CAFTA and associated genetic resources under the framework of legal protection of traditional knowledge Suggestions

Keywords:: genetic resources / traditional knowledge / China-ASEAN Free Trade Area

Summary: the protection of genetic resources and associated traditional knowledge, developing and developed countries to build free trade in international equity order to protect the interests of all pArties is important. Can be of genetic resources and associated traditional knowledge protection, it is neglected aspects of international intellectual property system, there is no effective legal protection. China and the ASEAN Free Trade Area, the Member States of the genetic resources and associated traditional knowledge, very rich, so free trade zone should strengthen its genetic resources and associated traditional knowledge in the field of legal protection and cooperation.



In November 2002 China and ASEAN signed a <<Framework Agreement on Comprehensive Economic Cooperation>> later, they were in 2004, 2007 and 2009 signed <<>>,<< Trade in Goods Agreement on Trade in Services agreement>> and << Investment Agreement>> So far, China - ASEAN Free Trade Area of ​​the main legal framework have been established on January 1, .2010 China and the ASEAN Free Trade Area of ​​the original six countries basically completed, and will be new members of ASEAN in 2015 established free trade zone in China - Southeast Asia trade in the Member States, except Singapore, are developing countries, but these countries rich in biological resources, cultural forms in the world Economic globalization, the escalating competition in the market environment developing countries in order to survive and sustainable Development, form their own core competencies, we must attach great importance from the strategic use of legal means to manage and operate the material and spiritual wealth.

First, China and ASEAN to protect genetic resources and associated traditional knowledge, analysis of the legal framework

<<Convention on Biological Diversity (1992>> Article 2 of "genetic resources" is defined as: a real or potential value of genetic material due to the traditional Development model of industrial society is facing the risk of resource depletion, increasing emphasis is now Development and utilization of biological resources, "genetic resources" is a sustainable use, and help maintain the ecological balance of the biological resources, their value can be seen unusual .1992 <<Convention on Biological Diversity>> Article 8 also provides : "in accordance with national legislation, respect, preserve and maintain indigenous and local communities embodying traditional lifestyles and biodiversity conservation and sustainable use of relevant knowledge innovation and practices and promote their wider application, thus their knowledge, innovations and practices owner approval and involvement and encourage the equitable sharing of the utilization of such knowledge, innovations and practices to obtain the benefits. "In addition to <<Convention on Biological Diversity>> outside, in November 2001, the 31st FAO Congress passed <<Plant Genetic Resources for Food and Agriculture, the International Covenant on>> and adopted by UNESCO in 2005 <<Protection and Promotion of the Diversity of Cultural Expressions>> other treaty from a different perspective of the genetic resources and traditional knowledge relationship, therefore, genetic resources and traditional knowledge is closely related information asset, for the protection of traditional knowledge is also a genetic resource conservation.

1 China and ASEAN countries to join the relevant international treaties, the status of UNESCO (UNESC, United Nations Environment Programme (UNEP, FAO (UNFAO, World Intellectual Property Organization (WIPO and other relevant agencies and the World Bank, World Trade Organization and other international organizations from different aspects of genetic resources and associated traditional knowledge, legal protection for the design of the system, the formation of genetic resources and associated traditional knowledge in the legal framework of protection. China's accession to genetic resources and associated traditional knowledge, protection of the relevant international conventions are: UNESCO through the <<Protection of World Cultural and Natural Heritage "(China's accession in 1985, 2003 <<Safeguarding of the Intangible Cultural Heritage>> (approved in 2004, 2005 <<to protect and promote cultural expressions Diversity>> (December 29, 2006 the Tenth National People's Congress approved January 30, 2007 to submit ratification in the ASEAN countries, except Brunei, Singapore, have joined the << Protection of World Cultural and Natural Heritage Convention, "[1], Vietnam (September 20, 2005 approved Cambodia (June 13, 2006 approval, the Philippines (August 18, 2006 approved, Indonesia (October 15, 2007 accept, Laos (November 26, 2009 approval <<Safeguarding of the Intangible Cultural Heritage>> member of [2]. join <<Protection and Promotion of the Diversity of Cultural Expressions>> Southeast Asian countries: Vietnam (August 7, 2007 approved Cambodia (September 19, 2007 to accept and Laos (November 5, 2007 to accept [3]. ASEAN as a regional intergovernmental organization, has also been active, 2000 developed in the 10 ASEAN countries' access to genetic resources framework agreement (draft, "September 27, 2005 ASEAN signed a <<Southeast Asian Center for Biological Diversity established an agreement>> in the Philippines established the Biodiversity Conservation Center , build communication and collaboration among countries management platform .2009 ASEAN meeting in Singapore in biodiversity conservation conference, affirmed its support for <<access to biological genetic resources Framework Agreement "(the process of negotiation of the draft [4].

