Module II: The Fundamentals of Bioprospecting Negotiations
Constructing a Contractual Agreement for Benefit Sharing

Some of the important issues that arose in discussions concerned the relevant legal framework in West Africa and the question of how to protect the interests of local communities. With regard to the former, there was a consensus that the legal framework for bioprospecting in West Africa is incomplete and unclear at best. Some laws do exist, but they are neither consistent nor comprehensive, and in any case enforcement remains an open question. While these circumstances do create uncertainty, it is also true that the situation is similar in the rest of the world as well, and that successful bioprospecting agreements have been concluded in this "legal vacuum." In short, there is no reason to wait for a complete and rational legal framework to evolve before beginning to explore the possibilities of bioprospecting. Indeed the experience gained in formulating bioprospecting agreements will help to inform the legislators as they seek sensible policies for the region.

The question of local communities and how to involve and compensate them is one of the most difficult issues in bioprospecting. In the case of both Yellowstone-Diversa and InBIO-Merck, the land from which the resources were taken was unoccupied. Sometimes the same will be true in the African context, when dealing with national parks, but sometimes it will not. Indeed it can be expected that sometimes the desired resources will not only be in inhabited areas, but that the knowledge of the inhabitants will play a crucial role in determining the desirability of the resources. Traditional healers and other community members may have specialized knowledge of the indigenous resources that will be extremely valuable to the bioprospecting endeavor; therefore mechanisms for equitable compensation must be developed. The alternative is not only unfair exploitation of these communities, but the real possibility of actual hostilities.

It will be necessary to involve the communities as full partners in the bioprospecting process in order to ensure that their needs are met fairly in accordance with their contributions, and also to ensure that national and regional goals are not undermined. For example, it is not known to what extent companies may now be going into rural areas and collecting biological materials without official permission, using indigenous knowledge and resources for paltry or no compensation. For this reason, several workshop participants have pointed to the need for a greater educational and sensitization effort, so that all national stakeholders (including communities, nongovernmental organizations, universities, researchers, and policymakers) can come to a better understanding of each other and how better to work together more effectively. The only way to ensure that these sectors of society are harmonized in working toward common goals is to identify the needs of each and to share benefits fairly. This process is not a simple one, but it is integral to the process of identifying national and regional priorities. The more clearly these priorities are identified, the more success can be expected in dealing with foreign interests.