By Patricia Molina, Fobomade

The Issue and Context

The countries of the Andean Community: Colombia, Venezuela, Peru, Ecuador and Bolivia were the first in the world to establish a rule for access to genetic resources, in conformity with the Convention on Biological Diversity. This is known as the Common Access Régime for Genetic Resources, Andean Pact Decision 391. The Decisions of the Cartagena Agreement are sub-regional juridical rules, which are approved and integrated for national laws to execute. We understand the Common Regime as a general norm that establishes applicable minimum rules in all the member states; these in turn can decide to regulate individually or to apply the law in an immediate (direct) way.

The fundamental objective of establishing an Access Regime was to regulate access to genetic resources, and to counteract the effect of using the native species of the region and traditional knowledge as commodities, and establishing intellectual property rights over them.

Decision 391 regulates access to genetic resources, the equitable distribution of benefits derived from their use, and recognizes the contributions of indigenous people, not only enunciatively, but through establishing contracts.

Decision 391 is related to Decision 345 – the Andean Agreement for the Common Regime of Protection of New Varieties of Plant - was promoted three years before in Bogota October 1993. It It is also related to Decision 486 (the Common Regime of Industrial Property), which substituted Decision 344. It establishes that plants, animals and biological procedures cannot be patented.

Key issues of Concern, Points of Conflicts, Uncertainties and Achievements

Decision 391 establishes the minimum basis for the equitable distribution of benefits derived from access agreements, but shows serious limitations with regard to the protection of the collective rights of indigenous people.

It guarantees the direct participation of communities and local populations, and the distribution of benefits associated with genetic resources, but a legal vacuum exists since at the international level intellectual property right systems protect individual and private rights only.

According to indigenous organizations the Common Regime does not value the knowledge associated with their resources. "The Andean Decision possesses two components that can be separated; a tangible component (plants, animals, microorganisms) and an intangible component (traditional knowledge). It considers that the State exercises sovereignty and control of the tangible component and local communities of traditional knowledge. This premise is opposed and it misses the integral and indissoluble concept that local communities conceive on their resources and traditional knowledge (Oehlerich, A. 1999. Ni robo ni limosna. Los pueblos indígenas y la propiedad intelectual. IBIS-CEJIS-CABI-CIDOB. Santa Cruz).

A critical topic has been that of the contracts. Decision 391 in article 32, expresses that an access contract to genetic resources has to be signed between the applicant and the State. For indigenous organizations, this contract should also include those organizations in whose territories resources are often located, and who are the guardians of associated knowledge. Yet they are only part of an annex to the contract.

Of the five countries of the region, Ecuador and Peru have not approved contracts, because they do not have regulations to implement the Decision. Venezuela has not promulgated this regulation either, but due to the Decision and to their recently approved Biodiversity Conservation Law, it has approved 15 access contracts, four of them foreigners. Colombia also has several approved contracts and Bolivia, which approved the Regulation in 1996, has approved one of three applications.

Although there are only a few access contracts, this does not mean that private contracts don't exist (including confidential ones), with research objectives and botanical classification. However, the real objectives of these contracts may be different from those enunciated. The same contracts don't seem to be effective in terms of the objectives of the Common Régime, which guarantees equal benefits.

One case in Bolivia, for the collection of wild peanuts, has showed clearly the limited value of the contract in regulating access. This contract did not establish clear requirements for the collector, beyond the approval of the activities of the project. This is due in large part to the fact that the minimum conditions of the Common Regime do not include important obligations that should be incorporated into national laws but are not. This includes a description of the material to be collected, plans, species, quantities, evaluation, use and maintenance of the collected material, information about the benefits that the host country will obtain, the lodging of duplicate samples with communities, information to native towns and local communities as to the percentage of bonuses they will receive, the endorsement of the collector country for the case of no fulfillment of the contract. National laws should also require the delivery of investigation reports, information about risks of genetic erosion and how to amend them.

In the case of the application to collect wild peanuts in Bolivia, the expedition was applying to save varieties of wild peanut in risk because of the construction of the San Miguel-Cuiabá Pipeline, and was taking the samples to the USDA, in the USA. It means, that according to the project, the collectors were saving the germplasm. (There are ways to pretend that a contract of access is not destinated to get profits, but to “help” saving the germplasm, a kind of hipocrisy. If the USDA intention was to save the peanut germplasm, they should had proposed a plan to change the conditions that were risking the material, but instead of that the US goverment aproved a credit for the construction of the pipeline (to Enron+Shell)

Progress since Rio

Access contracts imply the introduction of genetic resources to the market. Some governments of the Andean Community see genetic resources as a financing source: "...the biggest obstacle for the sustainable use of biodiversity and development of its potential is the difficulty in accessing financing” (National Strategy of Biodiversity, Bolivia, 2001). Because of this “it is indispensable to attract investors that possess capital, technology and necessary managerial capacity to sustainably use the important economic potential of biodiversity and in this way to attack the biggest threat for the conservation of these resources" (National Strategy of Biodiversity, Bolivia, 2001). The politics thus imply that the conservation of genetic resources requires its commercialization through access contracts and that the resultant monetary benefits are important for biodiversity administration.

On the other hand, it is clear that the access contracts in the countries where they are being applied and just as they are outlined, do not guarantee equal access of the benefits coming from the use of genetic resources overalls taking into consideration the weaknesses of the involved governments', the lack of information among governments and at national level, the confidentiality which that information is managed in some cases, the lack of definition of the investigation centers that gather the biodiversity ex situ and also the existence of agreements among private or in theory with ends of exclusive investigation. (There are access contracts for investigation (or the example of Bolivia). In these cases they will not describe the benefits of access and will not foresee any payment or share to indigenous or local people

Policy implications and recommendations

• There is a growing conscience of the importance of genetic resources for communities and States, but it is necessary to generate a deep social debate in the countries. There are too many questions to answer before communities and countries allow more contract access, it is important to study case by case and to evaluate if they have reach the objectives of equity. A moratorium is necessary until people makes that evaluation and countries improve their negotiation capacity. In Bolivia, because of the peasants organization pressure, the bolivian government has promulgated the Decree No 25929, which establishes the revision of regulations of Decision 391 with the participation of all involved sectors. Decision 391 does not necessarily need regulations, but no other contract has been approved.

• There is a need for an exchange of experiences with bioprospecting/ biopiracy among of the Third World, the development of effective norms, as well as proposals for a regulatory frame from a southern focus.

• Development of a regulation with sovereignty. Multilateral and bilateral impose liberalization of regulation.

• Civil participation in these issues needs to be strengthened, particularly of those involved. This should include:

- Information sharing
- Public pressure in the arenas of policy-making, deliberation and decision-making.
- Access to information and divulgation
- Publication and debate on the access contracts.

 

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