1 C.F. Capitulo VI, art. 225 (Braz.).

2 Henry W. McGee, Jr. & Kurt Zimmerman, The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation, 21 U. Miami Inter-Am. L. Rev. 513, 530 (1990). According to McGee and Zimmerman, similar provisions appeared in the Portuguese Constitution in 1976, the Spanish Constitution in 1978, and the Yugoslavian Constitution in 1974. Id. at 531-32.

3 See, e.g., Tamara J. Hrynik, Note, Debt-for-Nature Swaps: Effective but Not Enforceable, 22 Case W. Res. J. Int'l L. 141 (1990).

4 See infra notes 86-90 and accompanying text.

5 Harriet Shapiro, Destruction of Rain Forests, Warns a Conservationist, is Endangering Many Species-Including Our Own (interview with Russell Mittermeier), People, Nov. 28, 1988, at 165 (quoting Dr. Russell Mittermeier, Vice President for Science of the World Wildlife Fund and an associate professor of anatomical sciences at the State University of New York at Stony Brook).

6 David R. Downes, New Diplomacy for the Biodiversity Trade: Biodiversity, Biotechnology, and Intellectual Property in the Convention on Biological Diversity, 4 Touro J. Transnat'L L. I, 16 (1993); Linda Fellows, What Are the Forests Worth?, 339 Lancet 1330, 1331 (1992); Sam Thernstrom, Jungle Fever: Lost Wonder-Drugs of the Rainforest, New Republic, Apr. 19, 1993, at 12, 12.

7 Thernstrom, supra note 6, at 12.

8 Downes, supra note 6, at 16 (quoting World Resources Institute et al., Global Biodiversity Strategy 4 (1992)). In addition to the pure economic value of such pharmaceuticals, these drugs have an invaluable benefit-the alleviation of human suffering and improvement of human health. See Liz Hanellin, Note, Protecting Plant-Derived Drugs: Patents and Beyond, 10 Cardozo Arts & Ent. L.J. 169, 171 n.17 (1991) (citing Norman Farnsworth, Professor of Pharmacology at the University of Illinois at Chicago).

9 Fellows, supra note 6, at 1130.

10 Biological resources means “genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.” United Nations Conference on Environment and Development, Convention on Biological Diversity, 31 I.L.M. 818, art. 2 (1992) [hereinafter Convention].

11 Douglas O. Heiken, The Pacific Yew and Taxol: Federal Management of an Emerging Resource, 7 J. Envtl. L. & Lma. 175, 175 n.3 (1992); Dori Stehlin, Harvesting Drugs from Plants, Fda Consumer, Oct. 1990, at 20, 21.

12 Stehlin, supra note 11, at 21.

13 John C. Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 Envtl. L. 501, 523 n.61 (1994).

14 Taxol is a “naturally occurring poison found in the bark of the Pacific yew tree,” an evergreen found in Pacific Northwest old growth forests. William Holy et al., Wishing on a Falling Star, 7 Health 62 (Sept. I 993). The introduction of taxol was met with extreme controversy because the treatment of a single cancer patient required the bark of several hundred-year-old, rare yew trees. The logging industry, desirous of logging the old growth forests, ran headlong into conservation groups intent on preserving the forests which were threatened with extinction, a result that the industry claimed was at the expense of cancer patients’ lives. Since the initial controversy, however, information has surfaced indicating that the ye·w never faced shortage, nor is the drug the miracle it once appeared to be. Id. Further, much of the debate is now moot, since scientists recently succeeded at synthesizing taxol. See Cancer Researchers Synthesize Taxol, Boston Globe, Feb. 17, I 994, at 3. For a comprehensive discussion of taxol and history, see Heiken, supra note 11.

15 Cathy Sears, Jungle Potions, Am. Health, Oct. 1992, at 70, 71.

16 Philip H. Abelson, Medicine From Plants, 247 Sci. 513 (1990).

17 McGee & Zimmerman, supra note 2, at 516.

18 The Foundering Ark, Economist, Jan. 6, 1990, at 83; Usha Lee McFarling, Nature's Vanishing Pharmacy, Boston Globe, Oct. 3, 1994, at 25.

