are composed of, contain, or arederived from GMOs were unnecessary and“substantially equivalent”.

But the production of food using GMOs isfundamentally different to the production of non-GE food products, and could result in altered productperformance. As with the WTO, US bilateral freetrade strategy promotes a cavalier approach to serioushuman health and safety concerns. These trade rulesdo not allow importing countries to adopt aprecautionary approach to the importing of GMOs.

Witoon Liamchamroon of the Thai NGO Biothai(www.biothai.org) notes how Thailand’s GMOLabeling Regulation, which came into force in May2003, allows for a threshold of 5% of GM material,not 1% or more as proposed by Thai consumerorganisations, after official fears of US retaliation.46

Even here, only the three main ingredients arecovered, which means that even if the fourthingredient is 100% GE, it will escape labeling.47 Yetsuch weak labeling regulations could still be viewedas a barrier to free trade by the US industrial-politicalcomplex.

In complaints brought under the Agreement onSanitary and Phytosanitary Measures (SPS –concerned with the protection of human, plant andanimal life and health) – a business-orientedagreement aimed at deregulation – the WTO couldcompel a nation to choose between lowering itshealth standards for humans, animals, or plants,compensating another government whose exportsare limited or blocked by the stricter standard; orpermitting that country to impose additional traderestrictions on exports from the nation with the higherstandard. Along with the WTO Technical Barriers toTrade (TBT) Agreement (which covers technicalregulations, product standards, and testing andcertification procedures), SPS opens the way forattacks on national measures that address consumerconcerns, such as labelling products containingGMOs. Pressure for downward harmonisation is builtinto the agreement. Reliance on SPS or TBT by one

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country is subject to the challenge that it is merelydisguised protectionism.

SPS is at the heart of the high-profile WTO disputewhich the US, Canada, and Argentina are takingagainst the European Union’s de facto moratorium(and associated bans by EU member states) on GMfood and feed. The US argues that EU actions are anunjustified regulation to thwart trade in “safe,wholesome, and nutritious products,”48 in otherwords, untested GE food.

The preliminary judgment by a World TradeOrganization panel concluded that the EuropeanUnion had an effective ban on biotech foods for sixyears from1998. The WTO has ruled that the EU brokeinternational trade rules by stopping imports ofgenetically modified foods.

The report sided with a legal complaint broughtby the United States, Canada and Argentina over anEU moratorium on approval of new biotech foods.The panel ruled that individual bans in six EUmember states - Austria, France, Germany, Greece,Italy and Luxembourg violated international traderules.49

Free trade agreements – multilateral or bilateralones - pose a threat to labelling laws on GM foods.They threaten the rights of countries to determinetheir own domestic regulatory approach. Theythreaten the rights of consumers to know what is inour food. They threaten the livelihoods and futuresof farmers who are struggling for the right to foodsovereignty.

The biotech industry and the US administrationargue that GMOs are like their non-GM counterparts.There is a conflict over whether GM foods are “likeproducts” to non-GM foods for the purposes of Article2(1) of the TBT and Article III (4) of GATT 1994. SPSmeasures must have a scientific basis, based on“sufficient scientific evidence” and risk assessment,and be no more trade restrictive than necessary toachieve an appropriate level of sanitary andphytosanitary protection. Under TBT, there must benon-discriminatory treatment of like products,measures must be the least trade-restrictive, and theymust fulfil a legitimate objective.

TBT is supposed to ensure that standards andprocedures do not create “unnecessary obstacles” totrade. It commits WTO members to using appropriateinternational standards, largely set by industry, intheir technical regulations. Under this agreement,governments must notify the WTO Secretariat of anyproposed new measures, including information onthe objectives and rationales behind the measuresand on the products covered. This opens them upfor comment and amendment by other WTO membergovernments. The US administration and industryhave vigorously opposed the use of the“precautionary principle” which provides a morecautious basis for some governments’ positions andpolicies, including the long-standing EU moratoriumon approving new GE crop varieties. This principle

argues that precautionary measures should be takenwhen an activity raises a threat of harm to humanhealth or the environment, even if some cause andeffect relationships are not yet scientificallyestablished. It also places the burden of proof on theproponent of the activity to prove its lack of harmfuleffect.

