Access to genetic resources and sharing of benefits arising out of their utilization : a critical analysis of the contribution of the Nagoya Protocol to the existing international regime on access and benefit-sharing.
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Date
2012
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Abstract
Prior to the commencement of the Convention on Biological Diversity (CBD), genetic
resources were considered to be the common heritage of mankind; this principle gave
the right to developed countries to obtain and freely use the genetic material of developing countries.
Growing concern over the controversial ‘free access’ system and the monopolization of
benefits led to the negotiation of an international treaty, the CBD, to regulate access to
genetic resources and the sharing of benefits resulting from the utilisation of such resources.
The CBD makes some important innovations. It recognizes that the authority to
determine access to genetic resources depends on national governments and is subject to
national legislation. Thus, the CBD recognizes state sovereignty over genetic resources
and institutes the principles of Prior informed Consent (PIC), Mutually Agreed Terms and Benefit-Sharing.
However, the CBD and other international instruments relating to genetic resources
have not had the desired effect of preventing the misappropriation of genetic resources
and associated traditional knowledge (TK). Developing countries suffered and continue
to suffer from the piracy of their resources. This state of affairs has led to the recent
adoption of the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to The Convention on Biological Diversity,’ (2010 Nagoya Protocol).
This dissertation will consider the contribution of the Nagoya Protocol to the existing
global and regional instruments concerning the access and benefit sharing of genetic
resources. After explaining the gaps in the existing instruments, it will explore whether the Protocol is a miracle solution to the recurrent concern over misappropriation of genetic resources from biologically rich countries, or whether there is still much work to do to sort out this problem.
Description
Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2012.
Keywords
Convention on Biological Diversity (1992). Protocols, etc., 2010 Oct. 29., Biodiversity conservation--Law and legislation., Theses--Law.