ASSESSMENT OF THE ACCESS AND BENEFIT SHARING (ABS)

IMPLEMENTATION IN CBD MEMBER COUNTRIES IN SOUTHEAST ASIA AND A

PROSPECTIVE VIEW OF THE ABS ON THE BASIS OF THE PRE-NAGOYA
DISCUSSIONS ON THE ADOPTION OF AN INTERNATIONAL REGIME ON ACCESS
AND BENEFIT SHARING OF GENETIC RESOURCES

CHERRY LOU T. REYES*

I. INTRODUCTION

The ongoing and far-reaching scientific advances of genetics and biotechnology, as well
as the uncertainty over their long-term risks and benefits inevitably plunge this area of law into a
perpetual state of flux.1 The international community has addressed the various issues posed by
biotechnology through instruments such as the Convention on Biodiversity (CBD), the FAO
International Treaty for Plant Genetic Resources for Food and Agriculture, the WIPO Inter-
Governmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore, the Cartagena Protocol, as well as soft law instruments such as the
Bonn Guidelines (Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of
Benefits Arising Out of Their Utilization). These instruments attempt to address some aspect of
the cross-cutting problem with respect to access, utilization and transfer of genetic resources.

Clearly, the current legal regime addressing the problem of access, use and transfer of
genetic resources is still highly fragmented. The ongoing effort to develop an international
regime on Access and Benefit Sharing (ABS) of Genetic Resources is a step towards the
consolidation of existing laws and guidelines. The discussion towards an international regime on
ABS is expected to reach fruition at the Nagoya Biodiversity Summit in October 2010.

* 4th Yr. JD, University of the Philippines Diliman College of Law.

1
PAVONI, BIODIVERSITY AND BIOTECHNOLOGY: CONSOLIDATION AND STRAINS IN THE EMERGING
INTERNATIONAL LEGAL REGIMES (2006) 30.
1
 The third objective of the CBD, the fair and equitable sharing of the benefits arising from
access to and use of genetic resources, commonly known as Access and Benefit Sharing (ABS),
has proven to be difficult to achieve through implementation at national and international levels.2

A growing number of international instruments dealing with biodiversity and

biotechnology requires that benefits accruing from the use of biogenetic resources and traditional
knowledge shall be shared in a fair and equitable way with the states of origin of such resources,
as well as with indigenous and communities identifiable as holders of that knowledge. 3

This paper shall explore the implementation of the access and benefit sharing of genetic
resources at the state level, particularly within the Southeast Asian Region, through a legislative
review of state laws, actions plans and regulations.

Southeast Asia is a region rich in flora and fauna and where multitudes of cultures and
traditions abound. Economically, the region is composed of countries in the low income and
lower middle income groups. Hence, this region is particularly challenging with respect to the
realization of the ABS objective of the CBD. The review shall focus on issues, challenges and
obstacles in the implementation of the ABS in each member country within the SE Asian
Region.

Based on the current available draft protocol of the International Regime on ABS, this
paper shall also present comments on the provisions of the draft protocol based on findings in the
Southeast Asian experience on ABS implementation.

2
Access and Benefit Sharing (ABS) in Africa , GTZ, Federal Ministry for Economic Cooperation and Development (2005).
3
Id. at 39.
2
 II. THE LEGAL REGIME ON ACCESS AND BENEFIT SHARING OF GENETIC
RESOURCES

Convention on Biodiversity4

The main substantive provisions on access and benefit-sharing are contained in Article 15
of the Convention on Biodiversity (henceforth referred to as Convention). Other relevant
provisions are Article 16, para. 3 (access to and transfer of technology that makes use of genetic
resources), Article 19, para. 1 (participation in biotechnological research on genetic resources)
and para. 2 (access to results and benefits from biotechnologies). Article 8 (j) addresses, inter
alia, the sharing of benefits arising from the utilization of traditional biodiversity-related
knowledge.

Article 15 reaffirms the sovereign rights of states over their natural resources. As a
consequence of this principle, the authority to determine access to genetic resources rests with
the national governments and is subject to national legislation.5

In Article 8 (j), the Parties to the Convention undertook to:

• Respect, preserve and maintain the knowledge, innovations and practices of

indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity;
• Promote their wider application with the approval and involvement of the holders of
such knowledge, innovations and practices;
• Encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices.

