Transcript PRESENTATION NAME - Australian National University

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
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The Tasmanian gum tree v. the Neem tree
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To patent or not patent?
A shift of legal regime on genetic resources
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Scientific research or ‘biopiracy’?
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)
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The essentials of access and benefit-sharing under the CBD
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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)
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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
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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
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The scope of the International Regime
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The elements
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Access and benefit-sharing
Traditional knowledge
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
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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
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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)
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Disclosure requirement
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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)
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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
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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
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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 reefassociated flora and fauna
Access and benefit-sharing mechanism
 No specific legislation yet
 Several related instruments
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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)
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Related national laws and regulations
 The
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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
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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)
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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)
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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
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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)
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If the Draft Protocol is adopted it would mean a success for
Indonesia
The impacts however should be anticipated by the
Indonesian Government
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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?
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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 noncompliance
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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)
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The implementation of access and benefit-sharing under the
CBD will remain problematic
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Non-parties?
Parties who have not enacted laws on access and benefitsharing?
The success of the Draft Protocol will also very much depend
on the development in other international fora
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World Intellectual Property Organisation (WIPO-GRTKF)
World Trade Organisation
No consensus reached yet
A victory for developing countries?
(cont’d)
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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)
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Hurdles and challenges would thus still remain for
developing countries
Conclusion
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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)
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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)
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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)
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A strategic approach is also essential in securing the
interests of developing countries with respect to access and
benefit-sharing mechanism
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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