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which would inevitably raise questions about the legitimacy of any resulting
agreements. The time lost through investing in this way could have cost the CSIR
its chances to secure a licensing agreement with a very attractive licensee (Pizer).
In addition, one might well ask whether capacity-building and education are not
the responsibility of national governments. A partial solution has been found in
South Africa, where the Biodiversity Act (Republic of South Africa 2004 ) now
locates support for consultations irmly with the South African government, in
order to ensure that beneit-sharing agreements are negotiated on an equal footing.
Assuming this support is adequate, the decision-making processes of traditional
knowledge holders and those of bioprospecting partners could become more com-
patible in future. 29
That San leaders were able to conclude a successful beneit-sharing agreement
at all was thanks to the fact that they had already built a suficiently coherent
structure, based upon sound and abiding principles, which aimed at beneiting all
San. The San, as a party to this complicated set of legal relationships, seem to
have succeeded in articulating and securing their CBD-related rights over a sus-
tained period. What may have helped is that NGOs and advisers 30 were in a long-
term relationship with the San. The legal advice given to the San was embedded
in the principles of San development organizations, and was therefore, to a
degree, sensitive to the complexities of this particular community. 31 The lesson
learned by the San was that it is possible to negotiate binding agreements even in
the absence of an enabling domestic legal environment. The South African
Biodiversity Act was signed into law in June 2004, but the regulations guiding its
application only entered into force in April 2008. Hence it was not available to
guide either of the San Hoodia beneit-sharing negotiations. The general princi-
ples of international law lowing from the CBD guided the parties in all the nego-
tiations referred to here, and they were able to reach binding agreements despite
the fact that there were no precedents, nor binding domestic law. This is evidence
of the power and ability of negotiating parties to meet each other, to establish
rules of engagement, to commit to acting in good faith, and to attempt to strike a
balance encompassing the long-term requirements of divergent parties. However,
as the Chiapas case above has shown, it is essential that the communities involved
have a representative governance structure that is credible to all parties. The
Hoodia story bears this out.
To date, the domestic legal and policy environment in the countries that grow
Hoodia is still inadequate in many ways. South Africa, Botswana and Namibia do
29 The Nagoya Protocol addresses these issues in Article 21, on awareness raising around tra-
ditional knowledge associated with genetic resources, and more extensively in Article 22,
(Capacity), specifying the involvement of indigenous and local communities in capacity build-
ing and development as well as support for identifying their capacity needs and priorities, with a
view to enhancement.
30 WIMSA, the South African San Institute (SASI) and the Kuru Family of Organizations.
31 Interestingly the Nagoya Protocol attempts to capture this idea via for example Article 21.
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