*DISCLAIMER*
The
notes below are adapted from the Kenyatta University, UoN and Moi University Teaching module
and the students are adviced to take keen notice of the various legal
and judicial reforms that might have been ocassioned since the module
was adapted. the laws and statutes might also have changed or been
repealed and the students are to be wary and consult the various
statutes reffered to herein
Emphasis shall be on
the relationship between law and science and technology – interplay between
law, science and technology. For example
the phenomena such as issues related to the management of ocean space and resources
therein
Atmosphere i.e. acid
raid, depletion of the ozone layer and the climate change due to greenhouse
gasses, problems brought about by nuclear technology ,issues of intellectual
property rights, relating to food security, the law and the ethically sensitive
scientific research i.e. cloning.
These areas create
problems that science and technology law comes in to correct.
INTRODUCTION
Interplay between
the law of science and technology can provide one of the pillars for policies
and goals to be established or pursued.
Law establishes
general or specific or common goals to be achieved,
Science
Promotion of science
is an important issue and became especially so in the 1970’s – it was decided
that each 10 years there would be a development strategy and during the 1st
strategy UN said – access
to technology and science are essential to human development and had to
be given priority. Transfer of technology
was also of utmost importance, international cooperation, and recognition of
science in assisting developing countries in development.
10 years later, they
looked at what they had done to encourage science and technology in developing
countries and said that the reactivation of development would be linked to the
developing countries to participate in science and technology projects. The knowledge gap between the developed and developing
world was seen to be widening and appropriate policies and measures were needed
to narrow the gap.
They decided to
negotiate a code of
conduct on transfer of technology – after agreeing in the UN they
assigned the job of drafting the code to the UNITED NATIONS CONFERENCE ON
TRADE AND DEVELOPMENT (UNCTAD)
For 5 years UNCTAD
laboured to transfer technology or to find a legal basis. From the beginning there was a fight, the
fight was on the code of conduct which by nature would not be legally binding
instead of negotiating a treaty. The
fundamental question raised by developed countries was – this code of conduct
would be one in which a state negotiating assumed obligation to transfer
technology. Technology is owned and
developed by private companies and states don’t own it so how were they supposed to transfer
it? This technology was proprietary and
states could not feel obligated to transfer what they didn’t have. They could not even agree on the mode of transfer. The code was therefore abandoned. This was an attempt to produce a code in a
general way without tying it to a specific issue and therefore we will find out
what happens in concrete terms where transfer of technology is asked for?
Protection of the Atmosphere
In the early 50s and
60s Europe woke up to find that all of a
sudden their lakes were dying and the fish were depleted. Their trees were also drying up and their
beautiful statutes were corroding. They
wanted to know the cause. The 34
European Countries members for UN Economic Commission for Europe
got together to discuss the matter since all of them were experiencing
this. Scientific explanation was called for and the
answer was ACID RAIN. They said that the
Acid Rain was a result of Sulphur
Dioxide which is released in the atmosphere by the industries and when
that mixes with moisture or rain, it returns and falls as rain, sleet, snow and
was causing the havoc.
Science has
identified a problem, then what – the conclusion was that no single country
could solve this problem on its own and they required the concerted effort of
all the countries. The answer was to
negotiate a treaty and this is where the law comes in. For 3 years they negotiated a treaty known as
the 1979 LONG RANGE TRANSBOUNDARY AIR POLLUTION (LRTAP). The law comes to play to help the European
community to deal with the problem caused by the Acid Rain.
First step was to
produce a general treaty
in which all governments agreed and next specific protocols to implement the general way of
reducing sulphur emissions. By what
percentage were they to reduce the sulphur emissions and in what time
span? This became difficult to agree on
i.e. the amount of reduction, the base year or the time frame.
The steady depletion
of the stratospheric ozone
layer was causing skin cancer on people. (The good ozone that protects
us from direct rays of the sun that cause cancer) Which are the substances that were depleting
the ozone layer and how was the stratospheric ozone layer being depleted, it
was being depleted by substances collectively known as CFC’s
Chlorofluorocarbons. CFCs are emitted
mostly by air-conditioners, refrigerants, foams, methyl-Bromide, fumigants,
Hairsprays.
A treaty to create
general obligations to deal with elimination of substances that deplete the
ozone was to be put into place. The United Nations Environmental
Program UNEP) in 1985 decided to negotiate a treaty; the 1985 Vienna convention on ozone layer. Article 2 says that the parties shall take
appropriate measures … to protect human health and environment against adverse
results … to this end the
a. Cooperate in formulating agreed measures
These were general
obligations to do certain things in a general treaty. This is another example of a problem
identified, science explaining law helping in seeking a solution. A protocol on how much to reduce the CFCs
must be negotiated. In 1987 Montreal Protocol on
Substances that deplete the ozone layer was drafted. This was now a global UNEP inspired
multilateral treaty, to interpret the interplay between law, science and
technology.
