| Summary: | 碩士 === 國立臺灣大學 === 農藝學研究所 === 96 === The regime on accessing to genetic resources and fair and equitable sharing of the benefits arisen from utilization (Access and Benefit-Sharing, ABS) has been one of the major implemented mechanism of the objective of the Convention on Biological Diversity (CBD).The Conference of the Parties (COP) of CBD has adopted Bonn guidelines in 2002, which include the three major ABS principles: prior informed concerned, mutually agreed terms and benefit-sharing, as recommendable guidelines for countries to set up their ABS related legal system. However, without tools for monitoring compliance, the ABS regime could not been practiced effectively. To conquer this deficiency, the CBD forum proposed to create an international certificate system as a tool to monitor the use of genetic resources, and established a Group of Technical Experts (GTE) to deliberate the certificate system. This thesis will discuss the certificate system comparatively and analyze its feasibility.
The thesis starts with the examination of the background of this certification proposal. When reviewing the prior experience of ABS regime implementation, there exist some ABS legislative problems and difficulties to apply their ABS provisions for countries; Furthermore, some deficiencies also exist in ABS regime design, for example, high transaction cost of setting up the regime and externality existence which might leads to the market failure of genetic resources. Lack of legal certainty and monitoring mechanism are two major defects of the regime. Thus, the importance of developing the monitor mechanism for the certificate system to use of genetic resources is obvious. By comparing the possible modality of this certificate proposal with agriculture food traceability system, forest sustainable management certificate system and CITES permit system, the thesis suggests that the CITES permit system would be a more probable choice for the future certificate system modality. And when consider the conditions of legitimacy and universality of the four certificate proposal; including “certificates of origin”, “certificate of source”, “certificates of legal provenance” and “certificates of compliance”, the thesis suggests that the “certificates of legal provenance” would be a more suitable choice.
To operate the certificate system will need a set of technologies to trace genetic resources flows, such as using DNA molecular marker to distinguish biological species and developing the database to trace their distribution. And enforcing the certificate system will affect some ex-situ collections such as biological museums, botanic gardens and microbial collections, especially for those institutions without computerized database might be too costly to follow the system. Therefore, how to reduce the cost of the certificate system should be deliberated. Besides, enforcing the certificate system might also conflicts with current legislation such as international trade regulations and intellectual property right (IPR) related regulations. The dispute resolution might be served as an evidence of “disclosure obligation” of IPR regime.
The thesis concludes the development of the certificate proposal as follows: (1) Confirm the development of the certificate system; (2) The system should be legitimate, mandatory and comprehensively applicable; (3) The system should build with establishment of integrated biological database network; (4) The system could enforced in accordance with the “disclosure obligation” of IPR regime.
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