Initiatives complementary to the work on access and benefit-sharing include:

• Development of sui generis systems for the protection of traditional knowledge;

4
The Convention on Biodiversity was concluded on 5 June 1992 at Rio de Janeiro and entered into force on 29 December 1993.
Currently, there are 193 parties to the Convention.
5
Jalbert, Olivier, Access to Genetic Resources and Benefit-Sharing under the Convention on Biodiversity, the Bonn Guidelines
and the Negotiation of an International Regime on Access and Benefit-Sharing (2005).
3
 • Guidelines for social, cultural and environmental impact assessment for development
in lands traditionally occupied by indigenous populations;
• Development of a code of conduct for research activities in lands traditionally
occupied by indigenous peoples.

As regards technologies based on genetic resources (biotechnologies), Parties are

required under Articles 16 and 19 to:

• Take legislative, administrative or policy measures with the aim that Parties, in
particular developing countries that provide genetic resources, are provided access to
and transfer of technology which make use of those resources, on mutually agreed
terms, including technology protected by patents and other intellectual property rights
[Article 16 (3)]. In the case of technology subject to patents and other intellectual
property rights, such access and transfer shall be provided on terms which recognize
and are consistent with the adequate and effective protection of intellectual property
rights;
• Take legislative, administrative or policy measures to provide for the effective
participation in biotechnological research activities of Parties, especially developing
countries, which provide genetic resources for such research [Article 19 (1)];
• Take practicable measures to promote and advance priority access by Parties
providing genetic resources, on a fair and equitable basis and on mutually agreed
terms, to the results and benefits arising from biotechnologies based upon genetic
resources provided [Article 19 (2)].

The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of
the Benefits Arising Out of Their Utilization (Bonn Guidelines)6

The Bonn Guidelines shall serve as inputs when developing and drafting legislative and
administrative policy measures on access and benefit-sharing, contracts and other arrangements

6
The Bonn Guidelines on access and benefit sharing were negotiated by a subsidiary body, the Open-Ended Working Group on
ABS, in 2001 and were subsequently adopted by the sixth meeting of the Conference of the Parties, in May 2002 (decision
VI/24).
4
under mutually agreed terms for access and benefit-sharing. Compliance with the Bonn
Guidelines is voluntary; the guidelines are not intended to supplant relevant national legislation.

The Bonn Guidelines assigns roles and responsibilities in access and benefit sharing to
the National Focal Point, Competent National Authorities and the Contracting Parties.

The National Focal Point shall make information available to relevant stakeholders –
applicants, competent national authorities, indigenous and local communities, among others,
through the clearing-house mechanism.

The Competent National Authorities shall be responsible for granting access to genetic
resources and advising on procedural matters on acquiring prior consent, conservation and
sustainable use of genetic resources, among others.

The Bonn Guidelines prescribe in the implementation of the mutually agreed terms
(MAT) to:

• Seek informed consent prior to access to genetic resources;

• Respect customs and traditions, values and customary practices of indigenous and
local communities;
• Respond to requests for information from indigenous and local communities;
• Only use genetic resources for purposes consistent with the terms and conditions
under which they were acquired;
• Ensure that use of genetic resources for purposes other than those for which they were
acquired, only take place after new prior informed consent and mutually agreed terms
are given;
• Maintain all relevant data regarding the genetic resources;
• Endeavor to carry out their use of the genetic resources in, and with the participation
of, the providing country;

5
 • When supplying genetic resources to third parties, honor any terms and conditions
regarding the acquired material;
• Ensure the fair and equitable sharing of benefits.

The Guidelines provide that Parties to the Convention with users of genetic resources
under their jurisdiction should take appropriate legal, administrative or policy measures, as
appropriate to support compliance with prior informed consent. The following are measures that
could be considered by the Contracting Parties:

• Mechanisms to provide information to potential users on their obligations regarding

access to genetic resources;
• Measures to encourage the disclosure of the country of origin of the genetic resources
and of the origin of traditional knowledge of indigenous local communities, in
applications for intellectual property rights;
• Measures aimed at preventing the use of genetic resources obtained without prior
informed consent;
• Cooperation between Contracting Parties to address alleged infringement of access
and benefit-sharing agreements;
• Voluntary certification schemes for institutions abiding by rules on access and benefit
sharing;
• Measures discouraging unfair trade practices.

