Recht und Praxis des Zugangs zu genetischen Ressourcen und des Vorteilsausgleichs, am Beispiel Kenias, Brasiliens und Deutschlands
Zusammenfassung der Projektergebnisse
The Convention on Biological Diversity acknowledges sovereign rights of states over their natural resources including genetic resources. User states are obliged to share the benefits derived from the utilization of genetic resources with states providing them. Thus, provider states and user states are expected to create bilateral exchange relationships. Legal practice on international and national levels has proved that this individualistic approach lacks efficiency: while the scope and content of sovereign rights of provider states over their GR are far-reaching, due to the territoriality principle they are. hampered to control the downstream process of value creation. Attempt to enforce their legal powers effectively causes high transaction costs. User states, on the other hand, could be asked to make leeway. While they are less hindered by the territoriality principle because R&D activities related to GR are largely under their jurisdiction, they also face substantial transaction costs if they use whatever powers they have in order to control the upstream process. Even if the control by provider and user states is improved, questions of distributional justice arise. Many GR have a geographical range shared by regions of states suggesting that benefits should be shared among all states in which the GR Is endemic instead ofthe first provider state taking the entire share. Therefore, both for reasons of effectiveness and justice, common pools of genetic resources were suggested so as to eliminate bureaucratic hurdles and at the same time promote distributional justice. These should not be designed to step out ofthe basic concept of sovereignty of resource states over their genetic resources but rather to understand the concept as enabling voluntary multilateral solutions. A thorough analysis of the proposed approach is aimed to be carried out in a follow-up project.
Projektbezogene Publikationen (Auswahl)
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Dilemas do Acesso ä Biodiversidade e Aos Conhecimentos Tradicionals. Direito, Polftica e Sociedade, Editora Forum, Belo Horizonte, 2009, 329pp. ISBN 978-85-7700-240-5
Sandra Akemi Shimada Kishi/John Bernhard Kleba
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Genetic Resources, Traditional Knowledge and the Law. Solutions for Access and Benefit Sharing, Earthscan, London, 2009, 494pp. ISBN 978-1-84407-793-9
Evanson C. Kamau/Gerd Winter
