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A. The Idea of a BioEconomy
The developed countries, particularly the members of the Organization for Economic Cooperation and Development (OECD), have developed a plan for turning their members’ respective economies into an integrated bioeconomy in 2030 by putting emphasis on the utilization of biological resources such as micro-organisms, marine organisms and other biological and genetic resources, into useful applications in industry, medicine, and related fields.
Towards this end, the International Futures Program of the OECD has launched a two-year project in 2006-2008 on The Bioeconomy to 2030: Designing a Policy Agenda. The project seeks to, among other aims, assess the long term prospects of the bioeconomy over the next thirty years and its economic and social implications (OECD, Biotechnology Update No. 17, 2006).
Though recognized by the OECD to be interpreted in many different ways by different actors, its idea of the bioeconomy is an “aggregate set of economic operations in a society that use the latent value incumbent in biological products and processes to capture new growth and welfare benefits for citizens” (OECD, Policy Agenda, 2006).
The European Union has evolved the concept to include “all industries and economic sectors that produce, manage or otherwise exploit biological resources (e.g., agriculture, food, forestry, fisheries and other bio-based industries.” The European bioeconomy has an approximate market size of over 1.5 trillion euro, employing more than 22 million people. (Directorate General, European Commission, 2002)
The concept of the bioeconomy presages a scenario where biological resources will become the focus of struggle between developed countries and the developing countries, with results that may determine which group of countries may dominate emerging technologies and industries that will drive the economies of the future.
B. The Unique But Difficult Situation of the ASEAN
In spite of its receding forest cover and highest rates of deforestation in the world at 1.35%, the ASEAN is one of the most biologically diverse region of the world where 20% of the world’s known species occupy only 3% of the world’s total land area. There are over 27,000 endemic species in the region of which 86% are endemic plants. (ASEAN State of the Environment Report, 2006)
The ASEAN also has prodigious marine resources. It has 34% of the total world mangrove forest area, 64% of the world’s mangrove species, 31% of the world’s coral reefs, and 33% of the world’s sea grass species. (ASEAN State of the Environment Report, 2006).
The ASEAN is host to teeming biological diversity where three of its member-countries - Indonesia, Malaysia and Philippines - are considered mega-diverse countries while the rest of its members are also areas where unique flora and fauna are found.
The ASEAN therefore has a bright prospect in considering the idea of a “bio-economy” as a key feature of its developmental thrust into the future. It is however in a difficult position how it can best utilize these resources considering that it faces many serious issues to resolve on these concerns.
Among the issues the ASEAN needs to resolve before it can consolidate its vision of the “bioeconomy” of the future is the status of the indigenous peoples which live in its borders.
Then there is the issue of what is the proper role of biological and genetic resources in the development of a technology-driven economy.
But the more decisive issue as regards the role of these resources is the issue of ownership, access and control of these biological resources, at the level of the ASEAN.
On these key issues, the ASEAN is right on track in resolving these concerns with its vision of a draft ASEAN Framework Agreement on the Access and Benefit-Sharing of its Biological and Genetic Resources being considered by the ASEAN Working Group on Nature Conservation and Biodiversity.
C. ASEAN Framework Agreement on the Access and Benefit-Sharing of its Biological and Genetic Resources
Key Principles
The ASEAN Framework Agreement on Access to, and Fair and Equitable Sharing of Benefits Arising from the Utilisation of Biological and Genetic Resources, or henceforth, the ASEAN Framework Agreement on Access and Benefit-Sharing (ABS), is a legal instrument at the regional level that is seen to set minimum standards on how the biological resources of the region are utilized, with procedures for securing prior informed consent and mandates for ensuring that benefits arising from the use of these resources are plowed back to the country that provided the biological materials, including that of the entire regional organization.
As such framework agreement, it does not provide much specific details but outlines general principles whose details may be elaborated further by each ASEAN member-country when they establish within their national borders, regulations or policies on the access and benefit-sharing of biological and genetic resources.