Insofar as participation of stakeholders is concerned, the Bonn Guidelines provide some

guidance with respect to consultation with stakeholders and promotion of stakeholder
participation through providing scientific and legal advice and support through capacity building.

The Bonn Guidelines provide steps in the access and benefit sharing process involving
the overall strategy of access and benefit-sharing aimed at conservation and sustainable use of
biological diversity, basic principles, and elements of prior informed consent. Procedures for
obtaining prior informed consent for the guidance of Parties are also provided.

6
 The Bonn Guidelines provide principles for consideration in the Parties’ MAT, viz.:
• Legal certainty and clarity;
• Minimization of transaction costs;
• Inclusion of provisions on user and provider obligations;
• Development of different contractual arrangement for different resources and for
different uses and development of model agreements;
• Different uses may include, inter alia, taxonomy, collection, research,
commercialization;
• Mutually agreed terms should be negotiated efficiently and within a reasonable period
of time;
• Mutually agreed terms should be set out in a written agreement.

On the aspect of benefit sharing, the Bonn Guidelines states that mechanisms may vary
depending upon the type of benefits (examples of monetary and non-monetary benefits are
appended in the Guidelines), the specific conditions in the country and the stakeholders involved.
Benefit-sharing mechanism should be flexible as it should be determined by the partners
involved in benefit-sharing and will vary on a case-to-case basis.

III. EQUITABLE BENEFIT SHARING PRINCIPLE

Francisco Francioni7 cites two main problems with respect to the equitable benefit
sharing principle in the field of biotechnology. The first is how the benefits arising from the
commercial exploitation of genetic resources should be shared between potential stakeholders,
primarily the biotechnological firms that have devised the methods of transforming genetic
resources in new products and services, on the one hand, and the countries or communities from
which the resources have originated, on the other.

7
Professor of Law, European University Institute, Florence, and University of Siena.
7
 Biotechnology companies argue that their monopoly over the commercial use of
biotechnological processes and the high cost of the resulting products are justified as a form of
equitable remuneration of their conspicuous investments in research and development. The
source countries, on the other hand, especially developing countries of the South, argue that they
are the title holders of genetic material and of knowledge that leads to such patents, that patents
are not appropriate for life forms and that, in any event, patents make bioengineered products,
even those that may be of critical need for them, too expensive for their scarce economic means.8

On the crucial question of the status of equitable benefit sharing principle, Riccardo
9
Pavoni submits that the principle is steadily emerging as a rule of customary law. In support of
his theory, Pavoni cites wide spread practice as evidenced by the growing number of
international instruments supporting the principle such as: the CBD, FAO Treaty, the Bonn
Guidelines, WIPO IGC, Plan of Implementation of the World Summit on Sustainable
Development, among others.

The outcome of the processes initiated within the WTO, WIPO and the Conference of the
Parties to the CBD will be a crucial test for the crystallization of the emerging duty of benefit
sharing. If these processes do not fail and rather result in unambiguously obligatory standards of
benefit-sharing, it is submitted that the already existing abundant practice may be capable of
unveiling a corresponding opinio juris.10

IV. IMPLEMENTATION OF ACCESS AND BENEFIT SHARING OF GENETIC

RESOURCES ACROSS SOUTHEAST ASIA

Philippines
Regulations
The Joint DENR-DA-PCSD-NCIP Administrative Order No. 1 (AO No. 1) currently
governs the bioprospecting activities in the Philippines.

