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

By Munzer, Stephen R.; Simon, Phyllis Chen | The William and Mary Bill of Rights Journal, March 2009 | Go to article overview
Save to active project

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


Munzer, Stephen R., Simon, Phyllis Chen, The William and Mary Bill of Rights Journal


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?