Elpidio V. Peria
12 October 2014


Today, October 12, 2014, is the day the Nagoya Protocol, or the Nagoya Protocol on Access to To Genetic Resources And The Fair And Equitable Sharing Of Benefits Arising From Their Utilization To The Convention On Biological Diversity, enters into force, thus it becomes legally effective to those countries which have already ratified it, which to date, has come to some fifty four (54) countries. These are mainly from developing countries in Africa and the Pacific and the only developed countries so far which are Parties to the Protocol are Denmark, Hungary, Norway, Spain and Switzerland and Asian countries like Bhutan, India, Indonesia, Lao PDR, Mongolia, Myanmar and Vietnam. The European Union, as a regional economic integration organization has ratified, but given its internal processes, it will give time to its member-states to study the international instrument and make a decision whether to join it.

The Philippines, which actively participated in the negotiations for the Protocol and is attending the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Nagoya Protocol on Access and Benefit-sharing that will happen here in Pyeongchang, South Korea from 13 to 17 October 2014, will be an observer to the meeting, and among all other issues in the agenda, should pay close attention to the following issues which will be of importance to it later, namely:

a) The compliance mechanism of the protocol
b) Further structures to ensure benefit-sharing from the use of Philippine genetic resources such as the global multilateral benefit-sharing mechanism

The compliance mechanism, or as formally called, the cooperative procedures and institutional mechanisms to promote compliance with the Nagoya Protocol and address cases of non-compliance (Article 30), will deal with how the provisions of the Protocol will be implemented by the Parties that have ratified it, giving space also to indigenous peoples and local communities who may wish also to avail of the provisions of the Nagoya Protocol in cases where their genetic resources and/or associated traditional knowledge, may have been subjected to biopiracy.

But whether the indigenous peoples and local communities will have that space, the text from some bracketed texts of the compliance mechanism that was negotiated last week here in Pyeongchang, South Korea, point to some unresolved issues concerning mainly with:

a) Whether indigenous peoples themselves can make such submission or make a complaint in the compliance mechanism concerning compliance by Parties with the provisions of the Protocol;

b) Whether they will have to be supported by the Party on whose national territory they are located, to make such a submission; and

c) Whether they can bring matters relating to compliance with the provisions of the Nagoya Protocol relating to their customary laws, community protocols and procedures, as applicable, with respect to their traditional knowledge associated with genetic resources.

The last item was a Philippine submission in the previous negotiations of the Intergovernmental Committee of the Nagoya Protocol and it originally read :
including compliance and other sui generis mechanisms of indigenous and local communities taking into account their customary laws, norms and practices in accordance with national legislation.

What was lost here, perhaps because nobody understood what it meant or it was understood as something outside of the scope of the Nagoya Protocol as it may have been seen as being covered by other international instruments such as the current international instrument being negotiated in the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC), is the ability of indigenous peoples and local communities in countries which have legislation recognizing their rights, to use their own sui generis or unique (of its own kind) mechanisms to stop biopiracy in the territory of the indigenous peoples and local communities.

On the global multilateral benefit-sharing mechanism, what will happen to it here in this meeting is that the Parties to the Nagoya Protocol will still have to decide whether there is a need for it, and if it decides it is needed it will decide what steps will need to be taken further.

On this multilateral mechanism, there will surely be a big debate whether this will function to deal with utilization of genetic resources and associated traditional knowledge that happened before the entry into force of the Protocol or those areas or subject matter that are outside of the scope of the Protocol.

One thing to remember about this global multilateral benefit-sharing mechanism is that this provision was inserted at the last minute in the negotiations without having been actually negotiated by the Parties in Nagoya, Japan in 2010 though the African Group wanted to look at this as something that will complement the benefit-sharing mechanism established in the Protocol.

In the Philippines, the draft legislation on access and benefit-sharing that was developed from the capacity-building initiative funded by the ASEAN Center for Biodiversity for ASEAN member-states with Philippines among those states which are the recipients of such effort, contains a parallel provision which mirrors the concept of such multilateral benefit-sharing mechanism, but such mechanism is now made into a voluntary benefit-sharing mechanism.

This kind of scheme is expected to apply in cases of research into microbes or similar genetic resources where it is not possible to secure prior informed consent and the researcher and his/her partner or collaborating institution will be made to commit to provide a minimum level of benefits that may be derived from the utilization of the genetic resources and/or the indigenous knowledge systems or practices including the associated traditional knowledge therein. This benefit-sharing scheme will apply as the utilization progresses from research, development, innovation, pre-commercialization and commercialization.

This was a proposal arrived at after a series of workshops held and participated in by some government agencies and other stakeholders, whether this will really serve the purpose is something that will need to be debated by our legislators once the draft legislation is subjected to public hearings later.

But one other possible threat to the benefit-sharing schemes to be implemented under the Nagoya Protocol is synthetic biology, a technology which, according to New Scientist magazine, is the engineering of living organisms to do everything from making drugs to mopping up pollution though Shlomiya Bar-Yam, Jennifer Byers-Corbin, Rocco Casagrande, Florentine Eichler, Allen Lin, Martin Oesterreicher, Pernilla Regardh, R. Donald Turlington and Kenneth A. Oye (2012) state that this field encompasses the design and construction of new biological parts, devices and systems, as well as the re-design of existing, natural biological systems for useful purposes.

This new field of technology has led to the production of synthetic alternates to, which could replace, for example, saffron, the world’s most expensive spice, or resveratrol, a compound found in red grapes and other plants, or vanilla. This will mean that farmers in developing countries will lose their export markets if these alternates would become the preferred material of choice in products that will be eventually be processed into other finished goods. Another item of concern here is that the countries where these materials are sourced also lose out on the benefit-sharing aspects on the utilization of the materials as they will no longer supply their usual outlets for these products.

The Conference of the Parties of the Convention on Biological Diversity are actually discussing the implications of synthetic biology here in South Korea and its outcome should be useful to the Parties to the Nagoya Protocol later as the Parties figure out how the new international instrument against biopiracy will be implemented nationally and internationally.


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