Under the US-Australia FTA, parties reaffirm theircommitments to obligations under the WTO SPSAgreement, and set up an SPS committee. The US-Australia FTA SPS chapter also established a standingtechnical working group on animal and plant health,as well as an ad hoc group on SPS issues. The US-Chile FTA also set up an SPS committee on technical/regulatory requirements and procedures.50 In its FTAnegotiations with Bahrain, the US sought to haveBahrain reaffirm its WTO TBT commitments,including those relating to labelling requirements onUS food and agricultural products produced throughbiotechnology, and help ensure that Bahrain’stechnical regulations, standards, and conformityassessment procedures do not serve as an unnecessaryimpediment to trade.51

So the FTAs provide another lever with which topressure governments to maintain GMO-friendlyregulations on issues like labelling even if it iscouched in the seemingly innocuous language ofgetting governments to reaffirm commitments to TBTand SPS. Moreover, the US biotech industry viewsthese two WTO agreements as the floor for futurestandards, not the final end goal, to be tightenedand refined through FTAs and other mechanisms, inorder to impose closer regulatory alignment with USstandards.

Will Sri Lanka’s recent moves on biosafety fall foulof US economic and corporate pressure? InNovember 2005, Sri Lanka’s cabinet approved anational biosafety framework, established by theMinistry of Environment and Natural Resources, toregulate and control the importation of geneticallymodified organisms and food, as well as geneticallymodified feed and processed products into SriLanka.52 It is based on the precautionary principle,“guided by the principle that if there is any perceivedthreat of serious or irreversible damage, lack ofscientific certainty shall not be used as a reason forpostponing measures to prevent environmentaldegradation and health impacts. It thus impliesshifting the burden of proof, requiring that modernbiotechnology applications used in Sri Lanka are firstproved to be harmless, instead of waiting to takeaction once they have been proven harmful.”53

Monsanto and the US-ThailandFTA

Under pressure from farmers and consumer groups,the Thai government banned the import ofgenetically modified (GM) seeds for commercialplanting in 1999. In April 2001 it also called a haltto GM field trials, including Monsanto’s ongoing

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cotton and corn experiments. But the US wasn’t goingto let the country off the hook that easily. Monsantosees Thailand as “an important window to serve thegrowing Southeast Asian market for bothconventional and agricultural biotechnologycrops.”54 In November 2003, Monsanto announcedthat it wanted to make Thailand its regional base forGM Roundup-Ready corn and Bt corn by 2006,urging the government to lift its ban. Zoellick wasimmediately on the case and called on Thailand toeliminate “unjustified trade restrictions that affect newUS technologies.”55

Monsanto urged US trade negotiators to seek anend to Thailand’s moratorium on large-scale fieldtrials of GM crops either “in a parallel fashion withthe FTA negotiations or directly within the context ofthe negotiations.” Monsanto says that “In the contextof free trade … it is imperative that the US work withThailand to eliminate the current barriers tobiotechnology-improved crops and establish ascience-based regulatory system – including field trialsof new crops – consistent with their internationaltrade obligations in order to bring the benefits ofthese products to market in Thailand and to furtherpromote consistent access to American agriculturaltechnologies and products.”56

The pressure had an effect. Even before an FTA hadbeen signed, the Thai Prime Minister ThaksinShinawatra announced his intention to reverse themoratorium.57 While he and his Cabinet were forcedto uphold the moratorium after Thai farmers,Buddhist organisations, consumers and anti-GMOactivists protested, US and Monsanto officials stillhave the moratorium in their sights in the context ofthe FTA talks.

Attempts to patent Thailand’s fragrant jasmine ricemet outrage and stiff opposition from farmers andothers concerned at the apparent ease with whichThai biodiversity and traditional knowledge is beingappropriated by others.58 The US-Thai FTA wouldrequire Thailand to allow patents on animals andplants, further facilitating biopiracy by US companiesand researchers.

Bilateral Biotech and BiodiversityLessons from Latin Americaa) Mexico GE corn contamination

Since NAFTA (between USA, Canada and Mexico)took effect in January 1994, the opening up of theagricultural sector has seen the dumping of millionsof tons of subsidised corporate US corn and otheragricultural imports in Mexico, displacing millionsof farmers and causing an increase in rural poverty.NAFTA’s agriculture chapter eliminated all tariffs onagricultural goods either immediately or in a 5, 10,or 15-year period. It established a duty-free quotasystem or a protection period for corn with a 15-year phase out. Every year since the implementationof NAFTA (with the exception of 1995) exports fromthe US have gone beyond the quota and tariffs werenot applied.

