THE PHILIPPINES: A BRIDLE ON BIOPROSPECTING?

By Oscar B. Zamora
Seedling, June 1997
In: https://www.grain.org/es/article/entries/213-the-philippines-a-bridle-on-
bioprospecting

The Convention on Biological Diversity (CBD), now ratified by over 165 parties,
reaffirms as international law that countries have national sovereignty over their
biological diversity. Further, the Convention says that access to genetic resources should
be regulated by the parties along two principles: prior informed consent and mutually
agreed terms. Gratuitous plundering of the biodiversity-rich countries is supposed to end.
But the CBD only lays down principles. Countries have to translate them into innovative
laws and regulations that are both practical and meaningful. The Philippines provides a
pioneering example of how this might be done, the difficult balance of interests at stake
and the problems it raises. Dr. Oscar Zamora from the University of the Philippines at
Los Baños draws some lessons.
 

The Convention on Biological Diversity, which became international law on 29 December 1993, lays down a
general framework for what are supposed to be more equitable relations in access to, and benefits from, genetic
resources. The first concrete expression of the CBD's governing principle of national sovereignty over biological
diversity will be rules and procedures on access to each country's genetic resources. Article 15 of the CBD says that
access should be based on prior informed consent and be subject to mutually agreed terms. This only applies to
genetic resources acquired in accordance with the Convention, meaning after it became law irrespective of when a
particular country ratified. In theory, countries now should have the right to "be in the know" when foreigners want
to take samples of national germplasm. They also have the right and obligation to negotiate how people taking
materials from each other will result in fair advantages for all concerned. The implicit link between access and
benefit-sharing is there. It is up to national legislators to make that link explicit and fashion the appropriate
mechanisms.

Right now, countries throughout Africa, Asia and Latin America are developing laws on access to genetic resources.
The Table highlights what is the state of these developments in selected countries and institutions. In Latin America,
the Andean Pact countries (see Box) have devised a common framework on access to genetic resources which has
to be implemented at the national level. In Asia, the Philippines has its law in place and the Association of South
East Asia Nations (ASEAN) members are looking towards it as a possible model for other national systems if not an
ASEAN-wide framework. National debates and drafting have been going on with keen public interest in countries
like Costa Rica, Brazil (see Box), South Africa, India and Thailand since some time now. In other countries like
Mexico, Laos, Fiji and elsewhere, the work is just starting.

Countries can learn a lot from each others' initiatives in this area and many activities are going on at present to
stimulate information flows across national and regional borders. There are at last two important caveats to bear in
mind. The first is that what is being done is, to a large extent, damage control. The problem is not that we suddenly
have a Convention that has to be implemented. The problem is that the unrelenting commodification of biological
diversity is forcing developing countries to put up mechanisms to buffer the negative impacts. The new international
trade regime embodied in the WTO, and especially the unwelcome obligation on parties to grant intellectual
property rights on life forms, gives us no choice but to double our efforts to protect the interests of the poor against
the appetite of the elites. Privatisation of biodiversity is disenfranchising local communities. And it is threatening
scientific research which is supposed to be carried out in the public interest. That is why, failing to control the
source of the problem, we are scrambling to limit the casualties. The second caveat is that trying to regulate
bioprospecting is very new to us in the South. We have made a few steps forward but there is tremendous need for
improvement. The Philippine experience highlights some of the problems that still need to be addressed.

 
EO 247: the Philippine experience

The Philippines was one of the initial developing countries to pass national legislation on access to genetic
resources in accordance with the CBD. The move was considered remarkable given that the country has been
described as "the single worst case scenario of loss of biological diversity in tropical Southeast Asia." Conversion of
the lowlands for other uses, deforestation, unsustainable farming techniques, etc., have decimated the biological
wealth of the archipelago. Today, the Philippines is ranked fifth among the world's biological "hotspots" by IUCN
for its high rate of endemism — and endangered ecosystems. Collecting of biological materials, be they plant
species, marine resources, human blood samples or micro-organisms, is going on all over the country, though no
can say to what extent, by whom and for what purpose. One thing is clear, though. The interests of the transnational
pharmaceutical industry are among the most pronounced when it comes to potential profit-making from the
Philippines' biodiversity. It was mainly because of this glaring reality that the Philippines moved to enact a
bioprospecting law.

