Abstract: Indigenous communities have worked for centuries to develop systems of knowledge pertaining to their local environments. Much of the knowledge that has been directly acquired or passed down over generations is of marketable use to corporations, especially in the pharmaceutical industry. Upon gaining the necessary information to convert traditional knowledge into a marketable entity, the corporation will place a patent on the product of their research and development and reap the monetary benefits under the protection of intellectual property legislation. Without appropriate benefit sharing, indigenous communities are robbed of their cumulative innovation and development and denied access to the very medicines that they assisted in development. This study will examine the efforts made by indigenous communities to develop benefit-sharing agreements under national ‘sui generis’ legislation and the international legislation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity (CBD).

<p>There is a growing interplay of competing realities facing the international community in the general areas of innovation, technological advancement and overall economic development. The highly industrialised wealthy nations, largely located on the Northern hemisphere are on the one hand undoubtedly at the forefront in global research, technology and infrastructure development. The developing and least developed countries on the other hand are mostly situated on the Southern hemisphere. They are not as wealthy or technologically advanced as their&nbsp / Northern counterparts, but are naturally endowed with unique variations of plant, animal and micro-organism species occurring in natural ecosystems, as well as the traditional knowledge on&nbsp / how to use these unique species. This knowledge has been adjudged to be responsible for the sustainable maintenance of the earth&rsquo / s biodiversity. Increasing exploitation of biodiversity,&nbsp / spurred on by the competing realities identified above, has left the earth in a present state of alarm with respect to the uncontrolled loss of biodiversity. The traditional knowledge of local&nbsp / peoples has significantly offered leads to research institutes from the North in developing major advancements in drugs, cosmetics and agriculture. Little or no compensation has however been seen to go back to the indigenous&nbsp / communities and countries that provide resources, and indicate various possibilities through their traditional knowledge to the use of such resources. Efforts by some biodiversity rich countries to&nbsp / ddress this trend through legislation developed in accordance with the principles of the Convention on Biological Diversity have been frustrated due to the inability to enforce their domestic laws outside their borders. Theft of genetic resources and its associated traditional knowledge&nbsp / from such countries has therefore remained a major challenge. Against this backdrop, and on the&nbsp / insistence of biodiversity-rich developing countries, an international regime on access and benefit sharing was negotiated and its final text adopted in 2010. This international regime is as&nbsp / contained in the Nagoya Protocol. This research sets out to examine whether the Nagoya Protocol offers a final solution to the protection of traditional knowledge associated with biodiversity in&nbsp / biodiverse countries. It further examines the importance of domestic legislation in achieving the objectives of the Protocol. The research has been tailored to African biodiverse countries, and&nbsp / seeks these answers within the context of Africa.<br /> &nbsp / </p>

<p>There is a growing interplay of competing realities facing the international community in the general areas of innovation, technological advancement and overall economic development. The highly industrialised wealthy nations, largely located on the Northern hemisphere are on the one hand undoubtedly at the forefront in global research, technology and infrastructure development. The developing and least developed countries on the other hand are mostly situated on the Southern hemisphere. They are not as wealthy or technologically advanced as their&nbsp / Northern counterparts, but are naturally endowed with unique variations of plant, animal and micro-organism species occurring in natural ecosystems, as well as the traditional knowledge on&nbsp / how to use these unique species. This knowledge has been adjudged to be responsible for the sustainable maintenance of the earth&rsquo / s biodiversity. Increasing exploitation of biodiversity,&nbsp / spurred on by the competing realities identified above, has left the earth in a present state of alarm with respect to the uncontrolled loss of biodiversity. The traditional knowledge of local&nbsp / peoples has significantly offered leads to research institutes from the North in developing major advancements in drugs, cosmetics and agriculture. Little or no compensation has however been seen to go back to the indigenous&nbsp / communities and countries that provide resources, and indicate various possibilities through their traditional knowledge to the use of such resources. Efforts by some biodiversity rich countries to&nbsp / ddress this trend through legislation developed in accordance with the principles of the Convention on Biological Diversity have been frustrated due to the inability to enforce their domestic laws outside their borders. Theft of genetic resources and its associated traditional knowledge&nbsp / from such countries has therefore remained a major challenge. Against this backdrop, and on the&nbsp / insistence of biodiversity-rich developing countries, an international regime on access and benefit sharing was negotiated and its final text adopted in 2010. This international regime is as&nbsp / contained in the Nagoya Protocol. This research sets out to examine whether the Nagoya Protocol offers a final solution to the protection of traditional knowledge associated with biodiversity in&nbsp / biodiverse countries. It further examines the importance of domestic legislation in achieving the objectives of the Protocol. The research has been tailored to African biodiverse countries, and&nbsp / seeks these answers within the context of Africa.<br /> &nbsp / </p>