19 Betsy Carpenter, Living with Nature, U.S. News & World Rep., Nov. 30, 1992, at 60, 66.

20 See, e.g., Elissa Blum, Making Biodiversity Conservation Profitable: A Case Study of the Merck/Inbio Agreement, Env't, May 1993, at 16, 18; Tracy Dobson, Loss of Biodiversity: An International Environmental Policy Perspective, 11 N.C. J. Int'l L. & Com. Reg. 277, 283 (1992); Fiona Godlee, Medicinal Plants: Another Man's Poison, 305 Brit. Med. J. 1583 (1992); Diane Jukofsky, Medicinal Plant Research Leads Scientists to Rain Forests, Drug Topics, Apr. 22, 1991, at 26; Shayana Kadidal, Note, Plants, Poverty, and Pharmaceutical Patents, 103 Yale L.J. 223, 223 (1993); Ted Kerasote, Biodiversity: More Than Just a Word, Sports Afield, May 1993, at 14; Mark Nichols, The Fate of the Earth, Maclean's, Dec. 16, 1991, at 35; Leslie Roberts, Chemical Prospecting: Hope for Vanishing Ecosystems?, 256 Sci. 1142, 1142 (1992); Paul Roberts, Note, International Funding for the Conservation of Biological Diversity: Convention on Biological Diversity, 10 B.U. Int'l L.J. 303, 330 (1992); Sears, supra note 15, at 70; Thernstrom, supra note 6, at 12; Just What the Witch-Doctor Ordered, Economist, Apr. 2, 1988, at 75.

21 Jukofsky, supra note 20, at 26.

22 Id.

23 Id.

24 Id. As a result of this high demand for the plant, the entire native rosy periwinkle habitat in Madagascar has been depleted. Hanellin, supra note 8, at 173 n.21.

25 Thernstrom, supra note 6, at 12.

26 Many consider it a win-win-lose situation, however, because Madagascar has yet to receive any compensation for its natural resources, without which the creation of the drugs would have been impossible. Tim Johnson, From Rain Forest to Medicine Chest, Miami Herald, June 2, 1992, at 1A. See infra notes 197-200 and accompanying text.

27 Researchers Still Searching for Lost AIDS Tree, AIDS Weekly, May 17, 1993, at 13.

28 Id.

29 Id.

30 Id.

31 Id.; see also McFarling, supra note 18, at 28.

32 Scientists Say Rare Vine Offers Hope for AIDS Cure, AIDS Weekly, May 3, 1993, at 8.

33 Id.

34 Michael D. Coughlin, Jr., Recent Development, Using the Merck-Inbio Agreement to Clarify the Convention on Biological Diversity, 31 Colum. J. Transnat'L L. 337, 338 n.6 (1993).

35 Rainforest Pharmaceuticals, E. W. Nat. Health, May-June 1992, at 17.

36 Blum, supra note 20, at 16. Working with plants tends to be even more labor-intensive than working with microbes. Specifically,

[u]nlike bacteria or fungi, for example, which can be cultured in large vats, plants must either be collected in the wild, grown in large greenhouses, or cultivated on plantations. Leaves, stems and roots often contain different chemicals, so each part must be tested separately to see what kinds of effects it has on human cells. Then chemists must sort through the hundreds of different chemicals that often share space in a single leaf or root, to determine exactly which ones are responsible for the observed effects. Rick Weiss, Plants that Heal: Scientists Try to Turn Weeds into Wonder Drugs, Wash. Post, May 10, 1994 (Health Section), at 12 (quoting Lynn Caporale, a senior director at Merck & Co.).

37 Harlan C. Clifford, Medicine Men Tropical Cures, S.F. Chron., May 22, 1994 (This World, Sunday Ed.), at 13. Another estimate places expenditures for discovering, testing, and securing marketing approval for a new drug in the United States at over $125 million. Gerald J. Mossinghoff, Research-Based Pharmaceutical Companies: The Need for Improved Patent Protection Worldwide, 2 J.L. & Tech. 307, 308 (1987). ·

38 Hanellin, supra note 8, at 169, 172-73.

39 Id. A widespread practice in the pharmaceutical industry now is to add “small modifications to the chemical structure of the original compound” to create a “new” chemical with a slightly different structure that retains the beneficial effects of the original compound but circumvents the product-of-nature prohibition. See Kadidal, supra note 20.

40 See Sears, supra note 15, at 70. See also Weiss, supra note 36, at 12 (quoting Michael J. Balick, director of the New York Botanical Garden's Institute of Economic Botany, as saying, “[i]f we were talking 10 years ago I would have said there were no major pharmaceutical companies with a serious focus on medicinal plants …. Now there are many dozens of U.S. companies doing this, propelled by the recognition that plant biodiversity has great potential as a source of [medicinal] raw materials.“).

41 Blum, supra note 20, at 19.

42 See supra notes 15-19 and accompanying text.

43 Blum, supra note 20, at 16; Hanellin, supra note 8, at 169.

44 Kirstin Peterson, Recent Intellectual Property Trends in Developing Countries, 33 Harv. Int'l L.J. 277 (1992).

45 Biotechnology is a term shortened from biological technology and is defined as “any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use,” Convention, supra note 10, art. 2, and is “vital to an ever increasing variety of industries, most notably the research-based pharmaceutical, medical, and agricultural industries.” Adam L. Streltzer, Comment, U.S. Biotechnology Intellectual Property Rights as an Obstacle to the Unced Convention on Biological Diversity: It Just Doesn't Matter, 6 Transnat'l Law. 271, 286 (1993).