8
FRANCIONI, INTERNATIONAL LAW FOR BIOTECHNOLOGY: BASIC PRINCIPLES (2006) 21.
9
Assistant Professor of International Law, University of Siena.
10
Id at 41-42.
8
 Prior informed consent (PIC) from the resource providers must be obtained before the
resource user can commence the Bioprospecting Undertaking (BU). Basic procedures such as
notification and sector consultation must be complied with prior to issuance of a PIC. In the
sector consultation, the BU applicant shall furnish the community assembly, composed of the IPs
(Indigenous Peoples), LGUs (Local Government Units), PAMB (Protected Area Management
Board), private landowner and other relevant agencies, with information regarding the purpose,
methodologies, duration, species/specimen, and number or quantities to be used and equitable
and reciprocal benefits that may be derived from the BU.

Guidelines for Benefit Sharing Arrangements emphasize the need for negotiation by the
resource user with the resource providers and for the parties to come to an agreement regarding
payment of monetary and non-monetary benefits. The Guidelines also designates the agencies
where the amounts collected from the BU shall accrue.

The benefits arising from the use of biological resources shall be given by the resource
user in the amounts and periods agreed upon to the national government and resource providers,
where applicable:

a. The Bioprospecting fee shall accrue to the national government, payable to the
implementing agencies;
b. Up-front payments shall accrue to the resource providers;
c. Royalties shall be shared between the national government and the resource
providers;
d. Local government shall share in the amounts received by the national government,
consistent with the provisions of the Local Government Code.

A minimum bioprospecting fee of US$3,000 for each BU shall be paid by the resource
user subject to conditions for the increase or decrease of the fee.

The Guidelines provide for the following sharing of financial benefits:

9
 • 2% of total global gross sales of the products made or derived from the collected
samples shall be paid annually by the resource user to the national government and
resource providers for as long as the product is sold in the market;
• 25% of the royalties shall accrue to the national government, through the
implementing agencies and the resource providers according to the agreed schedule;
• Upfront payments shall be paid by the resource user annually to the resource
providers in the amount of US$1,000 per collection site, for the duration of the
collection period. Such payment shall be considered as advances from royalties.

Non-monetary benefits may be agreed upon by the resource user and resource providers,
which may include equipment for biodiversity inventory and monitoring, supplies and equipment
for the resource conservation activities, technology transfer, formal training including
educational facilities, infrastructure directly related to the management of the area, health care,
and other capacity building and support for in-situ conservation and development activities.

Sanctions for non-compliance of the provisions of the BU include:

• Automatic cancellation/revocation of the agreement;

• Confiscation of the collected materials;
• Forfeiture of the bond;
• Imposition of a perpetual ban on access to biological resources in the Philippines;
• Such breach is considered a violation of the Wildlife Act and shall be subject to the
imposition of administrative and criminal sanctions under existing laws.

Implementation of ABS

The Philippines reported that there have been no bioprospecting applications and
approvals being processed due largely to the perception that the regulation is restricting research
and that the royalty provisions, in particular, provide a disincentive to research. 11

11
4th National Report of the Philippines to the Convention on Biodiversity.
10
 With regard to the benefits accruing to the indigenous peoples, the Philippines reported
that, as of 2007, the National Commission on Indigenous Peoples’ records show that indigenous
communities have benefited in terms of royalties, infrastructure, and social programs from 199
projects classified as mining (70), mini-hydro/dam (8), forestry (2), small scale and gravel (5),
biodiversity research (3) and others (31).12

The Philippines’ Department of Agriculture (DA) has promulgated various policies

aligned with the CBD objectives of conservation, sustainable use and fair and equitable sharing
of the benefits arising from the use of genetic resources. These projects are, inter alia, the
National Organic Agriculture Program, DA-Sustainable Agriculture Development Program,
projects and researches aimed at conserving and promoting sustainable use of agrobiodiversity,
and strategies for genetic improvement such as the Unified National Artificial Insemination
Program.

Cambodia13

Cambodia’s main legislation on biodiversity conservation is the National Biodiversity

Strategy and Action Plan (NBSAP) which has been in place for 6 years. However, Cambodia has
no regulation on access and benefit sharing of genetic resources. Hence, despite the 586 plant
species being used for traditional medicine practices in Cambodia, there is lack of sufficient
information on access to and sharing of these indigenous resources.

