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Commercialising a culture’s ethnomedical heritage:

Sustainable development or neo-colonialism?
Ethics of bioprospecting and the case of Hoodia gordonii
Introduction
For centuries, traditional knowledge has been employed in generating medicinal treatments worldwide. For centuries the rich and powerful of the West have been exploiting the natural resources and cultural heritage of developing countries. This infringement on third world communities has been described by some as a new form of Western imperialism (Dhillion et al., 2002) or ‘neo-colonialism’ (Tsioumanis et al., 2003). Recent conventions and legislation have attempted to set new ethical standards, preventing the misappropriation of genetic resources and knowledge, but how effective have these guidelines been? Problems emerge over contrasting moral values and inter- and intra-national legislative discrepancies. Benefit sharing can take a number of different forms, and questions arise over the means of distributing the compensation.
This essay seeks to evaluate modern policies regarding bioprospecting, assessing the degree to which the goals of sustainable development have been met. The case of the San people of southern Africa will be discussed, regarding the Western commercialisation of Hoodia gordonii, an appetite suppressant traditionally used by the indigenous tribe on long hunting missions (plate 1).
Plate 1. The San have eaten the plant for yearsSource: BBC (2003) The San and Hoodia
The San are southern Africa’s oldest people. For 40,000 years they have fended off hunger and thirst and sustained their energy levels by eating the Hoodia cactus (United Nations IRIN, 2003).
survival skills and built up a vast knowledge base of the region’s rich flora and fauna, but as colonialism encroached upon Africa, new settlers learnt of the San’s fruitful territory and killed, enslaved or displaced most of their communities. In 1968 the Tribal Land Act only served to reinforce the San’s complete lack of rights to land ownership (Majavu, 2004). However, surviving members of the tribe have continued to pass on their knowledge. Despite present threats to their culture, imposed by commercial ranching, extensive agriculture and tourism, today’s San still utilise and disperse their ancestors’ wisdom. Hoodia has numerous medicinal uses within the tribe. It is used to treat eye infections, stomach pains and obesity, but most commonly it is utilised as an appetite suppressant on hunting trips (Geingos and Ngakaeaja, 2002).
Recent trends in bioprospecting
During the 1980s, after almost two centuries of exploiting traditional knowledge, pharmaceuticals began drifting away from the exploration of folk uses for drug discovery. The appreciation of traditional medicine, however, resurfaced in the 1990s (Cox and Balick, 1994), but this time it was accompanied by a new interest in protecting the rights of indigenous peoples.
The Rio Earth Summit of 1992 provoked debates over intellectual property rights (IPRs) and native knowledge systems, two frameworks which are inherently contradictory. IPRs have been defined as ‘…intangible rights protecting commercially valuable products of the human intellect’ (Black’s Law Dictionary), but they fail to incorporate collectively owned knowledge, inherited by indigenous communities like the San (IDS, 2003; Sayagues, 2003).
The Convention on Biological Diversity (CBD), led by less developed countries at the Rio conference, set three core objectives, which granted nations the sovereignty to determine access to genetics resources: - conservation of biodiversity- sustainable use of biodiversity- fair benefit sharing of genetic resources (Grifo and Downes, 1996; Fenwick, 1998). The treaty was later ratified by over a hundred countries, including those of the San. The United States, concerned over the effects that it would have on biotechnology industries, did not sign. The developed world had forced the conflicting TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights) upon all members of the World Trade Organisation (WTO), denying the opportunity to shape policies around individual circumstances. Instead of empowering developing countries to protect their ecological and cultural heritage, the legislation introduced thus ran paradoxical to its claims. The CBD hardly touched on formulating policy for implementation. Its ambiguity and discretionary nature rendered it vulnerable to manipulation by the world’s powerful few.
Reaching an agreement on benefit-sharing
In 1995 South Africa’s Council for Scientific and Industrial Research (CSIR) isolated the hunger-suppressing component from the Hoodia gordonii cactus.
The molecule, P57, was licensed in 1997 to Phytopharm, a British firm, with the intention of commercialising the diet drug.
American pharmaceutical, Pfizer, joined the enterprise. It was not until 2001 however, that, informed by WIMSA (the Working Group of Indigenous Minorities in Southern Africa), the San people came to hear of the CSIR’s moves and ambitions. The CBD and TRIPS, supposedly tending to such issues, had proved entirely ineffective in preventing this unauthorised acquisition of Hoodia.