Executive Order 247 was signed into law by President Ramos in May 1995. As an "EO", it is an order issued by the
President and legally binding during the term of that President. It is not an organic law enacted by Congress and
embedded in the laws of the land. In principle, it is legally binding even after the presidential elections next May
1998 (present rulings bar Ramos from serving another term), unless repealed, amended or revoked by his successor
or declared unconstitutional by the supreme court. The reasons why this legal route was chosen as the means to set
up some rules on access to genetic resources are that it is faster and more flexible. As such, EO 247 is no more than
a basic framework to regulate bioprospecting. Its implementing rules and regulations _ a very detailed set of
required procedures — are still being debated and refined. The law is there, but it is not being fully implemented
until the guidelines are finalised.

EO 247 basically does three things. First, it requires a formal "research agreement" between anyone wishing to
access biodiversity in the Philippines and the government. There are two types of agreements, each with minimum
standards and serving as a permit. If you wish to collect biological materials and you are a private person,
corporation, foreign or international entity, you must get a Commercial Research Agreement (CRA) approved. The
assumption is that you intend to make economic gains and that assumption is non-negotiable. If you are a researcher
with a governmental or inter-governmental agency, you need only apply for an Academic Research Agreement
(ARA), whose requirements are easier. If later on it is found that your academic research has commercial potential,
or should you wish to transfer the collected materials to a third party, your ARA must be upgraded to the CRA
category.

Both types of research agreements have basic rules in common. They require that: duplicates of samples be left with
local agencies; Filipino citizens retain full access to the materials and any products developed from them; a separate
agreement on sharing of royalties, technologies and other benefits be made; ownership of the resources shall remain
with the State; and when the collector is merely an agent of someone else, the full relationship must be examined.

EO247 IN A POOL OF OTHER LAWS

Republic Act No. 7586 National Integrated Protected Areas System Act Of 1992

Establishes a comprehensive system of integrated protected areas consistent with the principles of biodiversity
conservation and sustainable development. This system sets out the classification, administration, and
management of designated protected areas. The act provides for a general management plan to promote
adoption and implementation of innovative management techniques _ e.g. zoning, habitat conservation and
rehabilitation, diversity management, community organizing, socio-economic and scientific researches, site
specific policy development, pest management and fire control and the protection of indigenous peoples' and
migrant communities. Activities outside the scope of management plan shall be subject to an environmental
 impact assessment.

Presidential Decree No. 1151 Philippine Environmental Policy

Requires all agencies and instrumentalities of the national government, including government-owned or
controlled corporations, as well as private corporations, firms and entities a detailed statement on
environmental impact of any proposed undertaking which significantly affects the environment.

Presidential Decree No. 705 Revised Forestry Code Of The Philippines

The decree emphasizes proper classification and survey of all lands of the public domain, management and
utilization, as well as the protection, development and rehabilitation of forest lands to ensure continuity of
productive condition.

Senate Bill No. 1728 Indigenous Cultural Communities' (ICCs)/ Indigenous Peoples' (IPs) Rights Act Of
1996*

Recognizes, promotes and protects the rights of ICCs/ IPs to their ancestral domains, autonomy and self
determination and cultural integrity. It further recognizes full ownership, control and protection of their
cultural and intellectual property _ including special measures to control, develop and protect their sciences,
technologies and cultural manifestations, including human and other genetic resources, seeds, medicines,
indigenous knowledge system and practices, knowledge of the properties of fauna and flora, oral traditions,
literature, designs, visual and performing arts and the right to the protection of their traditional medicines and
health practices, the protection of vital medicinal plants, animals and minerals.

Community Intellectual Property Rights Protection Act Or Cirpa*

The bill provides for a system of community intellectual rights protection which acknowledges the innovative
contribution of local and indigenous cultural communities with respect to the development of genetic resources
and the conservation of biological diversity. It recognizes free sharing of knowledge and resources but does not
apply if commercial utilization of innovation is involved.

* pending bills in congress or senate

The second pillar of EO 247 is that any form of access to biodiversity, be it through an ARA or a CRA, is strictly
illegal without the Prior Informed Consent (PIC) of the local or indigenous community concerned. This is the heart
of EO 247 which is supposed to put a bridle on bioprospecting. Until now, donors of genetic material which was
collected for research or other purposes had no protection or rights, since their legal consent was not required. The
days of this informality are over. The abuses and inequity of unshared gains from community resources have to be
stopped. PIC must now be obtained before collecting in the Philippines, under penalty of stiff sanctions.

The still draft implementing rules and regulations are quite explicit on the steps needed to obtain a certificate of
PIC. The collector must inform the community of his/her intentions via public notice, a consultation must be held,
and reciprocal benefits must be outlined. Signature from the relevant local authority must then confirm that the
community has agreed and the PIC form is then validated by the government.

