Seeking Harmonious in International Regime on Genetic Resources: Indonesia Experience ABSTRACT Genetic Resources (GR) traveling from one area (state) to another has become natural since the creation of the Earth. The traveling became a problematic in time when the sovereign country and nation community sees the sources as a part of their jurisdiction. The polemic was triggered by the fact that foreign country has accessed another country’s GR freely, improve and develop it further to meet market need, and protect it through intellectual property rights mechanism in order to monopoly the specific market including in the country of provider with high price, without any obligation to share their profit to the country of origin/provider of such GR. Considering this situation is unfair for the provider countries (including Indonesia), these countries were seeking the alternative to protect their own GR that meet their own merit. In International level, various forums have elaborated the mechanism to meet South countries need through harmonizing the different concept related to the issue. In national level, some countries like Brazil and India choose to establish ‘sui generis’ system to stipulate GR in their own countries. Looking to those circumstances, Indonesia has to decide in what form the protection to GR to be which also supporting the utilization of the sources. By analyzing Indonesia position and take a lesson from countries that have similar GR, culture, and economic background, it is suggested that Indonesia needs ‘sui generis’ system to the issue. In the system, one of important issues to be implemented is establishing the national authority to process and decide how GR Indonesia is going to be managed. This institution takes an important role not only in the sense of protecting Indonesia’s GR but also in providing GR to be able to utilize further by all stakeholders. Background Genetic Resources (GR) which is defined as genetic material of actual or potential value Genetic material is defined as component of plant, animal, micro-organism including their derivatives which contain heredity function. This definition is proposed by Government in the Bill of Usage and Conservation of Genetic Resources. This definition is drawn up from Convention on Biological Diversity (CBD). Indonesia has ratified the Convention through Law No. 5/1994. has a very important role for human exist in the world, as Brush (1994) stated: Genetic resources provide “the foundation of all food production, and the key to feeding unprecedented numbers of people in times of climate and other environmental change” Stephen Brush cited in Graham Dutfield: Intellectual Property Rights, Trade And Biodiversity: The Case Of Seeds And Plant Varieties, Background Paper, Intersessional Meeting on the Operations of the Convention Biological Diversity, Montreal, Canada, 28-30 June 1999. As a foundation for the human existing, GR relates with several important issues: human right, food safety, conservation and sustainable development, and intellectual property. From those important issues, conservation and sustainable development and food safety, in one hand, and intellectual property, in another hand, become the most controversial issues one to each other. Since GR has a great economical value, in the global trade context, after oil era has been passed through, GR becomes the most prospective commodities, in the sense of possibility of giving financial benefit to its owner. Although it is very difficult to predict the real economical value of GR Since the trade commodity resulted from GR has wide range and no direct information and data regarding the dynamic of the commodity in particular, and the role of GR as raw material in the commodity is vary, that could be as wild, derivative, semi-domestication and its derivative, and landraces (or derivative variety) of the original species, then the economic value of GR in the trade sector could be predicted from product global sales from GR. , however by identifying its derivative products, that value can be understood. GRAIN (Genetic Resources Action International) GRAIN is an international non profit organization which support management and the use of sustainable agricultural biological diversity based on society’s control and local knowledge of society’s sources. (www.grain.org) report said that annual sales of product from genetic resources engineering alone estimated between US$ 500 up to 800 million Kate, K. And Laird S A, The Commercial Use of Biodiversity, Access to Genetic Resources and Benefit-Sharing, (London: Earthscan), 1999.; and from herbal medicine sector alone contributed US$ 12.5 million in 1994 and 30 million in 2000, with growth rate 