Sharing Traditional Knowledge: Who benefits? Cases from India, Nigeria, Mexico and South Africa - Benefit Sharing - page 64

4.1 Introduction
Benefit sharing is a relatively new area in international law, given that the
Convention on Biological Diversity (CBD) was only adopted in 1992. It is essen-
tial to consider the earliest, most important cases of benefit sharing in order to pro-
vide examples of good practice and identify common concerns.
The best-researched and best-documented cases to date focus on benefit shar-
ing for access to traditional knowledge. This chapter therefore begins with a
short reminder of indigenous peoples' rights in this context before proceeding to
outline four paradigm cases: the Kani case (India), the Niprisan case (Nigeria),
the International Cooperative Biodiversity Group case (Mexico) and finally the
Hoodia case (southern Africa). Viewing these cases through the lens of CBD legal
requirements for access and benefit sharing reveals a range of emerging policy
challenges, which will be outlined.
We shall summarize concerns and examples of best practice emerging from the
above cases, in preparation for the subsequent chapters, in which we suggest ways
forward for benefit sharing involving human biological samples.
4.2 Traditional Knowledge and Benefit Sharing
It is uncontroversial to assert that the right of property forms an accepted part of
international law. Most property rights depend for their enforceability on the status
and reach of prevailing international law, as well as the local or domestic laws of
the holders of such rights. However, until the late twentieth century, the develop-
ment of international law and practice effectively excluded the previously silent
constituency known as 'indigenous peoples'. Since the early 1970s the profile of
the indigenous peoples' movement has risen as an increasingly vocal constituency
serious about articulating and protecting their distinct rights inter alia to culture
and intellectual property (Hodgson 2002 : 1040). 1 In the subsequent three decades
particular rights of indigenous peoples have emerged and crystallized. 2
The cosmology largely shared by indigenous peoples clashes squarely with that
of the dominant Western states across a number of fracture lines. At the heart of
1 According to Berlin and Berlin ( 2004 : 482), 'The Barbados Conference of 1971 was crucial
to the increased concerns of the international community on the nature of indigenous peoples'
problems.'
2 Before the long-awaited UN Declaration on the Rights of Indigenous Peoples was adopted on
13 September 2007, the only substantive international law on the distinctive rights of indigenous
peoples was the International Labour Organization Convention 169 of 1989, Article 15 of which
requires signatory states to safeguard indigenous peoples' rights to natural resources, while
Article 13(1) requires states to respect the 'collective' aspects of indigenous peoples' relationship
to their lands. As discussed in Chap. 3 , the Nagoya Protocol to the CBD makes specific reference
to the UN Declaration on the Rights of Indigenous Peoples.