Maritime liens : a critical analysis of the protection that South Africa's bioprospecting legislation affords indigenous communities, in the context of the country's international obligations and with particular regard to implementation changes.
Indigenous communities have developed a wealth of knowledge, which plays a crucial role in providing leads for the use of genetic resources and bioprospecting. However, such knowledge is under increasing threat due to the misappropriation of the biological resources and associated traditional knowledge of indigenous communities, through both bioprospecting, as well as the inappropriate exercise of intellectual property rights. The internationally agreed Convention on Biological Diversity (CBD) attempts to provide a bulwark against biopiracy and although it assists indigenous communities to regain some control, the CBD has proven inadequate in the protection of the traditional knowledge of indigenous communities. The subsequent 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 (Nagoya Protocol) attempts to address some of these limitations but unfortunately has its own shortcomings, as it was largely concluded on the basis of a compromise between developed and developing countries. This dissertation will undertake a critical analysis of the provisions of the CBD and Nagoya Protocol, with a view to establishing the level of protection these instruments afford indigenous communities. It will be shown that notwithstanding the drawbacks of both the CBD and Nagoya Protocol, they nevertheless represent major achievements in the journey to protect the genetic resources and associated traditional knowledge of indigenous communities. It is in this context that this dissertation will analyse South Africa’s Access and Benefit Sharing (ABS) regime in relation to the protection it affords indigenous communities and in the light of the implementation challenges that such legislation presents. A particular focus will be on whether South Africa’s ABS legislation complies with the country’s international obligations relating to the protection of indigenous communities and whether South Africa’s approach to the protection of the genetic resources and associated traditional knowledge of indigenous communities, in the context of bioprospecting, is adequate or whether there exists potential for its enhancement.