21.12.2013 Seite 1 Regional Cooperation on ABS in the Andean Community and the ASEAN Dr. Andreas Drews Session Practical Approaches for Regional Cooperation.

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Regional Cooperation on ABSin the Andean Community and the ASEAN

Dr. Andreas Drews

Session “Practical Approaches for Regional Cooperation” Initial ABS Capacity-Building Workshop for Africa

19 to 24 November 2006Kirstenbosch National Botanical Garden, Cape Town, South Africa

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Overview

ABS in the Andean Community

ABS in the ASEAN

Some general observations

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Why regional cooperation on ABS at all?

Transboundary distribution of many biological and genetic resources Transboundary distribution of related traditional knowledge

Common minimum standards avoid underbidding or free riders Facilitates access for foreign institutions and companies, which is the first

step to generate benefits which can be shared.

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The Andean Community (AC)

The Andean Community of Nations (since 1969): Members: Venezuela, Colombia, Ecuador, Peru and Bolivia Binding legislation requires no Congress approval (unless stated

otherwise) and is mainly passed through Decisions approved by the executive branches of governments.

Common Regimes establish minimum legal standards that must be met and implemented by Member States.

Decision 391 of the Andean Community on a Common Regime on Access to Genetic Resources of 1996

first regional set of principles and obligations on ABS Reaffirms national sovereignty over genetic resources Operates through a set of mechanisms and instruments and an

administrative procedure overseen by the respective national competent authority

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Decision 391: Critical Overview

Scope and definition of access (as encompassing all activities which require access to and use of biological materials)

Common procedure for different type of bioprospecting activities (marine / microbial / agrobiodiversity / pharma- and nutraceutical research / taxonomy):

STEP 1: Review of minimum conditions to be included in the access application

STEP 2: Submit application to National Competent Authority STEP 3: Elaborate accessory agreements with

» the actual provider/possessor of the biological resourcesand/or

» providers of intangible components, such as TK STEP 4:Elaborate access contract with the National Competent

Authority, to which the accessory agreements are part of.

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Decision 391: Implementation

Direct implementation (no secondary national legislation):Venezuela, Colombia

National legislation: Ecuador, Peru, Bolivia

Despite provisions in Decision 391 on regional cooperation no consideration of regional benefit-sharing aspects in the

negotiation of bioprospecting agreements even no documented communication between Member States;

Over-regulatory approach results in high transaction costs which pose an disincentive for bioprospecting.

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The ASEAN

The Association of Southeast Asian Nations (since 1967): Members: Philippines, Brunei Darussalam, Indonesia, Singapore,

Malaysia, Thailand, Vietnam, Laos, Cambodia, Myanmar Fundamental Principle of “non-interference in the internal affairs of

one another”. Agreements establish minimum legal standards that must be met

and implemented by Member States.

The ASEAN Framework Agreement on … Under negotiation since 2000 endorsement by Heads of States

expected for 12/2206 Reaffirms national sovereignty over genetic resources Sets minimum requirements for access applications Creates instruments facilitating regional cooperation

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ASEAN Framework Agreement: Critical Overview

Scope and definition include all biological and genetic resources, including the TK associated (except human genetic resources) for all purposes.

Objectives reflect “Asian” approach to cooperation: Recognise Article 8(j), but as subject to national legislation. Establish effective and participatory PIC procedures, taking into

account national perspectives and priorities. Provide a forum for intra-regional cooperation and strengthening the

voice of the Parties in related international negotiations. Establishes a Regional Clearing House Mechanism:

sharing of relevant information / technical and legal support to Competent National Authorities / database of biological and genetic resources and associated TK.

Establishes a Common Fund for Biodiversity Conservation administered by the ASEAN Secretariat.

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ASEAN Framework Agreement: Outlook on Implementation

Requires national legislation on ABS and TK protection Establishes minimum standards for access applications along the

requirements in the Bonn Guidelines (Article 36) Remains vague on the implementation of the Regional CHM and the

Common Biodiversity Fund

“none”-regulatory approach allows for existing national legislation to remain unchanged.

» Q: Why regional cooperation?

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General Observations

Two fundamentally different approaches: “cartel-like” approach, over-regulatory, ensuring control “none”-regulatory approach, ensuring national sovereignty,

establishing supportive regional mechanisms

Is there a third way to achieve the main objectives of regional cooperation?

Common minimum standards avoid underbidding or free riders Facilitates access for foreign institutions and companies, which is the

first step to generate benefits which can be shared.