GLOBAL EFFORT
A large area found
that they were increasingly becoming exposed to skin cancer, the sun was just
too hot, and the question was why people were experiencing skin cancer and
glaucoma. The scientists provided the
answer that there was a hole in the stratospheric ozone (good ozone)
layer. This meant that there was a
continued depletion of the ozone layer and the sun’s ray which are not able to
reach us since we are shielded by the ozone layer was now reaching us as the
ozone layer was depleted.
The scientists
provided the answer that there were substances known as CFC’s
Chlorofluorocarbons which were depleting the ozone layer. CFCs were being caused by Hairsprays,
Air-conditioners, and refrigerants. The
developing countries were interested in industrialising and needed the
refrigerators and air-conditioners.
Hydro
chlorofluorocarbons – these were not as harmful as the Chlorofluorocarbons but
were expensive.
Hydro bromo
fluorocarbons – these could be used in air-conditioners and refrigerators to
reduce destruction of the ozone layer.
Any fumigant using
Methyl Bromide was also declared harmful to the ozone layer.
The scientists were
now looking to getting together to having a treaty that would force governments
to sign a treaty to protect the ozone layer.
At the 1985 Vienna Convention of the
Ozone Layer (UNEP). This
convention was developed under the auspices of UNEP 10 years after the
international community started to push for development of international treaty
to deal with the problem of depletion of ozone layer. It was a general framework convention in
which states recognised the need to deal with ozone layer protection.
One issue began
rearing its head in this process. This
was no conclusiveness of the scientific explanation on the cause of the ozone
layer. They were arguing there was no
conclusive evidence and they said … aware that need for further research and …
was crucial. These questions became
central and were going to be dealt with later.
Developed countries were the ones questioning the evidence. They went ahead and negotiated and concluded
by the 1985 Vienna Convention on the ozone layer.
The treaty did not
insist that each party had a duty to see to it that they took care to avoid
depleting the ozone layer but seemed to be addressing the Developed nations.
Systematic Observation (monitoring) – this was taken
to mean systematic scientific observation and all nations were required to
observe. The first law that they could
use is a treaty of general observation to do certain things towards reducing
the causes of depletion.
They wanted to
replace old time refrigerators and air conditioners that were harmful and
replacing them with environmental friendly equipment. They now wanted to negotiate a treaty with
details on how much the reduction of the substances would be detailed and the 3rd
world would consider. The developing
country needed a grace period and they were to be granted a grace period of 5 years
during which they did not have to reduce the substances that were depleting the
ozone and the law would start applying only after 1995.
In 1987 they
negotiated protocol 1987
Montreal Protocol on substances that deplete the ozone. This was the specific protocol to deal with
reducing the substances that were polluting the ozone.
1985 – Vienna Convention on the Ozone
layer under the auspices of UNEP was a general convention.
1987 Montreal
Protocol on substances that deplete the ozone was now a specific protocol to
the Vienna Convention. They attached a
lot of annexures showing how science and the law interplay.
The effort of the
United Nations to produce a code of conduct for transfer of technology was abandoned
because countries could not agree and here they had a problem of producing
environmental friendly gadget. The
question now became the question of transfer of technology to the developing
countries who did not have the technology but needed to participate in
protecting the ozone. The developed
countries were forced into including an article in this treaty that dealt with
transfer of technology.
The parties shall
facilitate and encourage the exchange of scientific information, technology, know-how
to those who needed it. The information
was to be what was not confidential and publicly available without infringing
on the law. The developing countries
got a raw deal since the 5 years grace period did not provide for how they were
to prepare towards the elimination of the substances that were affecting the
ozone.
The developing
countries realised that they first needed the transfer of technology to be able
to be compliant. This was the first
global effort that illustrates how science and the law transpires to address
human problems. The treaty was important
in that
1.
They
negotiated and showed an interest and
2.
It
was an attempt to address the issue of scientific research and the fact that it
needed to be done more conclusively
3.
Transfer
of Technology must be done.
In the early 1980s
another phenomena of continuous rise in the sea level so that islands were
being submerged and the water was coming further and further inland. In Africa
the desert i.e. Sahara was spreading much
faster. Countries with glaciers were melting;
Kilimanjaro almost lost its whitecap.
What was wrong? The scientists
were consulted. This phenomenon was tied
to weather. The problem was identified
with the work of the World Meteorological Organization (WMO). They were asked to explain or give an
indication as to what was happening. The
WMO called a panel of scientists the Intergovernmental Panel on Climate Change (IPCC). This panel of scientists were convened by the
WMO so they met, studied and made preliminary conclusions that were made
available to WMO itself. They said there
was climate change being caused by a phenomena known as global warming the earth was getting hotter
than usual and the increasing tendency of the earth to be warmer than it was
ever before and this is why the Glaciers and the ice were melting much faster
and increasing the volumes of waters in the ocean which were submerging the
islands. This was being caused by loss
of trees. The issue became controversial
and was removed from the WMO.
This became a United
Nations issue and was taken to UN in New
York. They
wanted climate declared the common heritage of man. The WMO decided to call a special conference
made up of scientists, lawyers and economists to find out what needed to be
done. They found out that Global Warming
was being caused by Carbon
Dioxide, Methane, Nitrogen Oxide Greenhouse Gasses). These gasses are heavy and when released go
only to the top of the Topospheric ozone (bad ozone) and form a blanket and
trap the heat which is responsible for the Greenhouse Effect and that was what was causing
Global Warming.
