Trips, CBD and Traditional Medicines: Concepts and Questions. Report of an ASEAN Workshop on the TRIPS Agreement and Traditional Medicine, Jakarta, February 2001
(2001; 88 pages)
Table of Contents
View the documentEXECUTIVE SUMMARY
View the documentI. INTRODUCTION
Close this folderII. CONTEXT
View the document2.1 Traditional medicine - brief overview
View the document2.2 Traditional medicine in Indonesia
View the document2.3 Bioprospecting
View the document2.4 About piracy and conservation
Open this folder and view contentsIII. KEY INTERNATIONAL AGREEMENTS
Open this folder and view contentsIV. IPR & TRADITIONAL MEDICINE: MISMATCH
Open this folder and view contentsV. CONCEPTS, OBJECTIVES AND CONFLICTS
Open this folder and view contentsVI. OPTIONS AND CHOICES
Open this folder and view contentsVII. POLICIES AND STRATEGIES
Open this folder and view contentsVIII. EXAMPLES
View the documentANNEX A - Workshop Agenda
View the documentANNEX B - Opening Remarks
View the documentANNEX C - Selected Articles of the Convention on Biological Diversity
View the documentANNEX D - List of Participants

2.3 Bioprospecting

Bioprospecting can be defined as the systematic search for and development of new sources of chemical compounds, genes, micro-organisms, macro-organisms, and other valuable products from nature. It entails the search for economically valuable genetic and biochemical resources from nature. So, in brief, bioprospecting means looking for ways to commercialize biodiversity. Lately, exploration and research on indigenous knowledge related to the utilization and management of biological resources has also been included into the concept of bioprospecting. Thus, bioprospecting touches upon the conservation and sustainable use of biological resources and the rights of local and indigenous communities.

Bioprospecting, if well managed, can be advantageous, since it can generate income for developing countries, and at the same time it can provide incentives for the conservation of biological resources and biodiversity. In addition, it can lead to the development of new products, including for example new medicines. On the other hand, if not well managed, bioprospecting may create a number of problems, including environmental problems related to unauthorized (over-) exploitation, and social and economic problems related to unfair sharing of benefits -or the total absence of benefit sharing- and to disrespect for the rights, knowledge and dignity of local communities.

When using the definition presented above, it could be argued that bioprospecting has been conducted by local people, such as traditional healers, since a long time. This has not created major tensions or problems, since they conducted their bioprospecting activities in their own region and on a relatively small scale. Problems occurred once private organizations or individual prospectors started exploiting bioresources in areas to which they were foreign, without equitable benefit sharing and while neglecting the interests and wishes of local people; a phenomenon that is sometimes referred to as 'biopiracy'.

Access to biological and genetic resources may be sought in order to acquire and use these resources for purposes of research, bioprospecting, conservation, industrial application or commercial use, etc. Ideally, access is granted after mutual agreement and has a legal basis. Access can be divided into authorized and unauthorized access. Authorized access may be conducted through formal (institutionalized) collaboration on research and utilization or through purchasing from recognized institutions etc. Unauthorized access can be practiced through individual contacts, through unauthorized exploration, via abuse of concession permits for the utilization of certain resources etc. Biodiversity-rich countries often face serious problems with regard to the prevention of unauthorized bioprospecting, due to weak law enforcement, which is further worsened by the fact that the practice usually takes place in remote locations. A first step in order to avoid biopiracy would be to develop an integrated and comprehensive national policy on access or -rather- on access and benefit sharing.

Figure 3 Access and benefit sharing concept

Adapted from L. Wijayanti

Benefits can be tangible as well as intangible, and should be fairly shared among the parties involved. Tangible benefits may include fees, royalties, profit sharing arrangements etc. Intangible benefits could for instance be the strengthening of institutional capacity and joint publications.

A bioprospecting policy

In order to deal in a comprehensive way with the opportunities and the potential drawbacks which bioprospecting encompasses, several countries have developed a national bioprospecting policy. To develop a comprehensive bioprospecting policy, it is necessary to coordinate, align and integrate policies and strategies across sectors; in the case of bioprospecting, this would comprise issues related to intellectual property rights, tenure of land and natural resources, R&D, conservation and protection of biodiversity etc. The policy should provide for mechanisms whereby its objectives can be translated into appropriate action and which can influence decision making on relevant issues.

A comprehensive bioprospecting policy should contain at least the following, complementary elements:

Legislation and regulation: appropriate legislation and regulations are the basis for implementation of the policy, and are needed in order to make it enforceable. Probably the most crucial issue to be addressed is regulation of access to biological resources, and to the associated knowledge. Legislation and regulations should (i) ensure that clear conditions and procedures govern access to genetic resources, (ii) make access subject to written agreement based on prior informed consent and (iii) require fair and equitable sharing of the benefits. Enforcement is needed to ensure that the handling of genetic resources, both by nationals and foreigners, is consistent with the national policies and laws.

Benefit sharing mechanisms: a mechanism for benefit sharing should be developed. Benefits should be distributed fairly and equitably among all parties concerned, including local communities, indigenous groups, universities, etc.

Capacity building: building technological capacity, including the capacity to innovate, is important in order to increase the possibilities to add value to genetic resources, thus generating greater social and economic benefits. Similarly, education and training are needed to encourage the protection of biodiversity. Institutional development should also be included in capacity building efforts.

Financing: obviously, sources of funding will have to be identified for the development and implementation of the policy.

Often, the process of formulating a policy is as important as its contents, since it can generate commitment and thereby facilitate implementation. Key points are:

Assessment or situation analysis: a sound assessment of relevant aspects, notably the opportunities, needs, resources and capacities of a country to make sustainable use of its biological and genetic resources should be the basis for developing an appropriate policy and for devising sound strategies on bioprospecting and access. National capacity should also be assessed in order to make optimal use of existing opportunities.

Participation in policy making: participation of all national stakeholders in the policy making process is crucial in order to devise policies and strategies which are feasible and take into account stakeholders' interests, as well as to motivate them and to obtain their cooperation. At the same time, safeguards should be put in place to ensure that the interests of weaker parties are duly taken into consideration.

Monitoring and evaluation: procedures for monitoring and evaluation should be put in place, so that progress -or the lack thereof- can be assessed. Moreover, this will allow for adjustment of policy goals and strategies as and when needed.

Bioprospecting should be regulated, both at national and international level, based on the principles of the Convention on Biological Diversity3: conservation of biodiversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

3 In addition, the principles enumerated in other relevant declarations, such as the Draft Declaration on the Rights of Indigenous Peoples, the Maatatua Declaration and the Code of Ethics for the International Society of Ethnobiologists should be taken into consideration as well.

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