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An advocacy group responsible for exposing many of the most notorious examples of corporate and government patenting of indigenous knowledge and resources says the International Court of Justice (World Court) could play a key role in stopping what is calls a new type of piracy. The Rural Advancement Foundation International (RAFI), a non-governmental organization based in Canada and the United States, is seeking support for a campaign to ask the World Court to issue a formal statement on the morality of patenting living things, on the injustice of making patent claims over indigenous knowledge and resources, and on the need to hold international trade agreements accountable to these concerns.

While the World Court cannot enforce a ruling on these issues, RAFI's International Liaison Coordinator, Jean Christie, says an advisory opinion would have considerable strategic impact on key international negotiations, including the World Trade Organization's upcoming review of intellectual property rights under the General Agreement on Tariffs and Trade. Says Christie, "The WTO simply could not ignore the opinion of the World Court." In recent years, RAFI has helped alert indigenous peoples to the efforts of the U.S. government to patent DNA collected from indigenous peoples, the patenting of varieties of the Andean food plant quinoa, and the intellectual property claims on the sacred Amazonian medicine ayahuasca. Indigenous peoples' organizations around the world have condemned such patents as a form of colonialism threatening indigenous values and livelihoods, and undermining the transmission of cultural knowledge from one generation to the next.

RAFI Executive Director Pat Mooney warns that these incidents represent only a fraction of the knowledge and resources that have already been expropriated from indigenous peoples under Western intellectual property laws. Moreover, Mooney says, incidents of bio-piracy are bound to increase as more countries are pressured to accept intellectual property laws modeled after those of the United States. Currently, most governments will not grant intellectual property rights, like patents, over plants and animals or over the component parts of living things found in nature. Many states also refuse to grant intellectual monopolies over knowledge or resources related to production of food and medicine.

In contrast, the U.S. has granted patents over all kinds of living things and their components, including plants, animals and human DNA, often with little evidence that the patent claimants have made significant new discoveries or inventions. This U.S. model of intellectual property rights is gradually being adopted throughout much of the industrialized world, including Japan and the European Union. Many observers now fear that international trade agreements, such as GATT, will be used to impose such models on states in the southern hemisphere, where the traditional knowledge of medicines and food crops are still essential to the subsistence of most rural people.

The agreement on Trade Related Aspects of Intellectual Property Rights, negotiated during the last revision of GATT, requires that the 116 member states eventually allow patenting of micro-organisms, including genes, and put in place "effective" measures for protecting the rights of inventors over plant characteristics introduced through selective breeding or genetic engineering. In addition, states can no longer exempt areas of the economy such as medicine and agriculture from patenting.

Effectively, GATT-TRIP allows only two alternatives to acceptance of a U.S.-style patent system. The first is that protection for plant varieties could technically take any form, potentially including a system recognizing indigenous peoples' own customary laws for regulating knowledge and use of natural resources. The second is that while it is no longer possible to entirely rule out patents over broad areas of the economy, states are still allowed to reject individual claims on grounds of public morality, potential threats to human life and health, or potential harm to the environment and food security. The problem is that the appropriateness of national intellectual laws and any use of the exemptions will be judged within the WTO itself, where the emphasis and expertise is in corporate rights and trade rather than collective rights of people and communities.

RAFI believes that the World Court is in a better position to consider these issues. It just has to be asked, either by the U.N. General Assembly or by any one of a number of U.N. bodies. RAFI has already had indications that some Southern states are interested in the idea and may be willing to raise the issue before the General Assembly. UNESCO, which has taken an interest in intellectual property rights and human genetic research, is also a candidate for taking the issue to the World Court, as is the International Labor Organization, which authored the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169).

Although bringing an issue to the attention of the World Court is a difficult task, it is not impossible. A similar campaign led by the international disarmament movement led to a World Court opinion condemning the use nuclear weapons.

In the case of life patents, however, the campaign needs to move swiftly. In 1999, the life patenting section of GATT-TRIP will be opened for review, an ideal opportunity to strengthen the moral exemptions clauses. The United States, however, is expected to push for the elimination of all exemption of life patents.