The debate began to
rage. The challenge to the scientific
evidence became the first problem. This
was in 1990. Something happened at this
point firstly in 1972 there was the famous United Nations Conference of Human and Environment in Stockholm to
discuss the effect of human on the environment.
In 1990 – there were
plans to call a meeting in Rio de
Janeiro to deal with the environment. The UN decided to establish an intergovernmental
committee on climate change and instructed that committee to draft a treaty for
governments to look at and to be tabled at Rio de Janeiro. For the first time they
realised that they could not play around because there was already serious
objection from the United
States which was contending that there was
no scientific evidence. They agreed on
having a framework convention on climate change to deal with Greenhouse Gasses
that cause global warming. They
succeeded and there was the first meeting in Nairobi that produced a draft and other
meetings in New York
until Rio de Janeiro. The United States particularly it was
rumoured that one of their scientists paper was being disowned because it was
supporting the Global Warming theory.
But scientists generally came to the conclusion that there was indeed
global warming. The question was by how
much? Enough to require any action? The big countries were not interested in
having the treaty on reducing the gases that were causing the Greenhouse
effect.
The United Nations
realised that the Developed countries were more involved in these effects than
the developing countries and there was need to have common treaties but
differentiated and that the developed countries would be required to do more
although everybody had to play their part.
25% release of carbon dioxide was from the US and 23% was from Europe the rest Asia and
Africa.
The parties to the
convention were supposed to take precautionary measures to anticipate, prevent
or minimise the cost of climate change and mitigate its effects. Where there are threats of serious or
irreversible damage lack of full scientific certainty was not to be used as a
reason of postponing action. This is the
famous precautionary principle on climate change written in the United
Nations. It meant measures were to be
taken whether there was scientific evidence or not.
President Bush did
not even bother to go to Rio,
America was not
interested. The Rio
convention had also a provision for transfer of technology to developing countries. The convention has also funding mechanisms to
enable developing countries to write intelligent projects that can be financed
from the fund to deal with Greenhouse gases.
They established Global Environmental Facility funded by the World Bank,
UNDP and UNEP put a fund together for the purpose of allowing developing
countries to deal with Global Warming as well as Bio-diversity.
All the
environmental treaties that did not address transfer of technology and the
question of financial arrangements were being refitted.
When time came for
the next stage (after the convention to deal with greenhouse gasses).
They went to Kyoto Protocol to discuss
how much carbon dioxide should be reduced and by what year.
1992 – It was
decided to reduce 30% of Carbon Dioxide in 5 years and to reduce 50% in 8
years.
The United States
refused to ratify the Kyoto Protocol that substantively established to
implement the framework convention on climate change. Europe said
they would lead the way in implementation.
The USA
after signing the protocol though refusing to ratify it later under George W
Bush withdrew the signature and totally rejected the Kyoto Protocol since they
are not a party to the UNFCC.
There is then a
problem since USA
produces and emits most of the carbon dioxide which refuses to reduce carbon
dioxide emissions.
There is still
something lacking in these conventions, technology is not transferred to the
developing countries even though these countries have agreed to transfer the
technology. The failure to do so within
a specified period now became a legal issue.
The countries were time bound to transfer technology. There is already a
fight that the provisions on transfer of technology were faulty as they did not
have a time frame.
Nordic Countries
recorded high atomic radiation in the atmosphere and alerted the neighbourhood,
they advised people to take precautions to prevent against the radiation. They alerted United Nations Agency called
International Atomic
Energy Agency (IAEA) whose headquarters are in Vienna Austria.
It is at that time
that then the Soviet Union owned up and said that there was a nuclear accident
in Chernobyl Nuclear Plant
in the Ukraine. This was what was
causing the increased radiation in the atmosphere.
An emergency of the
Board of the IAEA was convened to discuss the matter and it is there that the
international community became embarrassed when they discovered that there was
no treaty obligation anywhere that would force the Soviet Union then to notify
anybody that there had been a nuclear accident within its boundaries, they were
under no obligation to report to anyone.
The Trail Smelter Case (Sulphur fumes that were creating problems to
neighbours– authority that the right to use your territory requires that you
use it without injuring your neighbour.
The same principle was used to create obligation
on Albania
when Albania
failed to warn England
that there were mines that would destroy the British ships. Vichano Case.
All these made the
board of governance of IAEA realise that they needed a law to create an
obligation among member states to notify other countries about any nuclear
accidents. These accidents have
trans-boundary effects. There had to
be a balance between the secrecy maintained by the Soviet
Union and the Western propaganda.
It was the Soviet Union that decide to
negotiate 2 treaties
one for creating
obligation to notify other countries when a nuclear accident has
occurred in your country and which you know will have a trans-boundary effect.
They want another
treaty dealing with assistance. They wanted to know what assistance the
victim country would receive as a result of being affected by a nuclear
accident from a neighbouring country.
