关键词: 遗传资源, 粮食安全, 公共健康, 知识产权, 贸易

Abstract

The international regimes regarding access and benefit-sharing of genetic resources (ABS) are closely related to multiple topics, including biodiversity, food security, public health, intellectual property, and international trade. Until now, the Convention on Biological Diversity (CBD), United Nations Food and Agriculture Organization (FAO), and World Health Organization (WHO) have developed some of the most effective model regimes separately in accordance with their respective mandates, namely, the Nagoya Protocol, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (PIPF). These multilateral conventions enable parties to fulfill their respective obligations in a coordinated manner. With respect to intellectual property rights (IPRs), the members of the World Intellectual Property Organization (WIPO) have managed to produce three drafts regarding aspects of IPRs including conserving genetic resources, traditional knowledge, and folklore. However, negotiation progress has been hindered due to substantial divergence among members over key issues, such as terms of use, subject matter, and scope of protection. With regard to international trade, discussions under the framework of World Trade Organization (WTO) are still stuck on working out the complexities between CBD and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs), where developed members are steadfast in opposing developing countries’ proposals on disclosure of the origin of genetic resources and associated traditional knowledge during the process of patent application. In recent years, although some appeals, which invoke exception clauses for environmental protection, have been sustained by WTO dispute settlement mechanisms, countries providing genetic resources still aren’t yet able to draw readily practical references. There are obviously some legal conflicts among the Nagoya Protocol, WIPO, WTO, and other multilateral systems, and resolving such complexities poses difficulties. In contrast, the bilateral approach within the framework of the regional trade agreement (RTA) proves to be more practical and flexible in terms of integrating ABS rules, and providing parties with more domestic legislative freedom and flexibility, which therefore have ushered in a novel way of thinking for coordinating such dilemmas. Nevertheless, we need to be fully aware of the fact that the “private contract mode” favored by few RTAs would inevitably increase the uncertainties for effectively implementing the Nagoya Protocol to a certain extent.

Key words: genetic resources, food security, public health, intellectual property rights, trade