Contested Ownership: TRIPs, CBD, and Implications for Southern African Biodiversity

Abstract

AbstractThe increasing importance of biodiversity sparked by the emergence of modern biotechnology has ignited tensions between transnational corporations and indigenous communities. Conflicting international instruments governing access to and control over biodiversity exacerbate disputes over control of local bioresources and knowledge. While there is some overlap between the Trade-Related Intellectual Property Rights (TRIPs) Agreement and the Convention on Biological Diversity (CBD), the agreements provide conflicting policy prescriptions regarding trade in biodiversity. The tension derives from the fundamentally different ontologies on which the agreements are based. In Southern Africa, governments are attempting to reconcile the agreements through national frameworks based on the OAU/AU Model Legislation. The success of such efforts will depend on the ability of the state to guarantee the rights of indigenous communities to control local biodiversity and the participation of such communities in the development of national legislation. In the end, such efforts depend on the rearticulation of the relationship between public and private spheres.