Research On The Key Issues Of China's Implementation Of The "Nagoya Protocol On Access To Genetic Resources And Benefit Sharing"

The Convention on Biological Diversity(CBD)was publicly signed at the United Nations Conference on Environment and Development in 1992.As the most important multilateral environmental conventions,the CBD established "conservation of biological diversity,the sustainable use of its components,the fair and equitable sharing of the benefits arising out of the utilization of genetic resources(ABS)".The Nagoya Protocol as a supplementary agreement to the CBD aims to promote the realization of ABS.The protocol provides the prior informed consent and mutually agreed terms principles,which providing such resources that is the origin country of such resources or a Party that has acquired the genetic resources in accordance with the Convention.The benefit including by appropriate transfer of relevant technologies or funding,the ownership of genetic resources and biotechnology should also be taken into account.The contracting parties take legislative,administrative or policy measures implementing obligations after the NP was executed.China encountered some "acclimatized" problems in the implementation of NP due to the differences of national conditions,until now has not established a complete system of ABS.The study reviews the provisions of the protocol,combines with China's reality,analyzes several key issues to be solved.(1)The understanding and scope application of the legal term "Indigenous and local communities" in China.(2)How to implement ABS of different ownership types of genetic resources and related traditional knowledge.(3)How to coordinate the relationship between relevant international conventions and NP.Solving the above problems is beneficial to the implementation of NP in China.Based on the Nagoya Protocol and relevant international texts,the study selected minority communities in Hunan and Guangxi as the research areas,used discipline-crossing,qualitative and quantitative methods to compare the characteristics of Zhuang,Yao,Maonan Minority communities and "Indigenous and local communities",constructed the evaluation index system of "Indigenous and local communities",Based on the field investigation and patent examination of Hunan Baojing Golden Tea,Guangxi Guilin Siraitia grosvenorii,etc.Different ABS modes of genetic resources and related traditional knowledge were built;The study also put forward some suggestions on how to coordinate the relationship between NP and relevant international texts,through the Guangxi participatory breeding project and the Yao traditional medicine knowledge.The main contents and conclusions are as follows:1.Understanding and application of legal term "Indigenous and local community" in ChinaThe legal term "Indigenous and local communities" appears the first in Article 8(j)of the CBD,which is also one of the focuses of the NP.The users should obtain the "prior informed consent" of "Indigenous and local communities" when access genetic resources or related traditional knowledge of "Indigenous and local communities",and share benefits equally with "Indigenous and local communities".Therefore,The implementation of the NP must first address the concept of "Indigenous and local communities" and its scope of application in China.Based on the analysis of etymology and legal texts,we summarized and extracted the key features of "Indigenous and local communities",compared the similarities and differences between minority communities and "Indigenous and local communities".The evaluation index system of"Indigenous and local communities" has been established.The index system includes four primary indicators evaluation indexes of society,economy,culture,resources and environment,and 11 secondary indicators evaluation indexes of habitability,self-identity,autonomy and life style.It is concluded that some minority communities in China are in accordance with "Indigenous and local communities",which can be regarded as "Indigenous and local communities".In the implementation of NP and the identification ethnic minorities characteristics of "Indigenous and local communities",we should take the specific local communities as the assessment unit.The study is helpful for China to understand the connotation of legal terms objectively and provide technical support for the performance practice.2.Access and benefit sharing of genetic resources with different ownership typesNagoya Protocol stipulates that the ABS of genetic resources should be carried out with the the origin country of such resources or the Party that has acquired the genetic resources in accordance with the CBD.How to implement depends on the legal provisions of origin country.Therefore,Tracing origin of genetic resources is helpful to determine the ownership of genetic resources and promote the implementation of ABS.Based on the analysis of the provisions and relevant legal texts in China,the study discusses the ownership theory and practical application of genetic resources and related traditional knowledge.According to the origin types of genetic resources in China,the application mode of ABS each type of genetic resources are as follows:(1)The community of origin can be made clear,the representatives of the organization elected by the community of the genetic resources can negotiate with the users for the ABS.In order to access the genetic resources,the user should obtain the prior informed consent(PIC)of the local community representatives,then mutually agreed terms(MAT)under the premise of information equivalence,and share the benefits arising from the utilization of the genetic resources.(2)The origin community is uncertain,the case of a large range of origin(e.g.beyond the township or county).The local government as the representative of the ownership appoint the local authorities in charge of biological resources(Environmental Protection Bureau,Agriculture and Forestry Bureau,etc.)to perform the relevant procedures of ABS.When accessing and utilizing such genetic resources,the users should discuss with the local authorities on the principle of PIC and MAT.The benefits can be used to support the protection of the genetic resources and sustainable utilization.