Colombia | CRJ - Université Grenoble Alpes

At the other side of the spectrum lies Colombian law. Colombia has only signed the Plant Treaty (ITPGRFA) and has not ratified the Nagoya Protocol. The political environmental is less favourable to the rapid development of Biocultural Community Protocols (BCPs).

On the bright side, like Peru, Colombia is part of the Andean Community of Nations. Within this framework, the Andean Community of Nations had approved in 1996 Decision 391, which established a common regime on access to genetic resources.

Decision 391 was adopted pursuant to Article 15 of the Convention on Biological Diversity (CBD), and it was the first sub-regional Access and Benefit-Sharing (ABS) regime. It lays down a bilateral ABS system: providers and users of genetics resources and traditional knowledge (TK) shall sign bilateral contracts, on a case-by-case basis, and this system applies to all genetic resources and to the derivatives thereof, as well as to their intangible components (TK), whatever the purpose (e.g., research, biological prospection, conservation, industrial application and commercial use).

In some ways, ABS legislation in Colombia may be seen as protective of Indigenous and Local Communities (ILCs). The truth is that the application of the legal regime on access to genetic resources and associated TK in Colombia is fraught with many challenges. Next, the low policy profile of genetic resources and the lack of technical expertise are limiting factors.

Importantly, the Colombian legal regime on ABS is still entrenched in the general rule laid down by the 1991 Colombian Constitution according to which the State has responsibility for the movement of genetic resources into and out of the country, and that only the State is authorized to provide genetic resources (see Constitutional Court, Sentence C-137 – 1996). As a consequence, only the special status of native communities, as recognized by the 1991 Constitution which, inter alia, requires prior consultation of native communities on projects and decisions that affect their lands, has made it possible the protection of natural resources and TK held by these communities.

The weakness of the Colombian ABS regime is beyond doubt, even if there has been discussion since 2008 on the elaboration of a sui generis system for the protection and recognition of TK (document CONPES 3533 of July 2008).

In this context, the recent development of different BCPs in Colombia – the BCP for territories of the Community Council of Alto San Juan ASOCASAN (in Spanish), and the BCPs currently implemented in the Caño Mochuelo reserve – is to be understood as a strategic move aimed at promoting and advancing the rights of ILCs over their resources and associated TK. These efforts seem to be bearing fruits, as shown by the recent recognition by the Constitutional Court (2016), of the interest of the BCPs for ‘ethnic communities’ (T-622/16, para. 5.20).