After 50 years of emphasis on synthetic chemistry, the worlds pharmaceutical leaders have embarked on a return to nature, utilizing the traditional medicinal knowledge of many indigenous peoples to create new drugs. This paper seeks to provide clarity to the bioprospecting vs. biopiracy debate, by determining whether these indigenous peoples have a right under international law to their traditional knowledge, focusing specifically on their knowledge in medicinal systems. Opponents of recognition of this right argue (1) that there is no economically justifiable reason to recognize this right and (2) that the Convention on Biological Diversity (CBD) grants exclusive dominion over this knowledge to the states and not indigenous people. However, this paper counters these arguments, looking principally to international instruments, particularly the U.N. Charter, U.N. Declaration of Human Rights, and the International Covenant on Economic, Social, and Cultural Rights.
This paper posits three arguments whereby international law recognizes the right of indigenous people to traditional knowledge in medicinal systems. First, the right is guaranteed by treaties, most specifically article 8(j) of the CBD, which tacitly recognizes the right of indigenous peoples to control over natural resources that form the basis of their traditional knowledge. Secondly, principles of equity, recognized in international law, favour the recognition of this right. Finally, indigenous peoples enjoy a right to traditional knowledge, developed of time, contained in those practices, rituals and customs that are intimately associated with their cultural identity as a human right. The U.N. Human Rights treaties provide enjoyment of both cultural and self-determination as a human rights. Since indigenous peoples have a unique relationship with their local environment, from which their culture is derived, expression of indigenous peoples human right to culture and self-determination must take the form of a right to traditional knowledge in their medicinal systems.