The CBD was adopted 20 years ago, and examples of productive, long-term bene-
fit sharing with the providers of non-human genetic resources and associated tradi-
tional knowledge are still almost non-existent. Even the famous San Hoodia and
Kani agreements have generated significantly more unrealistic expectations than
income for their beneficiaries. In the Kani case, however, income has been pro-
vided over the longer term, and in the case of the San population, further, non-
Hoodia -based agreements have been concluded. 34 In marked contrast, the
Niprisan and Chiapas cases never generated royalty income for their traditional
knowledge holders and local communities.
It is important to make two points, though. First, the success of benefit shar-
ing cannot be measured exclusively in terms of royalties. In particular, local
capacity-building should not be underestimated. In the Niprisan case, the develop-
ment of a comprehensive MOU, which was later adopted by WIPO and the WHO
for use in other contexts, demonstrates the potential impact of such advances.
Pharmaceutical research and manufacturing capacity in Nigeria was also strength-
ened considerably in this case. While it is disappointing that production of the
sickle-cell anaemia drug developed from local traditional knowledge has met so
many obstacles to being produced in Nigeria at affordable prices, it is encouraging
that a drug for a major neglected disease was developed in Nigeria and approved
for sale in the first place, and there are hopes that it may return to market.
Second, even though the CBD was adopted in 1992, many signatory countries
still lack national legislation to facilitate the process of obtaining prior informed
consent and negotiating benefit-sharing agreements, while other countries have
only adopted such legislation in recent years. (For instance, the South African
Biodiversity Act was adopted in 2004.)
Involving poor rural communities in procedures to obtain prior informed con-
sent and agree on benefit sharing is difficult in any circumstances. However, often
the boundaries of the community are not clearly defined. Who, for example, are
the traditional knowledge holders? And even where they are clear enough, addi-
tional problems of the legitimacy of representation, competing groups, capacity to
negotiate and the incompatibility of Western and traditional law systems become
apparent. 35 In the Chiapas case, for example, good intentions for mutually benefi-
cial bioprospecting which involved the local community innovatively from the
start led to one of the least successful cases to date.
Even if all of these problems are resolved, others can occur later in the ben-
efit-sharing process. This applies in particular to compliance issues, and to the
possibility of overharvesting resources. In the Kani case, an American company
produced a higher-priced product in competition with Jeevani, and was not legally
34 Roger Chennells.
35 For a more in-depth discussion of the challenges in benefit sharing with traditional knowledge
holders, see Wynberg, Schroeder and Chennells ( 2009 ).