Analysis of Korea’s ABS legislation and the need for its revision = 나고야의정서 국내이행법제 및 개정 필요성의 검토

Abstract

Korea became the 98th party to the Nagoya Protocol in 2017, and has enacted the ‘Act on Access to and Utilization of Genetic Resources and Benefit-Sharing’(‘Act on Genetic Resources’) to implement it. Based on the composition and main provisions of the Act on Genetic Resources, it can be evaluated as a legislation that emphasizes the position of the provider country rather than the utilizer country. Such an assessment is not problematic in terms of Nagoya Protocol implementation. However, as the Genetic Resources Act has been in force for seven years, the process of interpreting the Act has revealed problems both large and small. This paper aims to present five major issues that require revision. First, the term "genetic resources, etc.", which refers to "genetic resources and traditional knowledge related to genetic resources", needs to be elaborated by distinguishing between domestic and overseas. Second, the fees required to be paid for "Report on Access to Domestic Genetic Resources", which is mainly reported and paid by foreigners, should be revised to facilitate payment method or be made free of charge. Third, revisions to the Act on Genetic Resources and/or Acts on individual resource should be made to address the adverse effects of exemptions from the obligation to conclude MATs that may arise from the consideration of Report on Access to Domestic Genetic Resources, such as approval for export to foreign countries under the other existing Acts on individual resource. Fourth, it is necessary to harmonize the inconsistency between domestic and overseas levels of obligations in benefit-sharing provisions and reporting forms. Fifth, as the 90-day reporting period for the “Procedural Compliance Report on Foreign Genetic Resources” has been criticized as too short, revision to increase it to 120 or 180 days should be considered. It is hoped that through these revisions, Korea's Act on Genetic Resources will become more faithful to the ideals and purposes of the Nagoya Protocol in the future.