International law, plant biodiversity and the protection of indigenous knowledge: An examination of intellectual property rights in relation to traditional medicine.

摘要

This thesis explores the attempts by international law to recognize and protect the knowledge of indigenous and local communities. In conducting this inquiry, the thesis focuses on traditional medicine and the central role played by plant biodiversity in this aspect of local knowledge. It observes that the ongoing debate over the protection of indigenous knowledge is dominated by the question of suitability or otherwise of mainstream intellectual property rights to indigenous knowledge. It argues that despite major efforts to reconcile the Western concept of intellectual property rights with indigenous knowledge forms, such attempts have undermined the epistemic schism at the root of indigenous and non-indigenous knowledge systems.; Intellectual property rights, particularly the patent regime, are designed to legitimize or validate a Western scientific approach to phenomena. Indeed, the patent process does not recognize the socio-cultural character of science. Seeking to protect indigenous knowledge by means of mainstream intellectual property rights, even in their suggested sui generis forms without accommodating the idea of epistemic pluralism may be counterproductive to the goal of protecting indigenous knowledge. In the context of traditional medicine, intellectual property privileges Western biomedicine because of the former's appeal to a narrow view of science. Consequently, the psychosocial foundation of traditional therapeutic culture is not accounted for by mainstream intellectual property. In traditional medicine, the therapeutic and the pharmaceutical are fused within an indigenous holistic worldview. However, Western biomedicine does not recognize such a fusion. Rather its fragmentary or organismic approach both in theory and practice is one that readily fits within the mould recognized by the dominant concept of intellectual property.; To protect indigenous knowledge, particularly traditional medicine and consequently advance the movement toward medical pluralism, this thesis makes a case for a cross-cultural approach to intellectual property rights. Modalities for the protection of knowledge that recognize the importance of cultural integrity and the contexts in which knowledge systems are generated have become an imperative. Perhaps the most appealing starting point for this approach is the prevailing customary norms and knowledge protection protocols within indigenous communities.; Knowledge protective mechanisms do not necessarily have to imitate mainstream intellectual property rights. A cross-cultural approach to the protection of knowledge, unlike the mainstream intellectual property rights framework, is an inclusive and not an exclusive enterprise. Such an approach endorses the notion that intellectual property could advance a balanced as opposed to a narrow cultural vision. The cross-cultural approach advanced in this thesis is a framework concept to be championed primarily by national governments at the base community levels. It is proposed as a viable direction for the ongoing international efforts aimed at developing an appropriate protective mechanism for indigenous knowledge, a mechanism that does not compromise indigenous cultural integrity and the inherent benefits of epistemic pluralism.