(3)Genetic resources have multiple origins.For a genetic resource with origin in more than one province,the provincial government of origin can be the representative of the ownership body.When foreign objects are involved,the relevant administrative departments of the State Council(such as ecological environment,agricultural and rural areas,forestry and grassland,etc.)can directly perform the procedures of ABS.The benefits can be used as biodiversity funds to promote the protection and sustainable utilization of genetic resources.3.Access and benefit sharing of traditional knowledge related to different ownership typesThe CBD and the NP stipulate that the holder of traditional knowledge related to genetic resources is "indigenous and local communities".The Nagoya protocol requires the effective participation of Indigenous and local communities in the ABS process of traditional knowledge,and ensures the implementation of the principles of "PIC"and "MAT".The types of traditional knowledge related to genetic resources in China are complex.When implementing the ABS,we should first clarify the ownership subject,and then discuss the mode of access and benefit sharing.The study combined with the relevant requirements of international conventions,puts forward the ABS mode of traditional knowledge for China.(1)Traditional knowledge comes from indigenous and local communities.When accessed the traditional knowledge come from the local ethnic minority communities with the characteristics of "Indigenous and local communities",the local minority communities should be the subject of the ownership,they enjoy the right of ownership,disposal and benefit sharing.Users should follow the principle procedures of PIC and MAT with the effective participation of ethnic minority communities,and sign ABS agreements with local communities.(2)Traditional knowledge comes from non indigenous and local communities.The traditional knowledge comes from the local communities without the characteristics of "Indigenous and local communities".They belongs to individuals,families or other collection,preservation and use units,and its ownership subjects can be individuals,collective communities,unit institutions or countries.If the ownership subject is individual,family or local community,it can refer to the mode of "Indigenous and local community";if the ownership subject is an organization,state or the ownership subject can not be determined,the State should appoint representative of the ownership to exercise the right of ABS,and reflect the interests of some organizations.(3)Documentary traditional knowledge.The type of traditional knowledge is jointly created by all peoples in China,most of which can not be traced back to the source,and the ownership subject is also uncertain.The" Compendium of Materia Medica" as classic prescription knowledge has been national treasure.When foreign users acquire such knowledge,the state can appoint relevant competent departments(such as the Chinese Medicine Administration Bureau)as the ownership subject to implement the provisions of ABS,track and supervise the use of foreign countries,the benefits can be used for the protection and inheritance of traditional Chinese medicine knowledge.4.Harmonizing the relationship between relevant conventionsIn addition to the Nagoya Protocol,many international instruments also involve ABS of genetic resources and related traditional knowledge.Some of these conventions or agreements are consistent with the position of the protocol,which can jointly promote the realization of access and benefit sharing;the contents of some instruments are not conducive to the implementation of the ABS provisions,the relationship between them should be properly coordinated.China as the member of the most relevant conventions(a small number of observers),which are implemented by different government departments.When implement conventions and agreements,the policies and actions of the departments may be uncoordinated,that will seriously affect the performance of international obligations and damage China's image as a responsible power.Therefore,the study combs the objectives and key points of major international conventions or agreements,analyzes the conflicts and synergy approaches of ABS by means of case study.For example,taking participatory maize breeding in Guangxi as an example,discusses the disadvantages of the distribution of property rights in the new variety protection system,and puts forward suggestions for the reconstruction of the property rights subject in view of the imbalance of the property rights of new plant varieties;taking the traditional medicine knowledge of Yao nationality in Guangxi as example,the limitations of modern intellectual property system on the protection of traditional knowledge are analyzed,the construction of traditional knowledge sui-generis system is proposed.The paper also puts forward suggestions of synergy in the implementation of relevant international conventions and agreements.The study uses methods of ecology,ethnology and law methods to analysis some key problems encountered in the implementation of NP in China.First creatively constructs the evaluation index system of"Indigenous and local communities" by taking the local ethnic minorities as evaluation unit,which can effectively avoid the current difficulties and embarrassments caused by the single ethnic group as the evaluation unit.The evaluation index system has operability and practical application value,which can create conditions for the implementation of ABS in ethnic minority areas of China,and provides technical support for China to effectively implement the CBD and NP.The ownership theory of genetic resources,such as information right of genetic resources can also provide theoretical basis and technical support for national or local biodiversity legislation,and the construction of China's ABS system.