Review of Regional Policy Instruments, Developments and Trends : Latin America

1. Review of Regional Policy Instruments, Developments and Trends:Latin America

2. Law and Policy of Relevance for the Management of Plant Genetic Resources in Latin America

3. Megadiversity! • South and Central America are quite possibly the most diverse regions in the world • Together they hold the greatest diversity of reptiles, birds and mammals in the world • They are centres of origin and diversification of a wide range of crops and their wild relatives • They are also home to a great variety of cultures and indigenous populations • The economic, cultural and social importance of biodiversity in the region is incalculable

4. Key Issues in These Regions • Access to genetic resources and benefit sharing • Intellectual property • Protection of traditional knowledge • Biosafety

5. The Convention on Biological Diversity (CBD) • Ratified by all countries in Latin America • Pivotal in raising policy and legal profile of issues • Effects of the CBD: • National biodiversity strategies and plans • General biodiversity laws (ABS, TK, biosafety...) • Adjustments and amendments to sectoral legislation • Administrative measures

6. Access to Genetic Resources and Benefit Sharing • Access and benefit sharing (ABS) is a critical concern for most Latin American countries • Many bio-prospecting projects in the regions • Genetic resources represent an important scientific, political and legal asset for varying reasons

7. Decision 391 of the Andean Community on ABS • Enacted in July 1996 by the Andean Community of Nations • The first regional set of principles and obligations on ABS • Genetic resources are part of the national patrimony (State control) • Operates through a set of mechanisms and instruments and an administrative procedure overseen by national competent authority

8. Other ABS Legislation Argentina: 2002, Draft Law on Access to Genetic Resources of Biological Diversity Brazil: 1997, ABS legislation enacted at State level in Amapa and Acre; August 2001, Provisional Measure 2.126-16 on access to the genetic patrimony Chile: 1999, CONAMA initiated a policy process to develop ABS regulations and re-launched in 2003 by Fundación Sustentables Costa Rica :Law 7788, Biodiversity Law ; Executive Decree 31524 (2003)

9. Current Situation Regarding ABS in the Region • Control over genetic resources = rigid, complex legislation, difficult to implement • Limited progress in implementing Decision 391 (and most laws). Andean Community will undertake an overall assessment of the ABS regime (FTA with the US !!!) • Group of Like-Minded Megadiverse Countries: negotiations on an international regime on ABS (idea raised by Mexico and Colombia)

10. Biosafety:The Biosafety or Cartagena Protocol • Adopted in Montreal in January 2000 • New international system for trans-boundary movement, transit, handling and use of living modified organisms (LMOs) • LMOs result from genetic engineering that may have an adverse effect on conservation of biodiversity and human health • The Protocol set an international procedure by which export and import of LMOs is conditional on advanced informed agreement (AIA) of Parties • The precautionary principle is recognized as the guiding principle of the Protocol

11. Latin America and the Protocol • Clearly divided during the negotiations of the Protocol between members of the Miami Group and those countries more cautious and resistant to a free flow • Brazil has taken a cautious approach and until recently prohibited the cultivation of genetically modified soya varieties as result of strong citizen resistance and campaign • Of the Miami Group, neither Argentina, Chile nor Uruguay have ratified the Protocol. Likewise, for different reasons, Guyana, Paraguay and Suriname have not ratified • Most countries have developed national laws and regulations (pre- and post-Protocol)

12. PGRFA:The FAO International Treaty (IT) • Latin American countries have only recently began discussing the legal and policy implications of the IT on existing ABS legislation (i.e., Decision 391) • Countries in the region (especially the Andean Community) need to address: • the relation of the Treaty to existing ABS regimes • IPR provisions in the Treaty / national laws • The situation of ex situ collections and CGIAR centres • how to implement an effective Farmers’ Rights regime • El Salvador, Nicaragua, Paraguay and Peru have ratified the IT

13. TRIPS • Most Latin American countries have adapted their national legislation to meet TRIPS standards • Key issues and emerging trends in the international IPR agenda are being considered : • broadening subject-matter protection • creating new rights • FTA • Brazil and the Andean community have been very active in the ongoing revision of article 27.3.b of TRIPS

14. PBR Protection • Almost all countries in the region have some form of legal protection for new plant varieties or cultivars, based on UPOV-like protection for plant breeders’ rights • Decision 345 Common Regimen on PBR (1994) • In some countries, discussions are being carried out on the impact of legal protection of new plant varieties on biodiversity, the environment and small farming communities

15. Traditional Knowledge (TK) • Debates on TK can be traced to 1992–93 when efforts were undertaken in the Andean Community to regulate PBRs • Decision 345 provides that new plant varieties will be protected if • they comply with typical PBR requirements • scientific knowledge is applied in the improvement • Decision 391 recognizes the rights of indigenous peoples over their knowledge, innovations and practices • Brazil's Provisional Measure 2.186-16 specifically refers to the protection of TK • Defensive protection: the Andean Community (Decision 486 on Industrial Property), Costa Rica and Brazil are implementing provisions and principles for defensive protection

16. Traditional Knowledge (TK)(continued) • In 1998, Bolivia initiated a political process towards the development of a TK protection regime • Colombia has undertaken wide participatory processes towards developing national policies • Panama enacted Law 26 for the protection of collective creations and folklore of indigenous communities (2000) • Peru has become the first country to adopt a sui generis regime for the protection of TK Note : It’s critical to engage indigenous peoples in the policy process from the start

17. Phytosanitary Agreements • All countries have phytosanitary legislation in place • Important international and regional agreements are • The International Plant Protection Convention (1989) • The Andean System for Plant Health

18. Regional Networks on Genetic Resources • Consortium for the Ecoregional Development of the Andean Region (CONDESAN) • PROCITROPICOS • Andean Network on Plant Genetic Resources (REDARFIT) • Network on Technical Cooperation for Plant Biotechnology in Latin America and the Caribbean (REDBIO) • Thematic programmes and networks include: • Latin America Fund for Rice Production (FLAR) • Regional Project for Beans in the Andean Region (PROFRIZA) • The Regional Network on Forest Information for Latin America and the Caribbean

19. Ex Situ Centres • Very important collections (private and public) throughout the region • CGIAR Centres: • CIP • CIAT • CYMMIT