Sponsorship speech: Nagoya Protocol

Sponsorship speech on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization
By Sen. Miriam Defensor Santiago
(Delivered by Sen. Pia S. Cayetano)
18 May 2015

Mr. President, distinguished colleagues:

I have the honor to sponsor the concurrence by the Senate with the accession to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. The Senate Committee on Foreign Relations recommends concurrence within the year.

Rationale

The Nagoya Protocol (NP) was adopted on 29 October 2010 in Nagoya, Japan. It is a protocol to the United Nations Convention on Biological Diversity (CBD), which has as one of three objectives, the fair and equitable sharing of benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies.[1] NP spells out the international legal framework upon which the CBD’s access and benefit-sharing objective could be realized.

The CBD defines ‘genetic resources’ as ‘genetic material’ of actual or potential value. Genetic material, on the other hand, is defined as any material of plant, animal, microbial or other origin containing functional units of heredity.[2] Some examples of genetic materials in the Philippines with actual or potential value are mollusks such as cone snails and medicinal plants such as the Banaba flowering tree, the Agoho plant, the Pili tree, and the Ipil-Ipil plant. [3] NP provides a predictable and transparent regime that describes the modalities for and benefits from access and use of the Banaba plant’s genetic material and associated traditional knowledge.

Genetic resources are often the subject of scientific research and subsequently, commercialization activities. Such activities are considered beneficial to the world. For example, research on the venom of cone snails found in the Philippines and the Caribbean has resulted in 2004 in the U.S. FDA-approval of a pain reliever for individuals who have low tolerance for morphine. [4] NP provides legal certainty over access to genetic materials such as cone snails and their venom for research, health, and food security purposes.

Apart from access rules, NP also provides for benefit-sharing obligations from parties such as researchers and companies developing products. These benefit-sharing obligations include ensuring that scientists in genetic resource provider countries are able to collaborate with researchers in user countries, that technologies for the development of genetic materials are provided by user countries to provider countries; that royalties from the commercialization of research outcomes are shared by provider and user countries; that provider countries are given preferential access or preferential rates on medicines developed from genetic materials; and that intellectual property rights on research and methods used in the development of genetic materials are shared between user and provider countries.

To sum up, the rationale for the Nagoya Protocol is to address the global issue of bio-prospecting or bio-piracy.

Historical Background

The Philippines, as one of the world’s mega-diverse countries in terms of biological diversity, is among the early signers and ratifiers of the United Nations Convention on Biological Diversity (CBD). The CBD seeks to (1) conserve, (2) sustainably use, and (3) share the benefits of biological diversity.

The implementation of these CBD aims has evolved over time with the initial attention being given to its first two objectives. The CBD’s reference to its third objective is Articles 8(j) and 15, which prior to the Protocol have yet to be implemented.

Negotiations on a regime for access and benefit sharing (ABS) of genetic resources began six years after the CBD was adopted at the Earth Summit in 1992. In 1998, State Parties to the CBD agreed to the creation of a Panel of Experts on ABS. Two years later, the CBD member states upgraded the Panel to an Ad Hoc Open-ended Working Group on ABS. The task of the Working Group was to operationalize the ABS aims of the CBD. In 2002, the Working Group was tasked as the body that will facilitate the negotiation of a Protocol that will give flesh to Article 8(j) and 15, or the ABS provisions of the CBD.

The work of the Working Group spanned four biannual meetings of the State Parties to the CBD. The negotiations led to the adoption of what is now the Nagoya Protocol on 16 October 2010. The Philippines took active part in the negotiations as the prospective Protocol clearly had benefits to the country. The lead agency in the CBD is the Biodiversity Management Bureau of the Department of Environment and Natural Resources.

Salient Features

The Nagoya Protocol provides the scope by which access to genetic resources could be made. A principle that governs the Protocol’s access provisions is familiar as it is in our Indigenous People’s Rights Act. It’s called “prior informed consent” (PIC). Under Articles 6 and 7 of the Protocol, States are obliged to ensure that PIC is required for access to genetic resources and traditional knowledge. The PIC requirement is aimed at ensuring that rights-holders over genetic resources and traditional knowledge are protected.

With respect to benefit sharing, the Nagoya Protocol’s guidance is for sharing arrangements to be governed by “mutually agreed terms” or MAT. MAT provides the terms for the benefit-sharing, for the use by third parties, and dispute settlement.

When there are violations of MAT or PIC, the Nagoya Protocol has compliance obligations encouraging cooperation between States to resolve violations.

These three major obligations on access, benefit-sharing, and compliance theoretically will help reduce cases of bioprospecting.

Reasons for concurrence

The Senate’s concurrence with the ratification of the Nagoya Protocol is sought as the benefits provided by the instrument to the country are several. The benefit-sharing provisions mean that the Philippines can derive any of the following from access to its genetic resources and traditional knowledge: access fees, royalties, joint ownership of intellectual property rights, technology transfer, preferential access to medicines, and food security.

In the ratification of this instrument, concurrence were secured from the Department of Environment and Natural Resources, the Department of Agriculture, the National Commission on Indigenous Peoples, the Philippine Institute of Traditional and Alternative Health Care, the National Economic Development Authority and the Department of Tourism.

Concurrence with the Nagoya Protocol by the Senate will enable the country to regulate the utilization of genetic resources and claim benefits when they are accessed and used.
Advantages of Ratification

Apart from the benefits cited earlier, the Nagoya Protocol strengthens compliance with existing laws where Philippine genetic resources (GRs) and associated traditional knowledge (ATK) are utilized. It is hoped that the country’s laws will be harmonized and be made consistent with international norms with our concurrence.

From a Philippine researcher’s perspective, the Nagoya Protocol enables Philippine authorities and researchers to track/monitor the progress of R&D on Philippine GRs and ATK when they are conducted abroad and as they move through product development. This puts Philippine researchers in an equal footing vis-à-vis foreign collaborators on research using Philippine GRs and ATK. The Protocol also facilitates the expansion of Philippine research and product development capacity on Philippine GRs and ATK.

The Protocol also ensures recognition and respect for Philippine GRs and ATK utilized abroad and allows the Philippines to participate in mechanisms that will deal with the question on how to secure benefits from past and recent collections of genetic resources.

Finally, concurrence will ensure that the Philippines, which is an active player in the CBD negotiations, can fully participate in strengthening further the ABS regime under the Nagoya Protocol. The Philippines currently sits as an observer in meetings of the NP. It should be in a position to shape and influence the future of this instrument given the country’s mega-biodiversity.

For the above reasons, I humbly recommend that this Senate concur with our accession the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

END NOTES:
[1] See http://www.cbd.int/convention/articles/default.shtml?a=cbd-01
[2] See http://www.cbd.int/convention/articles/default.shtml?a=cbd-02
[3] See http://erdb.denr.gov.ph/publications/denr/denr_v11.pdf
[4] See http://www.scientificamerican.com/article/healing-the-brain-with-snail-venom/

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