유전자원에 대한 접근 및 이익 공유체제와 다른 국제 규범의 관계

초록

The objective of the Nagoya Protocol is the fair and equitable sharing of the benefit arising from the utilization of genetic resources, thereby contribution to the conservation of biological diversity and the sustainable use of its components. The Nagoya Protocol was adopted to resolve the conflict between provider countries(mostly developing countries) and user countries (mostly developed countries). The solution is for the provider countries and user countries to share the benefit of utilization of genetic resources. Developed countries want to turn genetic resources into property by applying minimal patent standards under the Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPs). On the other hand, a handful of developing countries that possess the genetic resources want to emphasize their sovereign rights. Such discrepancy blocks the optimum use and preservation of genetic resources. Thus, we can only reach the goal of fair and equitable sharing of the benefit of genetic resources by compromising the two different views. In this respect, the Nagoya Protocol is realistic and valid as it has established access to genetic resources and equitable benefit sharing(ABS) which means the blockage of existing practices that let others take advantage of the resources without paying the price. However, ambiguity still exists in this system and some critics have also found some parts of the Nagoya Protocol overlapping with other agreements such as the International Treaty on Plant Genetic Resources for Food and Agriculture(ITPGRFA), TRIPs, and the United Nations Convention on the Law of the Sea(UNCLOS). This problem does not sole belong to the Nagoya Protocol. Other relevant international agreements also bear the problem of ambiguity. As a result, there is less predictability, and confusion arises whenever we attempt to apply the agreements. This means the system of the protocol is not functioning efficiently and that it is hard to create synergy. In order to solve this problem, the Nagoya Protocol suggests the concept of “mutual supportiveness” among international agreements and instruments. However, this idea is very ambiguous. Since the property rights is generally considered more important, it is hard to think that the protocol could be “supportive” to any other norms emphasizing the property rights. The concept of “supportiveness” is an ideal goal which does not work effectively in the real world. The right solution then is to strengthen this supportiveness. This means to make synergy by realizing each agreements’ purposes without invading another's rights and obligations and also without creating hierarchy among the agreements. One suggestion is to unify the different views on whether to grant patents on living organisms and to demand the disclosure of sources. Another suggestion is to clearly provide whether the derivatives are also subject to the protocol's application. Other suggestions include creating a multilateral system for trans-boundary situations or areas beyond national jurisdiction, and finally considering marine genetic resources.

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