46 Coughlin, supra note 34, at 338 n.6. For an explanation of chemical prospecting, see infra note 187 and accompanying text.

47 Blum, supra note 20, at 16; Peterson, supra note 44, at 277. At the National Cancer Institute (“NCI“) in Maryland, the development of a new screening system allows researchers to analyze up to 20,000 specimens per year. Contractors in 25 nations provide pounds of plant samples, which the NCI researchers deep freeze for 48 hours to kill “hitchhiking insects.” Researchers then grind the plant specimens into powder, which they then soak in solvents to leach out medical ingredients. These extracts are added to numerous different laboratory dishes that contain different kinds of cancer cells as well as HIV-infected white blood cells. In these experiments, researchers are looking for extracts that interfere with the growth of certain cancer cells or help the HIV-infected cells survive. Extracts exhibiting such potential are analyzed for their chemical contents. Because an extract from one plant can contain hundreds or thousands of compounds, the search for their active chemical ingredients can take from six months to a few years. The next stage involves testing for toxicity and efficacy in animals and can take an additional two to five years. The next step involves clinical trials. Compounds that succeed past this step begin the process of seeking Food and Drug Administration approval. Weiss, supra note 36, at 14.

48 Sears, supra note 15, at 73. For example, chloroquine, a synthetic drug, replaced quinine when certain malaria strains became quinine-resistant. However, chloroquine is now becoming ineffective. Id.

49 Eli Lilly's rosy periwinkle-based drugs retailed for millions in 1985. Johnson, supra note 26, at 1A.

50 Id.; Sears, supra note 15, at 72.

51 Ted Gup, Down with the God Squad, Time, Nov. 5, 1990, at 102.

52 136 Cong. Rec. H13642-0l, H13643 (daily ed. Oct. 25, 1990) (statement of Rep. Vento).

53 Nichols, supra note 20, at 35.

54 Leaf Alexander, The Potential Health Effects of Local Climatic and Environmental Changes, 321 New Eng. J. Med. 1577, 1579 (1989).

55 Vice President Albert Gore, U.S. Support for Global Commitment to Sustainable Development, Speech, June 14, 1993, 4 U.S. Dep't St. Dispatch 430.

56 Shapiro, supra note 5, at 165.

57 Jonathan Burton, Paradise Lost?, Scholastic Update, Feb. 12, 1993, at 20.

58 Ecologists Make Friends with Economists, Economist, Oct. 15, 1988, at 25.

59 Alexander, supra note 54, at 1579.

60 Fellows, supra note 6, at 1331.

61 Another health-related consequence of deforestation is the atmospheric accumulation of carbon dioxide. Saving the Rain Forests, Scholastic Update, Nov. 3, 1989, at 11. See also Burton, supra note 57, at 20 (rain forests are essential in producing oxygen and absorbing carbon monoxide); Shapiro, supra note 5, at 165 (the slash-and-burn method of forest clearing releases massive amounts of carbon dioxide into the atmosphere).

62 Kerasote, supra note 20, at 14.

63 Robert M. May, 266 Sci. Am. 146 (1993) (reviewing Edward O. Wilson, the Diversity of Life). Biodiversity has also been defined as “the variability among living organisms from all sources, including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species, and of ecosystems.” Convention, supra note 10, at 823. Biological diversity has also been defined as “the totality of genes, species, and ecosystems in a region.” Paul Roberts, supra note 20, at 305. Biodiversity has both economic and noneconomic values. These values include “ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values …. “ Convention, supra note 10, Preamble at 822. See also Paul Roberts, supra note 20, at 306-07 (discussing the numerous values of biological diversity). While appreciating these numerous benefits, this Note focuses on biodiversity's significance to the pharmaceutical industry.

64 In fact, the notion of a species is also of scientific debate. Kunich, supra note 13, at 505. According to the biological concept of species, “a species is a population of organisms that can at least potentially breed with one another, but do not breed with other populations.” Id. at 506. A phylogenetic concept “defines species as the smallest recognizable cluster of individuals that share a common trait and have a common pattern of ancestry.” A genealogical concordance method “compares large numbers of gene sequences in various organisms, attempting to measure ‘genetic drift.“’ Id. at 506-07.

65 Thernstrom, supra note 6, at 12. The World Bank estimates that Earth is home to approximately 33 million species. Paul Roberts, supra note 20, at 308 (citing World Bank, World Development Report: Development and the Environment 7 (1992)).