The IAEA needed a procedure to deal with these disasters. They wanted a comprehensive policy on how to
deal with giving assistance decided and agreed upon.
In 1986 there were two conventions
Convention on Notification of Nuclear Accidents – created a duty to
notify, what to notify, and who to notify and when to notify. “in the event of an accident in all the
nuclear facilities listed above, the state parties to the convention shall
forthwith notify directly or through the international domestic agencies those
states affected the nuclear accident in question by indicating the nature of
the accident, its occurrence, its exact location and any other information that
would enable the state to get ready and minimise the damage.”
Because of the
competing interests, rights and obligations, the article dealing with
assistance was circumspect.
Convention on Assistance in case of Nuclear Accidents
& Radiological Emergency
-
Adronicos Adede was
the legal adviser for the IAEA on the above two treaties which took two weeks
to be ratified. A treaty may become
binding upon a signature if the state says so and if it is provided in the
treaty itself.
The Scandinavian
countries went to the conference ready to be bound by the treaty and there were
5 signatures which were binding and only 10 more were remaining to make it
15.
In America there
was a 3 mile island whenever there was a nuclear plant in case of leakage.
In Chernobyl the accident had been caused by
human error because the scientists had been experimenting. There were courses offered so that human
error could be avoided.
EXCEPTION:
There was no
negotiation of one framework convention to negotiate the treaty first, the
treaty was negotiated together with the general, the treaty and the protocols
were negotiated together which was an exception.
Long range ozone
layer
Climate change –
greenhouse effect
Chernobyl Disaster
End of Atmospheric …
MARINE
ENVIRONMENT
At the beginning
there was an attempt to prepare a code of conduct to prepare technology which
could not work because technology for industrial development is owned by the
companies and not the government and that is why this code of conduct did not
take off. The area in which this was
tested was in the Law of the Sea particularly in areas dealing with seabed
mining which had not been the subject of any treaty at all. It was a new area that had to be looked at in
the 3rd UN Conference. The
continental shelf definition had never been settled. When it came to the 3rd conference
the code of conduct was accepted. As
fishing also became a problem there were more sophisticated problems i.e.
Japanese fishing vessels being found in the coast of Ivory Coast fishing.
Obligations of
states to allow other states to conduct scientific research in the EEZ within
established procedures was allowed.
Exchange of technology in this area was possible to help states manage
their coast resources.
There was a
resolution agreed upon saying that the seabed, the ocean floor and the sub-soil
including the resources therein beyond the limit of national jurisdiction was
declared to be the common heritage of mankind.
This resolution created a servitude over the International Sea
bed area. The coastal states could have
their territorial sea and continental shelf but what was left was common
heritage of mankind. Until science
discovered that the international seabed was full of minerals called manganese
nodules, the area could have been useless.
This area was reserved for peaceful purposes only it was not subject to
appropriation by any single State since it belonged to mankind and it was not
open to exploitation except under the regime the conference was set to
establish.
USE
OF NUCLEAR TECHNOLOGY FOR DEVELOPMENT:
Nuclear technology
is considered to be high technology which can only be used by those countries
who have already made it. It is the kind
of technology associated with production of weapons that injure and kill
people. This is an erroneous
concept. Nuclear energy can be used for
peaceful purposes, and it can be advantageous and accessible even to the
developing countries. The shame of Hiroshima forced
President Eisenhower to go to New
York and made a proposal called Atom for Peace. In his proposal Eisenhower made the
following suggestions:
1.
That
there should be created a new international organization, with the power to
collect, receive and store all nuclear materials. All materials that can be used for making
nuclear bomb and after storing it;
2.
That
no further use of nuclear material in research except for peaceful purposes and
international organizations be created to collect and store the nuclear
material.
From 1953 – 1957
governments met and deliberated the Atom for Peace proposal and most of them
treated it with Scepticism. The United
Nations established an agency known as the INTERNATIONAL ATOMIC ENERGY AGENCY
(IAEA) 1957 and the statute of IAEA which was adopted and came to force in 1957
was meant to encourage and assist research on atomic energy for peaceful uses
throughout the world and if requested to act as intermediary for the purpose of
service to secure Nuclear Material. The
IAEA was not given the power to collect and store material but was supposed to
act as a broker namely that any state that had a nuclear programme and lacked
some component for its research could go to the IAEA and puts its request and
then if a State is willing to supply the other state with what they want they
broker an agreement under the auspices of IAEA.
The agreement would be for purposes of conducting peaceful uses of
Nuclear Energy. IAEA has Safeguard
Inspectors who they send all over the world to inspect nuclear facilities and
check on how the material is being used by the contracting nations.
MBA – Material Balance
Area – this ensures that nuclear material is not diverted to uses that it was
meant for and not diverted to countries that are not supposed to have nuclear
power. This also ensures that nuclear
power is used for good and not to make bombs.
The IAEA with its experts can trace whether the materials are being used
for peaceful purposes and not for weapon making, proposing peaceful purposes of
nuclear technology. Moreover Nuclear
technology is home-grown i.e. one needs their own scientist who can draw and
suggest where to get the materials to build the bomb. Most of nuclear reactors have been stolen
i.e. Chinese, Egyptians who learn the technology and then they go back to their
countries and start preparing the nuclear program.
