The OAU draft law and convention: A model for protecting community rights and access

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A draft model law and convention to regulate access to biological and community knowledge were approved by the Organisation of African Unity (OAU) during its Summit of Heads of State and Government in May-June 1998. The Ministerial Council of the OAU recommended that the draft law and convention be used as the basis for national legislation in the African states as well as the basis for the negotiation for a Convention in order to create a regional instrument. The following article explains the process by which the model law and convention were developed. A brief comparison with the Convention on Biological Diversity (CBD) follows.

by Cecilia Oh

The development of the drafts of the model law and the Convention

THE model law aims to regulate access to biological resources and community knowledge and technologies so that, on the one hand, access by the modern sector (mostly transnational corporations and Northern initiators) is subject to the conditions agreed to in the Convention on Biological Diversity (CBD), but on the other, the traditional access by indigenous and local communities is preserved. The development of the model law has been the result of the synergy between a number of initiatives in various parts of Africa, particularly the Scientific, Technical and Research Commission of the Organisation of African Unity (OAU/STRC), the Ethiopian Environmental Protection Agency and the Institute for Sustainable Development, based in Ethiopia.

The OAU/STRC, based in Lagos, Nigeria, had initiated the documentation and publication of traditional herbal pharmacopoeias of a number of African countries as a measure to record the unwritten but valuable information which was in danger of disappearing. This experience brought to the fore the problems faced in protecting and preserving the knowledge and practice systems of African herbal medicine. These problems were reviewed in the OAU/STRC/DEPA/KIPO Workshop on Medicinal Plants and Herbal Medicine in Africa: Policy Issues on Ownership, Access and Conservation, held in Nairobi, Kenya, on 14-17 April 1997.

The regulation of access to medicinal plants and to community knowledge and technologies, and the issue of intellectual property rights (IPRs) were identified as major problems for the region. Legislation on access and community rights was suggested as a countermeasure to the problem of biopiracy and IPRs.

The recommendations emerging from the workshop discussions urged, among others, the development of 'a model law on the protection of indigenous knowledge on medicinal plants and traditional food crops'. It was also recommended that the OAU/STRC should encourage member states to recognise the urgent need to study the implications of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

A Short Comparison of the Model Law with the CBD

THE model law aims to regulate access to biological and community knowledge and technologies to control access by the modern sector (mostly transnational corporations and Northern initiators) subject to the conditions agreed in the CBD, and to preserve the traditional access by indigenous and local communities (Article 3 - Scope; Article 4 - Access of the model law).

The conditions of access include:

research and development to be carried out in the country giving access (Art. 4.1 of model law, cf. Art. 15.6 of CBD);
prior informed consent of both the State and the indigenous and local communities (Art. 4.2 of model law, cf. Art. 15.5 & 8(j) of CBD);
a list of other conditions to agree to before a contract is signed (Art. 4.3 of model law, cf. Art. 15.4 of CBD), including commitments for the conservation of biodiversity (Art. 4.3 (a), (g) & (h), Art. 4.9 of the model law, cf. Art. 6,7, 8 (c), (d), (j), (k) & (l), 9(c) & (d), 10(a) & (b) of CBD);
commitment to provide information and duplicate specimens to the country giving access (Art. 4.3 (b), (c) & (g) of model law, cf. Art. 15.7, 17.2 of CBD);
commitment not to transfer to third parties without authorisation (Art. 4.3 (d) of model law, cf. Art. 15.5 of CBD);
commitment not to patent or apply any other IPR (Art. 4.3 (e) of model law, cf. the fact that patenting biological materials is disallowed in the laws of most African countries, and also cf. Art. 16.2 of CBD, which though recognising IPRs, does not specifically provide for the IPR protection of biological materials, showing that the choice of what to protect is left open);
pay for the communal labour that has gone into creating or knowing the specific characteristic of the biodiversity or for the knowledge or technology accessed and the work borne by the State in doing this (Art. 4.3 (f) of model law, cf. common practice of hiring labour); and
commitment to abide by certain procedures aimed at ensuring the implementation of the mutually agreed terms (Art. 4.4, 4.5, 4.6, 4.7, 4.8 of draft law, which are obvious and need no explanation, except for pointing out that in Art. 4.7, a guarantor is required because, often, the person getting access will leave the country and there would then be no means of ensuring the observance by each party of the mutually agreed terms).

Article 5 of the model law creates community rights and provides for the implementation of those rights. It is largely based on Articles 8(j), 10(c) & (d), 15.5 of the CBD, and on the decision on the implementation of Article 8(j) taken by the 5th Conference of Parties of the CBD in Bratislava in June 1998. The remaining provisions of the model law, Articles 6 -10, are concerned with the implementation process. - Tewolde Egziabher

In Ethiopia, the Institute for Sustainable Development had been working with a group of scientists and lawyers from the South, affiliated to the Third World Network, to address the similar issues of how to protect indigenous and local community knowledge systems. Such protection was urgently needed, particularly in light of the TRIPS Agreement, which is poised to use the Northern patent system to claim, in a massive way, the biodiversity, knowledge and technologies of local and indigenous communities in the South. This concern gave rise to the initiative to define appropriate elements of a community intellectual rights protection system that would 'safeguard the interests of the rather uninformed and thus rather gullible South and, to a lesser extent, also the public of the North, in this unfolding scene of totally new kinds of claim to the resources (especially biodiversity) and intellectual achievements, through IPRs, of the indigenous and local communities of the South but, to a lesser degree, even of the North'. The collaboration between the Institute for Sustainable Development and the Third World Network eventually resulted in the formulation of draft laws, one on access and another on community rights.

Ethiopian support

Using these draft laws as a basis, lawyers in the Environmental Protection Authority, with technical help from the Institute for Sustainable Development, prepared the first draft of the Model Law and the Convention on Community Rights and on Access to Biological Resources. Subsequently, the Institute for Sustainable Development and the Environmental Protection Authority, together with the OAU, invited scientists and lawyers from the African countries and other experts to Addis Ababa for a workshop in March 1998 to review and improve the drafts. The declaration of the OAU/STRC at this workshop is reproduced on next page.

The exercise received the support of the Ethiopian Ministry of Foreign Affairs, which then introduced the consideration of these draft laws as an agenda item at the 34th Summit of the OAU held in June 1998 in Ouagadougou, Burkina Faso. The OAU Ministerial Council unanimously endorsed the draft law and Convention, and called on African countries to use the draft law as the basis for domestic laws, to negotiate an African Convention on community rights and the control of access to biological resources (which content is similar to the model law), and to develop a common negotiating position in the revision of Article 27.3(b) of TRIPS. The Resolution of the OAU Ministerial Council is reproduced in box on next page. - (Third World Resurgence No. 106, June 1999)

Cecilia Oh is a researcher with the Third World Network.

A copy of the model law can be obtained from the OAU. Requests can be made through the Institute for Sustainable Development at P O Box 30231, Addis Ababa, Ethiopia; Tel: 251-1-204210; Fax: 251-1-552350; E-mail: sustain@telecom.net.et.

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