| Global Multilateral Benefit-Sharing Mechanism (GMBSM) is an important issue in the negotiations of access and benefit-sharing of genetic resources. The consultation in regard with, need for, and modalities of GMBSM were initiated after the adoption of the Nagoya Protocol. This paper reviews the development and the main content of the GMBSM and analyzes positions both from provider and user countries. African groups were not able to lead negotiations of these issues due to constraints in capacity, although it is in support of the GMBSM. Some provider countries such as Brazil did not provide their support because of the concern that the GMBSM is likely to be an obstacle to these countries' sovereign rights. Representative for user countries delayed the process by raising many technical questions. These negotiations indicate that the GMBSM may become a focus of the Conference of Parties serving as the Meetings of Nagoya Protocol, or even have the potential to be a new supplementary protocol. Regardless of this result, the process will difficult. Three major issues is identified due to the analysis of negotiation process:1) Benefit-sharing of genetic resources which shared among different countries; 2) Benefit-sharing of genetic resources that have accessed before the entry into forces of the Protocol; 3)Benefit-sharing of genetic resources that have accessed beyond the national jurisdictions. The study suggests that it is vital to undersanding these issues for assigning the position of China in this negotiation.Case study I:Multilateral benefit sharing of genetic resources that commonly shared among China and other countries. Issue of Genetic resources that commonly shared among China and other countries is a core issue in the negotiation of GMBSM. Understanding the partition and spatial patterns is a key issue while China's participation of GMBSM negotiation, as China is a country that has many neighboring countries.This study analyzes the geographical distribution of the seed plants which commonly shared among China and other countries, reviewing domestic legislative progress in the Parties of the Nagoya Protocol, as well as the utilization of Ginseng-a medicinal plant genetic resources which commonly shared between China and Korea.The results of the study indicate that there are 15,140 seed plants species which are commonly shared among China and other countries, taking 42.40% of total plants recorded in the Catalogue of Life China(2015 version). Among these there are 4,365 medicinal plants available, taking 28.17% of commonly share plants in China. At regional level,58.83% of commonly shared plants in China are distributed within Asia, whereas cosmopolitan elements are only takes 5.21%. At sub-regional of Asia, the results indicate that medicinal plants of China are commonly shared with Southeast Asia, Northeast Asia and South Asia. At national level, countries which have the most commonly shared plants with China are Vietnam, Japan, Myanmar and India, respectively. These show regional concentration characteristics in China's commonly shared plants. Furthermore, the Parties'legislative progress indicate that only 21% of Parties have elaborated their national/regional legislations, illustrating the Parties do not yet pay attention to transboundary situation issue, and the Protocol have difficulty to play a role in addressing transboundary situation at moment.The case study of Ginseng shows that China locates in the upper reaches of Ginseng industry chain whereas Korea is in the down reaches, holding pricing right of Ginseng. This study illustrate that:1) Establishing a GMBSM is not practicable in the perspective of commonly shared plant distribution pattern, and do not have a substantial role in addressing the issue of access and benefit-sharing of China's commonly shared plants; 2) Case study of medicinal plant genetic resources Ginseng which shared by China and Korea indicates that a discussion of the establishment of a regional multilateral benefit-sharing mechanism have significant means and values to China, and the priority is to promote the possibility of establishing a multilateral benefit-sharing mechanism in Northeast Asia; 3) Due to transboundary situation clause in the Protocol are hard to play its role in a short time, some supports still need to be given to the negotiation of GMBSM in order to make more space to China's domestic legislation and sub-regional negotiation.Case study ?:Multilateral benefit sharing of Chinese genetic resources that have been accessed before the entry into forces of the Protocol. The issue of benefit-sharing of genetic resources that have accessed before the entry into force of the Convention of Biological Diversity (CBD)/the Protocol is also a hard core in negotiation of GMBSM. Although there are few precedents of retroactive case in international laws, but some users may continuously use of endemic genetic resources that China have flowed away before the CBD during the period of time of after entry into force and before entry into force of the