At the time the
atomic bomb was dropped in Hiroshima,
4 other countries had already acquired the Nuclear Technology, US, UK, Russia
FRANCE then came China.
The IAEA decided to
negotiate a treaty to stop nuclear proliferation and decide that only the four
who already had it. They decided to
negotiate the NUCLEAR –NON-PROLIFERATION TREATY. This was meant to stop proliferation of nuclear
technology. All states were asked to
denounce their right to make nuclear weapons, i.e. those who had not acquired
it were not to acquire it and only the original four could have it. The non nuclear countries demanded then that
the four that had nuclear technology ought to destroy what they had and they
couldn’t do it. India and Pakistan used
to accept the NPT since it was not fair and they went on with their Nuclear
Programmes. The Nuclear Weapon States
have refused to destroy their arsenal while telling others not to build.
The IAEA are still
making efforts to inspect nuclear plants to ensure it is for peaceful
purposes. They were the first to inspect
Iraq
i.e. Elbaradei and Hans Blix going to Iraq to investigate and inspect
whether there are weapons of mass destruction.
When South Africa
tried to negotiate with IAEA, and were invited to Vienna to discuss, they were shocked when the
IAEA team that was supposed to negotiate with South Africa which was led by a
lawyer (Adronicos Adede) the lawyer in this case in 1984-1986. They invited the IAEA to Pretoria and they have nuclear components but
they don’t have the bomb yet.
It was not until 1986
the Chernobyl Accident that demand for Nuclear power nose dived when people
realised that it could be dangerous as a result of human error. There was a big campaign for man-machine
interface.
Sweden came up with the
idea of constructing a Nuclear Reactor that was foolproof but how?
USE
OF NUCLEAR TECHNOLOGY FOR DEVELOPMENT
The cliché that
water should be available for everyone in the right quantity, quality, place,
time. Using Radio Isotopes one can trace
the water by using Nuclear Techniques once one has tried hydrological digging
and gotten nowhere. There were
programmes like this in Algeria,
Morocco,
etc supervised by IAEA. A lot of
boreholes in the dry areas were dug using Nuclear ‘Technology by way of radio
isotopes.
The farmers in the
Mediterranean region for years suffered due to the menace of the Mediterranean
Fly (Med-fly) that attacked and destroyed their fruits during harvest and they
could not fumigate and they were becoming resistant to the medicine. In Kenya, Langwe Valley
was laying to waste because of the existence of a combination of animals. Buffaloes were known to carry Tsetse flies
that caused Elephantiasis and Triponosomiasis.
UNDP was unable to deal with the tsetse problem. Then came the nuclear aspect of dealing with
this problem called Sterile Insect Technique.
This means that in the laboratories of the IAEA they could produce a
large colony or irradiated tsetse flies and mostly male and impotent. After they produced a large colony of them
they discreetly released the sterilised radiated tsetse and of course there was
no reproduction and the population dropped.
The scientists said that the med fly made all the difference. This is a good example of the use of nuclear
technology.
The Western World
have Primary Standards Dosimetary Calibration Laboratory – this is meant to
calibrate or medical instruments that they function accurately. A lot of instruments however were in the 3rd
World and there was not way of calibrating them. The WHO had a programme to build two centres
in the 3rd world called Secondary Standards Dosimetary Calibration
Laboratory which they could use to repair and measure and calibrate the medical
instruments in the 3rd World one was Nigeria and the other one was in Brazil. But by 1967 none of those secondary standards
laboratories are not working anymore.
If KBS were to be
told that they can upgrade the laboratory to upgrade instruments, for example
if they approached the IAEA and requested to be assisted to upgrade their
equipment, the IAEA would do that and this would be easy and Kenya Bureau of
Standards would become more efficient in the East African Region. It can be done.
A lot of our wastage
or crops like grain is at the harvest time?
The IAEA through irrigation can help us keep the grain fresh for along
time and minimize losses and this is done through radiation by preventing rot
and decay. They have discovered how to
keep shrimp for longer through radiation.
This is through nuclear technology.
They also found that they can radiate potato crisps and preserve them
for longer. They are using nuclear
techniques to preserve what they like.
From hydrology to
irradiation – nuclear power is not always associated with the making of bombs
to kill power but it is a source of power.
PROTECTION OF BIOLOGICAL
DIVERSITY
MARINE ENVIRONMENT
Coastal States have difficulties in limiting
territorial jurisdiction. However
seaward should Kenya’s
coast go?
1.
Efforts
made in determining coastal state jurisdiction by using the Continental Shelf;
undertaken by the negotiations of the law of the sea.