Cambodia’s future priorities include enhancing the implementation of the Convention on

Biodiversity through improving the four dimensions of capacity: human, financial,
organizational and constituency. With respect to access and benefit sharing, there was no plan to
come up with legislation on the subject. Rather, the Government of Cambodia plans to regulate
the traditional medicine shops and properly document where plants, micro-organisms, fish,
wildlife by-products are taken as sources of medicines; hence, not fully addressing the ABS
objective.

12
4th National Report of the Philippines to the Convention on Biodiversity.
13
4th National Report of Cambodia submitted to the Convention on Biodiversity.
11
Malaysia14

The government is preparing a legal framework dedicated to the protection of traditional

knowledge through the draft Access and Benefit Sharing (ABS) law. Currently, various
implementing agencies of the government of Malaysia have their own guidelines and regulations
on access to genetic resources. A national legislation is envisaged to be in place in 2010.

The benefits sharing aspect of CDB is not well developed and regulated in Malaysia. The
Access and Benefits Sharing Bill has not been passed as a law.

The GEF Small Grants Programme (SGP) provides some support to the interventions by
NGOs, community-based organizations and local communities throughout Peninsular Malaysia,
Sabah and Sarawak. Some of the areas covered include traditional knowledge and equitable
access and proper benefit sharing of traditional knowledge.

Myanmar15

Myanmar has not reported progress on access and benefit sharing of genetic resources
due to lack of defined indicators and targets.

There is no defined plan for achieving the strategic goals and objectives of the CBD.
Preparation of the National Biodiversity Strategy and Action Plan (NBSAP) is still under way.
Myanmar was not able to carry out CBD strategic plans due to several constraints and lack of
capacity.

Myanmar was able to achieve some progress in the field of biotechnology. A project of
“Development of National Biosafety Framework Project, Myanmar” was conducted from May
2004 to November 2006, with the assistance of GEF and UNEP with the object to support
biotechnology development while guarding the national biodiversity in a sustainable way as well
as ensuring human health.

14
4th National Report of Malaysia submitted to the Convention on Biodiversity.
15
4th National Report of Myanmar submitted to the Convention on Biodiversity.
12
Thailand16

Thailand has a Biodiversity Policy which took effect in 2009 that focuses on the
protection and restoration of conservation areas important to the preservation of ecology in
support of biodiversity conservation. The policy promotes traditional knowledge and culture and
the equal sharing of benefits while ensuring biosafety.

The Plant Species Protection Act of 1999 provides protection to new plant species,
traditional plant species and forest plant species. It stipulates the need for permission and benefit
sharing agreements in the case of collecting, procuring and gathering plant species or parts of
plant species for the purpose of species improvement, study, experiment and research for
commercial benefits.

In many cases, relevant stakeholders do not gain benefits from genetic resources since the
Plant Protection Act of 1999 is the only legal instrument that provides benefit sharing
agreements from access and use of genetic resources. The Government of Thailand plans to draft
the regulation on the Conservation and Sustainable Utilization of Biodiversity on Criteria,
Method and Terms for Access and Benefit Sharing From Biological Resources. The draft
regulation shall also prescribe standard guidelines for permission and negotiation regarding
access and benefit sharing of biological resources.

Indonesia17

Indonesia’s compliance to the CBD is implemented at the national level through the
Indonesian Biodiversity Strategy and Action Plan (IBSAP) which became effective in 2003.
However, the IBSAP is not legally binding, hence, its implementation is on a voluntary basis.
The document is mainly used as guidance in the development of national programs related to
utilization and conservation of biodiversity.

16
4th National Report of Thailand submitted to the Convention on Biodiversity.
17
4th National Report of Indonesia submitted to the Convention on Biodiversity.

13
 Indonesia reported a failure in the implementation of the IBSAP due to non-fulfillment of
identified ideal preconditions, viz.:

1. Legally binding;
2. Open and dynamic;
3. Financial and technological resources;
4. Institutional arrangement and capacity building;
5. Sustainable development and good governance; and
6. Mechanisms for monitoring and evaluation.

The report states that the creation of an ad hoc committee for the fulfillment of the
preconditions is essential for the success of the IBSAP. However, the ad hoc team was not yet
created.