Some of these principles are :
a. all resource providers shall be actively included in the negotiation of benefits on the basis of a full disclosure of potential benefits and risks arising from the use of the biological and genetic resources;
b. the negotiation of any benefit-sharing arrangements that may come in the form of technology transfer, capacity building, monetary and non-monetary benefits arising from the utilization of a Party’s biological and genetic resources shall be left to its own initiative and discretion. (Art. 7, Fair and Equitable Sharing of Benefits, draft ASEAN Framework Agreement on ABS)
Negotiating History
The draft ASEAN Framework Agreement on ABS got its start when the ASEAN Senior Officials on the Environment (ASOEN), at its 8th Meeting in July 1997 decided to address the problem of biopiracy by considering the adoption of an instrument or protocol that will revise the region’s environmental laws and enforcement.
The ASEAN Working Group on Nature Conservation and Biodiversity (AWGNCB) convened two Technical Experts’ Meetings, one in December 1998 in the Philippines and February 2000 in Singapore to develop a draft text of the Framework Agreement.
Since then, it has been circulated to the ASEAN member-states for their comments. It was supposed to have been adopted during the ASEAN Summit in the Philippines in 2006 but considering that some ASEAN member-states still have some reservations on the text, discussions on how to resolve these concerns are continuing.
D. The Current International Law Context
The ASEAN Framework Agreement on ABS is a regional agreement that deals with the issue of access and benefit-sharing. The issue of access and benefit-sharing derives from one of the objectives of the Convention on Biological Diversity (CBD), which is the fair and equitable sharing of benefits from the utilization of genetic resources. Genetic resources are defined in the CBD as “genetic material of actual or potential value”, which is a key component of the development of the bioeconomy.
The issue of access and benefit-sharing is a key concern of the Convention on Biological Diversity as it is seen by developing countries who are rich in biological resources as their principal means of securing benefits that emanate from the utilization of their biological and genetic resources, most of which were seen by them to have been taken away from them from the time of the age of exploration, which continued up to the time of the decolonization of these former countries in Latin America, Asia and Africa.
To these developing countries, the issue of access and benefit-sharing is an issue of social justice, such that some of the benefits derived from the use of these resources, either its monetary equivalent or by way of capacity building and technology transfer, would flow back to these developing countries
Because of the frustration of the developing countries in not seeing any concrete results in their demands for greater benefits from the use of their biological resources, the 7th Conference of the Parties of the CBD in 2004 decided to give the mandate to the Working Group on Access and Benefit-Sharing to start elaborating and negotiating the International Regime on Access and Benefit-Sharing, an international instrument which may lay down international rules regarding the movement of genetic material and ensuring that as these materials are further developed through scientific research and funding, the countries from where these resources have originated, can participate in the further development of these resources, including, among other things, the establishment of the bioeconomy, which has already been started by developed countries among themselves.
The negotiations in the CBD will also affect, aside from being affected by, the on-going negotiations at the level of the TRIPS Council of the World Trade Organization (WTO) concerning the manner on what to do between the issue of the relationship between the TRIPS Agreement and the CBD and the manner on how to pursue the protection of traditional knowledge and folklore.
The relationship between the TRIPS Agreement and the CBD is currently highlighted by the on-going debates on the disclosure requirements involving the patenting of genetic resources.
Meanwhile, the protection of traditional knowledge has not yet moved forward even though the United Nation’s World Intellectual Property Organization (WIPO) has already and regularly set meetings of the Intergovernmental Committee on Intellectual Property, Genetic Resources and Folklore (IGC) of the World Intellectual Property Organization (WIPO), which has developed a set of draft key principles that may become a set of international norms and principles towards the matter of protecting traditional knowledge from misappropriation and misuse. But developed countries appeared to have slowed down the progress towards this development by going back to basic questions of what traditional knowledge protection should be.
The protection of traditional knowledge and folklore is fraught with more challenges with the States, mostly developing countries, who even raise questions as to whether these indigenous peoples even exist at all.