President Harry S Truman
defined continental shelf as the natural prolongation of the land mass meaning
that where land prolongs to the sea, the landmark which prolongs to the sea is
the continental shelf so that the extent of ones jurisdiction would be to
follow the prolongation. The problem is
that not every coast state has land mass prolonging. The most common and representative
configuration is like this
That
coastal states should only have a continental shelf that extends up to about
200 nautical miles. After 10 years
suggestion that it be agreed that the limit should be up to the continental
slope. In the end it was agreed that the legal definition of continental shelf
as opposed to geography is the Continental shelf proper, slope and the rise
(Continental Margin) not more than 350 nautical miles after the slope. This is the formula that is written in
Article 76 of the law of the sea convention. The Geneva Convention 1958 on
continental shelf rejected by developing world defined the limitation as having
the ability to exploit; if you could exploit any area then you could claim
it. 200 nautical miles equals full
sovereignty being exercised by the territorialist states. In the meantime the states had at this time
only 3 miles of territorial sea. Up to
12 nautical miles of territorial sea was what was accepted an area in which a
country would exercise complete jurisdiction.
The rest of the area which comprised 188 nautical miles is a compromise
between complete sovereignty.
Intellectual
Property Rights
It has been noted that IPR has been in existence
nearly as long as human beings have sought to protect their creations.
Potters used to place marks on their wares to
denote their craftsmanship. Copy rights
appeared with the printing press whereas patents...
Despite its lengthy existence there is no single
definition as what qualifies as Intellectual Property or what the standard
bundle of rights should include. Now we
know that the following qualify as intellectual property
1.
Patents
2.
Trademarks
3.
Copy
rights and neighbouring rights
4.
Trade
Secrets
5.
Industrial
Designs
6.
Geographical
Indications
This excludes ‘traditional knowledge’. This list looks biased and is compiled by the
West.
A professor at a
lecture was asked by a sceptic in the audience “You refer to patents,
copyrights and trademarks as property yet everybody knows that these are not
property but temporary monopolies created by governments, how can you justify
your use of the word property on mere monopolies? The student thought she had cornered the
professor. Schooled in the Socratic method of lecturing, the professor replied
“why do we call real estate property when its really common heritage of
mankind, why should an individual own a house or a car, since they bought,
shouldn’t we reserve the word for inventions that people created, isn’t
intellectual property then the only real property?” This is to show why this area of law has
relied on the thinking of the Western World as they are the ones who have
defined what intellectual property is.
There was an attempt
across the years to remove these classes of rights from exclusively in the
domain of sovereign states, the idea was to internationalise IPR to make them
subject to international agreements so that states can have common
understanding as to what trademarks, patents and copyrights are. From 1891 – 1984 aspect of an attempt to
internationalise international property rights was attempted.
1891The Madrid
Agreement for Repression of Force and
1883 Paris
Convention on Industrial Property
1961 Rome
Convention …
1867 Convention establishing the World
Intellectual Property Organization (WIPO) this was a culmination of a series of
intellectual Property Rights on few issues.
This was to create an international bureau in which all the information
of the IPR was to be undertaken by member states. Efforts were made to revise the old treaties
to bring them up to date.
The focal point is that the process of
internationalisation of copy rights ended in WIPO based in Geneva.
In the Uruguay Round
at a city called Punta de ’Este in 1986.
When the countries that belong to GATT assembled n the Uruguay Round
something unusual happened. American
industry had gone to state department and convinced President Reagan saying
that American Companies were losing dollars abroad because their IPR were being
violated by the 3rd World.
They wanted to find a way of protecting their industrial property. Reagan authorised a special committee to do
a report on this problem, a questionnaire was developed and the results were
received and analysed and it supported the conclusion reached by the industry
that indeed American Property Rights were being copied and money was being
lost.
They decided to
table it at the Uruguay Round. Africa rebelled
and refused to accept the idea of taking the issue from WIPO to Uruguay Round,
they were joined by Europe. The Western World approached Africa that if
Africa wanted to have access or markets for their goods they had to accept
discussion of Intellectual Property Rights as part of the Uruguay Round. They were threatened with unilateral
punishment if they did not support the American agenda at Uruguay. African countries resisted from 1986 -1990
but while Africa was still resisting in 1999
at a meeting Switzerland
produced a complete draft agreement as to what would constitute protection of
IPR. That year “Africa agreed that the
issue should be on the table for discussion and out of the blue it had a name
which was “Trade Related Aspects” the European Union followed suit, then Japan,
3rd World felt left behind by saying they would join in and would
give few principles that they believed ought to be negotiated to form the basis
of discussion but they were not going to draft an agreement. The 3rd World insisted that it was
okay to draft the draft agreement but it had to be taken back to WIPO even if
it was negotiated with GATT its supervision and implementation had still to be
done by the World Intellectual Property Organization.
From 1991 -1994 full
fledged discussions on Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS). It was How
TRIPS was negotiated and how it connects with the law.
The last round of
Uruguay Round was held in Marrakech Morocco in 1994 and this is where
WTO was established with an agreement on trade related aspects of intellectual
property rights.
TRIPS has a section
in which it defines what patents are.
Patents are the right of inventor to exclude others from the rights of
their invention. Patents shall be
available for any invention (article 27) whether products or person in all
fields of technology provided such inventions new involve an inventive step
which is non-obvious and capable of industrial application. An invention must be new, involve an
inventive step and be capable of industrial application. This is the standard that the section
contains for describing who can submit something as a patent.