Protocol, while the CBD have put benefit-sharing responsibility on them. China needs to understand this situation before identifying negotiation position.Patent application is a core indicator to judge whether a genetic resource has potential to be commercial utilized. This study analyzed global and Chinese patents application of foreign companies on Ginkgo and other four Chinese endemic medicinal plants during 2001-2014.The results indicate that patents application related to Ginkgo and other four Chinese endemic medicinal plants showed an upward trend since 2001. China is the most important country of destination for Ginkgo and other four Chinese endemic medicinal plants due to China is one of the important markets for the products of Ginkgo and other four medicinal plants. Korea, Japan and the U.S. are the most important source of patents of Ginkgo and other four plants. For China's domestic patent application, Korea, Japan and the U.S. have also proceeded to patent layout. The analysis also shows that most of patents applications do not fulfill sources disclosure responsibility. A case study of Ginkgo shows that foreign companies have conducted commercial R&D on this endemic medicinal plant for a long history, and have benefited from these activities. China is the country of origin of Ginkgo whereas has made much lower profile because of lack the R&D capacity. The results suggested that:1) many endemic medicinal plants have been utilized before the entry into force of the Protocol; 2) the Protocol has a gap on this point; 3) most of patent application do not disclosure the sources of genetic resources their have used, and this can weaken the legal effect of the Protocol.Case study III:Multilateral benefit sharing of genetic resources that accessed beyond national jurisdictions. Along with the increase in the utilization of marine biodiversity, conservation is facing challenges. The United Nations Convention on the Law of the Sea and its protocols cannot overcome these challenges. The United Nations General Assembly has mandated a working group with the aim to elaborate a new protocol, in order to address the conservation and sustainable use of biodiversity beyond national jurisdiction. Access to marine genetic resources in areas beyond national jurisdictions and sharing of benefits arising from their utilization is one of the core issues in discussion, but there is also a lack of common understanding among UN member states regarding the elements of this new protocol.In this study, access capacity, non-commercial research, patent application and commercialization are analyzed in order to understand the capacity of China's marine genetic resources utilization.The results show that China has substantial capacity in access and non-commercial scientific research capacity of marine genetic resources but still has gap compare with European countries, the U.S. and Japan. However, China has a substantial gap with European countries, the U.S. and Japan in the areas of patent application and commercialization of marine natural medicines. Recommendations for the establishment of access and benefit-sharing mechanisms for marine genetic resources in areas beyond national jurisdictions were raised:(1) marine genetic resources in areas beyond national jurisdictions are not free to access; (2) the definition of marine genetic resources should cover marine natural products, which are derived from the metabolism of marine living organisms; (3) benefit-sharing obligation shall apply to the genetic resources are accessed before the entry into force of new protocol but are utilized after that; (4) access should be authorized by a competent authority to ensure an Material Transfer Agreement or mutually agreed terms are established; (5) simplified procedures should apply to access for noncommercial purpose, and to great threats on health and food safety, but benefits should also be shared if there is a follow-up commercialization plan; and (6) benefits should be clarified at different stages of the R&D chain, as disclosure of information and monitoring of follow-up utilization conducts are necessary to ensure benefits are shared.Case study IV:Conceptual framework of Global Multilateral Benefit Sharing Mechanism and national strategy. The modality of GMBSM is also a hotspot that has received all relevant stakeholders'concerns. The Convention on Biological Diversity, the Nagoya Protocol and International Treaty on Plant Genetic Resources for Food and Agriculture and other international agreement has provided the principles and conceptual framework, respectively. In this study, the experiences of the CBD, the Nagoya Protocol and ITPGRFA on the scope, access and benefit-sharing requirements were review and compared, and a possible framework of GMBSM were suggested from the elements of principle, applicable scope, access, and benefit-sharing. Furthermore, the positions, strategies and domestic measures of China were also recommended based on previous studies. |
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