Modern ABS

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abandoned because it is given by ancestors and gods".²⁰⁵ Those conceptions apparently are not scientifically based, but still exist and in a certain extent contribute to reinforcing confidence in the use of TKaGRs.

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Hence, the "flow of knowledge" and the final product based on TKaGRs are often beyond the control of TKaGRs holders.

Secondly, another type of risk that commonly happens is the possibility of unauthorized use for commercial purposes by third parties following the publication of TKaGRs in scientific literature. Although being deeply aware of this risk, researchers often neglect to fully inform TKaGRs holders of the risk during the access process. This fact demonstrates the necessity of transparency for ensuring the interests of TKaGRs holders.

Locating TKaGRs related information

Due to the absence of the TKaGRs database system in Vietnam, the identification of TKaGRs and its holders has been undertaken in different ways. As for R&D companies, identification of TKaGRs is carried out through information networks of relevant industries or from acquaintances (see the case study of the Nam Duoc company in Part 5.4.1.2). As for scientists, identification of TKaGRs takes place on the basis of related information, such as the geographical distribution of genetic resources, or support and advice by local authorities.²⁰⁷

Involved parties in access process

Involved parties in access process include users (researchers, R&D companies, etc.), providers (TKaGRs holders – as individual, group of individuals, community or group of communities), and supervising/ coordinating bodies (in some cases), namely Department of Ethnic Minorities (under the District People’s Committee), Communal People’s Committee.

Form of access

Direct access: This is the type of access in which users directly negotiate with TKaGRs holders. In this type of access, if the TKaGRs holder is identified as an individual,

207 Information from the interview with Dr. Bui Van Thanh and Ass. Prof. Nguyen Van Tap, supra note 184.

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group of individuals, families or extended clans, users directly meet TKaGRs holders to negotiate on conditions of access and use.

In cases where TKaGRs holders are community or group of communities, since traditional institutions within the communities normally do not take an active or direct role in governing access to TKaGRs and dealing with benefit sharing issues, and also due to the fact that representation of community in this regard is not clearly defined in both laws and practices, those wishing to access TKaGRs tend not to get the consent of all community members or representatives of the community, but meet each person individually for negotiation. Normally, users find individuals with the best knowledge and experiences and may also approach other persons to gather supplementary information (because knowledge and experiences on TKaGRs are unsymmetrically known by members of the community).²⁰⁸ Even in the case of mobilizing a large number of community members, it only serves the purpose of promoting their involvement in the stage of product commercialization and in fact, not all members participate in the process (see the case study of the Samnam company in Part 5.4.1.3).

Indirect access: in this form of access, users do not directly negotiate with TKaGRs holders but acquire TKaGRs related information through publications or other secondary sources. In spite of its unofficial nature, this form of access happens popularly in the practice. For instance, Ampelop medicine developed from medicinal properties of Che day plant - a medicinal plant associated with the traditional use of the Tay ethnic minority in Cao Bang; Berberin Chloride extracted from Vang dang plants of Ba Na ethnic minorities in the Central Highlands, etc. were based on indirect access to relevant TKaGRs.²⁰⁹ In such cases, since knowledge is presumably in the public domain and freely available, users do not seek consent from TKaGRs holders.

Conditions of access:

208 Information from interview with Dr. Bui Van Thanh and Ass. Prof. Nguyen Van Tap, supra note 184.

209 Vu, V. H., supra note 181.

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On a case by case basis, conditions of access depend on different factors. First, the confidential or public nature of TKaGRs may determine the conditions of access. Secondly, conditions of access may be set out in customary laws or community protocols, although often in indirect manner. Also, access conditions are influenced by numerous other factors determined on the case by case basis, such as material benefits²¹⁰, ethics of users²¹¹, etc.

Benefit sharing

Regarding research for non-commercial purposes

In this type of research, benefit sharing has been carried out differently in each specific case, but normally in the form of small gifts (sourced from the budget for the field collections) to providers of TKaGRs²¹², or technical support for communities to sustainably conserve and develop relevant genetic resources²¹³.

Regarding research for commercial purposes

In this type of research, TKaGRs holders, in some cases, fully take part in all stages of the value chain, ranging from research, development to commercialization of products derived from TKaGRs. In other cases, holders solely provide TKaGRs information to users and in return get benefits resulted from commercialization of TKaGRs based products.

The first model is featured by the cooperation between companies, scientists and TKaGRs holders in researching potential values of TKaGRs, developing products and

210 Dr. Bui Van Thanh shared during interview (supra note 184) that he ever experienced the case where ethnic minority people required a relatively large amount of money (10-15 million Vietnam dong) in exchange for disclosure of TKaGRs related information.

211 Dr. Phan Thi Nguyet Minh, Institute of Asia Pacific cooperation shared the story of a pharmaceutical company that was refused to access TKAGRS due to moral reason (at the workshop “Directions for conservation of TKAGRS in Vietnam” held on October 2, 2018).

212 Interview with Dr. Bui Van Thanh (supra note 184)

213 Information from Ms. Phan Thi Nguyet Minh at the workshop, supra note 211.

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promoting the commercialization of products. This model is exemplified by the chain of cooperatives growing medicinal plants and extracting medicinal properties thereof to produce traditional products, which have been run by ethnic minority communities in the Northwest of Vietnam (including Lao Cai, Yen Bai, Ha Giang, Thai Nguyen, Quang Ninh provinces…) with technical support and collaboration of Ass. Professor Tran Van On and colleagues in the Hanoi University of Pharmacy and DKPharma company²¹⁴; or the case of Sapa Napro company which cooperates with local ethnic people to exploit and commercialize traditional bathing products (see the case study of Dao Spa company). In this model, the users share benefits to TKaGRs holders in the forms of: 1/Monetary benefits, including money to collect raw materials, dividend payments, labor payments, consultant payments, monetary contribution to funds for communities’ welfare; 2/Non-monetary benefits, including the provision of training courses or capacity building programs.

In the second model, TKaGRs holders do not directly get involved in the value chain, but merely provide information. The case of Nam Duoc company (in Part 5.4.1.2) illustrates this model where the users share benefits mostly in monetary form, including up-front payments or milestone payments based on business operating results.

In practices, benefit sharing has no criteria to evaluate the fairness and equity, almost all the cases are based on a subjective calculation of involved parties on the value of TKaGRs.

The roles of competent state bodies in the ABS context

Although there have been no legal provisions thus far stipulating roles and authorities of competent state bodies in ABS processes, local authorities of some localities

214 Thu Quynh (2016). Community internal strengths in agricultural developments of ethnic minorities [Nội lực cộng đồng trong phát triển nông nghiệp vùng dân tộc thiểu số], (December 7, 2016), http://tiasang.com.vn/-khoa-hoc-cong-nghe/Noi-luc-cong-dong-trong-phat-trien-nong-nghiep-vung-dan-toc-thieu-so-10277 (Last visited August 10, 2019).

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in fact still actively engaged in the process.²¹⁵ Firstly, local authorities acted as the bodies granting permission for every research activity, especially those involving ethnic minority peoples, taking place within the respective locality. Aside from such administrative procedures, local authorities also actively supported the potential users in collecting general information on TKaGRs and identifying its holders to facilitate access. During the access stage, local authorities, in many cases, took the role of coordinating or facilitating if needed.

Furthermore, local authorities might also take part in benefit sharing negotiation and in some cases directly got benefits therefrom (under the form of fund for the community’s welfare).