5% up to 15% per year, depends on the region GRAIN and Kalpavriksh Traditional knowledge of biodiversity in Asia-Pacific: Problems of Piracy and Protection, November 2002, Medicinal Plants, International Trade Forum, Published October 17, 2001 www.tradeforum.org/news/fullstory.php/aid/301/Medicinal_Plants.html. Dari data lain seperti The International Seed Trade Federation (FIS) and the International Association of Plant Breeders (ASSINSEL), two of international non governmental organizations which represented seed industry in 60 countries, estimated that commercial seed market reach US$ 30 billion/year. Thirtle (1985) predicted the contribution of this sector that impacted the harvest (fertiliser, machinary, pesticide, gene development, saving yield technologi, etc.) incresing corn harvest aproximately 1,7 percent per year between 1939 and 1978; wheat harvest increased to 1,5 percent; soyben reached 1,1 percent; cotton increased 0,5 percent. Thirtle further said that the development in biology gives a contribution 50 percent to better corn field, 85 percent to soybean, 75 percent to wheat, and 24 percent to cotton field. From financial perspective, Australia for example, obtain US$848 million in 1994 from development of varieties. Other source said that GR contribution economically in forest area which using 35 million m3 log for wood industry more than US$4,5 million per year. While in the mid of 1980s, meat of wild animal contributes around US$100 millian per year to the Serawak’s economy, a country state of Malaysia in Borneo island with population around 1,5 million people. The same amount also experienced in near region such as Papua and other places in Indonesia; from this trend, it estimated that approximately US$1,25 billion per year. In the world level, in 1995 alone the use of medicine herbal from traditional society had reached US$43 million. (Kelly Day Rubenstein, et.al. Crop Genetic Resources An Economic Appraisal, http://www.ers.usda.gov/publications/eib2/eib2.pdf, akses 8 Agustus 2007, 14.50, dan Someshwar Singh. Traditional Knowledge Under Commercial Blanket. http://www.twnside.org.sg/title/blanket-cn.htm. 21 Juni 2007).. In general, management of this huge potent resources in two directions: countries with enormous GR which is in tropical area mostly but lack of science and technology to explore it further (genetic resource rich – technology poor countries), and countries which is developed the valuable resources intensively but short of the GR (technology rich – genetic resources countries). Looking at most of genetic rich countries reside in the tropical area, these countries in turn should have strong position in the trade dynamic, and receive the biggest part of the benefit of the trade, eventually. However, the reality is contradicted to the utopia, since technology rich countries accessed the GR take people who understand the GR potential very well face to face with the people who provided such GR that not in the same understood, therefore their bargaining position is very weak; this lead to unfair benefit sharing Graham Dutfield: Intellectual Property Rights, Trade And Biodiversity: The Case Of Seeds And Plant Varieties, Background Paper, Intersessional Meeting on the Operations of the Convention Biological Diversity, Montreal, Canada, 28-30 June 1999.. Some classic cases represent the situation such as the case of rosy periwinkle, Barley Yellow Dwarf Virus, Neem tree, Basmati rice, and Brotowali In the case of rosy periwinkle (Catharanthus roseus) In Indonesia this plant is known as Tapak Dara. , the plant which is provided by people of Madagaskar, has been developed by Eli Lilly & Co. in the 1950s as an anticancer medicine, especially to prevent leukemia for children; from this developed medicine, the average remission The emission rates used in medical world for showing the declining effect of a symptomp (in this case prevent leukemia) so that do not causing the symptomp. Sometimes a remission, or symptomp free period will be maintained for years. However, in the case of leukimia with the use of rosy periwinkle, the preventive could be reached 99 percent, and so for Hodkin’s Disease. (lymphoma-net.org, http://indonesian.lymphoma-net.org/indolent-non-hodgkins-lymphoma.cfm, akses 17 September 2007). is about 99 percent Another use of this medicine is for curing Hodgkin’s Disease Hodgkin’s Disease (limfoma hodgkin) is a kind of limphoma (a cancer from lymphatic that found by Thomas Hodkin in 1832. The diases characterised clinically by spreading symptomp from one lymphatic to another with developing systematic symptomp which increases to a disease. (Apotik on-line and Media Informasi Obat-Penyakit, http://www.medicastore.com/cybermed/detail_pyk.php?idktg=21&iddtl=1024 