66 Fellows, supra note 6, at 1130. Again, estimates concerning the percentage of species concentrated in tropical forests vary. See Paul Roberts, supra note 20, at 308 (citing the World Resources Institute's approximation that an “estimated 50 to 90 percent of the total species are located in tropical forests.“). The tropics contain approximately two-thirds of the known 250,000 flowering plant species and over one million animals and insects. Sears, supra note 15, at 70.

67 George H. Colt, The Secret Life of a Tree in the Rain Forest, Life, June 1994, at 58. In an example of species exuberance, “botanists report that one twenty-acre tract in Malaysia supports 750 tree species, more than all of the U.S.; a single tree in Peru was recently found to host 1,700 species of beetle.” Id.

68 Thernstrom, supra note 6, at 12.

69 Johnson, supra note 26, at 1A.

70 Thernstrom, supra note 6, at 12. Other estimates put the percentage analyzed at five percent of known plant species. See, e.g., Susan K. Laue, Is Our World's Natural Diversity in Danger?, 19 Current Health 14 (1992).

71 Fellows, supra note 6, at 1330. Other sources state that there are between 260,000 and 300,000 known plant species. See, e.g., Abelson, supra note 16, at 513; Johnson, supra note 26, at 1A.

72 Johnson, supra note 26, at 1A; Laue, supra note 70, at 14; Thernstrom, supra note 6, at 12.

73 See supra notes 52-60 and accompanying text.

74 Fellows, supra note 6, at 1330.

75 Streltzer, supra note 45, at 284. The author defines “ecosystem” as a “particular physical environment, the organisms that inhabit that environment, and the interactions among those organisms.” Id. at n.104. Ecosystem also means a “dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.” Convention, supra note 10, art. 2.

76 Thernstrom, supra note 6, at 12.

77 Kerasote, supra note 20, at 14. As with estimates pertaining to rates of deforestation, these numbers vary. Other experts state the rate of extinction to be three species per day and up to 50,000 per year. See, e.g., Laue, supra note 70, at 14.

78 Dobson, supra note 20, at 277.

79 Kunich, supra note 13, at 510; Paul Roberts, supra note 20, at 309. Roberts further notes that [a]gainst this ‘natural’ standard, from 1 700 to 1799 the extinction of approximately ten species of mammals and 25 species of birds were recorded. During the nineteenth century, the extinction of approximately 28 species of mammals and 61 species of birds were recorded. From 1900 until 1987 the extinction of 52 species of mammals and 65 species of birds were recorded. These statistics indicate an alarming increase in the recorded instances of extinction of mammals and birds. What is alarming is that scientists have identified only approximately one thirtieth of the species on Earth, indicating that the number ofunrecorded extinctions is considerably higher.

Paul Roberts, supra note 20, at 309 (citations omitted).

80 Kunich, supra note 13, at 511.

81 Paul Roberts, supra note 20, at 309.

82 See supra notes 77-79 and accompanying text.

83 Paul Roberts, supra note 20, at 308 (quoting G. Ledec & R. Goodland, Wildlands: Their Protection and Management in Economic Development 7 (1988)).

84 Id. at 309 (quoting World Bank, World Development Report: Development and the Environment 7 (1992)). See also Kunich, supra note 13, at 514 (quoting Kathryn A. Kohm, Introduction, in Balancing on the Brink of Extinction: the Endangered Species Act and Lessons For the Future 4-5 (Kathryn A. Kohm ed., 1991)).

85 Kunich, supra note 13, at 503.

86 The possibility that any given plant will yield a marketable prescription drug ranges from one in 1,000 to one in 10,000. Downes, supra note 6, at 1; Fellows, supra note 6, at 1330.

87 Abelson, supra note 16, at 513. Michael Balick, a New York Botanical Garden Botanist, estimates that less than one half of one percent of the planet's half-million flowering plants have been tested for their medicinal potential. He adds, “It doesn't take a rocket scientist to realize the other ninety-nine percent has to have something.” McFarling, supra note 18, at 28.

88 Hanellin, supra note 8, at 169.

89 Id.

90 Id. at 171.

91 Laue, supra note 70, at 14.

92 Saving the Rain Forests, supra note 61, at 11; Shapiro, supra note 5, at 165.

93 Coughlin, supra note 34, at 339.

94 Laue, supra note 70, at 14; Saving the Rain Forests, supra note 61, at 11.

95 Shapiro, supra note 5, at 165.

96 McGee & Zimmerman, supra note 2, at 524.

97 Philip Elmer-Dewit, Rich vs. Poor, Time, June 1, 1992, at 45.

98 Dobson, supra note 20, at 294.

99 Shapiro, supra note 5, at 165.

100 Id.

101 Id.; Laue, supra note 70, at 14; Saving the Rain Forests, supra note 61, at 11.

102 Dobson, supra note 20, at 294.

103 Blum, supra note 20, at 16. Some countries are beginning to appreciate that the rain forests can be protected from predatory development while still recognizing some economic value. For example, the Brazilian government created four reserves for rubber tappers and nut gatherers based on the idea that these extractive activities, if properly executed, can continue indefinitely and can prove profitable for the indigenous people, thus removing incentive to destroy the habitat. While the notion of such cooperatives seems to be feasible in theory, economic realities have thus far prevented the plan from realizing its potential because gatherers have reaped only a nominal income. See, e.g., Don Podesta, Nasty Feud Keeps Life in Amazon Rain Forest from Improving, S.F. Chron., Nov. 27, 1993, at C18; Fred Pearce, First Aid for the Amazon, New Sci., Mar. 28, 1992, at 42.

