Agriculture, modern biotechnology and the law: An examination of the property paradigm in the context of plant genetic resources

Collier, Debbie

Agriculture, modern biotechnology and the law: An examination of the property paradigm in the context of plant genetic resources

Doctoral Thesis

2010

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Commercial interest and technological advancements (such as modern biotechnology) in plant research have led to the affirmation of sovereign and proprietary rights over plant genetic resources (PGRs). The result is an increasingly complex national regulatory system for rights in PGRs, shaped by a dense web of international law instruments regulating trade, intellectual property, food and agriculture, environmental, and human rights law. The narrative of the international trade and intellectual property instruments, buttressed by the liberal rhetoric of property, is one of long-term, sustainable, economic and social development, although the strength of this argument is increasingly challenged. This thesis adds to the body of critical literature by exploring the socio-economic impact of the current regulatory regime on a vulnerable farming community growing genetically modified cotton in KwaZulu Natal, South Africa. The thesis questions whether greater limitations on proprietary rights in modern biotechnology would improve matters. The outcome of the study (completed in 2009) of these vulnerable cotton farmers implicates the IP-protected technology in the destruction of many livelihoods and in the stifling of technology transfer to aid local innovation. The thesis acknowledges the negative role played by other external factors, such as low rain fall, but suggests that some seemingly external factors, such as poor agricultural policy, and falling world prices for cotton, are consequences of the prevailing regime. The thesis proposes that this regime overly prioritises private rights at too high a social cost. In order to rein in these rights the thesis argues, through the lens of the South African Constitution, for law and policy reform. On a theoretical level, the property concept, including the notion of excludability, the idea of common and public property, sovereign rights, and the public trust doctrine are explored as mechanisms within the property paradigm to aid the case for limiting proprietary rights.

Keywords

Public Law

Reference:

Collections

PhD / Doctoral

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