Apartado 3 ter – punto 1 (nuevo)
1) Pide a la Comisión una mayor cooperación con los terceros países para
Regional cooperation has long been the call of s, government agencies, and scientists. Such cooperation is necessary because, it is not only the Philippines that has endemic species; there are species endemic to the entire southeast Asian region as well.
During the eighth meeting of the 114 Senior
Officials on Environment () in September , the Philippine delegation proposed the formulation of a common protocol among member countries on access to genetic resources and s. Thereafter, asked the Working Group on Nature Conservation and Biodiversity to spearhead the drafting of said protocol. The Philippines was given the lead role in formulating a legal framework to regulate access to genetic resources for . The first Technical Expert’s Meeting was held in December to discuss and draft the framework. It was composed of technical experts from the member countries, s from the region and representative of the Secretariat. The second Technical Expert’s Meeting was held in February (M ).
Although the Framework on Access to Biological and Genetic Resources is still being developed, it may already have created the regional cooperation that has long been desired in the region. In the February draft of the Framework115, the objectives include,
among others, ensuring the conservation and sustainable use of these resources and equitable sharing of benefits consistent with the principle of , giving recognition and protection to traditional knowledge, promotion of regional cooperation in the utilization of and access to these resources, ensuring uniform and consistent access regulations within the region, the setting of “minimum
standards in regulating access to genetic resources and strengthening national initiatives towards this objective”, promotion of technology transfer and capacity building, and establishment of “effective and participatory measures for the grant of ”.116
The Framework covers all genetic and biological re- sources, including associated traditional knowledge. Ex
situ materials collected prior to the are considered held in trust and shall not be allowed.117 Patenting of life
forms and traditional knowledge as well as on genetic materials of human origin shall not be allowed.118 Prior
informed consent of member countries is necessary before access to these resources shall be allowed. Countries shall establish a legal process to ensure that fair and equitable sharing of benefits shall accrue to s and local communi- ties who are considered as the legitimate users and custodi- ans of biological and genetic resources.119The negotiation
of benefit-sharing arrangements is left to the discretion of member States and may come in the form of technology transfer, capacity building, and monetary or nonmonetary benefits subject to certain requirements.120
The Framework also establishes a Common Fund for Biodiversity Conservation consisting of a share in the revenues derived from any commercialization of the use of common and shared resources among the member States as well as from a portion of the fees and charges imposed by the member States. Additional support shall be derived from other benefit-sharing arrangements that may be negotiated.121 According to the Ha Noi Action
Plan (–) the Protocol was scheduled to be adopted in .
Ultimately, the legislative and institutional framework for access to genetic resources that any country devel- ops will only be as good as the process through which it is developed. To actually work once established, the legislative framework must have the broad support of all relevant sectors of government and society; fit within the country’s larger strategy for conserving and sustainably using biodiversity; and must be supported by institu- tional processes and capabilities sufficient to implement it (M et al. ).
Executive Order has been faithful to the provisions of the Convention on Biological Diversity on access regula- tion. It is the world’s first comprehensive policy framework that provides for access to biological resources on mutu- ally agreed terms, subject to prior informed consent, and the equitable sharing of benefits. Since its issuance, the Philippines has approved only one commercial research agreement and one academic research agreement. The fees and bonds are still undetermined and a monitoring scheme is not yet in place. However, for the only that has been approved so far, bioprospectors are asked to submit a quarterly report and a government representa- tive joins them during every field visit. At present, a draft administrative regulation on collection and monitoring of bioprospecting activities is being reviewed by . Benefit-sharing arrangements are yet to be tried. The other terms and conditions are still to be threshed out. All these have been compounded by a new law (the Wildlife Act) radically modifying .
This does not mean, however, that has failed in its purpose. It only shows that the road towards the establishment of an ideal framework for access to and exchange of biological and genetic resources is long and tedious. However, the Philippines is learning a lot along the way. In fact, the passage of the Wildlife Act confirms that the process is dynamic, and the country intends to succeed in finding a better legislative and institutional framework on the subject.
Derived from the years of Philippine experience on access regulation under , the following recommen- dations may help other countries in their quest for the best and most suitable mode of regulating access to and exchange of biological and genetic resources:
There is a need to be clear as to the scope of the access regulation. States should know what they want to regulate in order to avoid over-regulation. They should conduct assessments of their genetic resources and their capacities to regulate access to their resources and make a realistic decision on the coverage of their regulation.