Other obstacles identified were:

1. No mechanism available to be used as a tool for monitoring and organizing the

implementation of the IBSAP;
2. No agency or independent institution responsible to organize, monitor and
evaluate the implementation of IBSAP;
3. Not all members of the stakeholder network listed in the IBSAP document are
committed to join the process of evaluation;
4. Communication and coordination among network members are not well
maintained.

There are no specific regulations aimed at the fair and equitable sharing of benefits
arising out of fair and equitable use of genetic resources. However, a bill has been developed on
the aspect of use of genetic resources. A database has also been developed for genetic resources
of forest, medicinal plants, horticultural and food crops.

14
Vietnam18

The National Biodiversity Action Plan (NBAP) 2007 is the legal document guiding all
biodiversity conservation activities in Vietnam.

Vietnam reported obstacles in the implementation of the NBAP such as poor cooperation
among different ministries, sectors, local authorities and biodiversity management agencies,
inadequate mechanism for benefit-sharing and weak community participation in biodiversity
conservation.

The unsystematic and conflicting legislation on biodiversity conservation was also cited
as one of the obstacles towards a successful implementation of the CBD. Since 1995, the
Government of Vietnam and its Ministries have released more than 140 legal documents for
biodiversity conservation and management. Some of these documents are overlapping,
inconsistent and conflicting.

Access to genetic resources, benefit-sharing, and sustainable harvest of biodiversity have

not received sufficient attention and currently not subject of any legislation.

V. PROPOSED INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARING

OF GENETIC RESOURCES19

This section shall discuss the salient provisions of the International Regime on ABS,
particularly those which, in the writer’s perspective, add value to the current legal regime
governed by the CBD and the Bonn Guidelines. The information derived for this section is based
on the current available draft protocol released by the CBD Secretariat.

Harmonization with relevant international treaties

18
4th National Report of Vietnam to the Convention on Biodiversity.
19
Based on the available draft text of the protocol annexed in the Report of the Seventh Meeting of the Ad Hoc Open-Ended
Working Group on Access and Benefit Sharing, 2-8 April 2009, Paris. According to a UN Press Release dated 30 March 2010, a
draft international agreement on access to the Earth’s genetic resources and the fair and equitable share in benefits from their use
has been finalized at a United Nations meeting in Cali, Colombia. The draft protocol, however, has not been publicly released.
15
 The interpretation of the International Regime on Access and Benefit Sharing (henceforth
referred to as International Regime) shall be in harmony with relevant international treaties,
particularly the International Treaty on Plant and Genetic Resources for Food and Agriculture
(IPGRFA). Genetic resources of Annex I of the IPGRFA are excluded from the application of
the International Regime on ABS unless used beyond the purposes of said multilateral treaty.

International minimum conditions and standards for ensuring fair and equitable sharing of
benefits

The draft protocol provides that definition of “fair and equitable benefit-sharing” is non-
exhaustive and inclusive. However, it should encompass minimum conditions such as:

• Contribute to strengthen the situation of the less powerful party at all levels in the
sharing relation by enabling equal access to information, effective participation of all
relevant stakeholders, capacity-building, and preferential access to markets, new
technology and products.
• Contribute toward, or as a minimum not counteract, the two objectives of the
Convention: conservation of biological diversity and the sustainable use of its
components;
• Not interfere with existing forms of fair and equitable benefit sharing, including
customary benefit-sharing mechanisms;
• Respect value and legal systems across cultural borders, including customary laws
and practices and indigenous intellectual property systems;
• Allow democratic and meaningful participation in policy decisions and contract
negotiation by all stakeholders, including stakeholders at the local level;
• Be transparent enough that all parties understand the process equally well, especially
indigenous and local communities, and have time and opportunity to make informed
decisions;
• Include provisions for independent third party review to ensure that all transactions
are on mutually agreed terms and preceded by effective prior informed consent;

16
 • Provide for identification of the origin of genetic resources, their derivatives and
associated traditional knowledge;
• Make information about agreed terms publicly available.

Development of menus of model clauses for consideration of Parties when establishing MATs

Essentially, this section of the draft encourages Parties to consider, when establishing
MATs, the menus of model clauses developed in accordance with the procedure prescribed by
the International Regime.

