The Process of Legislation on Access to Genetic Resources and BenefitSharing ABS in China: A New Lon

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The Process of Legislation on Access to Genetic
Resources and Benefit-Sharing (ABS) in China A
New Long March
Prof. Dr Qin, TianbaoAssistant Dean for
International AffiliationsSchool of Law
Research Institute of Environmental Law
(RIEL)Wuhan University
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Contents

• I. BACKGROUND
• II. EXISTING LEGISLATIONS AND INSTITUTIONS
  RELATED TO ABS IN CHINA
• III. MAIN PROGRESS OF THE DRAFT LEGISLATION ON
  ABS IN CHINA
• IV. MAJOR CONTROVERSIAL ISSUES DURING THE
  DRAFTING PROCESS
• V. CONCLUDING REMARKS

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I. Background
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I. Background

• China is one of the Mega-biodiversity countries
  in the world. There are more than 30,000 species
  of higher plants and 6,347 species of vertebrate,
  accounting for 10 and 14 respectively of the
  world total. Chinas biodiversity is rich not
  only in number but also in level of endemism.

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I. Background

• China is a multi-national country consisting of
  fifty-six different nationalities. Their
  traditional knowledge (TK) and practices play an
  important role in nature and biodiversity
  conservation in China.

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I. Background

• China is one of targeted biopiracy countries in
  the world. Most foreign bioprospectors
  appropriated illegally genetic resources and/or
  related traditional knowledge in form of patents
  without paying any compensation to China.

Chinese Gooseberry
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II. The Existing ABS Legislations and Institutions

• 2.1 Current Legal System
• China has no single legislation on genetic
  resources. However, China's current environmental
  laws and regulations have formed a preliminary
  legal system. This system includes the following
  levels such as Constitution, Laws, Administrative
  Regulations, Ministerial Decrees, and Local
  Regulations.
• 1982 Constitution
• 1989 Wild Animal Protection Law
• 1997 Wild Plants Protection Regulations
• 2004 Seed Law
• 2006 Animal Husbandry Law

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II. The Existing ABS Legislations and Institutions

• First, the existing legal system is deficient in
  terms of applicability. Biological resources. The
  China's existing laws are mainly applied to
  animals and plants and other biological
  resources, not to genetic resources
• Second, there are serious loopholes in the
  existing legal framework in China, esp. microbial
  genetic resources have no applicable rules in the
  existing legislations
• Third, Chinas existing legal framework is not
  consistent with the integrated control
  requirements of genetic resources. China
  promulgated a respective legislation for each of
  them,

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II. The Existing ABS Legislations and Institutions

• 2.2 Current Institutional Arrangement
• China takes a sectoral approach. Currently, many
  departments have the power to regulate one or
  more aspects of biological resources. such as
  environmental department, forestry department,
  agricultural department, urban construction
  department, traditional Chinese medicine
  department, and marine department, etc. This
  institutional arrangement also can be seen as the
  approach of regulation of ABS.
• Among others, SEPA is responsible for
  coordinating works of all other departments. The
  forestry department is mainly responsible for
  management of forest resources, wild animals and
  plants within forestry areas and precious wild
  trees outside of forestry areas, forestry nature
  reserves and terrestrial wildlife.

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II. The Existing ABS Legislations and Institutions

• 2.2 Current Institutional Arrangement
• The existing system can not meet the requirements
  from a unified, integrated and coordinated
  regulation.
• There are serious problems of creeping,
  duplication and omission of powers and mandates
  caused by unclear division of powers among
  involved departments
• China's genetic resources are mainly managed by
  scientific research institutions, not
  administrative agencies.