104 Dobson, supra note 20, at 284.

105 Eugene Linden, Rio's Legacy, TIME, June 22, 1992, at 44. Sustainable development refers to meeting “the needs of the present without compromising the ability of future generations to meet their own needs.” Meeting the Challenge of Sustainable Development, Forbes, May 25, 1992, at 118 (quoting a “well-accepted definition” offered by the World Commission on Environment and Development).

106 McGee & Zimmerman, supra note 2, at 522-23. See also Michael S. Giaimo, Deforestation in Brazil: Domestic Political Imperative-Global Ecological Disaster, 18 Envt'l L. 537 (1988).

107 McGee & Zimmerman, supra note 2, at 523.

108 Id.; see also Pearce, supra note 103, at 42.

109 McGee & Zimmerman, supra note 2, at 523.

110 Grainger, The State of the World's Tropical Forests, 10 Ecologist 6, 34, 47 (1980).

111 McGee & Zimmerman, supra note 2, at 527. According to U.S.D.A. reports, Brazil produced 4,300,000 metric tons of beef and veal in 1986 and 1987 and exported meat totaling 1,155,000 tons from 1985 to 1987. U.S. Dep't of Agriculture, 1988 Agricultural Statistics 301, 304 (1988).

112 McGee & Zimmerman, supra note 2, at 528-29.

113 Id. at 530.

114 Myles Gordon, One Step at a Time: Environmental Protection Measures, Scholastic Update, Apr. 15, 1994, at 4. These moves, however, were not well received by cattle ranchers, miners, and settlers, who protested the actions and continue to destroy the forests. Id.

115 McGee & Zimmerman, supra note 2, at 535.

116 Carol Kaesuk Yoon, Drugs from Bugs, Garbage, Summer 1994, at 22.

117 Michael A. Gollin, Using Intellectual Property to Improve Environmental Protection, 4 Harv. J.L. & Tech. 193, 216 (1991).

118 See, e.g., Laurie P. Greener, Comment, Debt-for-Nature Swaps in Latin American Countries: The Enforcement Dilemma, 6 Conn. J. Int'l L. 123 (1991) (discussing debt-for-nature swaps as a solution for stopping the elimination of natural resources); Hrynik, supra note 3; Antonio N. Piccirillo, Note, The Metamorphosis: Expected Changes in the Brazilian Debt-for-Nature Swap Process and Policy Implications, 17 Fordham Int'l L.J. 547 (1994) (discussing the debt-for-nature program in Brazil).

119 See infra notes 122-63 and accompanying text (Biodiversity Treaty resulted from the United Nations Conference on Environmental and Development held in Rio de Janeiro on June 3-14, 1992).

110 See infra notes 164-79 and accompanying text.

121 See infra notes 180-15 and accompanying text.

122 Convention, supra note 10, art. 1.

123 See id.; see also Steven Manning, The Cost of Survival, Scholastic Update, Apr. 17, 1992, at 10.

124 Paul Roberts, supra note 20, at 303.

125 Coughlin, supra note 34, at 343.

126 Id.

127 See Downes, supra note 6, at 2-3, 7-8.; Cheryl D. Hardy, Comment, Patent Protection and Raw Materials: The Convention on Biological Diversity and Its Implications for U.S. Policy on the Development and Commercialization of Biotechnology, 15 U. Pa. J. Int'l Bus. L,. 299, 317-19 (1994); see also U.S. Biotech Companies Leery of Biodiversity Treaty, S.F. Examiner, June 11, 1992, at 13A; Biodiversity: Treaty Interferes With Principles of Patent Production, U.S. Official Says, Pat., Trademark & Copyright L. Daily (BNA), June 11, 1992 (available in Westlaw, BNA Library, BNA-PTD File).

128 Downes, supra note 6, at 6.

129 Genetic resources are defined as “a high diversity of wild species of plants and animals or varieties of domesticated crops and their wild relatives.” Id., at 6.

