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

Article excerpt

INTRODUCTION ................................................. 832

I. THE SAN: WHO THEY ARE, WHERE THEY LIVE .................... 836

II. THE SAN PREDICAMENT ....................................... 848

III. HOODIA PLANTS: BOTANY, PHARMACEUTICAL CHEMISTRY, AND HERBAL USES ...................................................... 851

A. Botany ................................................. 852

B. Pharmaceutical Chemistry ................................. 853

C. Herbal Medicine and Homeopathic Remedies .................. 856

IV. TERRITORY AND LAND-USE RIGHTS ............................. 861

A. Rights of Possession and Use ............................... 863

B. Rights of Cultivation ...................................... 875

C. Effect of International Law on Rights to Grow and Harvest ........ 880

V. LAND USE, TRADITIONAL KNOWLEDGE, AND INTELLECTUAL PROPERTY . 883

CONCLUSION .................................................. 891

INTRODUCTION

At present we see a great deal of writing by legal and other scholars on intellectual property (IP) rights in the traditional knowledge (TK)of indigenous peoples. The many articles and books on the subject are notable for their diverse approaches. Among them are legal analyses, philosophical discussions, historical, sociological and economic treatments, studies in political ideology and feminism and critical-race theory, and reports of field work.1 We believe that a good many of these approaches hold considerable intellectual and practical promise. It is no part of our study to claim that it merits pride of place over all other types of inquiry.

We approach one highly noteworthy case of TK from the standpoint of domestic and international law. The case involves the TK of some of the San people of southern Africa relating to medicinal uses of the Ho odia plant. These San use the plant for many different ailments; we concentrate on its use as an appetite-suppressant and hence as a possible anti-obesity drug or herbal remedy. We argue that many factors make the financial rewards to the San of such a drug or remedy far less promising than might at first appear. Some of these factors, such as the dispossession of the San and their low socioeconomic status in the various countries of southern Africa, are not specifically legal but are vital to understanding the San predicament. Other factors, such as domestic law pertaining to land use as well as domestic and international patent law, are squarely legal. We write as legal observers and analysts of a complicated phenomenon. We try to be as even-handed as possible. We are neither activists for TK as a sui generis form of IP nor defenders of the status quo who are indifferent to the plight of the San. We do not share the opinions of either those who think that Hoodia is extraordinarily valuable or those who dismiss all talk of biopiracy.2

This Article began as a contribution by one of us to a conference honoring the work of Professor Margaret Jane Radin. A salient feature of her many articles is the range of her discussions of property - from land to servitudes to personal property and finally IP. This Article pays homage to this feature of her work by linking territory, land use, regional biodiversity, and JJP rights in the case of an indigenous people. We take note that our work appears in ajournai devoted to constitutional law, and specifically to the Bill of Rights in the United States. The four African nations - Angola, Botswana, Namibia, and the Republic of South Africa - that are central to our inquiry all have constitutions that shelter property rights in assorted ways.3 Because protecting property rights often helps to protect the liberty of property owners, we pay special attention to ways in which the liberty of action of the San people has been affected by a failure to protect property rights that they do or should have. …