(2) China and ASEAN countries to genetic resources and associated traditional knowledge protection status of domestic legislation. <<Convention on Biological Diversity>> (CBD and other Convention establishes three principles on genetic resources: the principle of national sovereignty, and finally agreed principles and benefit-sharing principle. in response to the developed countries 'biopiracy', China and Southeast Asian countries are beginning to build their own control access to genetic resources and benefit-sharing mechanism of the third revision of China <<Patent Law>> added some of the genetic resources protection provisions of Patent Law Article 26 stipulates: dependent upon genetic resources to complete the invention, the applicant shall file the patent application shows that the direct source of genetic resources and the original source, the applicant can not explain the original source, should state the reasons [5] In addition to patent protection, there are some on genetic resources and associated traditional knowledge protection Laws, such as the State Council issued the <<genetically modified organisms safety regulations >>,<< TCM protection regulations>> and <<Wild medicinal resource protection regulations>> etc. in the ASEAN countries, countries have taken some measures to protect genetic resources and associated traditional knowledge, typical of Thailand and the Philippines, Thailand 1997 <<Constitution>> Article 6, the traditional community members the right to maintain and restore their customs, local knowledge and the community or the nation's fine arts and culture, and the right balance mode in accordance with the Law by continuing to participate in the management, maintenance, preservation and use of natural resources and the environment. Subsequently, Thailand through the <<Law of intellectual property protection of traditional Thai medicine>> for the traditional Thai medicine specialist established a comprehensive system of protection in the Philippines in 1995, issued Executive Order No. 247, provides for scientific and commercial purposes and other purposes, Development of bio- and genetic resources and their by-products and derivatives of the institutional framework in 1996, Executive Order No. 96-20 No. department has further clarified the biological and genetic resources on the Development and implementation of rules and regulations, enacted in 1997 indigenous rights law, Section 2001, Philippine 12th Congress of the first meeting of the Intellectual Property Rights Protection Act by groups (Community IntellectualRights Protection Ac, t, also known as CIRPA. These laws laid the Philippines to genetic resources and associated traditional knowledge in conservation of the legal framework [6].

Second, the impact of genetic resources and associated traditional knowledge, protection of typical problems

Development and utilization of genetic resources will affect the future development of the biological field, in a sense, to explore and use their Economic value in the field of biology has become within the boom, but the development and utilization of genetic resources is a double edged sword, it in promoting social progress, but also brought some serious problems and challenges, such as genetically modified food safety issues, protection of traditional knowledge, ecological destruction, etc. in China and the ASEAN Free Trade Area, also face these problems caused by the law of the problems, which need to be addressed in cross-border legal cooperation.

1. Biopiracy issue. With the development of biotechnology, pharmaceutical development and process development of new varieties of plants and animals, more and more people are the source of biological resources without the consent of the State, unauthorized use of his country for pharmaceutical development of biological resources, and patent, a monopoly interests. northeastern China's rich are the main soybean producing areas of gold, "Greenpeace World" 2000 survey shows that China has more than 90 percent of the world's species of wild big Peas Since there has been no legal protection of genetic resources , United States, "Monsanto" Through Northeast genetic resources of wild soybean seeds genetically modified soybeans developed, including China, the world's 101 countries applied for 64 patents of genetically modified soybeans. There are many such examples in China, such as kiwi, "Beijing Duck" loss of genetic resources, is a typical case. accounted for just 3% of the geographical environment of the Southeast Asian countries, has a more than 20% of the world's animals, plants and marine life in the Philippines has a high degree of rich biological diversity, attracting interest in many developed countries and their transnational corporations, the U.S. pharmaceutical industry, Bristol-Myers Squibb on several occasions to find local resources to investigate the natural sources of medicine is in this case, the Philippines, Executive Order by presidential decree and issued a series of genetic resources and the legal protection of traditional knowledge.

