Atty. Elpidio V. Peria of the Philippine Institute of Traditional and Alternative Health Care presented a paper on the community protocol as an instrument for protecting the rights of communities in access and benefit-sharing agreements.
The entry into force of the Convention on Biological Diversity in December 1993 ushered in a new era in the utilization of biological and genetic resources all over the world. While before, they were seen as the “common heritage of mankind”, they are now subject to the national sovereignty of the country where they may be found, and these countries can now come up with national legislation to determine how these resources may be conserved and sustainably used.
The same Convention also gave support to the internationally recognized link between indigenous communities and their biological and genetic resources, though it appears that there must be some form of legal mechanism that will promote the use of the knowledge, innovations and practices, aside from ensuring fair and equitable sharing of benefits to the originating communities whenever they are used.
As the dominance of the existing intellectual property rights system looms, due to the accession of most countries of the world to the TRIPS Agreement, there has to be a way to ensure that the knowledge, innovations and practices of communities all over the world will continue to be preserved and protected. The broad problems of the intellectual property rights system and its appropriateness for protecting knowledge systems in traditional medicine are best tackled in a more comprehensive manner than can be dealt with here. However, one particular area where some practical solutions might be derived to these contemporary problems, is to tackle the matter of access and benefit-sharing agreements and see how communities stack up with regard to this contract and to the benefits that they may derive.
The Community Protocol, a series of steps undertaken collectively by a community to achieve a desired result, based on the community’s own rituals, customs, practices and customary laws, is currently undergoing exploratory development in Sabah, Malaysia, and in the Philippines. This is one mechanism that has been proposed that may help address the problems of communities vis-a-vis these access and benefit-sharing agreements.
Even if this Protocol need not depend on any specific legislation from the country where the communities are located, it may help, as in the case of the Philippines due to its relatively progressive social legislation, that some legal authority boosts its actual implementation on the ground. The impending ASEAN Framework Agreement on Access to Genetic Resources can help with this aspect and may also serve as a guide to help other ASEAN countries come up with access regulations that meet certain standards that enhance the grouping’s competitiveness vis-a-vis other similar regions possessing the same biological and genetic resources. This is also helped by a similar decision by the Conference of the Parties to the Convention on Biological Diversity held in Nairobi in May.