Territory, Plants, and Land-Use Rights Among the San of Southern Africa: A Case Study in Regional Biodiversity, Traditional Knowledge, and Intellectual Property

Abstract:     
The San people of southern Africa with their traditional knowledge (TK) of the appetite-suppressant properties of the Hoodia plant have excited the interest of Western drug companies as well as advocates of intellectual property (IP) for indigenous peoples. Previous legal literature reveals an inadequate grasp of the socioeconomic plight of the San, the limitations of the appetite suppressant found in Hoodia, and the tangle of international, regional and national legal rules that govern the ability of the San to profit from their TK. This Article achieves three objectives. First, it situates the San more carefully - linguistically, socioeconomically, and politically - than do other law review articles. It does so by exploring the different situations of the San in Angola, Botswana, Namibia, and South Africa. Second, the Article explains why, from the standpoints of botany and pharmaceutical chemistry, the financial promise of Hoodia for the San is so weak. Third, it identifies the manifold legal impediments to the San people of ever benefiting from Hoodia. Surprisingly, the main culprit is not Western-dominated IP law. Rather, the main culprit is the failure of the four nations to protect the rights of their San populations to land and the use of land by domestic law and regional agreements and by failing to enforce applicable international treaties.

Keywords: Angola, biodiversity, botany, Botswana, Hoodia, indigenous peoples, intellectual property, international law, land use, Namibia, P57, patents, pharmaceutical chemistry, property, public domain, regional agreements, Republic of South Africa, trade secrets, traditional knowledge

Accepted Paper Series