나고야의정서의 협상과정 및 핵심쟁점에 관한 연구

Abstract

Just after midnight on 30 October 2010, the tenth Conference of Parties of Convention on Biological Diversity(CBD) adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, while the actual negotiation for this Protocol had been performed by the ninth meeting of the Ad-hoc Open-ended Working Group on Access(ABS) and Benefit-sharing of the Convention on Biological Diversity(CBD). The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components. However, this Protocol concerns many thorny issues as follows: scope of application(including temporal issues); relationship with international agreements and instruments; modalities of sharing the benefits arising from the utilization of genetic resources in a fair and equitable way; rules and procedures on accessing genetic resources; special considerations to emergency situations; recognition of traditional knowledge associated with genetic resources; functions of national focal points and competent national authorities; clearing-house mechanism; purview of the Parties regarding compliance with domestic legislation or regulatory requirements on access and benefit-sharing; monitoring the utilization of genetic resources; mandatory establishment of, scope of, functions of checkpoints; compliance with mutually agreed terms, etc. Despite the ABS Working Group's failure to reach a successful compromise, the President of the tenth COP serving as minister, Ministry of Environment, Japan enabled the birth of Nagoya Protocol with its proposal to establish the Global Multilateral Benefit-Sharing Mechanism to which Japan pledged to contribute two billion dollars(USD). However, this Protocol is far from legal certainty, clarity, and transparency, because COP President deleted or neutralized so many outstanding issues. This is the reason why this Protocol is called "a masterpiece in creative ambiguity" which is supposed to fatten the lawyers' pockets.