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III. Main Process of Drafting ABS Legislation in
China

• 3.1 First Stage National Policy for General
  Implementation of CBD Obligations
• One of the earliest countries to ratify the CBD
• Launched China Biodiversity Conservation Action
  Plan in 1994
• Formulated and launched Chinas Agenda 21 A
  White Paper on Population, Environment and
  Development in the 21st Century in 1994
• China Country Study for Biodiversity in1995
• Chinas First National Report on Implementation
  of CBD
• One priority action for the country is to draft a
  ABS policy or law for general implementation of
  CBD obligations

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III. Main Process of Drafting ABS Legislation in
China

• 3.2 Second Stage Ministerial Decree on ABS by
  SEPA
• Bonn Guidelines was adopted at the COP 6 in 2002
• Academic Articles in Journals in late 1990s
• awareness raising efforts by
• mass media in the beginning
• of 21st Century
• In 2002, SPEA commissioned
• Prof. Wang Xi of RIEL,
• Wuhan University to lead a
• team to draft a ministerial
• decree on ABS.

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III. Main Process of Drafting ABS Legislation in
China

• 3.3 Third Stage Regulations on ABS by the State
  Council
• In 2003, China established the Inter-Ministerial
  Meeting of Biological Resources consisting of 18
  departments which affirms again the leading role
  of SPEA in the field of ABS, and a subsidiary
  scientific committee. SEPA conducted GRs survey
  and enforcement inspection in the past four years.

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III. Main Process of Drafting ABS Legislation in
China

• The Circular regarding Strengthening Conservation
  and Management of Biological Species Resources
  and the Decision regarding Carrying out the
  Scientific Outlook of Development and
  Strengthening Environmental Protection listed ABS
  issues formally into the legislative plan of the
  State Council.
• In the end of 2005, SEPA has assembled a Working
  Group on ABS Legislation (WGAL) and a drafting
  team to develop the special ABS Regulations in
  the end of 2005.
• Till now, the drafting team has held eight formal
  meetings and more than ten informal meetings, and
  produced at least ten draft versions.

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III. Main Process of Drafting ABS Legislation in
China

• consensus on following three important issues.
• China shall take some forms of legal regulation
  of ABS due to the status quo of conservation of
  genetic resources and its bioprospecting.
• Both genetic resources and its related
  traditional knowledge shall be included into the
  future regulation.
• The legal regulation of ABS shall be based on PIC
  and MAT aiming at sharing the benefits arousing
  from the utilization of genetic resources
  accessed in China in a fair and equitable way.
• Bonn Guidelines and other important national
  legislations shall be models for China to learn,
  especially their benefit-sharing provisions.

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IV. Major Controversial Issues

• 4.1 Chinas Position in the Exchange of Genetic
  Resources
• Provider legal regulation, restriction
• User- contracts and self-regulation,
  encouragement
• 4.2 Future Competent National Authority
• SEPA integrated and coordinated approach
• MOA sectoral approach
• 4.3 Form of the Legislation
• A New Regulations vs. Amendment or Interpretation
  of existing Laws

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IV. Major Controversial Issues

• 4.4 Scope of Regulated Genetic Resources
• All biological resources vs. only genetic
  resources
• 4.5 Differentiated Procedures for Different
  Bioprospectings
• Academic vs. Commercial
• National vs. Foreigner
• 4.6 Protection of Traditional Knowledge
• Provisions in ABS legislation
• Provisions in sui generis TK legislation
• Combination of above two forms

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V. Concluding Remarks

• A hopeful scenario for the next few years for
  China
• Effective, and efficient control of access,
  and fair and equitable benefit-sharing.
• The legislative process is approaching a
  deadlock, becoming a new long march.
• The members of drafting team and WGAL as well
  spirited by the Long March shall contribute their
  knowledge, wisdom and even courage and succeed in
  breaking through one blockade after another by
  adopting flexible strategy and tactics, and adopt
  an ideal ABS legislation in the near future

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Contact Information

• Professor of Environmental Law and Policy
• Assistant Dean for International
  AffiliationsSchool of Law Research Institute
  of Environmental Law Wuhan University
• Board Member, Chinese Society of Environmental
  Law
• Member, Commission on Environmental Law, IUCN
• The World Conservation Union
• Tel/Fax [phone]
• Mobile [phone]
• Email tianbaoq_at_hotmail.com

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Danke Schön!Thank you!