유전자원 접근 및 이익공유에 관한 나고야 의정서의 주요 과제에 대한 법적 분석

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.