(2) invasive species problem. Biological invasion is the introduction of a biological natural or man-made from the field after introduction into the wild state, and local ecosystems caused by certain hazardous phenomenon. Has been called "purple devil" of water hyacinth ( Chinese people commonly known as "water hyacinth" in the raging waters of the world breed that is most typical of invasive alien species, an example of .2009 by the end of the drought in the Southwest in early 2010, it was that scourge of alien species result from a large number of rubber and eucalyptus planting, accused of rubber trees and eucalyptus forest is "pump" and "prickly pear", resulting in the Southwest ecological damage. Some people think that alien organisms themselves are not always terrible evil, rich in rubber trees in Southeast Asia and also the introduction of the eucalyptus forest alien species. Eucalyptus is native to Australia's fast-growing species, with pine trees Instant Forest, Poplar parallel, is the world's three major FAO recommended fast-growing species, versatile, Economic value is clear and it was the introduction of hybrid rice from China , the Philippines, Vietnam, rice production in many countries have a leap, out of the long dependence on imports, thus making a significant increase farmers' income, effectively promote the local Economic development, China - After the completion of AFTA, China and ASEAN trade in goods between countries, the development and utilization of genetic resources will be more extensive, how clear the law the rights and obligations of the parties, need further clarification.

3 eco-island problem. In order to maintain biological diversity, according to the <<Convention on Biological Diversity>> Article 8, each Party should do everything possible to establish a system of protected areas and protected areas to take special measures to protect biodiversity, many countries have established national parks or nature reserve system is to use legal means to protect biodiversity in a way. ecosystem is the formation of a certain area after a long history of the ecological balance of the relationship, it is not borders , the impact of administrative divisions. China and Southeast Asian countries are dependent on or connected to the border, or narrow strip of water, geographical borders make between China and Southeast Asia, the migration of biological species and more frequent exchange of wild Asian elephants is a rare animal, a part located in the Xishuangbanna National Nature Reserve Kazakhstan and Laos National Nature Reserve South wood, farmland, cultivated land, rubber trees, etc., the Asian elephant's habitat becomes fragmented, Asian elephants living in one such eco-island above. cross-border cooperation between China and Laos protected areas, contributes to the elephant-based wildlife conservation, this model should be further promoted. Another example: China's Yunnan Province and Myanmar, Kachin State, adjacent to Gaoligongshan across the border, Gaoligongshan National Nature Reserve in China, Myanmar's Irrawaddy River is an important part, but also the habitat of endangered animals, green peacock ground. As the Burmese legal system in the building of forest protection are still inadequate, to protect forests in China, while Myanmar side are felling the same time, because there is no legal harmonization, illegal logging of timber and can be sold in China, forming a kind of nature reserves to protect isolated phenomenon.

4 homes become park issues. The establishment of nature reserves or national parks, also brought another closely related with the protection of genetic resources, namely local residents or nature reserve protection of traditional knowledge of indigenous people's issues. Some of the natural environment of a certain culture, is the protection of cultural protect the environment. countries into nature reserves or national parks, often associated with the maintenance of traditional lifestyles of local residents living space or the original indigenous people overlap, and thus for the local residents or indigenous peoples, the long and harmonious relationship between nature, Today, instead of leading to a 'home park change, "the limitations in the Philippines and Thailand, some of the legislation is through the maintenance of traditional knowledge to maintain biological diversity. Local residents or the environment, indigenous people living in modern industrial society was not constrained by resources plundered, retains a wealth of "genetic resources." We can say that the original ecology and to protect the natural environment, local residents or non-indigenous power No, they are the true masters of the land shall enjoy the benefits of these resources in China and Southeast Asia after the establishment of trade, tourism as a powerful driving force of regional economic development, how to use the protection of national parks, the coordination of national , communities and individuals in the genetic resources and associated traditional knowledge, interest and shared responsibility, but also in need of legal communication.

