The Draft Protocol on Access and Benefit-sharing:A Victory for Developing Countries?

Achmad Gusman Siswandi

PhD Programme ANU College of Law

Introduction

The 19th century scientific explorations v. the 2003 Sorcerer II Expedition Scientific research or ‘biopiracy’?

The Tasmanian gum tree v. the Neem tree To patent or not patent?

A shift of legal regime on genetic resources From common heritage of mankind to sovereign

right of the provider country The birth of the 1992 Convention on Biological

Diversity (CBD) Conservation-sustainable use-sharing of the

benefits

Introduction (cont’d)

The essentials of access and benefit-sharing under the CBD Sovereign right Prior informed consent (PIC) Mutually agreed terms (MAT) Fair and equitable benefit-sharing

The Bonn Guidelines (2002) Plan of Implementation, the World Summit on

Sustainable Development (2002) A specific ‘international regime on access and

benefit-sharing’ is still needed

Introduction (cont’d)

The Ad Hoc Open-ended Working Group on Access and Benefit-sharing (WG-ABS) The Draft Protocol was born in the ninth meeting

(March 2010) Some see it as a major breakthrough, some

think that the outcomes are still uncertain Structure of the presentation

What does the Draft Protocol contain? What are the likely impacts of the Draft Protocol?

(Indonesia) Does the Draft Protocol mean a victory for

developing countries?

The essentials of the Draft Protocol The scope of the International Regime

Access and benefit-sharing Traditional knowledge

The elements Access and benefit-sharing Compliance Disclosure of origin Capacity building

Began to take shape since the 7th meeting of WG-ABS

The Draft Protocol however has not been negotiated

The essentials of the Draft Protocol (cont’d) Access and benefit-sharing mechanism

Reemphasises principles already contained in the CBD and Bonn Guidelines

Required Parties to take necessary measures to provide for legal certainty, clarity and transparency of their national access and benefit-sharing requirements

Prior informed consent of indigenous and local communities based on mutually agreed terms

Nothing new with respect to access and benefit-sharing requirements Explicitly includes derivatives Puts more emphasis on the rights of local and

indigenous communities

The essentials of the Draft Protocol (cont’d) Traditional knowledge associated with genetic

resources Obliges Parties to give due consideration of

indigenous and local community laws and protocols Obliges Parties to encourage the users of traditional

knowledge which has been ‘publicly available’ to share the benefits

Public domain v. publicly available debate The Draft Protocol therefore attempts to

accommodate the interests of several Parties having strong concerns over ‘biopiracy’

The essentials of the Draft Protocol (cont’d) Disclosure requirement

A procedure whereby the patent applicants disclose the source of genetic resources used in

their inventions provide the information whether its access was

based on prior informed consent In the context of ensuring compliance with national

legislation on access and benefit-sharing Arguably one of the strongest provisions under the

Draft Protocol Depends heavily upon the national legislation and

the willingness to establish a special mechanism or institution for disclosure requirement

The essentials of the Draft Protocol (cont’d) In general, most of the provisions under the Draft

Protocol still reiterate fundamental principles already stated in the CBD and Bonn Guidelines

Three important features Key provisions on the establishment of institutional

framework for access and benefit-sharing Transboundary cooperation in the case of non-

compliance Strong provisions on the rights of indigenous and

local communities with regard to the utilisation of traditional knowledge associated with genetic resources

The Draft Protocol and Indonesia’s position Indonesia’s profile

Party to the CBD since 1994 One of the “megadiverse” countries of the world One of the world’s centres of species diversity of hard corals

and reef-associated flora and fauna Access and benefit-sharing mechanism

No specific legislation yet Several related instruments

The 1945 Constitution (Undang-undang Dasar Republik Indonesia)

The 2009 Environmental Protection and Management Law (Undang-undang Perlindungan dan Pengelolaan Lingkungan Hidup)

The 2006 Government Regulation on Research and Development Permits for Foreign Universities, Foreign Research Institutions, and Foreigners (Perizinan Melakukan Kegiatan Penelitian dan Pengembangan bagi Perguruan Tinggi Asing, Lembaga Penelitian dan Pengembangan Asing, Badan Usaha Asing, dan Orang Asing

The Draft Protocol and Indonesia’s position (cont’d) Related national laws and regulations

