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The five members
states (Colombia, Venezuela, Ecuador, Perú and Bolivia) of the Acuerdo
de Cartagena, a Latin American trade zone commonly know as the Andean
Pact, are currently immersed in a struggle over control of access to genetic
resources. The geographical area covered by the five countries —
Atlantic and Pacific coasts, Andean mountains, sub-tropical forests, Amazon
basin — is one of the world's richest in biological diversity. The
potential economic value of such biodiversity has strategic importance
for the future development of the Northern-controlled biotechnology industry.
Many NGOs, local farming communities, indigenous peoples' organisations,
as well as government officials, are worried about the potential harm
that loss of control over local genetic resources will have to both natural
resources and cultural survival.
Colombia, as all the other Andean Pact countries, until
recently had national intellectual property rights (IPR) legislations
that were rather loose and mostly oriented towards the protection of industrial
inventiveness. Plant and animal genetic resources have been freely gathered
and used by local and international research institutions, with the understanding
that they were part of humanity's heritage. A large part of the genetic
material gathered is currently housed in genebanks outside national boundaries
and beyond the exercise of the sovereign rights recognised in the Convention
on Biological Diversity. More so, the local communities that nurtured
most of that diversity have no rights as to the use that may be given
to it, or the profits that it may generate.
The push for IPRs
In the post-GATT/TRIPS environment there is an increasing
pressure on Third World policy makers to install IPR regimes modelled
after those in industrialised countries. In Colombia, the agroindustrial
sectors currently pushing for strict IPR legislation are the flower growers
and the international seed companies, both of which represent large economic
interests — flowers are the country's third export product —
and exert strong lobby pressure on national agricultural policy. While
the flower growers initially were quite happy with the free availability
of varieties from abroad, they changed their mind when the United States
started using tariff and trade barriers on Colombian flowers in order
to push the country to adopt strong IPR legislation. Most of the reproductive
material used by Colombian breeders comes from abroad and has some IPR
tag attached to it.
National plant breeding institutions, most importantly
the public Instituto Colombiano Agropecuario (ICA), have essentially focused
on basic food crops. ICA, which has played an important role in promoting
the "green revolution" high-input agriculture in Colombia, has
recently been restructured into a mixed public/private institution, and
has clearly come out in favour of strong IPR legislation, in order to
be in a better bargaining position when making deals with private companies.
With national research stations, the international seeds industry and
the flower growers all pushing for strong IPR legislation, the Colombian
legislators started moving.
Getting rights for plant breeders
In 1992, a draft bill to establish a plant breeders'
rights regime was tabled at the Colombian Congress. The bill, written
by the public and private sectors interested in the adoption of a strong
IPRs regime, closely followed the criteria of the Union for the Protection
of New Varieties of Plants (UPOV). UPOV is a Northern-dominated club of
countries all subscribing to a Convention that gives monopoly rights to
breeders over plant varieties. Following UPOV tradition, the law proposal
disregarded the rights of local communities as breeders of biodiversity,
did not bother to establish instruments to save genetic diversity, and
— in general — was drawn up without involvement of other concerned
social sectors.
After the law proposal had gone swiftly through the first
parliamentary steps, several NGOs and university people, alerted by the
Instituto Mayor Campesino (an Andean NGO deeply committed to local genetic
resources management), blew the whistle. Amendments were proposed to Congress,
including rights for farmers and local communities. The amendments were
accepted by the Senate.
Not satisfied with how things were developing in Colombia,
and worried about the precedent it might set for other Latin American
countries, the representatives of the trade sector and UPOV, who had prepared
the initial bill, started lobbying higher up and focused their efforts
on the Andean Pact. If their strategy was "if we can't get it through
the national institutions we might get through the backdoor via a regional
agreement", then they were successful. In October of 1993, the Andean
Pact approved "Decision 345": Common Provisions on the Protection
of the Rights of Breeders of New Plant Varieties. This decision legally
binds all Andean Pact countries to establish UPOV-like plant breeders'
rights legislation. No mention of farmers and local communities as innovators,
no worry about genetic erosion.... With a stroke of the pen — and
without any public discussion at the national levels — the Andean
Countries were neatly brought into no-nonsense UPOV spheres.
At the same meeting, the Andean Pact countries adopted
another decision, "Decision 344", which probably will have an
even more profound impact on the region. Decision 344 relates to intellectual
property rights in general and allows for the patenting of life forms.
This agreement is meant to bring the region in line with that part of
the Uruguay Round GATT agreements that relate to intellectual property
rights. Camila Montecinos, a Chilean agronomist and international agricultural
biological resources expert, summarised the feeling of many NGOs in the
region when she denounced these decisions as undemocratic, illegal and
harmful to the vast majority of the people in the region. The tendency
to take legally-binding and far-reaching decision at regional and international
levels, far away from democratic parliamentary and civil society checks
and balances, is worrisome indeed.
At least in
the case of Colombia one can speak of a clear violation of the Constitution.
The new Colombian Constitution of 1991 introduced important legal openings
for wide citizen participation in key areas concerning future development.
It also grants local indigenous and black communities rights over their
territories and resources (see box). The decisions taken by the Andean
Pact not only disregard the mandated public debate on new legislation
in Colombia, but also clearly infringe on the constitutional rights of
local and indigenous communities. The rights to territoriality, genetic
resources and associated traditional knowledge are nowhere accounted for
in these Decisions.