Mexico maintained a moratorium on growing GMcorn between 1998 and 2002, but thanks to NAFTA,there has been a very serious genetic contaminationof corn. 30-40% of the corn coming from US toMexico was found to be genetically modified. Thisconstitutes serious contamination of the world’straditional homeland of corn, where corn is not onlya staple food, but a way of life, and where diverseindigenous varieties of corn still grow. In 1994, 2.5million tons of US corn entered Mexico. In 2001,6.2 million tons was imported.

As S’ra DeSantis of the Biotechnology Project,Institute for Social Ecology (USA) puts it: “Theapparent strategy of these corporations is to spreadgenetic contamination throughout the world throughfuture free trade agreements, which force poorercountries to accept imports of genetically modifiedseeds and products. One of the main goals of thesefree trade agreements is to secure dumping groundsfor US genetically engineered products, sincenumerous countries throughout the world continueto close their doors to GE imports.”63

Caught between a rockand a hard place: Egypt,the promise of a US FTA,the EU and GMOs

Biotech, bilateral FTAs,geopolitics and US power cameinto play in the Middle East overEgypt, two years ago. Zoellickwaxed lyrical about the countryin May 2003, saying “Egypt isobviously the heart of the Arabworld…It won’t be easy but we’lluse the incentive of a free trade

warning to others not todisplease Washington. AhmedGhoneim, a University of Cairoacademic has warned that an“ant” like Egypt should try toavoid a US/EU “struggle betweenelephants from the outset. Bothelephants got mad.”61 AnEgyptian official told a reporterthat with the EU constituting 40%of Egypt’s trade, Egypt could notgo to “war” with it over the GMOban.62

agreement to try to promote theirreforms.”59 Weeks later - afterEgypt’s withdrawal from the US-led WTO complaint against theEU de facto moratorium ongenetically modified organisms -Zoellick proclaimed that the USwould not be negotiating an FTAwith an Egypt that “had somework to do”.60 While denyingthat Egypt’s WTO/GMO about-face was the reason, the USclearly made an example of thelargest country in the region – a

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b) Ecuador’s Biodiversity BillUnited States Embassy representatives in Quito

stated that if Ecuador wants to negotiate a bilateralfree trade agreement with the US, it must agree tochange a number of laws about the environment,biodiversity, intellectual property, and labour. TheUS-Ecuador FTA has been strongly opposed by socialmovements in Ecuador, with many thousands ofpeople mobilising against it throughout the country.

USAID and the US Embassy, together with TheNature Conservancy (TNC), one of the biggest,wealthiest environmental NGOs in the USA (withstrong links and financial support from the USadministration and large corporations such asChevron Texaco) and some of their Ecuadorian NGOpartners or counterparts have worked together topressure the Minister of the Environment andcongress people to get them to adopt a pro-GMO,pro-biopiracy Biodiversity Bill. This Bill would allowprivatisation of protected areas, disregardingcollective rights of indigenous communities, enablingtransgenic organisms to enter Ecuador’s agriculturalsystem and live organisms to be patented. Under thislegislation TNC plans to take on the planning,coordination and control of protected areas, and tohave access to concessions or delegation of goodsand services in protected areas.64

Resisting GMOs and the bilateralsagenda

The stakes are very high in the fight against bilateralfree trade and investment agreements. Butmovements in a number of countries – often led byindigenous peoples and peasant farmers, havemobilised to challenge governments for entering intothese behind-closed-door negotiations. In Korea andThailand, there have already been strong fightbacksagainst these bilateral deals.65 These agreements arebeing imposed on smaller, poorer and less powerfulcountries by governments such as the US, EU andJapan, rather than being negotiated between equals.

To overlook the global explosion of bilateral tradeand investment agreements is to risk creating anachilles heel for movements against neoliberalglobalisation. Lower-key bilateral negotiations havethe advantage of attracting less publicity andattention conducive to creating internationalmobilisations that have been conducted againstmultilateral trade deals.

In tandem with our struggles against the WTO, weneed to rapidly develop strategies that confront thegrowing web of bilateral agreements. We need toshare our analysis and experiences of strugglesagainst FTAs, not only within the Asia-Pacific region,but worldwide. What is imposed in Latin Americanow could be used as a model in Asia six monthslater.

