The Interface Between Access and Benefit-sharing Rules and BioTrade in Viet Nam

In 1994, Viet Nam became a member of the Convention on Biodiversity (CBD). By being a Party to the CBD, Viet Nam had pledged to mainstream biodiversity considerations and sustainable use of biological resources in its policy-making agendas. Recognizing that biodiversity conservation and sustainable development cannot be successful without the participation of the poor, the Biodiversity Law of 2008 (BL 2008) was envisaged as a legal instrument which could integrate pro-poor principles and involve biodiversity holders at the grass roots level. Coupled with the Decree No. 65/2010/ND-CP, which details implementation procedures for the BL 2008, the Government attempted to put in place legislative and administrative measures which, from the findings of this report, are still unclear with respect to certain definitions and legal aspects-related access and benefit-sharing (ABS) and the demarcation of ministerial assignments relating to the State management of genetic resources.

Overall and in consideration of the Regulations being legal instruments pre-Nagoya Protocol (Protocol), the provisions intended to satisfy the CBD requirements are too general to be functional and provide inadequate interpretation of the ABS rules while being compounded by the lack of supporting mechanisms to be applicable in practice. The subsequent entry into force of the Nagoya Protocol in 2014, Viet Nam’s consequent ratification of it and the growing impact of the Protocol domestically and internationally entail that the country is faced with a greater challenge to comply with the ABS rules and make them workable if it were to achieve its own sustainable development objectives.

On the back of these policy and administrative integration challenges, UNCTAD BioTrade, in collaboration with the Biodiversity Conservation Agency of Vietnam, Helvetas - Viet Nam and the recently created BioTrade Implementation Group (BIG Vietnam) and with the support of SECO Switzerland, has demonstrated a slow but steady rise as a bolster for sustainable development through trade and investment in biological resources in keeping with the objectives of the CBD and the Protocol. Although in legal terms, ABS and BioTrade are subtly different, these two concepts converge in a manner that BioTrade fortifies implementation of the ABS Regulations, and the Regulations become the enabler and promoter of BioTrade as a viable livelihood option for various actors in the value chain, especially the local and indigenous communities.

The BioTrade Principles and Criteria particularly: Principle 3 (on fair and equitable sharing of benefits, Principle 5 (on compliance with national and international regulations and Principle 7 (on clarity of access rights and prior informed consent) give the means to its practitioners, albeit indirectly, to comply with the ABS Regulations. Through the promotion of sustainable sourcing and use of biological resources e.g. medicinal and aromatic plants for trade, and distributing benefits fairly (monetary and non-monetary) and equitably sharing the benefits with the communities and the actors involved in the value chain, BioTrade practitioners are also able to comply with the benefit sharing principle of the Protocol.

The current revision and improvement of ABS Regulations in Viet Nam so that they are not only aligned with the definitions and obligations under the Nagoya Protocol but are also bespoke, clear and detailed legal instruments to incentivise both biological and genetic resource users and providers could close the gaps on the interaction of ABS and BioTrade. In the spirit of the principle of sovereignty of the State, such adaptation could prove to be an opportunity for Viet Nam to resolve how best it could regulate BioTrade activities visà- vis overseeing ABS through its legislative and administrative approaches.

BioTrade may fall under the Protocol and ABS rules which are of mandatory nature. However, it must be noted that the BioTrade achievements, in terms of the coverage of its Principles and Criteria, only provide, on voluntary basis, the minimum standard required by the ABS rules under the CBD and the Protocol. BioTrade projects and activities in the country will therefore still be largely dependent on the national programmes as guided by the revised ABS Regulatory framework, supportive administrative practice and technical assistance.

Finally, in order to promote a BioTrade-friendly implementation of the Nagoya Protocol and potentially introducing some BioTrade-related provisions in future and revised ABS regulations, this study provides a series of recommendations and proposals for the consideration by policy makers and regulators in Viet Nam. These recommendations do not only apply to Vietnam alone but they could also serve as a blueprint for other biodiversity-rich countries in the Mekong region as they share common challenges and opportunities, biological and genetic resources, traditional practices and communities.