130 Id. at 7.

131 Id.

132 Id.

133 Streltzer, supra note 45, at 273. See supra notes 36-40 and accompanying text.

134 Streltzer, supra note 45, at 276.

135 Id. at 276, 283.

136 Id. at 283.

137 Id. at 277-78.

138 Id. at 279.

139 Hanellin, supra note 8, at 186.

140 Streltzer, supra note 45, at 294.

141 Richard Stone, The Biodiversity Treaty: Pandora's Box or Fair Deal?, 256 SCI. 1624 (1992). One commentator noted that in addition to inflicting “substantial harm on intellectual property policy,” the Convention “did little to protect biodiversity,” since “every single substantive provision of the Convention dealing with obligations to preserve biodiversity is qualified by the phrase: ‘as far as possible and appropriate'” as well as such other “weasel” words as “endeavor” and “taking into account the special needs of developing countries.” C. Michael Hathaway, Was the United States Right Not to Sign the Biodiversity Convention? Yes: A Threat to Property Rights, 78-SEP A.B.A. J. 42 (1992).

142 Downes, supra note 6, at 3.

143 Convention, supra note 10.

144 Toby Moore, Earth Summit: The Planks Aimed at Shoring Up the Future, Daily Telegraph, June 3, 1992, at 8.

Specifically, three articles of the Convention control this notion. Article 15 governs access to genetic and biological resources and recognizes each signatory nation's sovereign rights over its natural resources. Each nation is to allow access to its biological resources for environmentally sound uses on mutually agreed upon terms. The results of research and the benefits arising from the use of biological resources should be shared with the nation providing such resources. See Convention, supra note 10, art. 15.

Additionally, Article 16 recognizes that technology transfer is essential to the Convention's objectives. Consequently, contracting parties are to provide for technology transfer in “fair,” “concessional,” and “preferential” terms most favorable to developing countries. See id., art. 16.

The third relevant provision, Article 19, governs the handling of biotechnology and the distribution of its benefits. The Article indicates that nations providing natural resources should be allowed to participate in biotechnological research activities. See id., art. 19.

145 See infra notes 197-98 and accompanying text (describing Madagascar's experience with the rosy periwinkle).

146 See, e.g., U.S. Biotech Companies Leery of Biodiversity Treaty, supra note 127, at 13A; Industry Trade Groups Laud President Bush for Decision Not to Sign Biodiversity Treaty, Pat. Trademark & Copyright L. Daily (BNA), June 15, 1992,available in Westlaw, BNA Library, BNA-PTD File).

147 Peter Eisner, Earth Calling Bush, U.S. Isolated as White House Rejects EPA Chief's Bid for Treaty, Newsday, June 6, 1992, at 5. Sources also cite the funding provisions established by Article 20 (Financial Resources) and Article 21 (Financial Mechanism) as further reasons for U.S. refusal to sign the Convention. See Convention, supra note 10. For a comprehensive discussion of role of international funding in the preservation of biodiversity, see Paul Roberts, supra note 20.

148 Streltzer, supra note 45, at 272. See also Paul Roberts, supra note 20, at 311.

149 Streltzer, supra note 45, at 272 (citing the President's News Conference in Rio de Janeiro, Brazil, 28 Weekly Comp. Pres. Doc. 1043, 1049 (June 13, 1992)).

150 streltzer, supra note 45, at 272 (citing Remarks and an Exchange with Reporters Prior to a Meeting with Congressional Leaders, 28 Weekly Comp. Pres. Doc. 1035, 1036 (June 11, 1992)).

151 Vice President Albert Gore, U.S. Support for Global Commitment to Sustainable Development, Speech, June 14, 1993, 4 U.S. Dep't St. Dispatch 430. See also Chronological Summary: Events of 1993, 5 Colo. J. Int'l Envtl. L. & Pol'y 181, 182 (1994); As It Signs Treaty, United States Calls for Global Patent Protection for Biotech, June 7, 1993, available in Westlaw, Bnaden database.

In contemplating reasons for this switch in the U.S. position, one author stated: The position of the United States in 1992 regarding the Biodiversity Treaty may have reflected a lack of awareness of the U.S. biotechnology industry's dependence on the organisms supplied by developing nations. Perhaps the Bush Administration was unaware that the developing nations had recourse against the refusal of the U.S. biotechnology industry to share benefits and profits, such as forming more advantageous alliances with European nations and Japan.

Hardy, supra note 127, at 324.

152 The International Treaty to Protect the Diversity, Oct. 6, 1993, available in Westlaw, Bnaitr database.

153 See Coughlin, supra note 34, at 344. see also Convention on Biological Diversity, S. Doc. No. 20, 103d Cong., 1st Sess. 12 (1993).

