The Use of Prior Informed Consent to Ensure a Fair and Equitable Access to Genetic Resources: A Comparative Study and Taiwan’s Response

Abstract

There has been increasingly international awareness, mainly from developing countries, of mandating a proper control on illegal bio-prospecting of genetic resources during the past decade. The Convention on Biological Diversity (CBD) adopted in 1990s has been widely viewed as a powerful international mechanism in dealing with the issue mainly by requiring access to and benefit-sharing (ABS) regime in the national level. The prior informed consent (PIC) specified by the treaty constitutes a major means to deter the infamous unregulated bio-piracy and to ensure a fair access to genetic resources. Since the effectiveness of the CBD, national implementation of the ABS has been flourishing, shown in the enactment of laws and regulations. Given the differential social structure in individual nations, there seems no consistent pattern of the PIC practices domestically. Some legislatures recognize the decisive role of indigenous or local community in the context of enforcing PIC, making access to genetic resources impossible without their consent. On the other hand, to ensure the access process more effectively, several central governments dominate PIC process so as to make the will of local people relatively margin or simply to treat their determination only as one of the factors to be considered for the final decision of granting consent. This article aims to conduct a comparative study on how genetically rich nations implement the PIC requirement with a view to examining whether the genuine objective of the CBD has been fulfilled. The task involves an analysis of legal arrangements and implications in several leading models of legislature. Recently, Taiwan has started to sense the significance of regulating the bio-prospecting activities and to engage in formulating a draft thereafter. It thus will be a focal point of this article to evaluate the normative design of the PIC in such a law.