dan Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/Hodgkin's_disease, akses 17 September 2007). with average emission 80 percent. From this product, Eli Lilly & Co. receive more than 100 million US dollar per year Cancer cured by the rosy periwinkle, http://www.livingrainforest.org/about/economies/rosyperiwinkle, last visited 8 August 2007. This number is increased dramatically in 1997, achieve $US 180 million., but none for the people of Madagaskar Christopher J. Hunter, Sustainable Bioprospecting: Using Private Contracts and International Legal Principles and Policies to Conserve Raw Medicinal Materials, Boston College Environmental Affairs Law Review, Fall 1997, 1, http://findarticles.com/p/articles/mi_qa3816/is_199710/ai_n8778469, last visit 4 September 2007. . The same situation also occurs in the Barley Yellow Dwarf Virus Barley Yellow Dwarf disease is one of virus disease which spread and attacks little grain plant. The disease attacks wheat, barley, and oats mostly which can cause loss up to 25 percent. The disease is known in 1951 and found by Oswald and Houston. http://pubs.cas.psu.edu/FreePubs/pdfs/ul206.pdf, akses 7 Desember 2007. case. Using the gene of the barley which grow in Ethiopia and proved resists to pest, this plant is developed to eradicate such virus in California and able to save around $US 160 million from effort to eradicate the virus by other mean and the increasing the yield; again none of this money goes to people of Ethiopia Frank A. Campbell. Ethiopia a Seed-Basket to the World?, http://www.chatarea.com/ETHIOPIA.m460858, last visited 8 August 2007.. Moreover, cited the statement of Chossudovsky from Rural Advancement Foundation (RAFI), even farmers of US earned more than $150 million per year from planting the barley, and none of this penny goes to people of Ethiopia Ghelawdewos Araia, The Paradox of Bread Basket Starving Ethiopia, September, 2002, http://chora.virtualave.net/ghelawdewos-famine.htm, last visited 7 December 2007.. India also experienced the same situation with its Basmati rice. This popular rice is a favorite to many people because of its fragrant The rice is also called queen of fragrance or the perfumed one and its long grain. The rice is the most expensive rice in the international market in 1993. The rice is growth in Himalaya mountain that part of India and Pakistan. Considering the quality of the rice, Rice Tec Inc. of US registered the US version of the rice for patent in US, and has been granted. This lead to many complaints come from India side. People of India see there are at least three reasons why Rice Tec has broken India interests, first by doing the patent application, Rice Tec has taken away the collective intellectual of India’s farmers. Secondly, Rice Tec also has taken the market of India’s traders and exporters, and lastly, the patent make confusion among consumers that can be interpreted as the same with original Basmati or derived from original Basmati TED Case Studies, ibid.. Before this case, other cases that related to India is neem tree and turmeric. In the neem tree case, the usage of the tree has been proved as insecticide and pesticide for centuries besides of its others function such as medicine and cosmetic. The function of the tree as insecticide and pesticide is developed through modern technology by W.R. Grace & Co. and registered it as environmental friendly insecticide and pesticide David Conforto, Traditional And Modern-Day Biopiracy: Redefining The Biopiracy Debate, 19 J. Envtl. L. & Litig. 357, Journal of Environmental Law and Litigation, 2004, 390. that can be stored in a long time Song, 2005, 272.. To catch up with the market demand, W.R. Grace produced 20 tons of neem seed per day. This causes the price of neem seed rocketing; besides the privilege of the patent right, the seed become very expensive for local farmers. Gradually, local farmers changed their agricultural tradition and leave the traditional way of curing diseases using the neem tree that has been practiced for centuries Conforto, 2004, ibid.. The turmeric case involving two Indian scientists that work for University of Mississippi Medical Center which registered their development of turmeric as wound healing Murray Lee Eiland, Patenting Traditional Medicine, 89 J. Pat. & Trademark Off. Soc'y, Journal of the Patent and Trademark Office Society, 2007, 61.. Based on the argument that the plant has been common knowledge ini India for centuries, scientists in The Council of Scientific & Industrial Research (CSIR) CSIR is main R&D organization in India which is established in 1942 by a institution which called Central Legislative Assembly later on. This institution is registered