154 Hardy, supra note 127, at 318 n.123, 319.

155 Id. at 321.

156 Id. at 321-22.

157 Chronological Summary: Events of 1993, supra note 151, at 187. Although more than 150 countries signed the treaty at the Earth Summit, Biodiversity: Treaty Enters Into Force 18 Months After Its Signing at 1992 Earth Summit, Dec. 30, 1993, available in Westlaw, BNA-DEN database, it did not enter “into force until 90 days after 30 countries ratif[ied], or agree[d] to abide by, the treaty.” The International Treaty to Protect the Diversity, supra note 152.

158 Such protocols may involve logistics of implementation, administration, enforcement, and financing; protocols are treaties which are separate but related to the original Convention. Downes, supra note 6, at 25. These negotiations are necessary because the Convention made “clear its goals but not the means to implement them.” Kadidal, supra note 20, at 226. One reason cited to explain President Clinton's decision to sign the treaty was the desire for U.S. participation in negotiations of these protocols. Coughlin, supra note 34, at 344. Since the necessary number of countries ratified the Convention, it is likely that the U.S. would have to comply with its provisions, whether or not the U.S. signed the treaty, since “developing nations which harbor the world's genetic diversity will simply refuse to deal with U.S. biotechnology companies, denying them access to the critical wealth of genetic resources within their territories.” Id. at 352. For a discussion of the strength and weaknesses of this argument, see id. at 352-55.

159 Biodiversity: No Vote for U.S. at Upcoming Talks Due to Legislative Delays in Senate, Sept. 8, 1994, available in Westlaw, BNA-DEN database.

160 Biodiversity: UNEP Head Cites ‘Uncommon Spirit’ of Cooperation Demonstrated at Meeting, Dec. 13, 1994, available in Westlaw, BNA-DEN database.

161 Biodiversity: Clinton Urged to Use Executive Powers to Meet Goals of Biodiversity Treaty, Dec. 13, 1994, available in Westlaw, BNA-DEN database. The 103d Congress failed to ratify the treaty; by January 1995, the 104th Congress failed to do the same, despite the fact that “ninety-two countries including all of the major industrialized nations” have ratified it. Endangered Species Push on for Reform of Act During Reauthorization, Jan. 9, 1995, available in Westlaw, BNA-DEN database.

162 For a detailed description of how participating countries should go about negotiating the follow-up issues left open by the vague language and framework of the Convention, see Downes, supra note 6, at 25.

163 Coughlin, supra note 34, at 25.

164 Rainforest Pharmaceuticals, supra note 35, at 17. Ethnobotany is the “study of tribal peoples and their utilization of tropical plants.” Mark J. Plotkin, The Healing Forest: The Search for New Jungle Medicines, Futurist, Jan.-Feb. 1990, at 12. Approximately seventy-five percent of the plantderived constituents currently used in drugs were discovered through the study of plants used by indigenous populations. Peterson, supra note 44, at 283. The use of ethnobotany presents an additional intellectual property issue, however, because the “cultural knowledge of an indigenous group and even the secrets of healers within a group are not [patentable]. since they are considered to be public, common knowledge.” Id. at 285.

165 Rainforest Pharmaceuticals, supra note 35, at 17.

166 Hanellin, supra note 8, at n.21. Shaman's Vice President, Stephen King, cites one example of the benefits of traditional healers. A Brazilian plant called pilocarpus jaborandi is the basis for a drug long used to treat glaucoma; only recently has it been prescribed for dry mouth. This benefit could have been available much sooner had someone “checked the plant's native use. Jaborandi is a Tupi Indian word that means ‘slobber-mouth.“’ McFarling, supra note 18, at 29. As rain forests are destroyed, not only are species pushed into distinction, but so too are indigenous tribes. For example, in 1900, one million indigenous peoples lived in the Brazilian rain forests; by 1980, only 100,000 such Indians remained in Brazil. McGee & Zimmerman, supra note 2, at 517. This poses a serious threat to ethnobotany since knowledge of plants with medicinal use is generally an oral tradition. Peterson, supra note 44, at 284-85. As one ethnobotanist stated, “[e]very time one of the healers dies, it's like having a library burned.” Ethnobotanist Seeks New Cures, AIDS WEEKLY, July 4, 1994, at 7 (quoting Paul Alan Cox, a Brigham Young University professor who works with Samoan healers to find a cure for AIDS).

167 Rainforest Pharmaceuticals, supra note 35, at 17.

168 Id.

169 Linda Killian, Jungle Fervor, Forbes, July 22, 1991, at 315.

170 Rainforest Pharmaceuticals, supra note 35, at 17.

171 Id.

172 Blum, supra note 20, at 42.

173 Id. at 43.

174 Id. at 42-43.

175 Richard Phalon, Keep Your Eye on the Ball, Forbes, Apr. 11, 1994, at 78.

176 Eli Lilly cited a shift in its research priorities as the reason for the withdrawal of its financial backing. John Eckhouse, Eli Lilly Ends Investment in Shaman, S.F. Chron., Oct. 13, 1994, at D1. Because Shaman received $42 million in its 1993 public stock offering, Phalon, supra note 175, at 78, Eli Lilly's withdrawal of financial support in itself does not signal Shaman's demise. Eckhouse, supra, at D1. However, in the initial public offering, Shaman's stock was offered at $15 a share. Phalon, supra note 175, at 78. On October 12, 1994, Shaman stock closed at 6 after having hit a 52-week low of 5 1/2 earlier in the day. Eckhouse, supra, at D1.