In order to enhance legal certainty, lower transaction costs and promote equality in
negotiations, the following are considerations for the development of menus of model clauses for
typical utilizations of genetic resources:

• Identification of sectors for which model clauses and inventories of typical

utilizations of genetic resources should be developed;
• Identification of issues that may be addressed in model clauses;
• Inclusion of clear and transparent rules to facilitate the involvement of stakeholders.

Simplified procedure for access to genetic resources for non-commercial research

The draft protocol encourages the Parties to adopt a simplified procedure for access to
genetic resources for non-commercial research. In addition, research funding agencies should
oblige recipients of research funds to comply with access and benefit-sharing requirements by
requiring a certificate of compliance with national law.

Provide examples of model provisions for domestic legislation and best practice

Parties are encouraged to provide examples of model provisions for domestic legislation
to the Secretariat who, upon request, shall provide copies to requesting Parties to assist them in
their domestic implementation of the access and benefit provision of the Convention.

17
 The draft provides for the identification of best practice codes of conduct where Parties
are encouraged to establish a procedure for identifying and regularly reviewing access and
benefit-sharing related codes of conduct and guidelines that constitute best practice.

Internationally recognized certificate establishing origin of genetic resource and compliance

with associated laws and regulations on ABS

The draft provides for an internationally recognized certificate issued by a domestic

competent authority. The certificate shall establish the origin of the genetic resource, their
derivatives and associated traditional knowledge and certify the compliance of the user with
relevant requirements and laws of the country of origin. The certificate shall be a public
document with international legal effectiveness, to be issued by a competent national authority,
and shall be required to be presented in specific checkpoints in user and provider countries
established to monitor compliance in relation to a range of possible uses. The draft protocol
provides checkpoints for commercial uses such as the customs control, intellectual property
office and registration points for other commercial application not covered by intellectual
property rights. Checkpoints for non-commercial uses include publishing houses of scientific
journals, grants making bodies and ex-situ collections.

Access to justice in cases of non-compliance with ABS arrangements

Measures to ensure access to justice with the aim of enforcing ABS arrangements are
provided in the draft protocol. The Governing Body of the International Regime on Access and
Benefit Sharing shall provide support in the Implementation of the International Regime by way
of assistance relating to financial cost of legal expertise in litigation related to cases of alleged
non-compliance with national access and benefit-sharing laws, regulations, and breach of access
and benefit sharing agreements.

Establishment of the international access and benefit-sharing ombudsman office

The International Regime on Access and Benefit sharing shall establish an international
access and benefit-sharing ombudsman office. The ombudsman’s office shall be responsible for
provider countries and indigenous communities to identify breach of their rights and provide aid
18
in seeking fair and equitable resolution of disputes. The ombudsman’s office, where necessary
and when requested, shall represent provider countries and/or indigenous communities in
proceedings in foreign jurisdiction, take depositions from indigenous communities and provide
evidence of customary law where appropriate.

Dispute settlement mechanisms shall include Inter-State, Private International Law and
Alternative Dispute Resolution.

VI. FINDINGS AND RECOMMENDATIONS

The access and benefit-sharing provision of the Convention appears to have received
scant consideration among member countries in Southeast Asia. Among the countries having no
legislation on the subject are Vietnam, Malaysia, Indonesia, Myanmar and Cambodia. The
Philippines and Thailand20 have passed legislation on ABS but the implementation, so far, has
not been effective.

The obstacles and difficulties can be classified into those affecting capacity and those
affecting monitoring.

Capacity problems involve lack of capacity to enact pertinent legislation such as in the
case of Myanmar. It is notable that Myanmar was able to achieve some progress in regulating
biotechnology, partly due to the support extended by GEF and UNEP. In Myanmar’s case, lack
of regulation could very well be a result of lack of expertise and lack of institutional support.

Lack of information and database on various traditional knowledge and available genetic
resources are key factors that prevent effective regulation and monitoring of access to genetic
resources. Proper regulation on access to genetic resources is a precondition to fair and equitable
sharing of benefits by relevant stakeholders. As stated in the preambular paragraph of the draft
International Regime, fair and equitable sharing of benefits can only be realized after access to
genetic resources has been granted.