5 GM food safety issues. Use of biological technologies for crop breeding in the agricultural technology development and the inevitable trend of the U.S. corn many GM. Yuan Longping that GM technology is the molecular techniques in a class, it must transgenic technology to enhance the Research and application, no technology there is no status of China's hybrid rice technology, while now living in the ranks of the world's best, but to maintain their competitiveness, further development of GM rice and only our own intellectual property with a genetically modified products, in order to improve in the international market competitiveness of these countries or the United States will be genetically modified monopoly market [7]. Monsanto genetically modified seeds in the fully closed to establish a platform for large-scale, no single platform to compete with According to the relevant provisions of Monsanto, farmers must purchase new seeds every year, if anyone violates the provisions of Monsanto will never again provide any technology for the commercialization of genetically modified foods, the Environmental Protection Department of Environmental Sciences, Nanjing Researcher, biodiversity conservation, Research chief expert Xue Yuan opposed his view, since the foreign varieties of staple food has been genetically modified not commercially available, although the United States approved the corn, soybeans genetically modified commercial production, which is mainly used for feed and oil, and for the staple food of transgenic wheat Research has long been successful though, but never approved for commercial production, because wheat is the staple food of the West, the equivalent of Chinese rice. Therefore, the commercialization of GM rice production must be careful and carefully, otherwise, the potential risk is too great, a problem who can not bear responsibility [8]. These problems facing China, ASEAN countries will also appear in the Philippines as the world's largest rice importer in recent years actively farm trials of genetically modified rice, according to the Philippines, "Manila Bulletin>> March 18 report, based in Manila Robert Ziegler, director of the International Rice Research Institute announced that the Philippines is likely to become the Chinese in 2011 after the approval of large-scale cultivation of genetically modified rice in Asian countries [9].

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Third, China and ASEAN to genetic resources and associated traditional knowledge protection cooperation Suggestions

Genetic resources and traditional knowledge as information assets, should be the protection of intellectual property legal system <<Convention on Biological Diversity>> from the biodiversity conservation point of view, put forward a number of genetic resources and traditional intellectual property protection measures, touching on modern the lack of intellectual property legal system of genetic resources and traditional knowledge into the public domain belongs to a group of rights, a common heritage, ecological nature of the public and other features. modern intellectual property to commercial operation for the purpose of intellectual property requirements innovative, practical features such as in the existing intellectual property protection and social values ​​under the influence of genetic resources and biological diversity is obviously inadequate legal protection in China - Southeast Asia free trade area in the future of genetic resources and legal protection of traditional knowledge negotiations and treaty-making, I propose the measures to be taken:

1. Create a matrix structure of the national co-regulatory system In 1995 the seven countries of ASEAN Brunei, Indonesia, Malaysia, Philippines, Singapore, Thailand, Vietnam, Bangkok, Thailand adopted the "Framework Agreement on cooperation in protection of intellectual property>>, and developed a ( 1996-2001 Plan of Action and (2004 - 2010 Action Plan, planning to establish regional electronic information networks, cooperation in intellectual property matters in the <<Framework Agreement>>, there is no genetic resources and associated traditional knowledge protection as a co- content, therefore, between China and ASEAN in the genetic resources and associated traditional knowledge in cooperative projects, through a special law to clear rights and obligations of the parties in China and the ASEAN countries to join the existing treaties and domestic legislation under the framework of of genetic resources and associated traditional knowledge protection is a long management, not a leading service organizations to coordinate the operation of these laws and conflict resolution through a special law, you can create a China - ASEAN genetic resources and associated traditional knowledge, harmonization of laws center to address the specific case of the process, to the field of international treaties and domestic legislation to form a criss-cross the legal matrix, to achieve cooperation and supervision. I believe that the China - ASEAN genetic resources and associated traditional knowledge of legal responsibilities of the main focal point is to build international organizations and sovereign states of the legal information communication platform, and network monitoring of the project due process of cooperation, and to provide authentication, appraisal, notary and other legal services, for example, genetic resources provided by the Centre of geographical indications certification services, offers free trade origin of the goods in circulation area identification signs, and notary services and other matters.

