Legal Aspects of Prior Informed Consent on Access to Genetic Resources: An Analysis of Global Lawmaking and Local Implementation toward an Optimal Normative Construction
Ni, Kuei-Jung, Vanderbilt Journal of Transnational Law
Since the Convention on Biological Diversity (CBD) has been in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. A requirement of prior informed consent (PIC) by the people controlling access to genetic resources constitutes a major instrument to deter illegal bioprospecting and to ensure fair access to genetic resources.
This Article aims to analyze the continuing global lawmaking on PIC and to conduct a comparative study on how genetically rich nations implement the PIC requirement with a view to examining whether the genuine mandate of the CBD has been fulfilled.
This Article argues that the will of local indigenous communities should be respected, regardless of whether they are entitled to give consent. Further, national operation of PIC should be under an adequate international supervision to prevent the misuse or abuse of PIC and to ensure that implementation of PIC conforms to the CBD objectives.
TABLE OF CONTENTS I. INTRODUCTION: THE CONSOLIDATION OF INTERNATIONAL MOVEMENTS TO CONTROL GENETIC RESOURCES II. THE CBD AND SUBSEQUENT LAW MAKING OF PIC ON GENETIC RESOURCES ACCESS A. The Origin of PIC and Its Incorporation in International Environmental Rules B. The CBD and Bonn Guidelines C. The Proposed International Regime 1. An Overview of the Regime to Enforce PIC 2. A Critique on the Regime's Preliminary Design of PIC Compliance III. NATIONAL PRACTICES OF GENETIC-RESOURCE-RICH COUNTRIES ON PIC REQUIREMENT A. India B. Brazil C. The Philippines D. Costa Rica E. Peru F. Australia G. Taiwan 1. Rich Genetic Resources in Taiwan and Problems Resulting from a Lack of Proper Regulation 2. The Move to Regulate ABS on Genetic Resources: The State of Play on PIC IV. CRITICAL ISSUES OCCURRING IN PIC PRACTICE: OVERALL ASSESSMENT AND SUGGESTIONS A. The Role and Status of Indigenous Peoples in Access to Genetic Resources B. The Multi-Consent System of PIC: Troubled Water? and the Problem of Anti-Commons C. Reshaping the Function and Role of Competent National Authority V. CONCLUSION
I. INTRODUCTION: THE CONSOLIDATION OF INTERNATIONAL MOVEMENTS TO CONTROL GENETIC RESOURCES
The Convention on Biological Diversity (CBD) (1) provides that genetic resources (GR) originate in plants, insects, animals, and microbes. (2) As a result, human genes are practically excluded from the definition of GR. The value and significance of GR has become increasingly prominent in recent years, playing a significant role in the spheres of agriculture, bio-industries, and medicine, as well as the global economy. (3) Notably, the modern biotechnology industry substantially relies on bioresources to produce commercial products. (4)
Prior to the adoption of the CBD, there had been a push to place GR under international control so that the benefits of GR would be available or accessible to all humankind instead of being dominated by each sovereign nation alone. (5) The effort of the United Nations Food and Agriculture Organization (FAO) to preserve agricultural genetic resources represents a leading model in the movement to classify GR as international common property. (6) The International Undertaking on Plant Genetic Resources, (7) adopted in 1983, cites as its basis "the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction." (8) In an earlier stage, the text aimed to ensure that GR would not be monopolized by the private sector but would benefit all humans. (9) The designation of GR as a part of the common heritage of mankind (CHM) would help reduce national control of GR and thus make the resources more easily accessible. …