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

2 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

3 I. Background

4 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. China’s biodiversity is rich not only in number but also in level of endemism.

5 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.

6 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

7 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 Constitution 1989 Wild Animal Protection Law 1997 Wild Plants Protection Regulations 2004 Seed Law 2006 Animal Husbandry Law

8 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, China’s existing legal framework is not consistent with the integrated control requirements of genetic resources. China promulgated a respective legislation for each of them,

9 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.

10 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.

11 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 China’s Agenda 21: A White Paper on Population, Environment and Development in the 21st Century in 1994 China Country Study for Biodiversity in1995 China’s 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

12 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.

13 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 GR’s survey and enforcement inspection in the past four years.

14 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 Till now, the drafting team has held eight formal meetings and more than ten informal meetings, and produced at least ten draft versions.

15 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.

16 IV. Major Controversial Issues 4.1 China’s 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

17 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

18 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

19 Contact Information Professor of Environmental Law and Policy Assistant Dean for International Affiliations School 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: Mobile:

20 Danke Schön! Thank you!