Abstract

PENA NEIRA, Sergio. Interpretation and Application of International Legal Obligation in a National Legal System: Taking Seriously Benefit Sharing from the Utilization of Genetic Resources in India. Anu. Mex. Der. Inter [online]. 2017, vol.17, pp.651-695. ISSN 1870-4654.

In taking seriously the interpretation and application of international obligations on sharing of benefits equitably on genetic resources, India has decided for a law, rules and guidelines to define equitableness as well as a “case by case” assessment. In doing so, lessons from various cases in which (un)successfully benefits have been shared as well as the rule of application of Article 15.7 of the Convention on Biological Diversity (rules should be enacted as well as policies and “other measures”) were considered in a national Act on this subject. The process of law creation as a consequence of incorporation, therefore, is a dual process: interpretation (of a general international legal rule to determine specifically the national requirements to fulfil vague terms used in the rule) and, at the same time, application of these international rules (by enacting national legal rules defining the objects of legal regulation established by the treaty). Interpretation and application of article 15.7 in India has been defined ruling beyond obligation establishing legal objects and subjects, equitableness, fairness of sharing benefits and standards for a final amount, basically, detailing legal requirements and defining “equity” and “justice” as distribution, synallagma and procedure.

Keywords : Equity and Justice; benefits sharing; genetic resources; India; interpretation and application.

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