The matter of prior informed consent, or lack of it, provoked the San to seek legal assistance and enter negotiations with the CSIR (Geingos and Ngakaeaja, 2002). In November 2001 the South African San Council was established to protect the rights of the Khomani, the Xun and the Khwe tribes of South Africa, and on April 9th 2002 a Memorandum of Understanding (MOU) was signed between the San and the CSIR. A framework was set that would form the basis of a policy for benefit sharing. The MOU considered the advantages of a sui generis system (one that developing countries have been exploring to protect traditional knowledge), in an attempt to present a compromise between existing IPRs and indigenous rights (Gillespie-White and Gardu•o, 2002). In the absence of national legislation, the memorandum had set a precedent for the benefit-sharing agreement, secured the following year.
After numerous workshops across southern Africa, a contract was drawn up regarding the allocation of benefits. On March 24th 2003, the tribe signed over to the CSIR, the commercialisation (but not patenting) rights to Hoodia gordonii. The corporate deal awarded the San 6% of the royalties generated through Phytopharm’s sales of the drug, and 8% of all milestone payments received as key performance targets are reached in the next few years of development (Wynberg, 2003). The money was to be distributed through a trust, set up by the CSIR, and put towards various development and conservation projects.
The achievement of equitable access and benefit sharing (ABS) is viewed by some as the key to sustainable development (Henne et al., 2003). The potential of ABS to alleviate poverty and protect biodiversity has been recognised, but needs to be further assessed to consider the value of natural resources under the role of both commercial commodities and cultural heritage. Henne et al. (2003) devised two categories for biodiversity; use values (tradable goods) and non-use values (non-tradable) drawing attention to the difficulties of allocating functions a particular economic worth. The CSIR-San agreement incorporates both value types, in its commitment to biodiversity preservation, the awarding of study bursaries, and compliance with future bioprospecting (Wynberg, 2003).
The San’s current needs, however, may be more political. The Anikhwe of Botswana, numbering near on 60,000, have been refused recognition as ‘indigenous’ by their government, and consequently, since 1997, those living in the Central Kalahari Game Reserve have been vulnerable to forced removal from their homeland (Majavu, 2004; Vallely, 2004). The livelihoods of the 500 San that remain there today are severely threatened, as the government are taking away their licence to hunt. Removing the Anikhwe from the Kalahari Reserve, the Botswana government claim, is part of their strategy to diversify the economy, moving away from their dependence on diamond revenues, towards earnings generated by tourism (Majavu, 2004).
The reserve, however, happens to be located upon one of the world’s richest diamond fields.
Legislative ambiguities
Vague and non-enforced legislation is a problem central to the debate over IPRs, and the protection of biodiversity and cultural heritage. There is a strong need for a regime of mandatory benefit-sharing to be established, before the poor are stripped bare of all their hereditary assets. Steps thatwould enable ethno-botanical research to continue without compromising the rights of indigenous communities, have been taken but sadly reaped little effect. The Organisation of African Unity (OAU) approved a model law in 1999, to set the ball rolling for the continent’s states to pass their own domestic laws on a sustainable development agenda for IPRs (Sayagues, 2003). Only two countries complied; South Africa and Kenya (GRAIN, 2004), thus the San were unaided by the law. Their case is complicated by its multi-national nature, which calls for legal formalities that encompass common national and international legislation. Fenwick (1998) highlighted a number of concerns regarding bioprospecting. Bilateral agreements with nation states were promoted by the CBD, he acknowledged, but no guidelines were given for ‘…cultures that may be at odds with or enemies of the nation state or occupy more that one nation state’ (Fenwick, 1998: 402). The current position of the San, particularly in Botswana, is not overly conductive to the formulation of unions with their home states. Evidence suggests that national governments of southern Africa may not have the interests of their native people at heart. Traditional knowledge saves modern pharmaceuticals substantial amounts of time and money, providing leads that narrow their research focus considerably. The task of safeguarding traditional knowledge under a sui generis regime is a challenging one, as most policy formulation surrounding IPRs is hindered by unclear definitions. The World Intellectual Property Organisation (WIPO) (2001) embraces all forms of knowledge in its classifications. If traditional knowledge is ‘…an intangible component of the resource itself’ (Tsioumanis et al., 2003: 607), as can be said for the San’s case, then the holders of that knowledge are deserving of some form of reimbursement.
