유전자원 접근 및 이익공유에 관한 나고야 의정서의 주요 과제에 대한 법적 분석
Legal Analysis of Main Issues and Challenges of the Nagoya Protocol
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Aiming to achieve effective implementation of the existing access and benefit-sharing (ABS) system established by the CBD, the Nagoya Protocol develops more intensive obligations on user countries of genetic resources (GRs). While it seeks ways to balance the ABS system between providers and users of GRs, to be effective, critics argue that it still faces challenges: vague terms or a lack of definitions; the insufficiency of the binding effects of obligations on user countries because of weak terms in related provisions; and the immature ABS system. In order to enhance the ABS operation mechanisms of the Protocol, some urgent issues were dealt with at the first Conference of the Parties serving as the Meeting of the Parties to the Protocol (COP/MOP1); however, there are still intrinsic issues to be handled. This paper analyzes four fundamental problems that the Protocol has to overcome, and suggests the following: the mutually agreed terms (MAT) as a contractual mechanism must function properly by taking appropriate and effective domestic measures and by establishing model contractual clauses by both provider and user countries of GRs; the ABS regimes from different forums should be cooperative and be consolidated to avoid fragmentation; user countries should develop and implement domestic measures that coordinate with measures of provider countries in order to establish an environment which is favorable for effective function of MATs at and after the time of utilization of GRs while providing incentives for users of GRs to voluntarily share benefits arising from genetic resource utilization; and the special considerations specified in Article 8 of the Protocol must be recognized as exceptions to ordinary ABS operation to facilitate expeditious ABS for present or imminent emergency cases.
Abstract
Aiming to achieve effective implementation of the existing access and benefit-sharing (ABS) system established by the CBD, the Nagoya Protocol develops more intensive obligations on user countries of genetic resources (GRs). While it seeks ways to balance the ABS system between providers and users of GRs, to be effective, critics argue that it still faces challenges: vague terms or a lack of definitions; the insufficiency of the binding effects of obligations on user countries because of weak terms in related provisions; and the immature ABS system. In order to enhance the ABS operation mechanisms of the Protocol, some urgent issues were dealt with at the first Conference of the Parties serving as the Meeting of the Parties to the Protocol (COP/MOP1); however, there are still intrinsic issues to be handled. This paper analyzes four fundamental problems that the Protocol has to overcome, and suggests the following: the mutually agreed terms (MAT) as a contractual mechanism must function properly by taking appropriate and effective domestic measures and by establishing model contractual clauses by both provider and user countries of GRs; the ABS regimes from different forums should be cooperative and be consolidated to avoid fragmentation; user countries should develop and implement domestic measures that coordinate with measures of provider countries in order to establish an environment which is favorable for effective function of MATs at and after the time of utilization of GRs while providing incentives for users of GRs to voluntarily share benefits arising from genetic resource utilization; and the special considerations specified in Article 8 of the Protocol must be recognized as exceptions to ordinary ABS operation to facilitate expeditious ABS for present or imminent emergency cases.
참고문헌 (17)
- 환경부, "생물유전자원 접근 및 이익공유에 관한 나고야의정서: 주요내용 설명자료" (2011)
- Greiber, Thomas, "An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing", IUCN (2012)
- Hodgson, Stephen, "Towards a Possible International Agreement on Marine Biodiversity in Areas Beyond National Jurisdiction" (2014), European Parliament
- Rhode, Catherine, "Governance of Genetic Resources : A Guide to Navigating the Complex Global Landscape" (2013), Edward Elgar Publishing
- 박원석, "나고야의정서의 협상과정 및 핵심쟁점에 관한 연구", 중앙법학, 13(4), pp.585~640 (2011), 중앙법학회
- The Australian ABS Framework : A Model Case for Bioprospecting?, "Christian, Prip", FNI, ~ (2014)
- Halewood, Michael, "Implementing ‘Mutually Supportive’ Access and Benefit Sharing Mechanisms Under the Plant Treaty, Convention on Biological Diversity, and Nagoya Protocol", Law, Environment and Development Journal (2013)
- Richerzhagen, Carmen, "the Nagoya Protocol : Fragmentation or Con-solidation?", Resources, 3(1) (2014)
- Robinson, Daniel, "Nagoya Protocol in the spotlight with CBD meet ahead", Bridging the gaps in biodiversity conservation and use, 8(8) (2014), ICTSD
- Tvedt, Morten Walløe, "Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol" (2014), Routledge
- Tvedt, Morten Walløe, "Into ABS implementation : Challenges and opportunities for the Nagoya Protocol", Bridging the gaps in biodiversity conservation and use, 8(8) (2014), ICTSD
- Wilke, Marie, "The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective - Implications for International Law and Implemen- tation Challenges" (2013), Martinus Nijhoff Publishers
- Young, Tomme Rosanne, "The 2010 Nagoya Protocol on Access and Benefit- sharing in Perspective - Implications for International Law and Implementation Challenges" (2013), Martinus Nijhoff Publisher
- CBD, "Cancún Declaration of Like-Minded Megadiverse Countries", UNEP, COP, pp.6, INF[DOI]
- CBD, "Study on the relationship between an international regime on access and benefit-sharing and other international instruments and forums that govern the use of genetic resources, The Antarctic Treaty System (ATS) and the United Nations Convention on the Law of the Sea (UNCLOS)", UNEP, WG-ABS, pp.7, INF[DOI]
- FAO, "Draft elements to facilitate domestic implementation of access and benefit-sharing for different subsectors of genetic resources for food and agriculture in Item 2.3 of the Provisional Agenda on its fifteenth regular session", CGRFA-15, 5, pp.2015, ~
- UNCLOS, "Outcome of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond national jurisdiction in Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A", 69, pp.2015, ~