autonomous institution. The aim of the institution is to increasing industrial competitiveness, social welfare, strength science and technology basic for strategic sector and development of fundamental knowledge, http://www.csir.res.in/External/Utilities/Frames/aboutcsir/main_page.asp?a=topframe.htm&b=leftcon.htm&c=../../../Heads/aboutcsir/about_us.htm, last visited 8 August 2007. challenged the patent and succeed In the Basmati case, the application has been cancelled by the Government and people India finally. In its official statement, India’s Government after studying Basmati patent which granted to RiceTec Inc., gives respond immediately that emphasized if there will be an actual action taken to US patent office to ask them to review the application for protecting India’s interest, especially for people who plant and export the rice. Additionally, a group of inter ministry which contains a ministry representative and trade department, industry, international affair, research and technology (CSIR), agriculture, biotechnology, India’s rice exporter, APEDA, and agricultural research of India mobilized for beginning the deep evaluation of the case. Contain and implication of patent has been analyzed with patent attorney and agricultural scientist. Besides, India also can prove in publication that support its case which said that healing by turmeric is not a new invention, so do Basmati rice, and therefore patent for those cases could not be granted.. In the smaller scale, Indonesia also experienced the same situation with brotowali. This plant has been used as raw material for traditional medicine and cosmetic known as jamu (herbal medicine) for centuries. A cosmetic company from Japan, Shiseido, used this plant as ingredient of their cosmetic product and patented the use of brotowali in cosmetic in Japan. Indonesia non governmental organization challenged this patent and succeeded Kompas newspaper, Tuesday, 26 March 2002: Shiseido Cancelled Indonesia Ingredient Patent and the Meaning of the Succeded Shiseido Patent Cancellation, C. Ria Budiningsih Wednesday, 17 July, 2002.. However, some of others GR Indonesia that used in the same manner have not been recognized successfully, such as kayu rapet (Parameria laevigata), kemukus (Pipercubeba), tempuyung (Sonchus arvensis), belantas (Pluchea indica L), mesoyi (Massoia aromatica Becc), pule (Alstonia scholaris), pulowaras (Alycia reindwartii BI), dan sintok (Cinnamomumsintoc BI) Ria Budiningsih, ibid.. Looking at the cases above, it can be concluded that the use of developing countries’ GR involves economic interest. Developed countries used their knowledge and technology to develop further the genetic resources of developing countries. By using international regime of intellectual property mechanism, they demand of the protection of their effort without taking into account developing countries effort in preserving, maintaining, and providing such genetic resources. Along with the progress in international arena where developing countries become more aware of their unfortunate condition, the discussion at the moment is seeking the balance of all countries’ interest in using of GR without prejudice to its benefit to humankind of all. According to study of GRAIN, at least there are 20 international cases regarding GR due to bioprospecting and biopiracy practiced in Asia Pacific, as shown in the table below: Table1. Bioprospecting in Asia Pacific until the year 2002 Source: GRAIN and Kalpavriksh, 2002 GR is not only related to plant, but also include animal. However, the same pattern is also happened in the context of animal. The actual case involving Indonesia regarding this kind of GR is HN251 virus that used as raw material for developing antivirus for bird influenza. Under World Health Organization (WHO) auspices, countries members exchange information about any possible solution for curing disease all over the world. In that sense, Indonesia as a producer of such virus has delivered the later stage of research of the virus. However, this information has been used to develop commercial pharmacy for vaccine the pandemic and sold the vaccine back to Indonesia with commercial price that can not be afforded by most Indonesian people Triono Soendoro, Tatanan Akses dan Manfaat Global Flu Burung: Dulu, Kini, dan Esok, (Access to Bird Influenza and Its Benefit: Past, Present, and Future) paper presented in the Workshop of Shaping Perception of Access and Benefit Sharing of Genetic Resources, Jakarta, 22-23 August, 2007, 1-8.. The trigger of GR disputes above can be traced to different application of international regime in managing the use of GR. When developed countries accessed the GR, they use ‘common heritage of mankind’ notion that become the principle in Food and Agricultural Organization (FAO) before. Using this notion, members countries considered that would be a best mechanism to develop food crops all over the world in order to conquer starving and poverty. In this sense, all countries can use other countries resources as a material for research and development further which the result should go back to the society on affordable price. However, the progress later, when one certain organization could develop the crop under its own effort, the organization demanding using the intellectual property mechanism that gives an exclusive right to the organization, so that it enjoy a certain degree of monopoly in the market. The result of this mechanism is the price could be very high for most of people in developing countries. At the moment, there are no less than 13 international fora that relates to GR The fora are Antarctic Treaty, United Nations Convention on the Law of the Sea (UNCLOS), Working Group on Indigenous Populations-Discrimination Against Indigenous Peoples, the International Undertaking on Plant Genetic Resources (Undertaking)-FAO, Declaration of Belém, the International Convention for the Protection of New Varieties of Plants (UPOV Convention), The Convention on Biological Diversity (CBD or Convention), Mataatua Declaration, Biosafety Protocol to the Convention on Biological Diversity, The International Treaty for Plant Genetic Resources for Food and Agriculture, Keystone Madras Session, Ethics of Economic Botany, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, TRIPS-WTO Agreement, World Intellectual Property Organization (WIPO), United Nations Educational, Scientific and Cultural Organization (UNESCO).. Two most significant and contradicted fora one to another are Convention on Biological Diversity (CBD) and Trade Relates to Intellectual Property Rights (TRIPS) Agreement of World Trade Organization (WTO). From developing countries’ point of view, there is potential conflict between CBD and TRIPS as shown below: Table 2.4. Synopsis of the points of conflict between CBD and TRIPS from the developing countries standpoint CBD TRIPS The Conflict Nation States have sovereign public rights over their biological resources (Preamble, Article 15.1). Biological resources should be subject to private IPRs. Compulsory licensing, in the national interest, should be restricted (Article 27, Article 31). National sovereignty implies that countries havethe right to prohibit IPRs  on life forms (biological resources). TRIPS requires the provision of IPRs on micro-organisms, non-biological and micro-biological processes, as well as patents and/or sui generis protection on plant varieties.  The use or exploitation of traditional knowledge,  innovations, and  practices  relevant to the use of   biodiversity  must  give rise  to equitably  shared  benefits (Preamble,  Article  18.4, Article 8.j).                                                                               States must provide patents for all fields of technology;  therefore, IPR must protect  the use or exploitation of   biological resources. There isno mechanism for sharing  benefits between a patent   holder in one country  and  the donor of material in  another country where the  invention is derived (Article 27.1).       The CBD gives developing  countries a legal basis to  demand a share of benefits. TRIPS does not mention  such legal authority. States should promote the conservation and sustainable use of common concern of  humankind while taking into account all rights over  biological resources.                                                                                                                            States should safeguard  public health and nutrition  and public interest in  biodiversity as a general.                                                 The CBD places the public interest and common good over private property and vested interests. TRIPS grants private rights on the same subject matter. Source: Curci, 2005, 26. The intensive debate of controversial regarding genetic resources between developing countries and developed countries is taken place in TRIPS Agreement. Some developing countries lead by Brazil and India, insisting to amend TRIPS Agreement to accommodate the principle of CBD. The most important issue demanded by developing countries in TRIPS Agreement is adding patent requirements covering ‘disclosure requirement’ through providing prior informed concern that disclose the source and origin country of GR Jonathan Curci, The New Challenges To The International Patentability Of Biotechnology: Legal Relations Between The WTO Treaty On Trade-Related Aspects Of Intellectual