La Via Campesina, the international peasant andsmall farmer movement has taken a clear positionagainst GMOs and bilateral free trade agreements:“We totally oppose GMOs and we will fight iteverywhere. We once again express our totalopposition to genetically modified crops. Wedenounce and reject the recent FAO report“Biotechnology, addressing the needs of the poor?”.This report only seeks to legitimise the imposition ofgenetically modified crops and the use of thetechnology of death — “terminator” or sterile seeds— with the single goal of ensuring the profits oftransnational companies in the agricultural sector.

We reaffirm our complete opposition ofneoliberalism and the policies of the WTO, IMF andWorld Bank. We totally reject their most importantrecent instrument - bilateral free trade agreements.”Declaration of the Via Campesina’s FourthInternational Conference June 19th 2004, Itaici, SãoPaulo, Brazil.66

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Appendices

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Appendix IMay 21, 2003 *

The Honorable Robert ZoellickU.S. Trade RepresentativeExecutive Office of the PresidentWashington, D.C. 20508

Dear Mr. Ambassador:

The undersigned organizations believe bilateral and regional trade agreements offer excellent opportunitiesto expand foreign understanding and acceptance of U.S. regulations and standards, particularly with respectto agricultural biotechnology. We urge you to take full advantage of these opportunities and seek inclusion oflanguage that commits countries that are parties to Free Trade Agreements (FTAs) and Trade and InvestmentFramework Agreements (TIFAs) with the United States to the following key principles:1. Decisions regarding approval of products of agricultural biotechnology must be based on objective risk

analyses, not political pressures, and must be consistent with the requirements in the WTO Agreement onthe Application of Sanitary and Phytosanitary Measures (SPS);

2. Government mandated product labeling regimes for health and safety purposes must be science-based andconsistent with the WTO SPS Agreement. Other product labeling, for informational or marketing purposes,must be truthful and not misleading to consumers, based on product attributes rather than methods ofproduction, no more trade restrictive than necessary, and consistent with the WTO Agreement on TechnicalBarriers to Trade (TBT); and

3. Patents must be made available for products of agricultural biotechnology and such patents must beprotected, and enforceable, according to the WTO Agreement on Trade-Related Aspects of Intellectual PropertyRights.We believe that these basic principles should be advanced in all bilateral and regional free trade negotiations.

We recognize that the specific text to be included in such trade agreements will need to be developed. We areprepared to work closely with U.S. negotiators to assist in that process, as well as in the negotiations themselves.

Free trade agreements can serve as an important vehicle for advancing U.S. global interests in the field ofagricultural biotechnology. Such agreements would expand the number of countries that recognize theimportance of adopting domestic regulations based on science and WTO rules. They would also help topromote a more positive dialogue in the various international forums that deal with these issues includingCodex Alimentarius.

Countries that have adopted clear science-based regulatory systems for approvals and labeling of biotechproducts are generally those with the highest level of consumer acceptance of the technology. We believe thatraising these issues with foreign governments in the context of free trade negotiations will expand the numberof countries adopting such systems, and we urge you to make this a priority in all ongoing and forthcomingFTAs/TIFAs.

Sincerely,

American Farm Bureau FederationAmerican Meat InstituteAmerican Soybean AssociationCorn Refiners AssociationGrocery Manufacturers AssociationNational Corn Growers AssociationNational Turkey FederationUSA Rice FederationWheat Export Trade Education Committee

* Retrieved at http://www.wetec.org/FTABiotechletter.ivnu PAN AP and PCFS


Appendix II

MONSANTO COMPANY **600 13TH STREET. N.W.SUITE 660WASHINGTON. D.C. 20005PHONE (202) 783-2460FAX (202) 783-2468http://www.monsanto.com

April 8, 2004

Ms. Gloria BlueOffice of the U.S. Trade Representative600 17th Street NWWashington, DC 20

By Electronic Submission: [email protected]

Subject: United States - Thailand Free Trade Agreement Written Comments

Monsanto Company appreciates this opportunity to submit written comments pertaining to the initiation ofnegotiations with Thailand on a Free Trade Agreement (FTA) as notified in the Federal Register (69 ER 9419,February 27,2004). Monsanto supports the upcoming trade negotiations with Thailand, but believes thatcurrent barriers to agricultural biotechnology must be addressed.