Before that a state
could offer a monopoly for someone with an invention for a number of years but
TRIPS made it uniform for 20 years.
During 20 years the inventor excludes everybody from using the patent it
has registered.
The law has
established the right for a patent holder to be protected for 20 years, for
example those who make flucanazone and viramine are protected for 20 years but
these are expensive anti-retrovirals and Africa
cannot afford them. What to do? Science has made it possible for researchers
to produce the drugs. Africa
was interested in solving the problem
Article 31 – Other
use without authorization of the right holder
Where the law of a
member state allows for other use the subject matter of a patent without the
authorization of right holder including
use by governments or other users the
a.
Authorisation
of such use shall be considered on its individual merit;
b.
Such
use may only be permitted if prior to such use the proposed user had made
effort to obtain authorisation of a patented product.
There must be a
public emergency declared by a country before one can seek a cheaper version of
a product. For example AIDS anti retroviral drugs; Kenya for example can go to open
market to look for affordable drugs since AIDS is a national disaster or
emergency. The imported generic cheaper
drugs can only then be used for the declared emergency and not for other
purposes. There must be public
emergency, there must be negotiations before one can look for cheaper
version. Article 31 is the one that opens
way for governments to access cheaper drugs by way of
1.
Parallel Importation - this is where a company in the 3rd
world that can sell the cheaper generic version and we can import it and use
it, like India. So long as you have negotiated, have a law
and declaring emergency and being willing to use the drug.
2.
Compulsory Licensing -
this is done by the country that has gone through the procedure. You licence a foreign company which comes
into Kenya
and undertakes the manufacture and distribution of the generic version of the
drugs that are required.
Major companies
faced with competition from the companies that were making generic drugs began
to lower their prices.
It had been agreed
during the negotiation of TRIPS that the agreement was to be applied in a
flexible and supportive manner so that poor countries could access drugs.
1999 – The
Millennium Round in Seattle
Washington – this was supposed to
start another round but it failed. There was uprising because of certain
political issues, the Western World were trying to bring to the table things
that had no business being there.
After this they
prepared the Doha Round which was to start from 9th to 13th
in Doha Qatar but since
the one in Seattle
failed there was fear that this one could fail too. It is at Doha that China was admitted to the WTO. Since the Uruguay Round the Pharmaceutical
Industry was able to influence their governments to bring negotiations to the
table. When Doha was still on its 3rd day
developed countries said that they wanted unconditional parallel importation
and compulsory licensing. Americans
joined by other European countries refused, the conference was extended for one
more day to reach a compromise. The
Western world allowed the 3rd World to engage in compulsory
licensing but refused parallel importation.
The countries were also told it was no longer necessary to declare AIDS
as a national disaster. The Western
world knew that most African countries did not have the infrastructure to
support compulsory licensing and so they knew that companies would not be going
there.
The law was being
updated.
Back at home TRIPS
was insisting that all countries must become compliant with TRIPS requirements
like observing the 20 year patent protect etc.
Kenya
has a law which is TRIPS compliant. How
do we entice companies to come and manufacture cheaper AIDS Drugs here? After Doha,
they went o Cancun Mexico.
CANCUN – Walk out
Application of the
TRIPS Agreement illustrated by the access to affordable drugs.
21st May 2003 – Framework
Convention on Tobacco Control – this is the convention that after science
proved that there is a direct link between cigarette smoking and ill health and
disability. The convention has singled
out the Tobacco Industries and told governments to be ware.
Consent regime
INTELLECTUAL PROPERTY RIGHTS
Intellectual
{Property Rights which began as monopolies granted by States within their
territories giving inventor patents, registering trademarks and protecting
authors and artists with their copyrights, these were being done by governments
within their territories. It then became obvious that there was a problem in
the different ways different governments were awarding patent rights and
protecting copyrights. An inventor in England who was
given a patent in England
could only exercise his right for 20 years and therefore there was an effort to
internationalise protection and promotion of intellectual property rights. For this reason a series of international
treaties were addressed by international countries to address the problem of
Intellectual Property Rights. The idea
was to find out if there can be a system in which an inventor in England could
register its patent with a central bureau so that his rights would be protected
internationally beyond the borders of the countries of invention.
1981 Madrid
Convention concerned the International Registration of Marks
1983 Paris
Convention for protection of Industrial Property –
1961 International
protection convention for varieties of new plants
1961 Rome convention for the protection
of producers of phonograms and broadcasting operations.
The process of
internationalisation as seen from these series of convention culminated in 1997
at the Convention of World Intellectual Property Organisation. For registration and protection of World
Trademarks
World Intellectual
Property Organisation (WIPO) was created in 1967 to address the problem of
protection and promotion of Intellectual Property Rights.
Why was it important
to discuss intellectual property rights under WTO when there was already WIPO
dealing with the same issues? Why did
the protection of property rights become the subject matter at WTO? Something happened;
a problem was discovered the international community has to respond to it. The only thing is that that problem was
raised by one country influenced by its industry. It was during the Uruguay Round 0f 1986 that
the issue of protection of intellectual property rights began from WIPO to WTO
under President Ronald Reagan.
