Este ensayo plantea una visión crítica sobre el concepto de “soberanía” y su utilización en el debate sobre ABS, y se construye sobre la base de ideas y planteamiento que unos pocos vienen impulsando desde la década de los años 1990. Esto a partir de la constatación que el objeto sobre el cual se pretende invocar - los recursos genéticos - resultan extremadamente difíciles de someter a controles diseñados para entidades físicas y tangibles.

This paper examines the implementation of national regimes on access to genetic resources in a number developing countries, particularly in the members of the Andean Community. It discusses the principles of the Convention on Biological Diversity that inspired such regimes, the main aspects of the adopted legislation, the expectations that countries had while introducing it and the problems faced by regulatory authorities in dealing with access applications. The paper also analyses the implications of such regimes on research and the extent to which the objectives with regard to benefit sharing have been reached. The problems created by the application of uniform rules to all kinds of genetic resources is also addressed, in connection with the treatment of plant genetic resources for food and agriculture (PGRFA). The paper suggests the need to review the access regimes in order to consider the special case of PGRFA, and to solve the difficulties found in their application.

These voluntary guidelines identify the steps in the access and benefit-sharing process, with an emphasis on the obligation for users to seek the prior informed consent of providers. They also identify the basic requirements for mutually agreed terms and define the main roles and responsibilities of users and providers and stress the importance of the involvement of all stakeholders. They also cover other elements such as incentives, accountability, means for verification and dispute settlement. Finally, they enumerate suggested elements for inclusion in material transfer agreements and provide an indicative list of both monetary and non-monetary benefits. They are expected to assist Parties, Governments and other stakeholders in developing overall access and benefit-sharing strategies, and in identifying the steps involved in the process of obtaining access to genetic resources and benefit-sharing.

This paper presents overall considerations on the International Treaty on Plant Genetic Resources for Food and Agriculture. The ITPGRFA, reflecting the new orientation given by the Biodiversity Convention, emphasizes the conservation of plant genetic resources for food and agriculture, their sustainable use and benefit sharing. The ITPGRFA focuses on issues not addresed in other international treaties such as farmers' rights but it does not addresses directly patents or plant breeders' rights covered in the TRIPS Agreement and the UPOV Convention respectively.