Notions of justice and the protection of traditional knowledge under international instruments

Debates about traditional knowledge and its associated genetic resources, protection, use, access and ownership implicitly involve competing underlying notions of justice whether or not these are consciously reflected in arguments. Although accusations of injustice and unfairness are rife in the debates, none of the key stakeholders – indigenous peoples, scientists, companies or governments, admit their perspectives or actions are unjust. In fact multinational business organizations, which are often the target of much of the accusation, generally defend their actions as being morally proper and fair. Following on from the above, this study examines the theories of justice that are embodied in key international instruments that address issues surrounding the protection of traditional knowledge and its associated genetic resources and what notions of justice are prevalent or expressed in these international instruments. The study further reviews some international negotiation processes with the aim of deducing the dominant theories of justice in the regimes that underpin the protection of traditional knowledge and its genetic resources. This study reveals that indigenous communal holders of traditional knowledge and its associated genetic resources are more inclined to the communitarian concept of justice. This study is timely because traditional knowledge holders frequently express concerns that the relevant international laws and policies are unjust from their perspective. If theories of justice do shape negotiations and the ensuing legal texts, and if these concerns are valid, it follows that the way these talks and texts treat notions of justice is problematic. On the whole, the study reveals that international instruments addressing the protection of traditional knowledge and its associated genetic resources are more inclined to justice as property rights and justice as mutual advantage based on self-interested reciprocity which advocates the liberty of the individual and negates the ideology of the welfare of the community. This thesis argues that indigenous peoples, communities and developing countries (poor south) are more inclined to theories of justice that support community resource management, egalitarian and communitarian conceptions. The study demonstrates that although steps have been taken and are being taken in some regimes to draw a fair balance between providers and users of traditional knowledge and genetic resources, the prevailing international agreements relevant to traditional knowledge protection are often formulated without rigorous consideration of justice.