Pharmaceutical companies were lobbying Congress that they were losing
money in intellectual property. The
president created a committee to establish whether these claims were
correct. Their claims were true and they
were support and America
went to Uruguay Round pressing the right to place on the table IPR with the
World Trading Organisation. They said
WIPO could not protect their rights but WTO could.
In 1990 the 3rd
World began to accept TRIPS (Trade Related Aspects of Property Rights) under
WTO. The 3rd world was
promised markets for their goods and they were assured of gains by agreeing to
discuss the Intellectual Property Issues.
In the end they joined in but firstly merely agreeing on principle. It was agreed that when it came to the
Agreement of Intellectual Rights Property, this was to be concluded by
WIPO. By the end of the day TRIPS (Trade
Related Aspects of Property Rights) prevailed.
For an invention to
be patentable it must be new. An invention must be new, involve an inventive
step and be capable of industrial application.
This is the standard that the section contains for describing who can
submit something as a patent.
Article 27 of the
TRIPS Agreement: distinguishing between
what is patentable subject matter. TRIPS
Article 27 (3) says that members may also exclude from patentability
(a)
Diagnostic
Therapeutic surgical methods for the treatment of humans or animals;
(b)
Plants
and animals other than micro-organisms;
However member shall provide for the protection of plant varieties
either by patent or by an effective sui generis system or by a combination
thereof; The provisions of this sub
paragraph shall be reviewed four years after the date of entry to force of WTO
Agreement. This was an effort to compel
the 3rd world to have plant varieties that are protected under a European
Convention called UCO, 1961 European Convention. UCO was aimed the world safe for large
farmers who were producing for trade. But not all Africans produce for trade
and if you forget one variety one is essentially forgetting Africans. UPO encouraged one variety to be protected,
there were to be no duplicates and so a lot of varieties would be lost. For this reason the 3rd world was
resisting accepting paragraph 3(b) of Article 27. How could the 3rd World encourage
the protecting of various varieties?
Could Africans have a system in which they could protect their patents?
It was recommended
that the paragraph be reviewed after 4 years since the 3rd world did
not like. TRIP entered into force and
the question of review called for in Article 27 3(b). The Secretariat of WTO prepared a
questionnaire which they sent to all members of WTO asking them their views on
27 3(b), they gave them 3 months to study and respond, at the end of the 3
months period not a single 3rd World country had responded to the
questionnaire. It was responded to by
the developed world and interested organisation. In the next meeting the Secretariat responded
to the TRIPPS Council about the questionnaire and was directed to re-circulate
the questionnaire and again another poor response few African Countries
bothered to respond. The Western
Countries ganged together and voted that Article 27 (3) (b) stays. The 3rd World Countries began to
cry foul that the article should be taken out, since the Western World had had
the occasion to respond, although the African governments discovered that that
paragraph does impede protection of their own property but since the
questionnaire did not contain any objection to Article 27 3 (b) the African
argument could not hold and thus the TRIPS Agreement are still there.
A problem has shown
a variety of responses in this case. The
law follows the majority who can speak up their position.
The TRIPS Agreement
in its attempt to enlarge the subject matters of Intellectual Property Rights
does not mention traditional knowledge as part of intellectual property but
biodiversity does by mentioning that we need to respect the place of
traditional knowledge.
WTO is now grappling
the problem of Geographical Indications.
These are used by European Countries in the making of wine. For example in France in the province of
Bordeaux, you have protected 5 vineyards that produce first class Bordeaux
wine, the area is controlled and the soil is treated specially, harvesting
conditions are also controlled and the juice from grapes to make the wine is
uniquely Bordeaux and so they patent wine from Bordeaux through Geographical
Indication. There is also an area called
Burgundy
known for its red and white wine.
TRIPS – as a
question of indicating law science and technology.
Exhaustion of patent
rights – if you are an inventor and are a member of EC and your patent has been
presented in Kenya, after 20 years expires, the protection is over all over
East Africa. Exhaustion of rights.
It falls within the
pattern the need to protect intellectual property rights beyond he borders of
the states that granted them. WTO with
its trade related aspect, WTO has received wisdom that TRIP was a mistake ab initio. It has created so many problems as the TRIP
aspect of Trade has not been shown.
These IPR are nothing but State Monopolies, they create them and protect
them. It is important that a country
registers its patents internationally so that it is protected in all the
countries of the Rome Convention.
Will Intellectual
Properties be ever discussed apart from the point of view of the Western
World? Until we clean up our process of
putting together those who negotiate on our behalf at international forums, we
will suffer for the rest of our lives.
TRIPS WAS A NON-STARTER
and developing countries are still waiting to access markets for their
goods. In Seattle Washington
the Developing Countries supported by the rest of anarchists used democracy to
defeat democracy – they reckoned there was no need to start a new round since
the pledges of the last round had not bee fulfilled. Seattle
failed, Doha
barely succeeded and Cancun.
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