BIODIVERSITY SELL-OUT IN THE ANDEAN PACT?

March1995

BIODIVERSITY SELL-OUT IN THE ANDEAN PACT?

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:

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: [email protected]

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: [email protected]