나고야의정서상 유전자원 이용 관련 공정하고 형평한 이익배분에 관한 연구

A Study of the Fair and Equitable Sharing of Benefits Arising from Utilization of Genetic Resources under the Nagoya Protocol

Adopted in 2010, the Nagoya Protocol on Access and Benefit-Sharing was developed from the principles of permanent sovereignty over natural resources and the search for sustainable development. In order to prevent “biopiracy” from former colonizing countries, the Nagoya Protocol establishes a bilateral benefit-sharing system between provider country and user of genetic resources. Furthermore, to contribute to the “conservation of biological diversity and sustainable use of its components,” and economic development, the Nagoya Protocol provides legal and institutional settings to achieve economic and environmental sustainability through the distribution of benefits to stewards of the ecosystem. However, the Nagoya Protocol has faced several challenges in the adoption of the bilateral benefit-sharing system. The effectiveness of the bilateral benefit-sharing system depends highly on national legislative measures to implement the Nagoya Protocol in both the provider and the user countries. This study finds that many national legislative measures on access and benefit-sharing (ABS) in both provider and user countries are often complicated, complex, inadequate and/or ineffective. This leads to inefficiencies in accessing and utilizing genetic resources for users. Inefficient legislative measures reduce potential shared benefit and affects the “conservation of biodiversity and sustainable use of its components” in a negative way. A bilateral approach to benefit-sharing appears to be a fundamental issue to address. The role of biotechnology, and specifically Digital Sequence Information on Genetic Resources (DSI), in the “conservation of biodiversity and sustainable use of its components” is an important factor to consider. Generation of DSI starts from the extraction of particular molecules of organisms and ecosystems that are able to be genetically sequenced, so it can be argued that generating DSI, and use of DSI, fall under the definition of “utilization of genetic resources” in Article 2(c) and “subsequent use and commercialization” in Article 5 of the Nagoya Protocol, respectively. Although DSI can be covered under the Nagoya Protocol, it is difficult to manage ABS on DSI under the bilateral benefit-sharing system of the Nagoya Protocol: considering the usage of DSI in practice, it is difficult, if not impossible, to obtain Prior Informed Consent (PIC) and/or establish Mutually Agreed Terms (MAT). In this regard, this study argues that establishment of the Global Multilateral Benefit-Sharing Mechanism (GMBSM) foreseen in Article 10 of the Nagoya Protocol should be taken into serious consideration. Through examination of examples and cases, this study argues that there are specific situations that justify the establishment of the GMBSM. It also attempts to provide a framework for possible modalities of the GMBSM that would not undermine the bilateral approach upon which the Convention on Biological Diversity and the Nagoya Protocol are founded.