COLOMBIAN POSITION IN INTERNATIONAL AGREEMENT

Report prepared by: Lucia Vasquez Celis

Requested by: Dale Wiehoff Executive Director IATP

November, 1997.

CONVENTION ON BIOLOGICAL DIVERSITY (CBD)

This review of Colombian position in CBD is corresponding with the process previous at signatare the Convention and the posterior process for implementation and are corresponding with three Conferences (COP1, COP2, COP3).

Colombia played active roll in the definition e inclusion of the following issues:

  1. The Sovereign Rights of States over their natural resources

  1. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing susch resources, unless otherwise determined by the party

  1. Fair and equitable sharing of the benefits arising out of the utilization of biological diversity and genetic resources.

In the process of implementation and continuation CBD with the development of threes conferences: COP1, COP2, COP3 the discusions prevailing have being:

Rights of the indigenous and local communities for rol played in conservation and sustainable use of biological diversity (article 8j)

Access to genetic resources (article 15)

Fair and equitable sharing of the benefit arising out of the utilization of genetic resources (numeral 7, article 15)

Incentive economically and socially measures that act as incentives for the conservation and sustainable use of components of biological diversity (article 11)

In this context the Colombian position have being:





ACCESS TO GENETIC RESOURCES AND COLLECTIVES RIGHTS FOR THE CONSERVATION AND SUSTAINABLE USE OF BIOLOGICAL DIVERSITY:

The Colombian Position corresponds to the regional level position of Andean Countries: expressed in the "Decision 391 Regimen Común de Acceso a los Recursos Genéticos". Although this legislation is in accord with CBD and articles mention the recognition of the knowledge, innovations and practices of indigenous and local communities, it fails to incorporate two principles which are fundamental to truly guaranting collective rights:

  1. The link between genetic resources and knowledge associated with them.

There is a distinction between the scope of individual and collective knowledge associated with genetic resources. We could define individual knowledge as that identifiably produced by a person or corporate entity for scientific research or for commercial uses, and it is possibile the identify the producter of this knowledge for future compensation through IPRs. Collective knowledge is that produced by indigenous peoples and/or local communities, as the result of contributions by succeeding generations. This knowledge is used as the community's or communities common heritage, and can't be classified as property not compensation through IPRs possible.

The failure to include these principles has resulted in a ack of real recognition of communities' rights. This is demostrated by the fact that in order to gain access to genetic resources, the law states that a contract must be drawn up between the State and the petitioner of access (usually a multinational). Prior informed consent to access by the communities is not included in this contract, except as an addendum to the contract between the petitioner for access and the giver of the knowledge. This specifically contradicts CBD's articles 8j and numeral 6 article 15, which was signed and ratified by Colombia. This situation is resulting in initiatives by multinationals for access "only to genetic resources", and not to the knowledge associated with them.

However, Decision 391 in the eighth "Disposicion Transitoria" states that the countries will draft proposals in order to establish a special regimen or a norm of harmony for the protection of the knowledge, innovations and traditional practices of the indigenous, afroamericans and local communities in accordance with article 7 of this decision, ILO Aonvention 169 and CBD.

Despite this, the Colombian position in COP3 (Buenos Aires, Argentina, November 1996) was very advanced in comparation with other countries. Tthe official delegation included two Indigenous Senators. For example, Colombia supported and promoted the proposal for a moratorium on access until after the establishment of sui-generis regimes which recognize Collective Rights, a proposal promoted by indigenous, local communities and NGOs in many Latin American countries including Colombia.

FAO: FARMER'S RIGHT:

Colombia agreed (as did a majority of countries) with the proposal promoted by the USA to recognize only individual farmer's rights. However, in the Eleventh Session of the Working Group of the CGRFA in relation to the revision of the International Undertaking in harmony with CBD, Colombia made a proposal in favor of Farmers' Rights and local communities, asserting "that revision of the International Undertaking was part of a process designed to establish a new international order for more balanced and fair agricultural developments, based on the recognition of indigenous people and Farmers' Rights. Any attempt to establish a free-access regime without compensation would be in contravention rather than harmony with CBD."