Monsanto is a leading international provider of agricultural products and solutions. We use unparalleledinnovation in plant biotechnology, genomics and breeding to improve productivity and to reduce the costs offarming. We produce leading seed brands, including DEKALB, and we develop biotechnology traits thatintegrate insect control and weed control into the seed itself. We make Roundup, the world’s best-sellingherbicide, which can be combined with our seeds and traits to offer farmers integrated solutions.

Our biotechnology traits have helped to positively change the face of global agriculture and adoption ofbiotech crops worldwide continues to grow. In 2003, approximately 167 million acres of biotech crops weregrown by 7 million farmers in eighteen countries, which represents a 15 percent increase over 2002 estimates.

Established in 1968, Monsanto Thailand has been providing Thai farmers with conventional hybrid seedsand a variety of crop protection products for over thirty years. Monsanto Thailand is headquartered in Bangkokand maintains seed manufacturing and research facilities in Phitsanulok and Nakornrachasima. Monsanto’sinvestment in Thailand operations is approximately $7.6 million, and we retain about 5,000 contract productionfarmers throughout the country. Clearly, we view Thailand as a market with excellent growth potential and asan important window to serve the growing Southeast Asian market for both conventional and agriculturalbiotechnology crops.

Historically, Thai regulators have demonstrated leadership in the region in developing policies and regulationsgoverning biotechnology. However, for the past three years, there has been no progress in governmentevaluation — through field trials — or approvals of agricultural biotechnology products, which jeopardizesany opportunities for the introduction and commercialization of biotech products in this market. Withoutaccess to these products, Thai farmers will lose the additional tools to enhance their efficiencies or addresslocal environmental issues through the use of agricultural biotechnology. It is our hope that this situationmight be addressed and resolved either in a parallel fashion with the FTA negotiations or directly within thecontext of the negotiations.

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Field Trial Moratorium and the Need for Science-Based Regulations in ThailandThailand has well defined guidelines for the regulation of agricultural biotechnology, and it was the first

country in Southeast Asia to begin conducting biotech field trials for Bollgard Bt insect-protected cotton in1997. Those field trials were conducted in three stages as provided by the biosafety guidelines under thesupervision of the Thai Department of Agriculture and were completed in 1999. Despite the completion of allrequired regulatory trials, the commercial use of Bt cotton in Thailand has yet to be approved by the Thaigovernment.

In 2001, the Thai Cabinet imposed a moratorium on large-scale field-testing of biotechnology-improvedcrops in response to activist pressure. The moratorium has remained in effect for three years with no clearindication that it will be lifted. Public comments made by Thai officials seem to indicate that the moratoriumdoes not prohibit government station field trials, which are smaller in scale, but was designed to only precludelarger commercial field trials.

In January 2003, Monsanto submitted an application to the Thai Department of Agriculture to initiatesmall-scale, government station field trials for Roundup Ready herbicide tolerant corn. Roundup Ready corncan help Thai farmers better meet demand by increasing productivity and to address pressing environmentalconcerns, including more efficient use of water resources through conservation tillage practices. RoundupReady corn has been planted extensively in North America and has been delivering these benefits to US andCanadian farmers since 1997. Over a year has elapsed with no indication that this application will be approved,and no scientific justification has been provided for the lack of action on the application.

It would be a modest, yet important first step for ensuring that the Royal Thai Government is committed toa timely, transparent and science-based process to evaluate biotechnology crops, to resume the limited,government station field trials that are necessary to demonstrate the safety of the product and to build publicconfidence in the regulatory process.

The net result of the Thai moratorium on field trials is similar in many respects to the European Unionmoratorium on approvals of new agricultural biotech products. Without field trials to demonstrate the safetyof agricultural biotech products, approvals cannot be obtained, therefore impeding the introduction andcommercialization of these products.

Ultimately, the Royal Thai Government should be strongly encouraged to clarify and implement a science-based biosafety and regulatory system to guide the evaluation, approval and commercialization of biotechcrops. In the context of free trade, we believe it is imperative that the U.S. work with Thailand to eliminate thecurrent barriers to agricultural biotechnology-improved crops and establish a science-based regulatory system— including field trials of new crops — consistent with their international trade obligations in order to bringthe benefits of these products to market in Thailand and to further promote consistent access to Americanagricultural technologies and products.