Thus, the matter of the rights of indigenous peoples is currently under discussion in the United Nations Permanent Forum on Indigenous Issues which takes note of the various concerns of the indigenous peoples. One of such instrument is the United Nations Declaration on the Rights of Indigenous Peoples (henceforth, the UN Declaration) already adopted at the level of the United Nations Human Rights Council, another legal instrument that needs to be considered for it also gives a broad set of rights, based on human rights principles, that may be asserted by indigenous peoples, such as the right to practice and revitalize their cultural traditions and customs (Art. 11, UN Declaration), the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies (Art. 12, UN Declaration), among other rights that have a bearing on the conservation and sustainable use of biological diversity such as the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals (Art. 24, UN Declaration).
This right to the biological resources, even though somewhat limited in concept as it is somehow confined to traditional medicines, when coupled with their right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Art. 26, UN Declaration), is a principle giving them broader possibilities in asserting side-by-side with the States and other entities, including corporations, as to what needs to be done, vis-Ố-vis access and control over the key biological resources and traditional knowledge that is increasingly becoming a key resource in this era of high-technology application and the development of biomaterials.
Meanwhile, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has recently approved international instruments relating to cultural heritage protection, namely, the Convention for the Safeguarding of the Intangible Cultural Heritage in 2003 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005.
The Convention for the Safeguarding of the Intangible Cultural Heritage deals with a broader approach in ensuring the viability of cultural heritage through the process of safeguarding – which it defines as measures that include identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions meanwhile obligates Parties to adopt, among others, regulatory measures that provide opportunities for domestic cultural activities, goods and services, among all those available within the national territory, for the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services.
These two instruments, while open to participation by indigenous peoples, are dependent on the measures that the State signing on to the treaty will implement. Thus, if the States-Parties to the Convention will not prioritize the interests of indigenous peoples in implementing these treaties, then these instruments will have limited potential in actually safeguarding these aspects of cultural heritage.
Another international instrument, the Food and Agriculture Organization’s International Treaty on Plant Genetic Resources of the United Nations Food and Agriculture Organization also deals with the issue of access and benefit-sharing of plant genetic resources for food and agriculture.
E. Prospects for Attainment of Socio-cultural Integration
In the 9th ASEAN Summit in Bali, Indonesia in 2003, the Bali Concord II was adopted which called for the establishment of an ASEAN Community with three pillars embodied in political and security cooperation, economic cooperation and socio-cultural cooperation.
Within the idea of an ASEAN Community is the idea of an ASEAN Socio-Cultural Community which envisages a Southeast Asia bonded together in partnership as a community of caring societies. ( ASEAN, Bali Concord II, 2003).
This community is further concretized in the ASEAN Socio-Cultural Community Plan of Action, adopted in Vientiane, Lao PDR in November 2004 with the following vision :
· equitable access to opportunities will be universal – rising above the barriers of religion, race, language, gender and social and cultural background;
· human potentials are nurtured to the fullest, so that all individuals can participate meaningfully in a competitive world in a manner that gives paramount importance to their welfare and dignity;
· norms of social and distributive justice are upheld by addressing issues of poverty and equity, and special care is given to vulnerable groups – children, youth, women, the elderly, and persons with disabilities – who could be the subject of abuse, neglect and discrimination;
· the environment and natural resources are protected and managed to sustain development and as a legacy to future generations;
· civil society is engaged in providing inputs for policy choices;
· people are health in mind and body and living in harmony in safe environments; and
· ASEAN citizens interact in a community conscious of its ties of history, aware of its cultural heritage and bound by a common regional identity. (Plan of Action of the Socio-Cultural Community, 2004)
The Vientiane Plan of Action has four core elements :
· building a community of caring societies to address issues of poverty, equity and human development;
· managing the social impact of economic integration by building a competitive human resource base and adequate systems of social protection;
· enhancing environmental sustainability and sound environmental governance; and
· strengthening the foundations of regional social cohesion towards an ASEAN Community in 2020.
