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Legal and Policy Responses and Challenges for the Korean Government with Regard to the Conservation of Biological Diversity and the Nagoya Protocol

  • Public Land Law Review
  • Abbr : KPLLR
  • 2013, 60(), pp.449-474
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim, Se-Kyu 1

1동아대학교

Accredited

ABSTRACT

Recently, biological diversity has drastically decreased due to the destruction of ecosystem caused by industrial development and environmental degradation. The reduction in biodiversity is irreversible, indicating that we may be losing the pleasant environment on which our life depends. From the perspective of biodiversity conservation and fairness, it is necessary to institute the international frameworks that regulate the utilization and equitable sharing of the genetic resources. For example, there are: the Convention on Biological Diversity(CBD) on the sharing of benefits arising from the genetic resources, adopted in June 1992 and the Nagoya Protocol, the legally binding agreement on the implementation of the Protocol, adopted in October 2010. To elaborate, there are two major frameworks that surround the utilization and benefit sharing of diverse biological resources. Oneis the exclusive rights system based on the intellectual property rights that protect the achievements in the field of biotechnology. Another is yet-to-be-completed system based on the CBD that pursues the conservation of biological diversity as well as the fair and equitable distribution of benefits arising from the use and development of the genetic resources. The latter was made the international norm by 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. Based on the documents and sources from both home and abroad, this article summarizes and offers the understanding of the legal and policy responses as well as the challenges that the Korean government faces with regard to the Nagoya Protocol (also called the ABS Protocol), adopted at The Conference of the Parties of the Tenth Convention on Biological Diversity in 2010, which is internationally binding, especially in terms of the access and benefit-sharing of the use of genetic resources under the proposition of the conservation of biological diversity. Held from October 18 to 29, 2010, the Protocol was dramatically adopted on the last day of the Conference at the Tenth Convention, just before the closing. The Nagoya Protocol had become the second protocol to be adopted at the CBD, following the Cartagena Protocol on Biosafety (adopted January 2000) which binds the countries that produce the resources and the user countries to share the benefits arising from such utilization. For one year from February 2011 to February 2012, the Nagoya Protocol was opened for signing. It will be effective on the ninetieth day after the date of depositing the 50th instrument of ratification to the UN Secretary-General (Nagoya Protocol, Article 32 (Signature) and Article 33 (Entry into Force). South Korea signed on September 20, 2011, and the Protocol is yet to be ratified. As of October 2012, there are 92 signatories to the Protocol. It is estimated that the European Union, made up of 27 member countries, is expected to ratify the Protocol as early as 2014 or as late as 2015. As a significant number of developing countries such as Ethiopia are taking steps toward ratification, the entry into force does not seem to be far in the future. As South Korea is more the user than the provider and is heavily dependent on other countries for the use of the genetic resources, it is necessary to continue discussing the responses to the Protocol when it comes into force. It is worth noting that Korea was selected to host the twelfth meeting in 2014 at the eleventh meeting of the Conference of the Parties to the Convention on Biological Diversity closed in India on October 19, 2012. In the following, the paper introduces the CBD that ultimately aims to conserve biological diversity and examines the legal cases related to the conservation of biological diversity in order to enhance the practicality of the conservation efforts. Furthermore, the article explores the main points, issues, challenges and the meaning of the Aichi Target of the legally binding Nagoya Protocol adopted as part of the realization of the CBD, especially Article 15. By doing so, it is the author’s utmost desire and hope to be of help, as small it would be, in the preparation for the policy and legal responses of the Korean government when the Nagoya Protocol should come into effect.

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