Biodiversity research and conservation in Colombia (1990–2010): the marginalization of indigenous peoples’ rights

Abstract

During the last 20 years, the biodiversity international legal and institutional framework emphasized countries’ sovereign rights and indigenous and community rights on biodiversity and traditional knowledge. However, a critical examination of its practical application in Colombia illustrates the constraints to develop the country’s endogenous scientific research capacity to govern its resources and to effectively protect indigenous rights. The Colombian case shows that sovereignty and indigenous rights tend to be diluted, particularly in the context of free trade agreements with the United States. It is shown that, in the context of international law and bilateral market agreements, sovereign rights and indigenous rights tend to be eroded due to the adoption of a strong intellectual property rights regime that favors biotechnology transnational capital interests.

Au cours des 20 dernières annèes, le cadre international juridique et lègal portant sur la biodiversitè a accentuè la souverainetè des pays et les droits de leurs communautès locales et autochtones sur leur biodiversitè et leurs connaissances traditionnelles. Nèanmoins, l’èvaluation des applications des réformes juridiques et institutionnelles colombiennes révèlent que des obstacles encombrent le développement de capacités endogènes par la recherche à exercer ses droits sur les ressources génétiques et à protéger les droits des communautés autochtones. La Colombie illustre une situation où la souveraineté et les droits des communautés autochtones ont tendance à être outrepassés, en particulier depuis les négociations et la ratification du traité de libre-échange avec les États-Unis d’Amérique. Elle montre donc que dans le contexte du droit international et d’accords commerciaux bilatéraux, la souveraineté des pays et les droits des communautés locales et autochtones tendent à s’éroder face à des régimes de priorités intellectuelles puissants qui servent les intérêts capitalistiques transnationaux de l’industrie biotechnologique.

Keywords:

• biodiversity
• indigenous knowledge
• Colombia
• biocultural diversity
• political economy

Acknowledgements

Thank you to Andrés Vargas for assisting with data gathering and to Tanya Rashmi Muthusamipillai for her collaboration with the English version. The Genetics Institute of the National University of Colombia and the Indigenous Governance Program of the University of Winnipeg also deserve thanks for their support of this work. Some of the topics in this paper were presented by the author at the 2012 Congress, 41st Canadian Association’s Annual Congress of the Latin-American and Caribbean Studies, Kelowna, British Columbia (18–20 May 2012). This paper highlights some of the main findings of the “Genetic Research and Politics about Biodiversity” (“Investigación Genética y Política sobre Biodiversidad”), conducted between 2010 and 2011. The final research report was awarded a Social and Human Sciences 2012 Honor by the Alejandro Ángel Escobar Foundation in Colombia.

Notes

1. In addition to the Free Trade Agreement approved by the United States in 2011, Colombia has signed similar treaties with Canada (2011), Switzerland (2011), Chile (2009), Mexico (2003), and with the Northern Triangle (El Salvador, Honduras, and Guatemala). Further, Colombia is part of regional agreements with the countries of the Andean Community of Nations (CAN), which includes Ecuador, Peru, and Bolivia, and the countries of the MERCOSUR, which includes Brazil, Argentina, Paraguay, and Uruguay. Currently three more treaties – with the European Union, Venezuela, and South Korea – are pending ratification. Colegio de Estudios Superiores de Administración (CESA). http://www.cesa.edu.co/CESA/media/TLC/infografia_TLC.html (accessed July 30, 2013).

2. Loss of biodiversity was registered in various levels of biological variation: ecosystem diversity (deterioration and disturbance of ecosystems in a territory); species diversity (the number of species in a local population or a collection of organisms); and genetic diversity (the total number of genes in the composition of a species or a population).

3. Some patents illustrating biopiracy cases are US No. 5.894.079, obtained on a variety of bean; No. 4.673.575, on an extract of Phyllanthus amarus; No. 5.929.124, on derivatives of Swartzia Madagascariensis, a native plant from Zimbabwe; No. 5.124.349, on derivatives of Azadirachta Indica, a tree native to India; and the patent on Ayahuasca (Banisteriosis Caapi). Biopiracy cases also include plant breeders’ certificates on plant varieties. The initiative against biopiracy in the Latin American region has documented additional cases; see Peruvian Society of Environmental Law. Andean Amazonian Initiative Against Biopiracy. http://www.biopirateria.org/spa/ (accessed March 25, 2011).

4. Art. 7 Decision 391 de 1996: “The Member Countries, in keeping with this Decision and their complementary national legislation, recognize and value the rights and the authority of the native, Afro-American and local communities to decide about their know-how, innovations and traditional practices associated with genetic resources and their by-products”.

5. The duty to consult was regulated by Decree 1320 of 1998. Decree 1397 of 1996 established the Permanent Bureau for Consultation with Indigenous Organizations and Peoples with the participation of Ministers and the Director of the Department of Planning, senators, and indigenous constituents, along with indigenous representatives. The achievements of this Bureau are limited, and it is subject to political junctures. One of its mandates, among many others, is related to the rights of indigenous peoples on biodiversity, genetic resources, and traditional knowledge.

6. The current Constitution of Colombia was adopted in 1991 by the National Constituent Assembly, convened in 1990. This assembly was composed of 70 elected members, and four constituents were delegated by the demobilized armed groups following the peace process in that period (two by the People’s Liberation Army (EPL), one for the Revolutionary Workers Party (PRT), and one by the Quintin Lame Armed Movement). Indigenous peoples and organizations were able to elect two delegates by direct vote: Lorenzo Muelas by the Movement of Indigenous Authorities of Colombia (AICO) and Francisco Rojas Birry by the National Indigenous Organization of Colombia (ONIC).

