Protection of Traditional Knowledge and Origin Products in Developing Countries: Matching Human Rights and IP Protection with Business Development Opportunities

This paper is focused on the links between the protection of Traditional Knowledge (TK), including origin products, and local economic development in developing countries. The analytical framework for the paper is based on Amartya Sen‟s elaboration of “development as freedom” in which development is seen as a fundamental human rights issue encompassing protective security, the provision of economic facilities, political freedoms, social opportunities and transparency guarantees (Sen, 1999). Context is provided by criticism of the behavior of multinational companies (MNCs) in developing countries, including allegations of bio-piracy, unfair labor practices and misappropriation of TK and Genetic Resources (GR) from their owners in combination with the growing importance of Corporate Social Responsibility as a business imperative for MNCs as well as civil society activism for human rights in north-south economic relations. Furthermore, owners and holders of TK and GR frequently also have to contend with anti-democratic practices and exploitation by their own governments and local elites thereby underlining the importance of international economic law (IEL). The paper assesses the current situation regarding the protection of TK in IEL, particularly regarding promising initiatives requiring compulsory benefit sharing and prior consultation, with specific reference to case studies of products from developing countries; notably, these products have become integrated into global value chains (which also include MNCs as lead actors). Two particularly relevant cases: argane oil from Morocco and rooibos from South Africa are discussed in relation to Sen‟s „development as freedom‟ framework. These contrasting experiences lead to conclusions being made on the need to strengthen international, regional and national protective legal systems and political freedoms while at the same time providing an appropriate level of development support in the establishment of „economic facilities‟, „transparency guarantees‟ and „social opportunities‟ in Sen‟s terms, including value chain upgrading and well-designed technical assistance.