Prior Informed Consent In The Convention On Biological Diversity-Bonn Guidelines: National Implementation In Colombia
| Author | Adriana Casas |
| Position | Practices Environmental Law at a Private Firm in Colombia |
| Pages | 07 |
Page 27
The UN Convention on Biological Diversity ("CBD") has been ratified by more than 170 countries around the world. This multilateral agreement serves as a global framework for biodiversity conservation, sustainable use, and equitable sharing of benefits derived from its use. This convention has been a source for the development of biodiversity laws at the national level, including Colombia.
Colombia has 10% of the world's biodiversity in only 0.8% of the world's land surface. It has 15% of the world's orchids, and is number one in diversity of amphibians, with more than 583 species. Colombia has more than 81 indigenous groups, as well as many Afro-Colombian communities, and has established almost 300 hundred resguardos for indigenous peoples to live on across the country. With the wide range of diversity that is found in Colombia, the CBD has been recognized as a strategic and relevant treaty for the future development of the country.
Free and Prior Informed Consent ("FPIC") under the CBD is intended to facilitate a transparent exchange of information, and aids in achieving the goals of the Convention: conservation, sustainable use, and equitable benefit sharing. FPIC is a direct consequence of the countries' sovereignty over their territories and is implemented by each country's national competent authorities ("NCA") and institutions.
There are three elements to implementation, as shown in Chart 1. Most of the advances seen in Colombia so far are in the realm of laws and regulations. Colombia has a consistent legal framework for access and benefit sharing activities. Table 1 compares the voluntary Bonn Guidelines of the CBD ("CBD-BG") to what is already in place within the legal framework of Colombia. Law 165 of 1994 ratified the CBD in Colombia so that the articles of the CBD are now part of the national legal system. Further, the andean Decision 391, passed in Colombia in 1996, recognizes the self-determination of indigenous people, not only concerning their resources, but also to their traditional knowledge.
[CHART IS NOT INCLUDED]
The most prominent achievements that have come from Colombia's cooperation with the principles of the CBD include a legal framework that is consistent and has decentralized power through the increase of participation of indigenous groups in local and national politics. Many groups have been able to empower themselves through this legal framework without losing their indigenous identities. This legal framework includes the Constitution of 1991, Law 21/91 that ratifies ILO-169, Law 99/93 that creates the environment ministry, Law 165/94 that ratifies the CBD, the andean Decision 391/96, the national biodiversity policy adopted in 1997, and its action program adopted in 1998. Another recognizable achievement is that some institutional capacity has been established to carry out FPIC, including cases of indigenous people's territories where natural resources such as oil and gas are involved.
However, Colombia still has many challenges it must meet in order to fully implement free and prior informed consent. The definition of free and prior informed consent must be defined in terms of accessing traditional knowledge: what is it, when is it obtained, who decides how to use it and for what purposes, and how to compensate the owners of traditional knowledge. Institutional capacity is still a challenge, and there is a need to Page 28 develop it at a greater scale for the efficient and effective implementation of the CBD and andean Decision 391 at the national level in Colombia.
Implementation and enforcement costs need to be addressed. If FPIC must impose high costs in order to preserve traditional knowledge and biodiversity in a highly effective manner, then these costs will be justified. Currently, though, the high costs are difficult for actors to accept and are causing a perverse incentive for participating in FPIC. Conditions need to be created that enable local informed participation and allocate well-defined rights over local and indigenous groups' rights to their knowledge. Colombia also needs to consider the difficulty of treating information as an economic resource or asset. There is a need to increase scientific collaboration and control over resources in order to maximize and capture the benefits derived from the use of biodiversity. Finally, more specific rights and implementation structures should be designed in terms of FPIC in the areas of traditional knowledge, biodiversity, and genetic resources.
Colombia has established a consistent legal framework for the implementation of FPIC. This toolkit of laws should now be used to focus on the other two areas of implementation, institutional capacity and the regulated sector, which still require work in order to meet full implementation of FPIC at the national Colombian level.
TABLE 1: COMPARISON OF GUIDELINES PRESENT IN CBD - BG AND COLOMBIAN LEGAL FRAMEWORK
| Description of Guideline | Convention of Biological Diversity ? Bonn Guidelines | Colombian Legal Framework |
| Access to Genetic Resources | Consent of NCA and relevant stakeholders (i.e. indigenous and local communities) to grant access to genetic resources and associated knowledge must be facilitated through consultation and due process | andean Regime 391: Consent of NCA through administrative procedure (Arts. 16 - 31) and access contract (Art. 32), Consent of local communities through annex contract (Art. 35) and consultation procedure (Law 99/93 Art. 76 and Decree 1320/98) |
| Specification of Use of Resources | Specification of use of resources accessed as well of the knowledge associated with those resources | andean 391: Application requires specification of use including restrictions on third party uses |
| Procedure to Obtain PIC from Indigenous Groups | Stated in CBD ? BG | andean 391: Art. 35 Decree 1320/98 |
| Procedure to Obtain PIC from NCA | Stated in CBD ? BG | andean 391: Procedure established in Art. 16 & 31 |
| Access to Ex Situ Collections | Requires PIC | andean 391: art. 41.b mandates agreements with ex situ collections |
| Timing and Deadlines for PIC | Stated in CBD ? BG | andean 391: Art. 29 establishes a period of 90 days for PIC before access granted or denied |
