Conhecimentos tradicionais sobre recursos genéticos: o princípio da autodeterminação e a justa repartição dos benefícios

Abstract

The cartesian paradigm of knowledge, consolidated by the modern sciences of the 17th century and responsible for marginalizing forms of knowledge that diverged from the dominant European model, has proven inadequate for addressing the complexity of today’s environmental and social phenomena. In response, different scientific fields have started to embrace discourses on the plurality of knowledge systems. Particularly in the environmental sphere, the role of traditional cultures and practices in biodiversity protection has gained prominence. International and national legal instruments—such as the Convention on Biological Diversity, the Nagoya Protocol, Law No. 13.123/2015, and Decree No. 8.772/2016—recognize traditional knowledge as key to biodiversity conservation. Yet, when regulating benefit-sharing from access to traditional knowledge associated with biodiversity, these norms tend to deviate from embracing this plurality, favoring a hegemonic and utilitarian approach. Given this scenario, this Dissertation undertakes a critical examination of these legal frameworks, highlighting their shortcomings in fostering fair conditions for negotiating benefit-sharing agreements with traditional communities. Using the hypothetical-deductive method and extensive literature review, it argues that promoting justice in benefit-sharing depends on strengthening the freedoms and capabilities of traditional communities, drawing on Amartya Sen’s Theory of Justice. This perspective leads to the analysis of the principle of self-determination of people and the function of autonomous community protocols as legal instruments capable of promoting fair and equitable distribution of benefits from traditional knowledge. Ultimately, while respecting existing legal frameworks, the Dissertation proposes interpreting the principle of self-determination beyond mere cultural preservation. It positions self-determination as a central tool for achieving justice in benefit-sharing processes related to access to traditional knowledge associated with biodiversity, ensuring more participatory and equitable outcomes for traditional communities