177 Phalon, supra note 175, at 78.

178 See supra notes 36-38 and accompanying text.

179 Gary Stix, Back to Roots: Drug Companies Forage for New Treatments, Sci. Am., Jan. 1993, at 143.

180 Paul Roberts, supra note 20, at 328-29.

181 Leslie Roberts, supra note 20, at 1142.

182 Paul Roberts, supra note 20, at 328.

183 Id., at 329 (quoting Merck & Co., Inc., in Bio of Costa Rica and Merck Enter into Innovative Agreement to Collect Biological Samples While Protecting the Rain Forest 2 (Sept. 19, 1991) (Company News Release)).

184 Leslie Roberts, supra note 20, at 1142.

185 Id.

186 Id.

187 Paul Roberts, supra note 20, at 329.

188 Thernstrom, supra note 6, at 13. Other sources state that Merck is the largest pharmaceutical company in the world. See, e.g., Johnson, supra note 26, at IA.

189 Johnson, supra note 26, at 1A; Leslie Roberts, supra note 20, at 1142; Thernstrom, supra note 6, at 13.

190 The estimated value of this equipment ranges from $135,000, Leslie Roberts, supra note 20, at 1142, to $180,000, Thernstrom, supra note 6, at 12.

191 Though undisclosed, these royalties are thought to range between one to three percent. Leslie Roberts, supra note 20, at 1143.

192 Blum, supra note 20, at 20.

193 Id. But see Kadidal, supra note 20, at 233 (arguing that Merck's “exclusive” right to the plant samples “can be undercut … [o]nce Merck's product reaches the market” and other companies determine the active chemical ingredient makeup of the drug).

194 Leslie Roberts, supra note 20, at 1142.

195 Merck was able to avoid the technology transfer dilemma that stalemated the Biodiversity Treaty by giving INBio valuable technology, but not technology that would allow INBio to replicate Merck's drugs. Coughlin, supra note 34, at 359. The Biodiversity Treaty, on the other hand, did not distinguish between types of technology. Id. at 360. For a discussion on the three identifiable classes of technology, see id. at 358-59.

196 Blum, supra note 20, at 34.

197 See supra notes 20-26 and accompanying text.

198 Thernstrom, supra note 6, at 12.

199 Johnson, supra note 26, at 1A.

200 But see Kadidal, supra note 20, at 235 (calling the Merck/Inbio agreement “one-sided as ·.the result of a severe imbalance of bargaining power: the enormous wealth of a multinational corporation matched against the enormous financial need of a developing nation …. “).

201 See supra notes 146-56 and accompanying text.

202 Peterson, supra note 44, at 289.

203 Paul Roberts, supra note 20, at 330-31.

204 Clifford, supra note 37, at 13. See also Weiss, supra note 36, at 12 (noting that “despite two and a half years of [collaboration between Merck and Inbio], no new drugs have made it into clinical studies.“).

205 clifford, supra note 37, at 13.

206 Id.

207 Id.

208 Other pharmaceutical companies and developing nations are beginning to form similar partnerships based on sharing pharmaceutical profits with communities that contribute natural resources for analysis. For example, Bristol-Myers Squibb has paired up with Surinam to study the country's medicinal plants. Bristol-Myers Squibb will pay to Surinam's local population royalties for any drugs derived from plants gathered in the Amazonian nation. Additionally, the shamans of Surinam will be eligible to share patent rights to marketable compounds. Weiss, supra note 36, at 12. But see Eugene Linden, Chain Saws Invade Eden, Time, Aug. 29, 1994, at 58 (noting that the government of Surinam recently opened huge tracts of forests for logging by timber and trading companies).

209 Johnson, supra note 26, at IA. See also Paul Roberts, supra note 20, at 328 n.145 (“Costa Rica … is believed to contain almost five percent of all the species of flora and fauna in the world.“).

210 Coughlin, supra note 34, at 369.

211 Id.

212 The Costa Rican government estimates adult literacy to be ninety-eight percent. Blum, supra note 20, at 39.

213 Leslie Roberts, supra note 20, at 1143.

214 Coughlin, supra note 34, at 357.

215 Leslie Roberts, supra note 20, at 1142.

216 Biodiversity: UNEP Head Cites ‘Uncommon Spirit’ of Cooperation Demonstrated at Meeting, supra note 160.