The third pillar of the Philippines' access system is an Inter-Agency Committee (IAC) responsible for its
implementation and review. The IAC is under the Department of Environment and Natural Resources and involves
other agencies of the government, academe, non-governmental organisations, and peoples' organisations with
indigenous community membership.
Some of the problems with EO 247

As such, the Philippine system comprises what are currently considered basic mechanisms of any reasonable access
system: PIC of the State, PIC of communities, collecting fees, provision for sharing of benefits, an implementing
agency, and sanctions for non-compliance. So far, the first thing one can say is that it is scaring a lot of people off.
Week by week we meet Koreans mumbling under their breath, Japanese saying they have second thoughts about
coming to the Philippines, and our own researchers complaining and scratching their heads. This might be because
the whole procedure is new and a radical break with the old "free access", do-as-you-please regime. But it might
also have to do with the fact that countries are experimenting with how to regulate access best and we need to adjust
the rules and procedures more.

There are a number of problems already apparent through our brief experience now with EO 247:

Definition: The Philippines, like many countries, is bound to legal instruments which already define territorial
rights, rights of indigenous communities and the State's sovereignty over natural resources (see Box). The problem
with EO 247 is its definition of "bioprospecting". Prospecting means to explore, to look for. It is not so much the
"looking for" that is regulated under the EO, but the act of sampling or collecting materials. And collecting is not
the only activity that leads to unjust benefits derived from national resources. Merely documenting or publishing
information about indigenous materials or practices can have detrimental cultural, political and economic effects.

Scope: The scope of the EO covers all "genetic resources in the public domain including natural growths in private
lands". This raises three problems. Given that the Constitution of the Philippines considers all flora and fauna as the
property of the State, it is not clear whether human genetic material falls under the terms of the EO (much less the
legal grip of State ownership). This is a major issue since indigenous communities here have already been subject to
collecting of their blood, saliva and root hair samples used in medical research to exploit their genetic resistance to
disease. So long as the EO does not explicitly cover human genetic materials, the sampling of DNA of indigenous
communities in the Philippines will continue unbridled and uncontrolled, much against the original intent of the
law. Second, the scope is limited to genetic "resources", i.e. physical materials. It does not extend explicitly to
associated information and knowledge about those resources - which often contribute enormously to their
commercial and other value. Third, the scope is limited to in situ resources. The EO does not explicitly mention
regulation of access to genebanks.

ANDEAN PACT ACCESS REGIME

In July 1996, the five countries of the Andean Pact (Bolivia, Colombia, Ecuador, Peru and Venezuela) adopted
Decision 391 on a Common Regime for Access to Genetic Resources. The regime constitutes a framework
agreement: Decision 391 automatically becomes national law due to sovereignty cession by memberstates,
while implementation is left to each country. The agreement took several years to hammer out and was shaped
in accordance with the provisions of the Convention on Biological Diversity. Its objective is to regulate access
to genetic resources of the memberstates in order to achieve an equitable sharing of benefits, set the basis for
recognising rights to genetic resources, promote conservation, use and technology transfer and, importantly,
upgrade the negotiating power of the memberstates.

Decision 391 applies to genetic resources of which the Andean Pact members are countries of origin. This
includes materials derived from indigenous genetic resources as well as the intangible components of these
resources (such as associated knowledge and information about them). The regime excludes from its ambit
human genetic material and the exchange of genetic resources by indigenous, AfroAmerican and local
communities for their private use. The tension between the authority of the state and the authority of
communities over genetic resources is apparent: genetic resources are defined as goods which belong to the
nation or state, yet the Decision allows for sui generis regimes on access to genetic resources and knowledge
 from local communities.

Access to genetic resources of the Andean Pact countries is subject to a contract between the State and the
applicant (genebanks, researchers, companies, etc.). The contract must provide for: participation of Andean
Pact country nationals in the research, support to Andean Pact research work, transfer of knowledge and
technology, sharing of information on the genetic resource in question, capacity building of local communities,
deposit of duplicates of any samples collected, communication of research results and agreed terms of transfer
of material to third parties. Any use of the material thus acquired for biological warfare is strictly prohibited!
When the request for access concerns an intangible component of the materials, the contract must have a
special annex including the terms of benefitsharing with the concerned individual or local community.

