Benefit sharing in accordance with the Convention on Biological Diversity

Abstract

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 and/or 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.