In practice, it can be difficult to find legitimate decision-makers for indigenous communities living in biodiversity areas. The national government may not fully represent the interests of these communities and therefore negotiations with other local parties may be necessary. As with consultation of the Community prior to human research, it may be necessary for researchers to facilitate the creation of ad hoc decision-making bodies capable of representing the interests of the members of the Community. However, the practical difficulties associated with finding legitimate decision-making bodies should not lead us to believe that every individual should accept bioprospecting in an informed manner. If unanimous consent were required for actions that affect the interests of all members of a community, no government could take such measures.17 And as we have seen, failure to take such measures would even negatively affect the interests of community members. By acting as an honest intermediary with a framework agreement that binds the interested parties to a counterparty, BioTrust ensures the equity sought by the parties to the access agreement and the continued protection of biodiversity. Under this model, companies, as well as academic and research institutions, can sample and analyze genes, small molecules, and proteins, but a portion of the revenue from the resulting products returns to the country of origin for preservation purposes. BioTrust participants agree to participate in capacity building through access to technology and/or education from source countries.23 Training in bioprospecting, sampling and preparation; Biodiversity monitoring, socio-economic monitoring and/or nursery and agronomic techniques (increased conservation capacity) The CBD, the Treaty, the TRIPS Agreement and the UPOV Agreement provide general guidance to Parties involved in the development of their own agreements on access to genetic resources. However, it is important to recognize that existing (international) agreements are based on general standards of conduct. The agreements contain general principles, but no instructions on how to meet the requirements of each unique situation.
The Bonn Guidelines, adopted by COP 2001, are a first step towards bridging the gap between international agreements and the requirements of parties negotiating access to biodiversity resources. In 2005, the Biotechnology Industry Organization (BIO) developed and published its own guidelines for members involved in the discovery of natural products such as enzymes, chemicals, and small molecules.6 Consider, for example, the famous Hoodia case.3 For thousands of years, the San have used native Hoodia plants in southern Africa as appetite suppressants. Their practice was documented by colonial botanists and the properties of hoodia were then studied in the late 20th century by the South African Council for Scientific and Industrial Research (CSIR), which sought to isolate the active ingredients. In 1995, after nine years of development, CSIR filed a patent application on the chemical components of the plant that suppressed appetite. Three years later, they signed a licensing agreement with a private company called Phytopharm, which worked with Pfizer to develop a program to commercialize Hoodia products for the lucrative Western weight loss industry. All this research and development took place without the San`s knowledge. It was not until 2001, after extensive media coverage, that the CSIR began negotiations with San representatives on whether and how the San should benefit from the commercialization of Hoodia. The case of policy and perception is similar to that of benefit-sharing, as both sides must show a willingness to make the BAA and successive agreements work. This requires each party to set aside the interests acquired in the short term. The bioprospecting requirements set by the CBD have created a new branch of international patent and trade law, bioprospecting agreements.
[2] Bioprospecting agreements set out the rules for benefit-sharing between researchers and countries and may introduce royalties for less developed countries. While these contracts are based on prior informed consent and compensation (as opposed to biopiracy), not all owners or holders of Indigenous knowledge and resources are always consulted or compensated,[71] as it would be difficult to ensure that every individual is involved. [72] For this reason, some have suggested that Indigenous or other communities form a kind of representative micro-government that would negotiate with researchers to enter into contracts so that the community would benefit from the agreements. [72] Unethical bioprospecting contracts (as opposed to ethical contracts) can be considered a new form of biopiracy. [68] Box 1 contains an excerpt from a section on benefit-sharing of a BAA and provides examples of financial and non-financial benefits. Although actual percentages and dollar volumes have been removed (as they do not provide useful information without company-wide details), this example illustrates a very specific royalty payment scenario in which revenue streams were separated and divided differently. The agreement provides for revenue from both the direct sale of the product by the company and the licensing of third parties. .
English
Português