Property Rights And The Convention On Biological Diversity, 2 Int'l L. & Mgmt. Rev. 1, Winter, 2005, 38.. On the other hand, developed countries lead by US opposes this proposal by saying that prior informed countries would not prevent misappropriation, and yet this could be the burden to the patent office Curci, 2005, ibid.. However, some of the developed countries give sympathy to the developing countries’ effort such as Norway Nuno Pires de Carvalho, Requiring Disclosure Of The Origin Of Genetic Resources And Prior Informed Consent In Patent Applications Without Infringing The Trips Agreement: The Problem And The Solution, 2 Wash. U. J.L. & Pol'y 371, 2000,393.. This becomes good news to developing countries. As far as the protection and sustainable use of GR concern, it is essential to seek the best way to reconcile the two conventions and give benefit for all. This is the aim of this study; additionally, in Indonesia context, the country has no such regulation yet, despite its enormous GR. Indonesia Context Indonesia is one of the mega-biodiversity countries. With land area covers only 1,3 percent of world’s land (Mittermeier et.al, 1997), Indonesia has 12 percent (515 species) of total world’s mammalian which make it as the highest species in the world; 7,3 percent (511 species) of total reptile, 17 percent (1531 species) of total world’s bird, which is the fourth in the world. The country also becomes a place of 270 species of amphibian, 2827 species of invertebrate fish, and 47 types of ecosystem Laporan Status Lingkungan Hidup Indonesia Tahun 2002 (Indonesian Environmental Status Report 2002), VII – 1, and also said in Indonesia Biodiversity Strategy and Action Plan 2003-2020, National Planning Bureau.. The number will be higher when plant GR is considered. There is 38,000 plant species approximately found in Indonesia which 55% of it is endemic; 350 species from Dipterocarpaceae family, known as high economy value log, found in Indonesia which 155 species of them is endemic to Kalimantan Newman, 1999 as cited in Indonesian Biodiversity Strategy and Action Plan 2003-2020, National Planning Bureau, 20 and Indonesian Environmental Status 2007, Environmental Ministry, 175.. For clearer understand of Indonesia’s GR is shown in the table below: Table 3.1. GR’s Diversity on Each Region and Its Encemic Status Island Bird (species) Endemic (%) Mammalia (species) Endemic (%) Reptile (species) Endemic (%) Plant (species) Endemic (%) Papua 602 52 125 58 223 35 1030 55 Maluku 210 33 69 17 98 18 380 6 Sulawesi 242 30 41 12 77 22 150 3 Kalimantan 289 32 114 60 117 26 520 7 Jawa Bali 362 7 133 12 173 8 630 5 Sumatera 465 2 194 10 217 11 820 11 Source: Indonesia Department of Forest, 1994 Comparing GR Indonesia to other mega-biodiversity countries, the number is still significant. Table 3.4. Comparison of GR Indonesia with Other Mega-Biodiversity Countries Countries Mammalian Bird Amphibian Reptile Butterfly Seed Closed Plant Indonesia 515 1519 270 600 121 20000 Brazil 428 1622 516 467 74 55000 Colombia 359 1721 407 383 59 45000 Mexico 449 1010 282 717 52 25000 Zaire 409 1089 216 280 48 10000 Tanzania 310 969 127 244 34 10000 Source: WWF and Indonesia Kehati, 1995 Although Indonesia has ratified CBD and TRIPS Agreement, and yet the protection of GR in Indonesia has not well regulated and comprehensively, especially the opportunity has been opened by CBD. Despite of local and national internal problems, Indonesia should open mind to the on going discussion in international level and make out of it for Indonesian people benefit. There are no less than 28 regulations in the level of Law Law in Indonesia legal system means a regulation that established by Parliament and Government. This kind of law is only second place to Constitution. Therefore, Law becomes very important guidelines in Indonesia. The substance of Law is rather policy than practical. To derive the Law in practical ways, there are several other regulations such as Executive Degree, Presidential Degree, and Local Regulation.. Since these laws has no single framework of regulating GR, some of these regulation redundant one to each other. In this stage, it is urgent for Indonesia to make necessary protection as comprehensive as possible to make GR as other way to increase the people welfare. There are three problems that need to be solved by conducting this study. First, what the background of using different principle regarding using of GR: common heritage of mankind in FAO, sovereignty right in CBD, and individual right in TRIPS. Secondly, how the ownership of GR should be regarded according to its very nature. Thirdly, how to make use the international regime regarding GR for benefit of Indonesia? PAGE 13