20
On a limited basis since only the Plant Protection Act of 1999 is the only legal instrument promulgated by the Government of
Thailand that provides benefit sharing agreements from access and use of genetic resources.

19
 The success of access and benefit sharing implementation significantly depends on
stakeholder participation. In general, stakeholder participation in ABS has not been effective
across Southeast Asia.

Even the Bonn Guidelines recognizes the sui generis nature of the relevant stakeholder
participation. The Bonn Guidelines states in III (17): Involvement of relevant stakeholders is
essential to ensure the adequate development and implementation of the access and benefit
sharing arrangements. However, due to diversity of stakeholders and their diverging interests,
their appropriate involvement can only be determined on a case-to-case basis. The Bonn
Guidelines recommends appropriate consultative arrangements to ensure involvement of relevant
stakeholders.

There may be an oversimplification of the problem dealing with stakeholder participation

when the issues were merely reduced into diverse interests and prescribing consultative
arrangements as means to involve relevant stakeholders.

The survey of ABS implementation in SE Asia reveals the more complex problem of lack
of recognition by stakeholders of their respective interests in a particular research or commercial
undertaking, particularly those who are not direct parties to the contract. A contributing factor is
the lack of information or database of traditional knowledge and lack of awareness by indigenous
communities of their vested rights to a particular traditional knowledge. Without such
transparency and certainty of legal rights, the indigenous communities would remain ignorant of
their entitlements thereby depriving them of their share in the benefits.

Currently, access and benefit sharing is generally governed by contractual stipulations

between or among parties. Hence, only those involved in the negotiations of the MATs are
considered in the benefit sharing, depriving other interested parties of their rightful share.
Seemingly, the proposed International Regime addresses the problem by providing minimum
conditions that would constitute fair and equitable access and benefit sharing that shall be
considered in the MATs. However, this brings us back to the problem of domestic legislation.
The minimum conditions must be reinforced through appropriate domestic legislation to ensure

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that such minimum conditions go into contracts and MATs. Otherwise, these minimum
conditions are no better than mere lip service.

In the case of the Philippines, specific mechanisms and measurable quotas are in place to
obtain prior informed consent from resource providers. The existing regulatory scheme also
prescribes specific sharing percentages between and among stakeholders. However, the
Philippines reports an unfortunate lack of application for bioprospecting and access to genetic
resources allegedly due to restrictive regulations and financial requirements. At face value, it can
be propounded that the Philippines could have over legislated and stripped the resource users and
providers flexibility to negotiate more acceptable sinallagmatic contracts. This statement, at the
moment, is merely a conjecture in view of the dearth of supporting evidence.

The establishment of the ombudsman’s office and provisions relating to access to justice
provided in the International Regime draft protocol are quite novel in the realm of the existing
legal regime on biodiversity conservation. It will be interesting to monitor their application in
actual dispute and conflict scenarios.

VII. CONCLUSION

Operationalizing the objective of access and benefit sharing of genetic resources in the
CBD is certainly fraught with challenges and obstacles. It appears that the way to go forward is
capacity-building, not only to enhance stakeholder participation, but also to create a sense of
ownership among stakeholders. Research and academic institutions, NGOs, indigenous
communities, local governments, private owners, relevant government agencies, trust
institutions, private associations, all have a role to play in carrying out the objective of ABS.

The proposed International Regime is a bold initiative of the international community to

carry forward the implementation of the ABS. The survey of the implementation of ABS in
Southeast Asia reveals that progress on the access and benefit sharing of genetic resources
significantly lags behind accomplishments on conservation and sustainable use of biological
diversity.

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 Unlike the domestic sphere where the state can fully exercise its inherent powers for the
common good, the international community is bounded by the fundamental principle of the
sovereignty of states; hence, the preambular paragraph of the CBD reaffirms, that states have
sovereign rights over their own biological resources.

The proposed International Regime on access and benefit sharing of genetic resources shall
cast the light towards the right direction. The law, however, is not infallible. When all else fails,
we rely on the strength of our advocacy.

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