The prior informed consent () of communities should
be nonnegotiable and measures that would guarantee com- pliance with the process must be established. The of communities and s, and the process of obtaining the
, is a must in any access regulation, because it is the only way for States to help and support the s’ capacities and efforts to protect their indigenous/traditional knowledge and resources. “Effective, on-the-ground mechanisms to ensure the and protection of the rights of affected communities” are necessary (B and L V ). Nevertheless, the process should be simple and fast.
There is a need for an effective and efficient implement- ing mechanism and monitoring scheme. A single but effec- tive, efficient, and well-funded implementing agency must be established. Lack of funds and personnel to implement the access regulation will surely mean failure of whatever system that is implemented.
The procedure must be simple and fast. A straightfor- ward application procedure will lessen the transaction cost for the collector. Documentary requirements should be minimal and only that information necessary for evaluation purposes should be required. “If requests for access are poorly administered—too bureaucratic, confusing, involv- ing too many steps, too slow or too onerous—or based on benefit-sharing policies that seem unreasonable to the user, partnership will seem unattractive, and providers will price themselves out of the market” ( K ).
Biodiversity conservation and access must go hand-in- hand. The access regulation should provide for measures to guarantee that bioprospecting activities will not be detrimental to biodiversity conservation. Benefit-sharing arrangements should also include benefits accruing to en- vironmental protection and conservation programs.
There must be regional cooperation among countries sharing the same resource. This will help create a united and strong position during negotiations for optimum ben- efits. “A consortium of suppliers could pool their expertise and equipment, offer a greater quantity and diversity of resources and services and agree to share among them- selves, in proportion to the samples supplied, the royalties derived from any single marketed product. Others suggest that regional cooperatives could provide a mechanism for sharing the benefits from access to species common to the region” ( K ).
Effective guidelines or mechanisms to attain equitable benefit sharing and technology transfer must be developed.
Identification and implementation of benefit sharing and technology transfer options must be incorporated. If the State decides to adopt contractual relations, it has to cre- ate an effective bargaining program in order to ensure optimum benefits for its people. Also, in the long run, the market for raw genetic material will be increasingly competitive (made more so by a growing black market) as a result of technological changes in the field of bio- technology. It is imperative, therefore, to develop stable, long-term partnerships with product development firms and institutions ( K ).
. . Report on the role of intellectual property rights
in the implementation of access and benefit-sharing ar- rangements. First Ad Hoc Open-ended Working Group on Access and Benefit Sharing, - October , //-//. Bonn, Germany. : http: //www.biodiv.org/doc/meetings/abs/abswg-/official/ abswg---en.pdf.
A R. . Statutory construction. Rex Bookstore, Inc., Manila, Philippines.
B, C.V. and A.G.M. L V. . Regulating access to genetic resources: The Philippine experience. p. – in . M, C.V. B, G. H, L. G and A. L V (eds.). Access to genetic resources. , -, Press, Nairobi, Kenya.
B L.R. . agreement revisited: Focus on article . (b). World Bulletin :–.
C D.J.L. . Plant variety protection and rights of breeders, farmers and indigenous peoples under Philippine law. World Bulletin :–. C I.M.C. . Foraging for a fair share: Strategies
for minimizing inequity between bioprospectors and Philippine local communities. World Bulletin :–. D V.L. . To catch the “biopirates.”
Bulletin :–.
D D. . Efforts at protecting traditional knowl- edge: The experience of the Philippines. Roundtable on Intellectual Property and Traditional Knowledge, World Intellectual Property Organization. : http: //www.wipo.int/documents/en/meetings//folklore/ pdf/tkrt_.pdf.
D L J.L. . Wildlife resources in the Philippines and
government efforts to conserve them. Manila, Philippines. D M.C. . Set free the seeds (): A sovereignty issue.
Human Face. Philippine Daily Inquirer. February . W . Compilation of issues, comments,
and suggestions reached during the seminars/ workshops sponsored by Southeast Asia Regional Institute for Community Education.
L V A.G.M., M.J.A. C, and M.L.L. B. .
Regulating access to biological and genetic resources in the Philippines: A manual on the implementation of Executive Order No. . Foundation for Philippine Environment and World Resources Institute, Quezon City, Philippines.
