Regional Cooperation on ABS in the Andean Community

Regional Cooperation on ABS in 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 2006 Kirstenbosch National Botanical Garden, Cape Town, South Africa Seite

Overview § ABS in the Andean Community § ABS in the ASEAN § Some general observations 1/4/2022 Seite 2 2

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 foreign institutions and companies, which is the first step to generate benefits which can be shared. 1/4/2022 Seite 3 3

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 1/4/2022 Seite 4 4

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 resources and/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. 1/4/2022 Seite 5 5

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. 1/4/2022 Seite 6 6

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 1/4/2022 Seite 7 7

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. 1/4/2022 Seite 8 8

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? 1/4/2022 Seite 9 9

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 foreign institutions and companies, which is the first step to generate benefits which can be shared. 1/4/2022 Seite 1010