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.

Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2012.

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.