(2) the formation of scientific management and careful coordination of public participation mechanisms of genetic resources is an important raw material of biological engineering, bio-piracy, invasive species, genetically modified products are related to the use of genetic resources and protection of legal issues. To deal with these legal problems should be establishment of risk management and public participation. <<Convention on Biological Diversity>> Article 10 provides that the parties shall make every reasonable possibility of biological resources, conservation and sustainable use into national decision-making process, to take measures to avoid the use of biological resources on biodiversity may have negative effects or to make such a negative effect to a minimum. "Convention on Biological Diversity>> Article 15 provides that:" access to genetic resources rests with national governments, and subject to national legislation. Each State Party shall endeavor to create conditions to facilitate access to genetic resources of other States Parties for environmentally sound uses of genetic resources by providing such resources to be made a party to the prior express consent, unless States Parties decide otherwise. " Science cautious attitude is not rejected, eucalyptus was introduced into China in some places a great deal of commercial planting, and some people their fears of ecological damage is understandable, in the traditional communities living resources, directly or indirectly, commercial development , the traditional community of this development has the right to know in advance, the right to environmental impact assessment, decision-making rights and the consent, participation in these public rights of intellectual property rights of pre-course, high-tech bio-engineering, and traditional knowledge not comply, there would be no innovation of modern intellectual property system, but the duty to educate citizens, the public should have the right to accept new knowledge and education in China - ASEAN Free Trade Area of ​​the genetic resources conservation agreements should be provision of risk management principles and public participation principles. Specifically, the law should provide for the production genetically modified products, the introduction of alien species strict principles of safety assessment and public participation principles of evaluation, for example, Guangxi Yulin City in 2010 with the Bureau of Agriculture between Brunei cooperation started hybrid rice project to complete an intergovernmental cooperation, providing technical Guangxi, rice seeds and technology equipment, Brunei to provide land and supporting infrastructure in Brunei for a number of experimental planting hybrid rice varieties. After the test, the government will select text 1-2 to carry out large-scale high-yield plant varieties, rice paper produced by the government of the unified purchase of this project follows the scientific program on the principles of prudent management and public participation principles.

3.ABS system more specific. ABS system, that access to genetic resources and sharing of its benefits measures. <<Convention on Biological Diversity>> Article 19 provides for the use of genetic resources, benefit sharing principles, but also operational is not strong, specific legislation should be passed further. "Plant Genetic Resources for Food and Agriculture, the International Covenant on>> Article 9 with special emphasis on the" Farmers' Rights ", that center of origin and biodiversity of farmers, based on their past, present and future in conserving, improving and making available plant genetic resources arising from the contribution of the right farmer rights include: protection and plant genetic resources for food and agriculture-related traditional knowledge and equitable sharing of plant genetic resource utilization benefits, right to participate in the country on plant genetic resources conservation and sustainable use of policy-making in the Philippines Executive Order No. 247 states: traditional knowledge and genetic resources, the proceeds of commercial use, the traditional communities have control over the sharing of benefits the right to participate in decision-making power within the community to enjoy the right of free exchange, but the benefit-sharing measures for cross-border, there is no clear legal requirement. <<ASEAN Agreement on access to genetic resources, the draft>> suggested, indigenous and local communities should participate in the acquisition and negotiate benefit-sharing agreements, access and benefit-sharing contracts shall include monetary and non-monetary benefits (such as social, economic and environmental benefits, so the genetic resources in China-ASEAN cooperation in cross-border legal system design, on access and benefit-sharing provisions of the contract is an important part of it is not only a private agreement, but also bear a number of social responsibility, equivalent to our standard contract.