In the core element on environmental sustainability, one of the specific measures identified is the “implementation” of the ASEAN Framework Agreement on ABS, with a notation in official documents that it is expected to be concluded in 2004 (ASEAN Knowledge Kit, 2006)
This would mean that the Framework Agreement is already accepted within the official documents of the ASEAN as one of the measures that will ensure the attainment of the socio-cultural integration of the ASEAN.
What then would be the implications of the adoption of the regional instrument in enhancing the socio-cultural integration of the ASEAN ?
· by resolving the issue of what to do with indigenous peoples’ rights, the ASEAN will demonstrate to the international community how to integrate the matter of indigenous peoples’ rights in the mainstream enabling the indigenous peoples how to participate effectively in achieving the goal of a caring ASEAN Community;
· it will be a necessary first step in demonstrating how to come to terms with the issue of access and benefit-sharing of biological and genetic resources; internationally, this issue is dead or unresolved because of very few successes; at least if another developing country group will attempt it within their borders, then it will show that doing these measures regionally is still politically feasible;
· internationally, it will signal the emergence of the ASEAN as a key player in the evolution of the bioeconomy in a developing country setting, showing how developing countries should leverage their biological resources to get favorable terms in other fields of economic development, including but not limited to technology transfer, terms of trade, financing, development cooperation, etc.
Considering these implications, why is it then that the ASEAN member-states have not yet approved this instrument, which for all intents and purposes will only be symbolic in intent, but will require a lot of work on the part of the ASEAN Secretariat to be fully effective ?
It may be that Singapore, which already removed references to intellectual property rights in the draft text, may already be willing to sign on to the Framework Agreement on ABS. Not being a megadiverse country like all the rest of the ASEAN member-states, it may be willing to play a role in ushering the region into modernity. It has already done so with its attempt to develop a BioPolis.
Indonesia and Malaysia however have expressed reservations on the issue of recognition of indigenous peoples’ rights which it sees as a threat to its effort to foster national unity and racial harmony among its various ethnic groups. For their part, they have inserted provisions that will define what these indigenous peoples are on the basis of their national policy on them, which they will have to enact eventually.
Thailand, aiming to be a key player in the development of a biotechnology-based economy may attempt to play a balancing role in the process, which is the same with the Philippines, which sees the instrument as its attempt to showcase its leadership on the issue, notwithstanding the difficulties it has had in implementing its own ABS regulations, which is one of the first of such type of regulations in the world.
The rest of the ASEAN member-states, from Brunei to the countries in the Indochina subregion, namely, Vietnam, Lao Peoples’ Democratic Republic, Cambodia and Myanmar are not expected to raise any serious issues and will sign on to the Framework Agreement on ABS, though they are expected to need substantial capacity-building support to fully implement these ABS regulations nationally.
BIBLIOGRAPHY
ASEAN Secretariat (2006), ASEAN State of the Environment Report, from , viewed 2 June 2007
ASEAN Working Group on Nature Conservation and Biodiversity (2004), The ASEAN Framework Agreement on Access to, and Fair and Equitable Sharing of Benefits Arising from the Utilisation of Biological and Genetic Resources (draft text)
Association of South East Asian Nations (2006), Declaration of ASEAN Concord II (Bali Concord II), ASEAN Knowledge Kit, November 2006,
Association of South East Asian Nations (2006), The ASEAN Socio-Cultural Community (ASCC) Plan of Action, Vientiane, Lao PDR, 29 November 2004, ASEAN Knowledge Kit, ASEAN Secretariat, November 2006.
Organization for Economic Cooperation and Development (2006), Biotechnology Update International Coordination Group for Biotechnology (ICGB), No. 17, December 2006, from , viewed 2 June 2007
Organization for Economic Cooperation and Development (2006), The Bioeconomy to 2030: Designing a Policy Agenda, International Futures Program, from , viewed 2 June 2007
Research Directorate General, European Commission (2002), The European Knowledge-based Bio-economy, DG RTD-E, Biotechnology, Agriculture and Food, from , viewed 2 June 2007
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