The struggle continues
Not everything is lost after the Andean Pact Decisions
344 and 345. As a result of intense lobbing by NGOs and others in 1993,
the Andean Pact agreement on plant breeders' rights includes a statement
which reads as follows:
The Member Countries shall, before December 31, 1994,
approve common provisions governing access to biogenetic resources and
guaranteeing the biosecurity of the region, pursuant to the provisions
of the Convention on Biological Diversity adopted in Rio de Janeiro on
June 5, 1992.
Once the Andean Pact had approved the two Decisions on
patents and plant breeders' rights, and several countries had turned it
into national legislation, the development of this provision has become
the focus of NGO efforts to win space for communal rights over genetic
resources. A common regime on access to genetic resources among the five
Andean Pact country members would mean levelling the rules of the game
for a very important part of the world's biodiversity. The December 1994
deadline has already been moved into 1995, mainly due to the pressure
put on by those fighting against the sell-out of local genetic resources.
In Colombia, a wide coalition of NGOs, indigenous peoples
representatives, farmer groups, black and local community leaders, lawyers,
and people from several state universities formed an Ad Hoc Working Group
last year to closely monitor and influence developments. After extensive
consultations, including workshops at the local level with community representatives
and consultations with ministerial officials, the Ad Hoc Working Group
has established bottom-line objectives that the common provisions should
include, and is actively lobbying for them.
At the governmental level, work on the "common provisions"
also got underway, with the Colombians taking the lead. Three ministries
coordinated the drafting of a Colombian text for the common access provisions.
This ended up in the official Colombian proposal, part of the "Estrategia
Nacional de Biodiversidad" of the Ministry of the Environment. It
was drafted after extensive national and local consultations, and included
a sui generis Special Access Regime, dealing with the genetic resources
of local communities.
At the same time the Andean Pact Secretariat had commissioned
IUCN (International Union for Conservation of Nature) to prepare another
draft on access. IUCN hired a Peruvian NGO to work on it. Without much
involvement by anyone else in the drafting, a final proposal was presented
by IUCN to a meeting of some thirty NGOs, community, university and government
representatives from the five Andean Pact countries, held in Villa de
Leyva, Colombia, last August. Instead of the open exchange of ideas they
had expected, the participants found themselves with little space for
discussion and a lot of pressure to rubber-stamp the text on the table.
The pressure was not accepted and on the second day of the meeting the
entire draft was rejected by the majority and the process criticised for
lack of transparency. Objections were raised on several issues: lack of
recognition for community rights, little attention paid to the sustainable
use and conservation of genetic resources, too heavy on commercialisation
and poor on technology transfer provisions. A Colombian legal expert present
even questioned the whole thing on constitutional grounds.
With that IUCN draft scuttled, another meeting was held
a few weeks later, this time in Venezuela. Out of this came a joint official
Venezuelan-Colombian proposal, which watered down the original Colombian
governmental proposal considerably. Although the new proposal included
language on sustainability, conservation, technology transfer, and local
community rights over traditional knowledge, it did not specifically incorporate
the separate access regime for community resources.
This was the proposal finally sent to the first meeting
of governmental experts on access held last November in Lima, Perú. The
Colombian Ad Hoc Working Group is of the opinion that the Lima text is
a step back compared with the original Colombian proposal, with little
of the original concepts on community rights to genetic resources incorporated.
More so, there are several important outstanding issues that are not addressed
by it: the special sui generis regime for community genetic resources,
recognition of traditional knowledge as inventiveness, and biosafety standards.
The Lima meeting did not deliver much progress especially
due to differences between the Venezuelan and Colombian delegations on
biosafety and the sui generis community rights regime. Venezuela
has a strong lobby pushing for the creation of a national biotechnology
industry, and for them biosafety is merely a technical matter, and therefore
food, ecosystem, and cultural considerations should not enter the discussion.
Colombia now seems to be trying to pull through a consensus
proposal which would hold that the future access regime should deal only
with those aspects that are common to all five countries in the Andean
Pact. At the same time, each country would be allowed to develop national
legislation, according to their legal and constitutional particularities.
If this consensus were to be reached, Colombia could then develop its
own access regime in line with the first proposal developed by the Estrategia
Nacional de Biodiversidad, which respects the Constitution of 1991, and
recognises the intellectual rights of communities over genetic resources
and traditional knowledge.
The NGOs involved are now trying to garner support from
other social sectors in the region to win time and force the inclusion
of the most important safeguards in the provisions. They are not willing
to meekly follow the free-trade privatisation wagon. A battle that seemed
lost is still very wide open.
Germán Vélez can be contacted at: Programa Semillas,
AA 18456, Bogotá, D.C., Colombia. Phone: (57-1) 243.27.64. Fax: (57-1)
341.31.53
Email: semillas@colnodo.igc.apc.org
Sources:
* Acuerdo de Cartagena, 1993. Decisión 344, Régimen Común
de Propiedad Industrial, Gaceta Oficial, 29 de octubre, Lima.
* Acuerdo de Cartagena, 1993. Decisión 345, Régimen Común
de Protección a los Obtentores de Variedades Vegetales, Gaceta Oficial,
29 de octubre, Lima. English version published in UPOV's Plant Variety
Protection Gazette and Newsletter, No. 75, December 1994, Geneva.
* Gurdial, Nijar, 1994. "Towards a legal framework
for protecting biological diversity and community intellectual rights",
Third World Network, 1994, Penanag. English and Spanish versions available
from: Third World Network, 228 Macalister Road, 10400 Penang, Malaysia.
Fax: (60-4) 36 45 05. Email: twn@igc.apc.org
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