The Convention on Biological Diversity, designed in 1992, was intended to protect the conservation and sustainable use of biological diversity and the equitable fair distribution of benefits from the utilization of genetic resources ( English term, "ABS"). The third objective remains not sufficiently cleared and the countries felt the need to legislate on the subject before the eminent importance of the rights arising from the exploitation of genetic resources and traditional knowledge associated with them and the transboundary damage from predatory exploitation. Countries faced with a growing biodiversity degradation in an uncontrolled and a reduction of fauna and flora form. They start question the exploratory use and necessary preservation of sociobiodiversity for future generations based on interculturalism, and the effect of such rights in social harvest, cultural, political and economic. To address such conflicts on the international scene came the Nagoya Protocol, and in Brazil, Law 13.123/ 2015. Both laws walked in the same direction, with flexible access to traditional knowledge and biodiversity, striving for expansion of research and innovation. The literature search was performed using the deductive method, lying on the theme Rights Research Line Sociobiodiversity and Sustainability. The Nagoya Protocol left the national legislation up to each country, bringing minimum dictates. Brazil has not ratified but implemented specific legislation that included the protection of genetic resources and associated traditional knowledge, however, gave way to exploratory mean. / A Convenção sobre Diversidade Biológica, concebida em 1992, destinou-se à proteção da conservação e o uso sustentável da diversidade biológica além da repartição justa equitativa dos benefícios provenientes da utilização dos recursos genéticos (termo em inglês, ABS ). O terceiro objetivo não restou suficientemente aclarado e os países signatários sentiram a necessidade de legislar sobre o tema diante da notória importância dos direitos advindos da exploração dos recursos genéticos e dos conhecimentos tradicionais a eles associados e os danos transfronteiriços decorrentes da exploração predatória. Os países se depararam com uma crescente degradação da biodiversidade, de forma descontrolada e uma redução da fauna e da flora. Passou-se a questionar o uso com viés exploratório e a necessária preservação da sociobiodiversidade para as gerações futuras tendo por base a interculturalidade, e o reflexo de tais direitos na seara social, cultural, política e econômica. Para enfrentar tais embates, no cenário internacional exsurgiu o Protocolo de Nagoia e, no Brasil, a Lei 13.123, de 2015. Ambas as legislações caminharam no mesmo sentido, flexibilizando o acesso aos conhecimentos tradicionais e à biodiversidade, primando pela expansão da pesquisa e da inovação. A presente pesquisa bibliográfica foi feita utilizando-se do método dedutivo, encontrando-se na temática na Linha de Pesquisa de Direitos da Sociobiodiversidade e Sustentabilidade. O Protocolo de Nagoia deixou a regulamentação nacional a cargo de cada país, trazendo ditames mínimos. O Brasil não o ratificou, mas implementou legislação específica que compreendeu a proteção aos recursos genéticos e os conhecimentos tradicionais associados, todavia, cedeu lugar ao viés exploratório.

Magister Legum - LLM / There is a growing interplay of competing realities facing the international community in the general areas of innovation, technological advancement and overall economic development. The highly industrialised wealthy nations, largely located on the Northern hemisphere are on the one hand undoubtedly at the forefront in global research, technology and infrastructure development. The developing and least developed countries on the other hand are mostly situated on the Southern hemisphere. They are not as wealthy or technologically advanced as their Northern counterparts, but are naturally endowed with unique variations of plant, animal and micro-organism species occurring in natural ecosystems, as well as the traditional knowledge on how to use these unique species. This knowledge has been adjudged to be responsible for the sustainable maintenance of the earth biodiversity. Increasing exploitation of biodiversity spurred on by the competing realities identified above, has left the earth in a present state of alarm with respect to the uncontrolled loss of biodiversity. The traditional knowledge of local peoples has significantly offered leads to research institutes from the North in developing major advancements in drugs, cosmetics and agriculture. Little or no compensation has however been seen to go back to the indigenous communities and countries that provide resources, and indicate various possibilities through their traditional knowledge to the use of such resources. Efforts by some biodiversity rich countries to ddress this trend through legislation developed in accordance with the principles of the Convention on Biological Diversity have been frustrated due to the inability to enforce their domestic laws outside their borders. Theft of genetic resources and its associated traditional knowledge from such countries has therefore remained a major challenge. Against this backdrop, and on the insistence of biodiversity-rich developing countries, an international regime on access and benefit sharing was negotiated and its final text adopted in 2010. This international regime is as contained in the Nagoya Protocol. This research sets out to examine whether the Nagoya Protocol offers a final solution to the protection of traditional knowledge associated with biodiversity in biodiverse countries. It further examines the importance of domestic legislation in achieving the objectives of the Protocol. The research has been tailored to African biodiverse countries, and seeks these answers within the context of Africa. / South Africa