The Convention on Biological Diversity (CBD) significantly enhanced the
scope and potential effectiveness of the international legal regime for the
conservation of biological diversity world wide together with the sustainable
use of its components. It goes beyond the conservation of biological
conservation per se and comprehends such diverse issues as sustainable use
of biological resources, access to genetic resources, the sharing of benefits
derived from the use of genetic material and technology, including
biotechnology.
The CBD has three objectives, which are the conservation of biological
diversity, secondly the sustainable use of its components and thirdly the fair
and equitable sharing of benefits arising out of the utilisation of genetic
resources. The third objective includes the sharing of benefits by means of
appropriate access to genetic resources and by appropriate transfer of
relevant technologies, taking into account all rights over such resources and
technologies as well as appropriate funding. As part of the process of
achieving these goals, the CBD establishes a new international framework for
access to genetic resources and the sharing of benefits from their use.
In addition to its conservation measures, the CBD is also an economic treaty
in the sense that it develops and regulates the ongoing exchange of genetic
resources and, in particular, the emerging trade in biotechnology. During the
negotiations of the CBD the concept of the trade in biotechnology dominated
much of the discussions surrounding the Convention. This was the cause of
deep differences between the technologically rich north and the biodiversity
rich south.
It was and still is apparent that developed countries, or corporate companies
in these countries, exploit natural recourses only found in developing
countries, without sharing the resulting proceeds. It is shown that uneven
distribution of natural, technological and economic resources occur in
relationships between the northern hemisphere and its southern counterpart.
It is a well-known fact that the northern hemisphere is financially and
technologically superior to its southern counterpart.
Intellectual property rights ("IPR"), with specific reference to patent law,
enables developed countries andlor companies in those countries to exploit
this economic discrepancy. Developed countries accordingly acquire
biological recourses and exploit them with resulting benefits thereby
circumventing the sharing of such benefits through IPR systems. Benefits are
thereby withheld from developing countries that provide such genetic
recourses. The author will mainly focus on the question that arises as to how
the CBD addresses benefit sharing in the light of the differences between the
northern developed- and southern developing countries.
South Africa will be studied as an example of a developing country that
incorporated the provisions of the CBD in its national legislation as it
promulgated the National Environmental Management: Biodiversity Act (BDA),
which embodies the guidelines and principles for bioprospecting and benefit
sharing, captured in the CBD and the Cartagena Protocol. The provisions
contained in the BDA will be used as a practical example of the application of
the CBD in the municipal law of developing countries. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2007.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/149 |
| Date | January 2006 |
| Creators | Steenkamp, Philip |
| Publisher | North-West University |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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