나고야의정서상 접근 및 이익공유(ABS) 체제 이행력 제고 방안 연구

The Nagoya Protocol(hereinafter referred to as the Protocol) adopted in October 2010 is an international document designed to facilitate a transparent access to genetic resources and associated traditional knowledge and to achieve a fair and equitable sharing of benefits arising from the use of genetic resources and associated traditional knowledge. The objective of the Protocol is to contribute to conservation of biodiversity and sustainable use of its components by providing a legal basis for the implementation of Access and Benefit-sharing(ABS) of genetic resources and associated traditional knowledge to users and providers. However, unlike the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which targets specific genetic resources, the Protocol is the first international treaty which applies ABS to comprehensive genetic resources. As a result of compromises through long debates among countries with different interests, there are still many deficiencies in the Protocol itself as well as in its interpretation and application. In addition, as the adoption of the Convention on Biological Diversity(CBD) reaffirms the state’s sovereign rights over biological resources and the subject of ABS implementation is expanded to non-state actors such as indigenous peoples and local communities(IPLC) and individuals, implementation of ABS based on bilateral contracts faces realistic limitations and challenges. Furthermore, considering that benefit-sharing of ABS is in conflict with the exclusive profit under existing intellectual property rights system, there is a need to overcome limitations of the implementation of ABS mechanism of the Protocol. To enhance ABS implementation of the Protocol, consideration should be given to the specificity of genetic resources and associated traditional knowledge and appropriate measures need to be introduced at the national and international levels, with the aim of addressing the limitations faced by ABS implementation of the Protocol. In addition to various alternative approaches proposed in this paper, to improve ABS implementation of the Protocol, it is necessary to elaborate the main provisions of the Protocol and to deal with the ambiguities and uncertainties inherent in the Protocol. It is also essential for users and the providers to make joint efforts with mutual respects as well as for concerned parties to have political will for fulfillment of their obligations. ABS of the Protocol shall be implemented in conformity with the objectives of the Protocol and ABS regime should be put in place to ensure that distributive justice is achieved and appropriate balance between rights and obligations of relevant subjects is struck through facilitated access and fair and equitable sharing of benefits. This is not only meaningful for ABS implementation of the Protocol, but can also serve as an incentive to prevent biodiversity loss, making valuable contribution to achieving the ultimate goal of conservation and sustainable use of biodiversity.