** Retrieved at www.us-asean.org/us-thai-fta/Monsanto_Comments.pdf

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Notes

1 For more information on bilateral free trade andinvestment agreements, and resistance, see http://www.bilaterals.org.

2 Letter to Robert Zoellick on May 21, 2003, fromseven food and agriculture trade associations:www.soygrowers.com/library/ timelynews/zoellick-biotech-052303.htm (See Appendix I for full text).

3 USTR Press Release 10 May 2004, United Statesand Malaysia Sign Bilateral Trade and InvestmentFramework Agreement. http://japan.usembassy.gov/e/p/tp-20040511-07.html.

4 Written Comments Concerning the US-Thailand FTAsubmitted by Monsanto to the office of the US TradeRepresentative, 8 April 2004. http://www.us-asean.org/us-thai-fta/Monsanto_Comments.pdf(See Appendix II for full text).

5 Aroha Te Pareake Mead, “Cultural and IntellectualProperty Rights of Indigenous Peoples of thePacific”, Workshop presentation, InauguralIndigenous Peoples of the Pacific workshop on theUN Draft Declaration on the rights of IndigenousPeoples, September 2-6, 1996, Suva, Fiji.

6 Helena Paul and Ricarda Steinbrecher with DevlinKuyek and Lucy Michaels, Hungry Corporations:Transnational Biotech Companies Colonise the FoodChain, London, Zed Books, 2003, p.149. See alsohttp://www.edmonds-institute.org/door.html.

7 Parallel importing allows retailers, wholesalers,governments, and other parties to obtain goodssubject to intellectual property rights directly fromlicensed or authorized overseas sources, rather thandealing with local suppliers, licensees, or agents.It allows the buyers to shop around for the lowestworld price, and thus enables developing countriesto get lower prices for consumers forpharmaceuticals and other goods. Although theWTO TRIPS does not prohibit parallel imports,many business lobbies like PhRMA and the USTrade Representative’s office have aggressivelyopposed this practice, claiming that it willundermine intellectual property rights, andthreatening countries that permit the practice.

8 “Doha Derailed: A Progress Report on TRIPS andAccess To Medicines”. MSF Briefing for the 5thWTO Ministerial Conference, Cancun 2003: http://www.accessmed-msf.org/documents/cancunbriefing.pdf.

9 “World Patents for Global Domination?” inSeedling (GRAIN publication) October 2003,pp.12-16.

10 “WTO Biotech Working Party Opposed byMajority”. Martin Khor, Third World Network, 7November 1999. http://www.twnside.org.sg/title/biotech2-cn.htm.

11 Cited by Rural Advancement FoundationInternational (now the ETC Group), September1996, The Life Industry, at http://www.etcgroup.org/article.asp?newsid=198.

12 Global Seed Industry Concentration. ETC GroupCommunique: Issue 90, September/October 2005,h t t p : / / w w w. e t c g ro u p . o r g / d o c u m e n t s /Comm90GlobalSeed.pdf.

13 Global Seed Industry Concentration. ETC Group,ibid.

14 Hope Shand and Martin Teitel, The Ownership ofLife: When Patents and Values Clash, Institute forAgriculture and Trade Policy, June 1997, at http://www.sus ta in .o rg /b io tech / l ib ra r y /admin /u p l o a d e d f i l e s / O w n e r s h i p _ o f _ L i f e _When_Patents_and _Values_Clas.htm.

15 September 2005. http://www.grain.org/rights/tripsplus.cfm?id=68.

16 Final text of the US-Singapore Free TradeAgreement http://www.ustr.gov/assets/Trade_Agreements/Bilateral/ Singapore_FTA/Final_Texts/asset_upload_file708_4036.pdf.

17 Jakkrit Kuanpoth, “Current Developments andTrends in Intellectual Property Rights:Harmonisation through Free Trade Agreements” inFree Trade Agreements and their Impact onDeveloping Countries: The Thai Experience,FTAWatch, Bangkok, 2005.

18 Jakkrit Kuanpoth in FTAWatch, ibid, p.30.

19 See WIPO website. http://www.wipo.int/treaties/en/registration/budapest/.

20 The US-Morocco Free Trade Agreement (FTA): TheIntellectual Property Provisions. Report of theIndustry Functional Advisory Committee onIntellectual Property Rights for Trade Policy Matters(IFAC-3), 6 April 2004. http://www.ustr.gov/assets/Trade_Agreements/ Bilateral/Morocco_FTA/Reports/asset_upload_file164_3139.pdf.