Recent policies and conventions have demonstrated the desire to reform current laws to promote conservation, development and cultural preservation, but legislation still remains subject to a nation’s discretion. Henne et al.
(2003) put forward a detailed proposal for an international ABS regime, incorporating essential provisions for its success. This framework, set to motivate circumstances, yet unlike the non-implicit Bonn Guidelines, it possesses a legal quality that does not rely solely upon the good will of a nation’s government (Henne et al., 2003). Legal contracts are praised by some in their capacity to be adapted to unique circumstance (Grifo and Downes, 1996), but countries must consider very carefully the fine line between flexibility and vulnerability to manipulation.
Conclusion
The case of the San people and Hoodia gordonii shows that ABS is a possibility for the future. Over US $33,000 have already been paid into the San Hoodia Benefit Sharing Trust (Henne et al., 2003) and will be used to improve the living conditions of marginalized communities across southern Africa. As the United Nations decade of indigenous people has recently drawn to an end (Chennells, 2003), WIMSA and the South African San Council have successfully set the agenda for a future of equitable benefit sharing and the protection of indigenous rights. However, IPRs still have a long way to go in meeting ethical standards worldwide and setting an international regime that will give minority communities the capacity to fight their case.
Unethical biopiracy has been defined as the ‘…exploration, extraction, evaluation and exploitation of biodiversity for commercial biotechnological purposes’ (Hulse, 2002: 612). The P57 venture is profit-driven. As a side issue, it may attempt to tackle problems of obesity, but the underlying deontology behind the enterprise is capitalistic, and not ethically motivated.
Perhaps it is even slightly ironic that the San are contributing to such developments in curing gluttonous diseases of the West, whilst their own people are, in their own words, ‘nearly dying from hunger’ (Majavu, 2004). It is not up to the West to draw indigenous, non-monetised societies into the world’s capitalist networks. Benefit sharing must consider non-fiscal means of compensation in addition to the types of financial reciprocity strategies favoured by the CSIR.
Policy formation, currently dominated by the developed world, must strive to acknowledge the needs of the exploited south. Regulations should leave scope for adaptation, but must be enforced by all nations, to eliminate the loopholes inflicted by international discrepancies.
The United States’ refusal to co-operate with the CBD exemplifies the flaws in today’s laws on bioprospecting. development must ensure that individual lifestyles such as the San’s, are, quite simply, enabled to continue sustainably. References
BBC (2003) Sampling the Kalahari Cactus Diet. Chennells, R. (2003) ‘Ethics and Practice in Ethnobiology and Prior Informed Consent with Indigenous Peoples, regarding Genetic Resources’, in Biodiversity, Biotechnology, and the Protection of Traditional Knowledge. 4-6 April 2003, St. Louis. pp1-14. Cox, P. A. and Balick, M. J. (1994) ‘The Ethnobotanical Approach to Drug Discovery’, Scientific American, 270 (6), 82-87.
Dhillion, S. S., Svarstad, H., Amundsen, C. and Bugge, H. C. (2002) ‘Bioprospecting: Effects on Environment and Development’, AMBIO: A Journal of the Human Environment, 31 (6), 491-493. Fenwick, S. (1998) ‘Bioprospecting or biopiracy’, Drug Discovery Today, 3 (9), 399-402.
Geingos, V. and Ngakaeaja, M. (WIMSA) (2002) ‘Traditional Knowledge of the San of Southern Africa: Hoodia gordonii’, Second South-South Biopiracy Summit: Biopiracy – Ten Years Post Rio, Johannesburg, South Africa. Gillespie-White, L. and Gardu•o, E. (2002) Treading an Independent Course for Protecting Traditional Knowledge. IIPI (International Intellectual Property Institute). Available from [accessed 05 Feb. 2004]. GRAIN (Genetic Resources Action International) (2004) Africa’s Model Law on Community Rights Under Attack, South Bulletin 15. Available from 15/southbulletin15-01.htm [accessed 10 Feb. 2004].
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Henne, G., Liebig, K., Drews, A. and Plƒn, T. (2003) Access and Benefit-Sharing (ABS): An Instrument for Poverty Alleviation. International Regime. German Development Institute (GDI), Bonn. Hoodoba (2004). Available from [accessed 10 Feb. 2004].
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Essay Title
Sustainable development or neo-colonialism?
Ethics of bioprospecting and the case of Hoodia gordonii

Source: http://www.iema.net/system/files/louise20newton_0.pdf

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