Agreements or regulations on access to genetic resources are the first line of defense, the first level of protection. Access regulations, as authorized under the CBD, are the first step towards the protection of the rights of communities and Nations to these resources. Therefore, access regulations are very crucial; they are the starting point.
Benefits of regional approaches to access to biological and genetic resources
Regulating access to genetic resources at the national level strengthens the leverage of a country which is rich in biological resources when dealing with parties wishing to utilize these resources. The biodiversity-rich country can lay down conditions as to how these resources may be used.
Regulating access at the regional level strengthens the leverage of the region as a whole. The Conference of the Parties of the CBD itself has recognized the advantages when countries in a region share similar genetic resources: most significantly, it will avoid unnecessary competition among these countries in setting conditions for access and benefit-sharing. At the same time, a common regional approach may facilitate the development of a joint, regional enforcement mechanism. The Member States may also decide to agree on reciprocal treatment, as well as on less restrictive movement of genetic resources among the Member States51.
51 Note by the Executive Secretary to the Convention on Biological Diversity, Review of Options for Access and Benefit-Sharing Mechanisms, prepared for the Inter-Sessional Meeting on the Operations of the Convention, Montreal, 28-30 June 1999, UNEP/CBD/ISOC/3, 11 May 1999, page 5.
A regional approach also offers an opportunity for the Member States to develop a regional strategy on access and benefit-sharing, which may include identification of genetic resources and their sustainable use, identification of capacity-building needs and promotion of research, training and technology transfer. Moreover, countries in the region can share experiences and learn from each other, and they could develop special regional mechanisms, such as a common fund and a common registry database. Finally, a unified regional approach would increase the region's bargaining power.
A draft ASEAN Framework Agreement on access to biological/genetic resources
In 1997, the ASEAN Senior Officials for Environment decided to explore the possibility of a Regional Access Protocol, in order to curb biopiracy in the region. Since then, steps have been taken to develop a regional framework agreement on access to biological and genetic resources52.
52 The Andean Community Member Countries already have a Regional Access Regulation in place.
Box 17 Outline of the draft ASEAN Framework Agreement:
• declaration of principles
• definition of terms
• scope and coverage
• access instrument
• implementation of the framework agreement
• regional clearing house mechanism
• competent national authority
• settlement of disputes
• prior informed consent and participation of key stakeholders
• fair and equitable sharing of benefits
• common fund for biodiversity conservation
• environmental and social impact and biosafety concerns
The Framework Agreement, which is still in the early drafting stages, will probably deal with access to biological resources as well as with conservation and sustainable use of those resources. It is also envisaged that it will address concerns on prior informed consent and equitable benefit sharing (see box 17).
This 'mini-treaty' among ASEAN countries will lay down key principles and implementation mechanisms that should make it easier for ASEAN, as a region, to deal with access to genetic resources, especially vis-a-vis other countries, groups or corporations that wish to utilize its rich biological resources.
The draft ASEAN Framework Agreement will probably provide for a clearing house, where a bioprospector from outside the region would first go, in order to get information with regard to who are the national competent authorities that can grant access, what are the conditions for granting access etc. This would help the potential prospector to decide where to initiate activities.
The Framework Agreement however would recognize State sovereignty -which gives Member Countries the option of enacting their own access legislation, in accordance with their legal and political structure- while providing for a set of minimum standards that each country can implement in its own access regulations, so that the region as a whole can benefit. This is especially important in the ASEAN Region, where the same biological resources can be encountered in different countries, which, in the absence of regional cooperation and minimum standards, would facilitate the circumvention of national regulations by bioprospectors.
The Community Protocol
In most of the discussion so far, the involvement of the community is not clearly defined. At what point will they participate? Often there are requirements for prior informed consent, but it is not clear how communities can participate.
Communities face a number of obstacles with regard to exerting their rights over their traditional medicinal knowledge and granting access to their biological resources:
• communities are usually not recognized as parties to the agreement or contract;
• often, community knowledge is not eligible for IPR protection;
• there are no institutional mechanisms via which a community can assert rights over its knowledge;
• there are no mandatory schemes for benefit sharing at the local level;
• prior informed consent consultations do not take place or lack effective community participation;
• there is a lack of sanctions for breaking customary laws.
The Community Protocol has been devised in order to address some of these issues. It is an expression of customary law on matters related to access to genetic resources and/or traditional knowledge. It provides for a practical way to allow communities to participate in discussions on access and benefit-sharing and to provide input to those who seek access, especially when bioprospecting activities are about to be implemented in the area.
The Community Protocol enables the local and indigenous communities to assert their own customary law before granting access to collectors or researchers. Collectors will have to undergo the procedures that are provided for in the Community Protocol. One of the positive points of the Community Protocol is that it is actually being implemented53, for example in Mt Kitanglad Protected Area in the Philippines34 and in Sabah, Malaysia. Collectors or those who wish to enter the area, over which the communities concerned have ancestral rights, have to undergo certain procedures or rituals that have been laid down in their Community Protocol.
53 The Community Protocol is however still undergoing some further refinement.
54 In the Philippines, an NGO, SEARICE, works on access and benefit-sharing and assists communities with the assertion of community rights and the implementation of their Community Protocol.
These rituals also function as a confidence-building measure for the community when it encounters these people for the first time. Likewise, they enable researchers to get to know the community better, and as such may lead to stronger relationships later on.
Box 18 Community Protocol in Sabah (Malaysia)
All persons who wish to collect information related to indigenous knowledge on biological resources from the community:
1. Have to get prior consent from the community through a discussion with the JKKK/Village Head or the Chairperson of the Village Organization;
2. Have to have a permit from the District Officer and other relevant bodies (University, Sabah Parks or the Economic Planning Unit);
3. Researchers must inform the community, through village meetings in a form that can be easily understood, of the following:
» Objectives of the research
» Background of researcher and sponsoring organization
» Work plan/Activities
» Benefits to the community
» Risks to the community
» Impact of the study
4. Have to respect the adat, beliefs and cultural tradition (including the punishment for going against any of the adat) of the community;
5. Have to provide the information at least 2 weeks before entering the community, so as to ensure that the information given by the person can be verified;
6. Should give regular reports, and allow direct involvement of one representative selected by the community;
7. Will be subject to additional conditions for any collection of biological specimens;
8. Will have to enter into an agreement with the community, which outlines the conditions made together with the community on the research as well as benefits to be given to the community (not necessarily in monetary form - but could be by way of support of the community needs, recognition of land rights, entrance fees or material support for community projects).
Efforts are being made to incorporate this protocol in State legislation, however discussions on this are still ongoing.
Implementing the community protocol will require considerable effort and political will, but may also serve the State's own interests, since, by allowing communities to practice their customary law with regard to the utilization of biological and genetic resources, the community protocol in effect protects and revitalizes the rights of communities to their knowledge, their customs and their resources. By strengthening the exercise of these rights, communities' sense of belonging is likely to increase, which may contribute to a country's political, economic and social stability. Ultimately, a harmonious relationship between a State and its communities will facilitate the attainment of larger national objectives.
Moreover, it will also multiply partnerships in biodiversity conservation and in preservation of a country's cultural heritage.
The preliminary draft text of the ASEAN Framework Agreement appears to provide scope for the implementation of Community Protocols, according to each country's own perception of the importance of the issue and in line with its own political, legal and social framework.
Whether ASEAN countries will implement this principle will depend on how deeply they appreciate the necessity of involving their own communities in the decision-making processes.