7. The political movement of 19 April (M-19) was an urban-based guerrilla movement formed in 1974 as a reaction against the alleged fraud in the presidential election of the conservative candidate Misael Pastrana against the populist leader and former dictator Gustavo Rojas Pinilla of the National Popular Alliance. M-19 quickly reached national recognition for the military actions carried out since its inception, including the military takeover of the Palace of Justice in 2005. M-19 laid down arms in 1990 and participated in the presidential elections in 1990 as the Democratic Alliance M-19 (AD-M19). In the elections to the Constituent Assembly of Colombia it obtained 19 seats, participating in the drafting of the new Political Constitution of Colombia in 1991.

8. The government’s project appears in the Gaceta Constitutional number 5, 15 February 1991. The proposal on environment led by the demobilized M-19 is contained in the Gaceta Constitutional number 22 of 18 March 1991. The joint text appears in the Gaceta Constitutional number 22 of 18 March 1991. Additionally, the term “genetic resources” in relation to ethnic and cultural rights is mentioned only in the project on ecology, submitted by the constituent Ignacio Molina Giraldo, a position that vanished in subsequent debates and discussions (Gaceta Constitutional number 25, 21 March 1991). Meanwhile, indigenous constituents do not use the term “genetic resources” because, from their worldview, biological and genetic diversity is included in their concepts of nature and territory.

9. The history of this program goes back to the 1996 Biotrade initiative, presented at the United Nations Conference for Trade and Development (UNTAD). It was a new strategy of sustainable development linked to the use of biodiversity. The National BioTrade Program would be designed two years later. In 2005, the IaVH, with the support of the GEF-Andes program of the World Bank, created the BIOTRADE Fund, which was established as a response to the Millennium Development Goals, the 2009 Colombian Agenda, the National Development Plan, and the National Strategic Plan for Green Markets. Biocomercio Fund was established as an NGO in 2006 (Fondo de Biocomercio 2011).

10. For a discussion of the scope and characteristics of the centers of excellence and the Biotechnology Institute of the National University of Colombia, see Caraballo (2010).

11. Similar to provisions of Convention No. 169 of 1989 of the of the ILO, limiting the exercise of the right to self-determination of peoples, “The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law” (Art. 1, para. 3). In relation to the duty to consult in Colombia, it is necessary to take into account Law 70 of 1993, which developed transitional Article 55 of the Constitution about the rights of black communities.

12. The actual scope of indigenous participation is corroborated by Muyuy Jacanamejoy, indigenous leader and former congressman: “Colombia at the Third Conference of the Parties to the CBD brought us the official delegation, but not because of a governmental decision to secure our interests keeping our expression was very limited; we preferred to participate independently or as autonomous congressional delegations. Interview in Rodriguez PA (2007), Colombian indigenous communities against the CAN-FTA-EEUU Agreement. in the field of intellectual property: ideas, interests and expectations. [M.A Masters thesis], Facultad Ciencia Política y Relaciones Internacionales, Pontificia Universidad Javeriana, 2007, p. 94–5.

13. Cristian Samper, director of the Smithsonian National Museum of Natural History in Washington, DC, referring to the biodiversity of Colombia, indicated that “the Colombians are sitting on a gold mine”. Magazine Semana, “Biocompetitividad”, Semana, August 2, (2008). In July 2010, under the title “Biodiversity: Rreasure at Risk”, the magazine Semana, the General Accountant Office, and the High School of Public Administration conducted a seminar in Santa Marta. The magazine article notes that “Edward Wilson, acclaimed biologist at Harvard University who coined the term ‘biodiversity’, states that biodiversity is to Colombia what oil is to Saudi Arabia.” Magazine Semana, “Biodiversidad: tesoro en riesgo”, Semana, Agosto 21 of (2010).

14. Law 1518 of April 2012, approving the “International Convention for the Protection of New Varieties of Plants” of 1991, was declared unconstitutional by the Constitutional Court sentence C-1051 of 2012. The motivation was the violation of the duty to consult indigenous and Afro-Colombian communities. República de Colombia (2012), Corte Constitucional, Comunicado No. 50. Diciembre 5 y 6 de 2012.

Additional information

Notes on contributors

Gabriel Ricardo Nemogá

Gabriel Ricardo Nemogá is an Associate Professor and Chair of the Masters Program in Indigenous Governance at the University of Winnipeg, Canada (http://www.uwinnipeg.ca/maig). He is a descendent of the Muisca people and has carried out research with Colombian, Mexican, and other Latin American indigenous peoples and organizations. Previously, he was Associate Professor in the Genetics Institute at the National University of Colombia. Professor Nemogá is a member of the Research Group on Politics and Legislation about Biodiversity, Genetic Resources, and Traditional Knowledge (PLEBIO). He has trained as a sociologist from the National University of Colombia and as a Lawyer from the Free University of Colombia. He carried out his Masters on Socio-Legal Studies at Brunel University, UK, and his doctorate in Ecology at University of California, United States. After his doctorate he conducted research on the relationship between biological and cultural diversity, knowledge on genetics resources, and transformations of intellectual property’s regime and its possible implications for megadiverse countries and indigenous people.