생물유전자원 보호에 관한 국제법적 고찰

Abstract

Biological genetic resources are part of our ecosystem and cannot be separated from the environment in which we live. Therefore, international law should regulate the protection of various biological genetic resources, which extend beyond national boundaries, using a simultaneous approach regarding environment and property through international cooperation. As biological genetic resources may be considered as tangible or intangible property subject to protection, the concerns of interested parties in international commerce are increasingly focused on biological genetic resources, which have incalculable value. In particular, the protection of intellectual property in biological genetic resources is fast becoming one of the major issues in international commerce, in correspondence with global trends of strengthening intellectual property rights. There has in the past existed uncompromising and conflicting interests regarding access to genetic resources, benefit-sharing, and the protection of intellectual property rights among interested nations. Such conflict derives from the disparity in economic and technological capacity between developed countries and developing countries, or between resource-rich countries and resource-poor countries. This article focuses on a comparative analysis of the Convention on Biological Diversity ("CBD") and the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS" Agreement) to find solutions for the protection of biological genetic resources. In addition, this article explores the harmonization of international environmental law and international intellectual property law, which have different legislative goals. Lastly, this article analyses access to genetic resources, benefit- sharing, and the protection of intellectual property rights, which are key issues in the protection of biological genetic resources. A critical prerequisite to finding an internationally viable solution is to harmonize international environmental law with international intellectual property law in the lawmaking and implementation stages, in order to ensure their efficacy. Furthermore, in order to coexist in harmony, the international community should moderate extreme national interests prevalent in international commerce, and pursue balance in the protection of the environment and property rights in biological genetic resources. In particular, both domestic and global solutions are needed in order to realize mutually balanced access to genetic resources, benefit-sharing, and the protection of intellectual property rights. This is important to ensure the protection of biological genetic resources through simultaneous efforts at the law and policy levels.