1. The Draft Protocol on Access and Benefit-sharing: A Victory for Developing Countries? Achmad Gusman Siswandi PhD Programme ANU College of Law

2. Introduction  The 19 th 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

3. 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

4. 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?

5. 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 7 th meeting of WG-ABS  The Draft Protocol however has not been negotiated

6. 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

7. 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’

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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)

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. Thank you