LAW OF SCIENCE & TECHNOLOGY NOTES PRT 1



 *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 the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein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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