Memberstates have the right to deny access to genetic resources in the following cases: endemism or risk of
extinction, ecological vulnerability, risk of genetic erosion, biosafety precautions and cases involving strategic
genetic resources. Penalties are foreseen for not following the guidelines, including when transactions are
made with products "synthesised" from indigenous materials, which would readily cover biotechnology
activities carried out on Andean Pact genetic resources. This also includes nonrecognition of IPRs or any other
right asserted over Andean Pact materials accessed without conforming to the rules of Decision 391. In the
end, the states have fairly full authority over their genetic resources. They have a battery of means to assert,
negotiate, monitor and control national rights over genetic resources in accordance with the regime. It now
remains to be seen how much space will be offered for the implementation of local community rights.

Source: GRAIN, based on Gaceta Oficial del Acuerdo de Cartagena, "Decision 391: Regimen Común sobre
Acceso a los Recursos Genéticos", Lima, 17 de julio de 1996; and consultations.

PIC of communities: The provisions for prior informed consent of communities where sampling will take place are
top-down. The current procedure in the implementing rules amounts to no more than notification of the community
and signature of a paper that notification has indeed occurred. In fact, the PIC form that has to be signed only says
that communities have been notified of a research "proposal". Confirmation of the fact that you have been notified
of a research intent can surely be a form of consent. But it is a far cry from dialogue about the research itself and
actual negotiation over the benefits. If PIC only authenticates that you have been notified, it leaves you no space to
say "no" to the collecting activity. Yet that space is fundamental. Further, a PIC mechanism that does not foresee
negotiation between communities and collectors is paternalistic. Only higher authorities will have the power to set
the conditions for access to local genetic resources.

Who is subject to the rules: The EO and its rules are supposed to govern all acts of collecting of biological diversity
on the territory, whether by nationals or foreigners. There are even well prepared conditions for those circumstances
where nationals are employed by foreigners to do the collecting. However, because of its wording, the EO and its
guidelines do not apply to the entire international agricultural research system which brought us the Green
Revolution and is now promoting a biotechnological overhaul of our farming and food systems. Agencies like the
International Rice Research Institute (IRRI) funded by the Consultative Group on International Agricultural
Research (CGIAR) are not bound to the terms of EO 247. IRRI, which is based in the Philippines, is neither a
private international agency nor an intergovernmental entity, in which cases the EO would apply. IRRI and all its
sister institutes of the CGIAR family can continue to freely collect crop genetic resources, microorganism, and
aquatic and marine germplasm from Filipino farmers outside the reach of EO 247 and its provisions on consent and
benefit-sharing. This is very critical germplasm for food production and trade that is completely unregulated,
especially since the CGIAR and its institutes like IRRI are not party to the overarching CBD.

Benefits: The benefits to be derived from access to genetic resources foreseen in EO 247 are classic by now:
payment of a collecting fee, participation and training of nationals, technology transfer, guaranteed access to all
materials collected and a share of royalties should intellectual property be granted upon new inventions derived
from the resources. How the communities stand to benefit is not clear. It is said that all benefits will be shared
"equitably" between the State and the local communities, but it does not say fifty-fifty. Further, it is stipulated that
all benefits accruing to communities must be allocated to conservation measures. Obligations and incentives are not
the same thing. This very much undermines the sovereignty that PIC is supposed to grant communities, such as
decision-making power on how best to use their "benefits".

Implementation and enforcement: The interagency committee that was set up to implement EO 247 is underfunded
and far away in the bureaucratic tangles of Manila. It might be much easier and more efficient to make national
scientific research institutions responsible for implementation, in the same way that they now have institutional
committees to regulate biosafety in their biotechnology research. Permits could be processed much faster and be
more easily monitored for PIC compliance and so on if implementation was decentralised to the level of the
research institutes. Another problem with implementation through the interagency committee is that it has no police
powers. Even if it had such powers, it is not clear how it could possibly monitor export of germplasm to verify
compliance with the EO or not. It is virtually impossible. Seeds, buds and all sorts of samples can be very small.
And, besides, the Philippines has more than 30,000 km of coastline. Material can just escape and render the EO
ineffective.

Disincentive: The biggest question of all is perhaps whether or not regulations on access to biodiversity such as EO
247 will act as a disincentive to research. The administrative procedures that researchers are expected to follow are
heavy. The costs of processing fees and sharing the economic returns are new. Endemics aside, some portion of
genetic materials found in the country can be readily found in nearby Malaysia, Indonesia or elsewhere. If access
laws are means to facilitate the marketing of national biodiversity, we could soon see a glut on the global market.
Even if the costs of doing research in the Philippines were comparatively low and allowed the country to compete, it
does not mean that the regulatory or political environment enhanced by EO 247 will stimulate research. It might
force-feed conservation budgets, but it is a deterrent to people who are inclined to do research.

