A Research On Legal Systems Of Access To Genetic Resources In BRICS Countries

As a natural resource with great scientific research and commercial development value,genetic resources are an important part of biodiversity.Regulation of access to genetic resources(and benefit sharing)is also one of the important areas of biodiversity conservation.In the acquisition and utilization of global biological genetic resources,as the BRICS countries including Brazil,India,South Africa and China possess a wealth of biological genetic resources,they have been invaded by bio-piracy for a long time.For developing countries that provide genetic resources,domestic legislation on access to genetic resources under the framework of principles established by international law,such as the Convention on Biological Diversity and its Nagoya Protocol,is an active attempt and effective approach to curb the phenomenon of bio-piracy and safeguard national interests.Brazil,India,and South Africa have gradually formulated and improved domestic legislation on access to genetic resources and implemented it effectively.This article selects the BRICS legal systems for access to genetic resources as the research object,and focuses on the analysis of domestic legislation on access to genetic resources in countries represented by Brazil,India,and South Africa.This paper is divided into seven parts:Part 1 "Overview of the Development of the BRICS countries Law on Access to Genetic Resources" introduced the background of the legislation on access to genetic resources in the BRICS countries,combed the development of the law on access to genetic resources in the BRICS countries,pointed out the deficiencies in China’s genetic resources access legislation,and proposed that Strengthen the study of the legislative experience of other BRICS countries and provide a reference for China’s legislation in this field.Part 2 "Legal Models for the Regulation of Access to Genetic Resources in BRICS Countries" analyzes the propensity and pros and cons of the BRICS countries to choose a public law regulatory model,focusing on the comparative analysis of India2002 Biodiversity Law and South Africa 2004 National Environmental Management:Biodiversity Act,the comprehensive legislation,and the special legislation of Brazil2001 Interim Regulations,pointing out their respective advantages,and suggesting that China should learn from the legislative experience of access control of genetic resources in the above countries.Provide model reference for the formulation of relevant laws in China.Part 3 "Subjects of access to genetic resources",with reference to the definition of the subject of access to genetic resources in the Convention and its Nagoya Protocol,compare and analyze the specific provisions of the legislation of Brazil,India and South Africa on "applicants for access to genetic resources",“ providers of genetic resources”and“regulators of access to genetic resources” in genetic resource access activities,and point out their respective advantages and shortcomings,propose that China should learn from the legislative experience of the above countries to make reasonable arrangements for each subject of genetic resources access.Part 4 "Objects of access to genetic resources in BRICS countries",with reference to the definitions of the Convention and its Nagoya Protocol on the two objects of "genetic resources and related traditional knowledge" and "access to genetic resources",to analyze the laws and regulations on the objects of genetic resources acquisition in Brazil,India and South Africa,and make a comparative analysis,pointed out that the BRICS countries should reasonably define the subject of genetic resources acquisition according to the actual situation of each country.Part 5 "Rights and Obligations of Access to Genetic Resources in BRICS Countries",examines the rights and obligations created by the Convention and relevant international law documents for each states parties,compares and analyzes the regulations of the rights and obligations of subjects related to access to genetic resources in Brazil,India and South Africa.Part 6 "Procedures for Access to Genetic Resources in BRICS Countries",inspects the historical evolution of "prior informed consent" and its theoretical basis for the application of international law in the field of access to genetic resources,compare and analyze the legislation of PIC and and the access permit system in Brazil,India,and South African,suggest that the design of the procedures for access to genetic resources in China’s legislation should refer to the practices of Brazil and South Africa.Part 7 "Cooperation of access to genetic resources in BRICS countries and the development of China’s domestic law" demonstrates the necessity and feasibility of cooperation in access to genetic resources among BRICS countries,takes Andean Community Resolution 391 as the institutional reference,refer to the exchanges andcooperation of access to genetic resources in BRICS countries,drafts proposals for framework agreements on access to cooperation in genetic resources for BRICS countries;compare and analyze three legislative models: “revising existing laws”,“special legislation”and“making comprehensive laws”,suggests that China should choose the "special legislation" model,puts forward the constitution and suggestions of the legislative content for access to genetic resources in China.Based on a systematic review of legal systems for access to genetic resources in BRICS countries represented by Brazil,India,and South Africa,this paper aims to provide constructive ideas and suggestions for the establishment of cooperation mechanisms for access to genetic resources among BRICS countries,and at the same time provide suggestions and references for the promotion of legislation on access to genetic resources in China.Based on the above studies,the basic conclusions are drawn: there is a practical necessity and feasibility for the cooperation among the BRICS countries to access genetic resources;the“special legislation”model should be the right choice for China’s legislation on access to genetic resources.