M D.A. . On bioprospecting and collection of biological specimens in the Philippines. Philippine
Biodiversity Information Center Plant Unit Newsletter :. M N. . Chronology of events/status of draft
framework on access to biological and genetic
resources. Department of Environment and Natural Resources, Protected Areas and Wildlife Bureau. Manila, Philippines.
References
M H.M. . Seeds of discontent: Republic Act in perspective. MindaNews I:. : http:// www.mindanews.com///rd/vwsmordeno.html. M J., C.V. B, H. G, L. G, and A.
L V. . Access to genetic resources: Strategies
for sharing benefits. , -, Press, Nairobi, Kenya.
M T.A. . Access, benefit sharing and trade in genetic resources. Paper presented at / Regional Seminar on Trade and Environment, – February . Harare, Zimbabwe. : http://www.ictsd.org/ dlogue/--/mushita.pdf.
O J.M.A. . Barking at the wrong tree: Intellectual property law and genetic resources. Paper presented at the Regional Workshop on Sustainable Utilization of Genetic Resources in Southeast Asia and the Pacific, – July , Grand Men Seng Hotel, Davao City, Philippines. O J.M.A. . The anticommons in bioprospecting:
Regulation of access to genetic and biological materials in the Philippines. World Bulletin :-.
-. . The First Philippine National Report to the Convention on Biological Diversity. Protected Areas and Wildlife Bureau-Department of Environment and Natural Resources. Manila, Philippines. : http: //www.biodiv.org/doc/world/ph/ph-nr--en.pdf.
P E.V. . Can’t we stop and talk awhile? A Philippine perspective on Executive Order No. . Paper presented at the th Global Biodiversity Forum in Bratislava, Slovakia, – May . Southeast Asia Regional Institute for Community Education (), Philippines.
S K. . Stakeholder participation in policy on access to genetic resources, traditional knowledge and benefit-sharing case studies and recommendations.
Biodiversity and Livelihood Issues :.
T E.M. . Position paper of the Pharmaceutical and Healthcare Association of the Philippines () on access to genetic resources and benefit-sharing policies. Paper presented at the East Asia Forum on Genetic Resources Access and Benefit Sharing Policies. Cavite, Philippines. T-C V. . and its potential impacts on
indigenous peoples. Indigenous Peoples’ International Centre for Policy Research and Education, Philippines. : http://www.wcc-coe.org/wcc/what/jpc/trips.html. T S. . Status of Executive Order
implementation. Inter-Agency Committee on Biological and Genetic Resources, Philippines. K K. . Biopiracy or green petroleum?:
Expectations and best practice in bioprospecting. Overseas Development Administration, Environment Policy Department London, .
1 , Sec. . 2 Ibid.
3 is entitled “Prescribing Guidelines and Establishing a
Regulatory Framework for the Prospecting of Biological and Genetic Resources, Their By-products and Derivatives, for Scientific and Commercial Purposes and For Other Purposes”. The full text is available at : http://www.chmbio.org.ph/eo.html.
4 Implementing rules and regulations “issued by administrative or
executive officers in accordance with, and as authorized by, law have the force and effect of law or partake of the nature of a stat- ute. All that is required for their validity is that the rules should be germane to the objects and purposes of the law; that the regulations be not in contradiction with, but conform to, the standards that the law prescribes; and that they be the sole purpose of carrying into effect the general provisions of the law” (A ).
5 Full text of Administrative Order No. is available at: : http:
//www.chmbio.org.ph/dao-.html.
6 Guidelines for the collection of biological specimens in the
Philippines (hereinafter Guidelines), Part II, Section .
7 The letter of agreement between the and the National Museum
is an open-ended contract that is still enforceable but no activity has been undertaken by them in the last five years (D.A. Madulid, pers. comm., 28 February 2002). Also, according to the of , there is no information that is doing bioprospecting activity with other institutions in the Philippines.
8 Interview with Dr. Madulid, Head, Philippine National Herbarium,
February at the National Museum, Manila, Philippines.
9 , Sec. .
10 Public domain refers to water and lands owned by the State that
have not been declared alienable and disposable ( No. -, Sec. (z)).
11 -, Sec. (.) (a). 12 , Definition of Terms.