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21 IFAC-3 Report, 6 April 2004, ibid.

2 2h t t p : / / w w w. i i p a . c o m / r b i / 2 0 0 3 _ M a y 8 _ChileFTA_ITC.pdf.

23 http://www.ustr.gov/assets/Trade_Agreements/B i l a t e r a l / B a h r a i n _ F T A / R e p o r t s /asset_upload_file822_5528.pdf.

24 This means that a WTO Member (or FTA signatory)government shall accord to the nationals of otherMembers (or of the other party, in the case of abilateral FTA) treatment no less favourable thanthat it accords to its own nationals with regard tothe protection of intellectual property.

25 In its submission on the US-Chile FTA the IIPAasserts: “No bilateral agreement entered into bythe US should have any other rule than full nationaltreatment”. www.iipa.com/rbi/2003_May8_ChileFTA_ITC.pdf.

26 Letter to Robert Zoellick on May 21, 2003, fromseven food and agriculture trade associations:www.soygrowers.com/library/ timelynews/zoellick-biotech-052303.htm.

27 NAM At A Glance. NAM Website: www.nam.org/s_nam/doc1.asp?CID=53&DID=224181.

28 US-Thailand FTA Business Coalition website. http://www.us-asean.org/us-thai-fta/.

29 Witoon Liamchamroon, “As The TNCs Catch You:An Analysis of the Liberalization of BiotechnologicalProducts in the Thai-US FTA”, Free Trade Agreementsand their Impact on Developing Countries: The ThaiExperience, FTAWatch, Bangkok, 2005.

30 Charter available at http://www.ita.doc.gov/td/icp/Charter-23.html.

31 The U.S. Singapore Free Trade Agreement (FTA).The Intellectual Property Provisions: Report of theIndustrial Functional Advisory Committee onIntellectual Property Rights for Trade Policy Matters(IFAC-3), February 28, 2003.

32 Expanding Intellectual Property’s Empire: the Roleof FTAs. November 2003. http://www.grain.org/rights/tripsplus.cfm?id=28.

33 “Countering Terror With Trade”, Robert Zoellick,Washington Post, 20 September 2001.

34 Daily Yomiuri (Japan), 1 January 2004.

35 Robert Zoellick, “America will not wait for thewon’t do countries”, Financial Times, London, 22September 2003. http://www.bilaterals.org/article.php3?id_article=26l.

36 Statement of Robert B Zoellick, US TradeRepresentative, before the Committee on Financeof the US Senate, 5 March 2003. http://www.us t r. gov /a s se t s /Document_L ib ra r y /U S T R _ Z o e l l i c k _ T e s t i m o n y / 2 0 0 3 /asset_upload_file96_4330.pdf.

37 “’Singapore issues’ part of EU’s trade agenda:Lamy”, Jakarta Post, 9 September 2004.www.bilaterals.org/article.php3?id_article=610.

38 “Expanding Intellectual Property’s Empire: TheRole of FTAs.” November 2003. www.grain.org/rights/?id=28.

39 See US-Vietnam Trade Council website. http://www.usvtc.org/trade/ipr/STAR_IPR_28apr05.pdf.

40 The Challenge of Foreign Assistance. USAIDWebsite. http://www.usaid.gov/about/challenge/challenge_2.html.

41 Andrew S. Natsios. “Biotech relations”, Issues inScience and Technology Online, Winter 2005.http://www.issues.org/issues/21.2/forum.html.

42 Final text of the US-Morocco Free TradeAgreement. http://www.ustr.gov/ assets/Trade_Agreements/ Bilateral /Morocco_FTA/ FInal_ Text/asset_upload_file651_3838.pdf.

43 Final text of the US-Singapore Free TradeAgreement. http://www.ustr.gov/assets/Trade_Agreements/Bilateral/ Singapore_FTA/Final_Texts/asset_upload_file708_4036.pdf.

44 Carlos M. Correa. Bilateral investment agreements:Agents of new global standards for the protectionof intellectual property rights? http://www.grain.org/briefings/?id=186.

