The Acquisition And Benefit Sharing Of Genetic Resources Under The International Rules

With the development of biological science and technology, more and more natural resources are pursued by nations,while among them, the biological genetic resources trigger the most intense competition. Genetic resources make bio-products and bio-products make bio-economy which is the feature in the progress of modern society, also an interesting topic in legal field. However, for the divergent distribution of genetic resources, large amount of plagiarism on biological resources has occurred, which leads to concerns on international arena on the acquisition, maintain and utilization of genetic resources, as well as how to balance interests between the suppliers and users of genetic resources.To solve the problems above, and to break through the essence of plagiarism on biological resources,finding out the reason is the point. To spell out, firstly, it is the distribution of genetic resources and their value determined by its characteristics that cause this phenomenon.Secondly, it is because of the contradiction on demanding of interest between developed and developing countries. In response to this phenomenon,with the effort of whole international society, a fundamental international rule system has established through a bunch of conventions: in 1992, the Convention on Biological Diversity(there after called as CBD), which established the principle of genetic resources sovereignty, and the principle of access to genetic resources and benefit-sharing; in 2001, the Amendment of International Treaty on Plant Genetic Resources for Food and Agriculture(there after called ITPGRFA), which first set for Farmer Right, acknowledging farmer’s contribution on protection and sustainable utilization of genetic resources, stipulating farmer’s rights on protection for traditional knowledge, share of benefit and participation in decision-making. Meanwhile, ITPGRFA stipulates the precise rules on acquisition of genetic resources for food and agriculture and new rules for international gene bank; in 2002, the Boon Guideline on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Use of Genetic Resources was granted on the 6th Conference for the bio-diversity contracting party. On October 2010, the Nagaya Protocol on Access and Benefit-sharing(there after called as Nagaya Protocol) was passed on the 10 th conference for the bio-diversity convention’s contracting party. This Protocol includes a benefit-sharing term, which is a principle term, reflecting the overall requirements by the supplier nations of genetic resources. The protocol restates the three principles in CBD. With legally bounding force to some extent, it serves as a guideline for polishing supplier nations’ domestic legislation, also constrain on suppliers’ behaviors.The current international regulations about acquisition and benefit sharing of genetic resources mainly include the following four aspects:prior consent,mutually agreed terms,fair and reasonable benefit-sharing and disclosure of genetic resources source.The specific rules will encounter various problems in practice,such as the anti-public phenomenon under prior consent rules and the requirements of appropriation concerning the disclosure of genetic resources.Through analysis,ways can be found to avoid such problems,so to realize the potency of international rules in the specific application and maximize the interests of all parties by fundamentally solving their conflicts about genetic resources.Although the world has established the international regulations about acquisition and benefit sharing of genetic resources,the understanding and application of the rules are still in controversy,and as the relevant interests is complicated,there is still no unified solution.In view of this,through study and analysis of current international rules,this paper explore the fairness and justice reflecting in international rules from establishment to practice,from substance rules to dispute settlement mechanism and find out the system design is a relative balance of interests.The research on the universality of the international rules shows that although there is conflicts and countries also claim different interests,the rules just lack sufficient rationality rather than lost complete obedience and respect.The formulation of the rules meets the parties reasonable expectations in the whole.Under such circumstance,China should consider the actual situation,identify its own role,and transfer the international rules into domestic law through strengthening domestic legislation.Besides,we need to establish sound law enforcement and related supporting facilities to improve current rules about acquisition and benefit sharing of genetic resources in order to achieve the maximization of our interests of genetic resources.In this paper, the mainly difficulties and the possible innovation in the thesis writ ing process will be reflected in the following aspects:First, it is an innovation to analyze the regulation of acquisition and benefit shari ng of genetic resources from the perspective of rationality, feasibility and dynamic ba lance of interests.Second, while discussing access to genetic resources and benefit-sharing, how to explore the depths of this theory so to avoid the superficial study, and how to focus on reasoning and to increase proof jurisprudence are problems.Third, in the analysis and evaluation of international regulation about access and benefit sharing of genetic resources, how to demonstrate its legality and rationality and how to balance the interests between the providers of genetic resources and user, the providers of genetic resources and the public interest in a dynamic way is a problem to overcome.Finally, among all the patterns of access and benefit-sharing rules for genetic resources, how to identify our national status and find our problems about the access and benefit-sharing regulations in genetic resources and how to apply the international rules effectively are quite difficult. And during the transformation from these conventions to domestic law, concerning the methods to ensure the maximum protection for the owners of genetic resources, less relevant information is available which cause great difficulty for the study.