Sharing the Benefits of Using Traditionally Cultured Genetic Resources Fairly

The sharing of benefits from the use of genetic resources between the traditional users and cultivators of such resources and those that wish to use them for commercial or research purposes is a major issue under the Convention on Biological Diversity (CBD). The debate has a clear North-South dimension as most institutions interested in using genetic resources are based in the developed countries, whereas the biodiversity hotspots are mostly located in the global South where biodiversity has been cultivated and preserved by indigenous and small farmers’ communities. In this book chapter, Christiane Gerstetter of Ecologic Legal develops recommendations for provider countries on how to implement the CBD requirement that benefits should be shared fairly and equitably.

Christiane Gerstetter starts by discussing the advantages of a public law approach, i.e. provider states developing administrative rules on how an agreement on access and benefit-sharing (ABS) should look like, versus a private law approach, i.e. granting the traditional providers of genetic resources, non-traditional intellectual property rights over genetic resources. She then focuses on a public law approach and discusses what the term "fair and equitable", contained in the CBD, means from a procedural and substantive point of view. Concludingly, she points out several concrete elements that provider countries could integrate into their ABS legislation for ensuring that ABS agreements live up to standards of fairness and equity.

Besides the contribution by Christiane Gerstetter, the book "Genetic Resources, Traditional Knowledge and the Law - Solutions for Access and Benefit Sharing" edited by Gerd Winter and Evanson Chege Kamau, contains 22 chapters by contributors from a wide range of countries, discussing theoretical perspectives on ABS, traditional knowledge, recent developments at the national level, core problems of provider country measures and user countries’ measures.