45 William Rogers, “Emergence of the InternationalCenter for Settlement of Investment Disputes(ICSID) as the Most Significant Forum forSubmission of Bilateral Investment Treaty Disputes”,Presentation to Inter-American Development BankConference, October 26-27, 2000.

46 Witoon Liamchamroon, in FTAWatch, 2005, ibid.

47 Greenpeace South East Asia. Press Release.19November 2003. Greenpeace exposes dumping ofGMO soya into Thailand.

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48 United States Requests Dispute Panel in WTOChallenge to EU Biotech Moratorium. USTR PressRelease. 7 August 2003. http://www.ustr.gov/Document_Library/Press_Releases/2003/August/United_States_Requests_Dispute_Panel_in_WTO_Challenge_to_EU_Biotech_Moratorium.html.

49 Europe ‘stopped GM food imports’. BBC News 7February 2006.

51 US Animal and Plant Health Inspection Service(APHIS) Technical Trade Report. Special Focus: SPSTrade Issues and Free Trade Agreements. July 2004.http://www.aphis.usda.gov/is/tst/ Publications/TTreports/2004July.pdf.

53 US Trade Representative Letter To Senate NotifyingIntent to Negotiate FTA with Bahrain, 4 August2003. http://www.ustr.gov/.../2003/letter_to_Senate_Notifying_Intent_ to_Negotiate_FTA_with_Bahrain.html.

52 “Bio Watch”. Lanka Business Online. 9 November2005. http://www.lbo.lk/new_full_story.php?subca t code=17&ca tname=Indu s t r i e s&newscode=1546227760.

53 National Biosafety Framework of Sri Lanka.w w w. u n e p . c h / b i o s a f e t y / d e v e l o p m e n t /countryreports/LKNBFrep.pdf.

54 Written Comments Concerning the US-ThailandFTA submitted by Monsanto to the office of the USTrade Representative, 8 April 2004. http://www.us-asean.org/us-thai-fta/Monsanto_Comments.pdf.

55 Robert Zoellick. Letter to Senate on Intent toNegotiate FTA with Thailand, 2 December 2003www.ustr.gov/.../Letters_to_Congress/2004/Letter_to_Senate_on_Intent_to_Negotiate_FTA_with_Thail.html.

56 Written Comments Concerning the US-ThailandFTA submitted by Monsanto.

57 Thailand to Reverse Three-Year Moratorium onCultivation of Genetically Modified Crops,www.monsanto.co.uk/news/ukshowlib.phtml?uid=8071.

58 GRAIN, Protecting Asia’s Most Valuable Resource,Seedling, December 2001, www.grain.org/seedling/?id=59.

59 MEED report, 21 May 2003, cited in “US-EgyptFree Trade”. German-Arab Chamber of Industry andCommerce. http://ahkmena.com/Details.aspx?News=643.

60 Zoellick Q&A Following Speech to WorldEconomic Forum Dead Sea, Jordan 23 June 2003.http://www.ustr.gov/assets/Document_Library/Transcripts/2003/asset_upload_file126_3559.pdf.

61 “In U.S. free trade flurry, Egypt is left behind.”AmCham Egypt. Business Monthly April 2004.ht tp : / /www.amcham.org.eg/Publ i ca t ions /B u s i n e s s M o n t h l y / A p r i l % 2 0 0 4 /r e p o r t s ( i n u . s . f r e e t r a d e f l u r r y e g y p t % 2 0isleftbehind).asp.

62“US beats Egypt with trade stick” Financial Times,UK, 29 June 2003.

63 “Using Free Trade Agreements to ContaminateIndigenous Corn”, in Synthesis/Regeneration Winter2004. Presentation from Biodevastation 7. http://www.greens.org/s-r/33/33-01.html.

64 “The Nature Conservancy Plots With United StatesEmbassy and USAID to Have the Biodiversity BillAdopted”. Cecilia Cherrez, Accion Ecologica,Ecuador. 4 March 2004. http://www.mindfully.org/W T O / 2 0 0 4 / T h e - N a t u r e - C o n s e r v a n c y -Ecuador4mar04.htm.

65 See, for example, Korean People’s Action AgainstFTA and WTO (KOPA) http://antiwto.jinbo.net/new/main_eng.php; FTAWatch, http://www.ftawatch.org.

66 http://www.landaction.org/printdisplay.php?article=236.

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