Report prepared by: Lucia Vasquez Celis
Requested by: Dale Wiehoff Executive Director IATP
November, 1997.
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:
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:
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)