The 1945 Constitution The State has control over natural resources and

respects the rights and cultural identity of traditional communities

The 2009 Environmental Protection and Management Law

The Government has an authority to determine and undertake a specific policy on

genetic resources determine procedures on the recognition of the

rights of local communities (masyarakat hukum adat) relevant to the issues of environmental protection and management

The Draft Protocol and Indonesia’s position (cont’d) Related national laws and regulations

(cont’d) The 2006 Government Regulation on

Research and Development Permits for Foreign Universities, Foreign Research Institutions, and Foreigners relevant to bioprospecting activities every foreign entity undertaking research and

development must obtain a written permit criteria to assess proposed research and

development activities administrative sanctions in the case of non-

compliance

The Draft Protocol and Indonesia’s position (cont’d) Indonesia is still lacking in terms of specific

instruments to implement access and benefit-sharing mechanism under the CBD

The Bill on the Management of Genetic Resources has been discussed since 2002

Indonesia’s standing in the International Regime on Access and Benefit-sharing Supports a legally binding instrument which

incorporates compliance and enforcement measures In line with the position of the Like-minded

Megadiverse Countries (LMMC)

The Draft Protocol and Indonesia’s position (cont’d) If the Draft Protocol is adopted it would mean a

success for Indonesia The impacts however should be anticipated by

the Indonesian Government Ensuring adequate laws and regulations in

implementing access and benefit-sharing mechanism Reforming its institutional framework, especially

integrating coordination between relevant stakeholders Intellectual property office Local government Industry

A victory for developing countries? The Draft Protocol may reflect strong interests

of developing countries However it does not necessarily mean that they

have gained a victory since the negotiation is not yet exhaustive

Even if the Draft is adopted it remains unlikely that it will provide strong enforcement mechanism in the case of non-compliance Merely obligations upon Parties to cooperate Further compliance mechanism will be considered

later by the Conference of the Parties (COP)

A victory for developing countries? (cont’d) The implementation of access and benefit-

sharing under the CBD will remain problematic Non-parties? Parties who have not enacted laws on access and

benefit-sharing? The success of the Draft Protocol will also very

much depend on the development in other international fora World Intellectual Property Organisation (WIPO-

GRTKF) World Trade Organisation No consensus reached yet

A victory for developing countries? (cont’d) A new protocol is still feasible but it would not

be as strong as the current draft Developed countries would demand more

compromise“What makes disputes over genetic resource control

particularly interesting is the fact that, on the one hand, most such resources are to be found in the developing world, yet, on the other hand, most of the scientific and technical expertise and hardware connected to biotechnology is found in the industrialized world”

(Stenson & Gray, 1999) Hurdles and challenges would thus still remain

for developing countries

Conclusion

The Draft Protocol on Access and Benefit-sharing appears to be promising for developing countries since they have been demanding for a legally binding instrument

Nevertheless, it would be too early to call this as a victory for developing countries as the Draft Protocol still has to be further negotiated and still contains unsettled issues which are also related to the development in other international fora such as the WIPO and the WTO

Conclusion (cont’d)

The negotiations on international regime for access and benefit-sharing has demonstrated that legal issues arising from the utilisation of genetic resources are incredibly complex as they are not merely concerned with environmental issues but also other issues such as trade, intellectual property, and human rights

This complexity has posed a great challenge particularly for biodiversity-rich developing countries, and this perhaps explains why some of them, including Indonesia, have not yet enacted specific laws and regulations to implement access and benefit-sharing mechanism under the CBD

Conclusion (cont’d)

A more strategic approach is therefore essential for developing countries to secure their sovereign rights over genetic resources in accordance with the CBD Especially in the case of Indonesia, the

Government must ensure adequate national laws and regulations

The Draft Protocol would unlikely provide a strong compliance and enforcement mechanism, thus national laws would remain the major key

Conclusion (cont’d)

A strategic approach is also essential in securing the interests of developing countries with respect to access and benefit-sharing mechanism Competing interests may take place among

different groups of developing countries, but at least they need to agree on a set of core principles related to access and benefit-sharing

This would assist them in surviving the forthcoming negotiations of the Draft Protocol as well as other discussions relevant to access and benefit-sharing mechanism taking place in other international fora

Thank you