BRAZIL DEBATES ACCESS LAW

In November 1995, civil society organisations in Brazil teamed up with Senator Marina Silva, a longtime
colleague of the late Chico Mendes, to draft a national Law on Access to Genetic Resources. The bill aims to
establish enforceable rules on bioprospecting, with distinctions as to whether collecting activities aim at wild
or domesticated species, germplasm itself and/or community knowledge about the material. Proponents of the
national law set their highest priority on ensuring that it entrenches the right of local communities (indigenous
and farmers) to oppose specific bioprospecting activities. Prior Informed Consent (PIC), as Brazilian NGOs
helping shape the law would have it, cannot be reduced to a piece of paper lamely stating "We've been
informed". PIC must mean that communities targeted for sampling have the right to say no to each proposal
and the right to receive training and capacity-building in actually negotiating the agreements and their terms on
benefit-sharing. This last provision is found in the Andean Pact's General Access Regime, but has yet to be
seen translated into national law anywhere. The debate on the Brazilian draft law is currently focusing on
issues such as: what form benefits to local communities will take, who has the authority to grant notice of PIC
from the community level, whether to allow special access provisions for national public research institutes or
for sensitive agricultural crops, enforcement procedures and penalties. The Senate's Social Affairs Commission
hopes to finalise its work on the draft in June and see it passed through first reading in the Senate afterward. It
will then need to go the lower house of the National Congress, so no one expects final adoption and enactment
of the law until 1998.

Source: David Hathaway, AS/PTA

Improving the tools

As we gain experience in setting up and actually implementing legal regimes on access to genetic resources,
developing countries should hopefully learn from each other and try to gain mutual benefits. At the international
level, the renegotiation of the International Undertaking on Genetic Resources for Food and Agriculture could set
up a framework for multilateral and bilateral provisions on access that take the principles of the CBD a step further
for what concerns the basis of food security and a big share of international trade. If the Undertaking in its final
form truly reflects the aspirations of developing countries, then it should become a binding protocol to the CBD.

At the national level, we have yet to sort out a number of difficulties. The most important is how communities are
consulted and how we facilitate the most appropriate benefits to them. In the Philippine law, this has to be
improved. Also, we might have to face intrinsic difficulties with enforcement due to the very nature of biological
diversity and our institutional set-up.

Even if the EO is slated as unenforceable, it does give farmers, villagers and peoples' organisations the right now to
stop collectors and ask to see their permits.

Given the pressures of privatisation and commodification, it's not clear whether access laws are really incentives to
conserve and sustainably use genetic resources or whether they are just means to accommodate those pressures and
the agendas they serve. As new obligations and more bureaucracy appear, access regimes might actually stifle the
research and innovation processes that underpin meaningful utilisation of biodiversity. Even if they do work in
favour of conservation and use (by force or by incentive), we have yet to solve the problem of unjust
monopolisation and the disenfranchisement of the poor. By taking a share of royalties in the name of equitable
benefits, you are accepting that someone should be able to patent your seeds or your group's knowledge about the
health care properties of a plant. We might be regulating bioprospecting, but we still have to stop biopiracy.

Dr. Oscar Zamora may be reached at: Department of Agronomy, University of the Philippines Los Baños, College, Laguna 4031, Philippines. Fax: (63-49)
536 24 68. Email: obz@mudspring.uplb.edu.ph.

Sources:

- Antonio La Viña et al (eds), Regulating Access to Biological and Genetic Resources in the Philippines: A Manual
on the Implementation of Executive Order No. 247, Foundation for the Philippine Environment and World
Resources Institute, 63 pp., 1997.

- Walter Reid et al, "Translating genetic resources rights into sustainable development: gene cooperatives, the
biotrade and lessons from the Philippines", in Plant Genetic Resources Newsletter, No. 102, 1995, FAO/IPGRI,
Rome.

- Philippine News and Features, "RP ranks 5th in biodiversity", Philippine Daily Inquirer, 23 November 1996.

For copies of EO 247 and the implementing rules and regulations, as well as further information, please contact Ms.
Norma Molinyawe or Ms. Josie De Leon, PAWB, DENR, Quezon Avenue, Diliman, Quezon City, Philippines. Fax:
(63-2) 924 01 09. Email: pawb-plan@gaia.psdn.iphil.net.