13 Traditional use refers to customary utilization of biological and
genetic resources by the local community and indigenous people in accordance with written or unwritten rules, usages, customs, and practices traditionally observed, accepted, and recognized by them ( -, Sec. (bb)).
14 Id., Sec. (.) (b).
15 The applicant for these kinds of research and collection is given a
gratuitous permit under a . Some of the minimum terms and conditions under are, however, incorporated in the so as to avoid circumvention of the law.
16 -, sec. . (a).
17 Application of Pascual Laboratories, Inc. () for a Commercial
Research Agreement in connection with its desire to work with Oxford Natural Products in standardizing Lagundi and Sambong Tablets using the latter’s technology called “Total Quality Profiling”. The application is now undergoing ’s final evalu- ation.
18 Indigenous people refers “to a group of people sharing common
bonds of language, customs, traditions, and other distinct cultural traits, and who have since time immemorial, occupied, possessed, and utilized a territory except when such possession is either prevented or interrupted by war, force majeure, displacement by force, deceit, or stealth, or other usurpation” ( , Definition of Terms).
19 -, Sec. .. 20 -, Sec. . 21 -, Sec. .
22 Special Order No. - dated March . 23 Special Order No. -, Sec. ...
24 Affiliate refers to a registered student or scientist/researcher who is
formally appointed to a staff or faculty position in a university or other academic institution acting as principal, or a representative of a domestic academic or governmental institution or a representative of an inter-governmental institution assisting in the bioprospecting research by virtue of a formal agreement duly signed by both the principal and the affiliate or a certified true copy of his enrollment form in the case of a registered student ( -, Sec. ., b).
25 , Definition of Terms. 26 , Sec. (m).
27 The institution with an with the government is referred to as
the principal.
28 -, Sec. (.) (). 29 Id., Sec. (.) ( & ). 30 Id., Sec. (.) ().
31 , Definition of and -, Sec. (.) (). 32 Ibid.
33 Id., Sec. (.) ().
34 has received applications for but of those ap-
plications are exempt from coverage. The pending applications are still being processed under until new implementing rules and regulations pursuant to the new Wildlife Act are issued.
35 has received applications for but of those ap-
plications are exempt from coverage. With the passage of the Wildlife Act, all pending applications for shall not be processed anymore but shall undergo the gratuitous permit system.
36 The between the Department of Agriculture () and the
University of Utah (principal collector) and the University of the Philippines () was approved on June (seven months after the project applied for access) (-Utah- ). The expired on July and was renewed until . The project involves the collection of tunicates, sponges, and other invertebrate samples for biological assays to screen for potential bioactive compounds. So far, no products have been developed, but some organisms have yielded interesting results. Also, the project has been academically productive because of the publications derived from it.
37 of the University of the Philippines System was approved in
.
38 , Sec. . 39 -, Sec. (w).
40 Ancestral domain, subject to existing property rights, refers “to all
areas generally belonging to s comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by s, by themselves or through their ancestors, communally or individually, since time immemo- rial, continuously to the present except when interrupted by war,
force majeure, or displacement by force, deceit, stealth or as a con-
sequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by s but which they traditionally had access to for their subsistence and traditional activities, particularly the home rangers
of s who are still nomadic and/or shifting cultivators” ( - , Sec. ., c).
41 Ancestral land, subject to existing property rights, refers “to land
occupied, possessed and utilized by individuals, families, and clans who are members of the s/s since time immemorial, continu- ously to the present except when interrupted by war, force majeure, or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social, and cultural welfare” (Id., Sec. ., d).
42 , Sec. . 43 , Sec. (g).
44 The research proposal must be presented in a language or dialect
understandable to them stating therein the purpose, methodology, duration, species/specimen, and number/quantity to be used and/or taken, equitable sharing of benefits, if any, to parties concerned, and a categorical statement that said activity will not affect their traditional use of the resource ( -, Sec. (..)).
45 The notice includes a statement that copies of a summary of the
research proposal and other information regarding the proposed activity have been filed with the recognized head of the , the local government unit, , or the private landowner concerned and that an application is pending with the , or that the research is covered by an existing (Id., Sec. (..)).
46 Undergraduate, masters, and doctoral students carrying out
research strictly for the purpose of complying with academic requirements and who do not receive any funding from a com- mercial entity are exempt from holding community consultation unless requested. The consultation shall be held in the presence of