4. The special protection of traditional knowledge systems in China - start free trade zone in Southeast Asia, the national parks, nature reserves and traditional knowledge management system will have a great impact in the international order of free trade, traditional knowledge should be taken Unlike the modern system of special protection of intellectual property <<Rio Declaration on Environment and Development>> principles of Article 22 provides: locals and their communities and other local communities, because of their knowledge and traditional practices in environmental management and development also plays an important role. States should recognize and duly support their identity, culture and interests and enable their effective participation in achieving sustainable development activities of traditional knowledge are intellectual achievements of intangible assets, can bring economic benefits also need to materialize, these characteristics are consistent with the requirements of intellectual property rights. WIPO-UNESCO <<to protect against illegal use of the expression of folklore and other damage to the Model Law (1982, "provides for a sui generis expression of folklore protection, this unique intellectual property system (Sui generis also be used to safeguard genetic resources and associated traditional knowledge protection with economic practicality of modern intellectual property system as the goal, and the maintenance of traditional knowledge of ecological value, aesthetic value of the pursuit of purpose. TK intellectual property protection, not vice versa. UNESCO, the Philippines, "Ifugao terraces cultural heritage" and "Call Germany Call Germany epic heritage," the two are combined World Heritage, the Ifugao terraces included in the "Endangered cultural heritage "list, the organization raise funds to help local governments repair terraces, encourage Ifugao terraces back to continue farming expert, living in the community and in the original production, which is the ultimate protection on the tradition of epic singing. This protection mode overcome the modern intellectual property system to protect traditional knowledge, commercial trend, reflecting the traditional knowledge of ecological and cultural value in the protection of traditional knowledge, there is a new kind of protection mode - Protocol protection (Conservation Steward Program. Protocol concept of protection by the Conservation International, says: in the case of land ownership does not change, by way of agreement, the protection of land resources as a subsidiary and the right to operate a similar commitment to the protection of the rights given to the party, the owner of the resource and protector of the way by agreement between the protection of the rights and obligations as fixed, in order to achieve conservation goals. commitment to a specific protector of the land is not ownership and management, but is willing to invest to protect the party, such as local communities, civil society organizations and even businesses and other social forces [10]. agreement protection is also the special protection of traditional knowledge through community participation, local nature reserves to maintain a harmonious relationship between people and nature, but also to promote their development and progress.




Notes:
[1] WorldHeritage Convention [EB / OL]. Http://whc. Unesco. Org / en / statesparties.

[2] Convention for the Safeguarding of the Intangible CulturalHeritage. Paris, 17 October2003 [EB / OL]. Http://porta.l unesco.org / la / convention. Asp? KO = 17116 & language = E.

[3] Convention on the Protection and Promotion of theDiversity ofCulturalExpressions. Paris, 20 October2005 [EB / OL]. Http://porta.l unesco. Org / la / convention. Asp? language = E & KO = 31038.

[4] Recommendations and Outcome of the 2009 ASEAN Conference on Biodiversity [EB / OL]. Http://www. Aseanbiodiversity.org. / Index. Php.

[5] Chen Fei, Zou Wen. "Beijing Duck" genetic resources lost, revised patent law against "genetic steal" [N]. Xinhua Daily Telegraph, 2008.

[6] Philippines, Community IntellectualRights Protection Act - CIRPA (2001, draft [EB / OL]. Http://www. Grain. Org / brl /? Docid = 767 & lawid = 1469.

[7] Liu Yang. Longping said on genetically modified foods can not be generalized [N]. CPPCC reported ,2010 -03-06.

[8] Xue Yuan the West not as the national staple food production in transgenic wheat [N]. <<Outlook>> Newsweek 2010 to -02-09.

[9] the Philippines, planting of transgenic corn growing area of ​​400,000 ha 14. 3% [EB / OL]. Http://www. Cafta. Org. Cn / CAFTA / (1o11w5552yskrejvcyc2e455) / SecondPage. Aspx? ID = 5135 & sqls = WISEMTItemContent 2010 to -03-08.

[10] Wang Liping, Zhang Qiyao. Interests in genetic resources, sharing resources and the environment: a marathon of international negotiations [N]. Science Times ,2007 -10-17.

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