Biology Reference
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not yet have a coherent joint framework of law and policy reflecting the prescrip-
tions of the CBD relating to the Hoodia and to benefit sharing. The governments
of South Africa, Namibia and Botswana are the three Southern African
Development Community states which share the Hoodia genetic resource, and are
therefore interlinked in the manner in which they interpret and implement their
rights and obligations under Article 15 of the CBD. Currently these three countries
differ significantly in how, and to what extent, they have implemented their duties
to require prior informed consent relating to access to genetic resources from
'indigenous and local communities', the obtaining of 'mutually agreed terms' and
benefit sharing with such communities. Of course, it may be particularly difficult
to come to agreements when the traditional knowledge holders reside in several
countries and the relevant resource, in this case a plant, also occurs across those
borders. 32
International NGOs opposing biopiracy and the patenting of life forms have
approached the San through their lawyer 33 (both in advance of the benefit-sharing
negotiations and subsequently) to offer support should the San decide to oppose
'patents on life' and challenge the patent. As this chapter has already noted, some
activists criticize the CBD as yet another Western imposition tantamount to
biopiracy. The Hoodia case illustrates the difficulties indigenous peoples can face
when deciding whether or not to commodify their knowledge. In this context, it
is important to note that it is not for policymakers, academics, activists, lawyers
or other outsiders to decide whether traditional knowledge should be commodi-
fied in given circumstances or not. This decision has to rest with those directly
concerned, but they should be assured of sufficient time to gather information,
and to build capacity and knowledge, in order to be able to act appropriately and
independently. In the case of Hoodia , the San decided to accept the patent and
negotiate benefits, rather than attack the validity of the patent. But the pros and
cons of commodification are local choices that cannot be made universally, and
communities that categorically refuse to share their knowledge need to be sure
that they will be heard and respected. The CBD's provision for prior informed
consent is therefore paramount: it must be taken seriously and strengthened
(Tables 4.7 , 4.8 ).
Today, the San Hoodia case still captures the imagination of CBD negotiators,
academics and the media, although the expected millions have not materialized
and may never do so. Few other cases have started as dramatically as the Hoodia
case did, with a pronouncement that the San were extinct, or have experienced so
many ups and downs. One hopes that future benefit-sharing agreements involv-
ing the San will be more successful in terms of income generation, being set in
a clearer legal framework since the South African Biodiversity Act entered into
32 See note 22 regarding ways the Nagoya Protocol addresses these transboundary issues.
33 Roger Chennells.
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