WTO/TRIPs

The Colombian position vis a vis the WTO/TRIPs is to implement all agreements, fundamentally in response to pressure and threats from the U.S. government In 1993 when Colombia was developing the legal process for legislation on Intellectual Property Rights ONGs, local organizations and some academics made proposals in relation to the create of limits on the scope of IPRs on biological materials and indigenous and other traditional knowledge, calling for a fundamental re-examination of such monopoly systems, for the public good. The U.S. Secretary of Commerce was sent to Colombia expressly to demand that the legal process be discontinued. At the further urging of the U.S, the Colombia government ignored its own legal process and promoted legislation on IPRs in the Andean Countries, which was favored by the U. S: "Decision 344" on Industrial Patents and "Decision 345" on Plant Breeders' Rights. Both laws legitimate the monopoly on life forms and genetic resources fundamental for the food security of local communities.

However the U.S. required more. U.S. Ambassador to Colombia Myles Frechette during a private-sector forum in Septembr 20, 1996 took "Colombia to task for its failure to put into effect an intellectual property rights regime which provides effective, adequate protection in all areas, particularly in the area of patents. Among the existing problem in Colombia's IPR regime are: the lack of so-called 'pipeline' protection for pharmaceutical products; inadequate standards for mandatory licensing; insufficient protection for computer programs, recognized trademarks and textile designs; and support mechanisms for the enforcement of the law," he said. (Inside, NAFTA-October 2,1996).

U.S. Threats:

"As a result of its laws and practices, especially its lack of effective enforcement, Colombia has been on the Office of the U.S. Trade Representative's 'watch list' under the Special 301 provision of the 1988 Trade Act every year since 1991" (Inside, NAFTA-October 2,1996).

WTO/AGRICULTURE AND OTHER COMERCIAL MEANS:

The Colombian position responds and will respond fundamentally to pressure of USA.

"Colombian rules which govern foreign investment are sorely lacking and must undergo a major overhaul if the country seeks to ultimately participate in free trade talks with the U.S. U.S. Ambasador to Colombia Myles Frechette said that the U.S. sees the crafting of a solid bilateral investment treaty and intellectual property accord as 'fundamental prerequisites' for Colombia or any other nation that wants to join the U.S. in a free trade pact, whether it be NAFTA or the hemisphere-wide Free Trade Area of the America accord. Frechette also singled out Colombia's telecomunications and energy sectors as two areas which the U.S. government and its private sector believe need to be more widely opened up to foreign investment." (EL ESPECTADOR, Sep 20 1997, cited by Inside NAFTA-October 2,1996).

Further, Frechette urged Colombia to open as widely as possible its telecomunications sector to foreign investment, have offered to do in conversations carried out under the auspices of the World Trade Organization telecomunications. In addition, the U.S. said that Colombia will promote major changes in its energy sector to allow for foreign petroleum companies to carry out their development and production effort without having to pay necessary remittances, duties, taxes and import tariffs on such activities, he said. Other Colombian barriers which are of concern to the U.S. exist in the agriculture sector, the official noted. The sector remains protected to a "significant degree" as some products require importation licenses and others are subjects to a tariff which varies under a price-band system, he said. (Inside NAFTA-October 2, 1996)

FTAA PROCESS:

In general the position of Colombia in this process is one of consensus with the Andean and Central American countries

In this process the key items are: " Sanitary and Phytosanitary Measures (SPSM); Subsidies, Anti-Dumping and Countervailing Duties; and to a lesser extent (for lack of access to documents), Market Access. Sanitary and Phytosanitary Measures concern animal, plant and food health and safety norms and inspection practices in traded goods. "Antidumping" concerns measures to prevent the 'dumping' of products at below the cost of production to increase market share. Countervailing duties are levied to retaliate for an increase in tariff or non-tariff barriers to trade" (S. Suppan, 1997), and IPR protection.

In general the position of Colombia is one of consensus with the Andean and Central American countries. They proposed to create a single SPS Negotiating Group, "in accordance with the WTO SPSM Agreement," and in opposition to the U.S. proposal to discuss SPS issues in the context of market access. The report further proposed that "maintaining the identity of the [SPS Negotiating] group, coordination will be established with the "Small Economies Group" and eventually, if the need should arise, with other groups, such as Standards and Technical Barriers to Trade, Market Access, and Custom Procedures and Rules of Origin." Towards resolving differences in SPS rules and implementation, the proposal recommends that "the FTAA process should take into account these differences and advance towards the harmonization of either international or hemispheric-wide standards as the case may be. In the case of the former, a full joint participation in specialized organizations, OEI, CIPF, CODEX) should be achieved; as to the latter, the work and coordination of regional agencies should be encouraged." In order that the interests of smaller (and agricultural export dependent economies) be represented. "the group considers that all the countries of the hemisphere should participate in the [SPS]n negotiations, regardless of their qualification. (S. Suppan, 1997)