Marine Genetic Resources, Including Sharing of Benefits

Regulating the Global Commons 245 science and open data. Technological innovation and enabling technologies could enable new forms of scientific collaborations and “virtual” participation, driving a new paradigm of scientific capacity development and a shift in focus from technology transfer as a form of bilateral hardware donation to international knowledge exchange. Building on strengths of existing initiatives will be crucial to avoid duplication and ensure meaningful, sustainable, and long-term capacity development and technology transfer that meets national needs and delivers benefits for both providers and recipients. Ultimately, however, the successful implementation of capacity development and technology transfer will rest on the adequacy of the funding and institutional mechanisms in place. In accordance with General Assembly Resolution 69/292, the Preparatory Committee for the development of the ILBI will report to the United Nations General Assembly on its progress by the end of 2017. Many questions remain for capacity development and technology transfer issues in the future development of the ILBI, including whether they should be treated as stand-alone or cross-cutting. However, the advancement, sharing, and application of scientific knowledge through international cooperation in marine scientific research could provide a unifying focus for this historic new development in the international law of the sea. M ARINE G ENETIC R ESOURCES, INCLUDING S HARING OF BENEFITS doi:10.1017/amp.2017.76 By Angel Horna* If we look at the development of international law of the sea, an evolution that can be traced back to the emergence of the traditional law of the sea and its transition into its modern version (enshrined in the United Nations Convention on the Law of the Sea—UNCLOS), I would argue that we are now in the midst of another major moment in the codification and progressive development of international law of the sea, which—on this occasion—also includes the interrelationship between that legal regime and international environmental law, in particular the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD. New scientific findings and commercial uses, both of genetic resources in general and of marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) in particular, have shed light on gaps in the existing legal regimes. Indeed, since MGRs are not explicitly referred to in UNCLOS (at least not adequately), it is necessary to close the existing legal gap. Furthermore, one author has characterized UNCLOS as a “framework Convention” that establishes links with existing and future agreements. On the other hand, some suggest the possible applicability of the CBD to processes and activities, under certain conditions and beyond the limits of national jurisdiction, pursuant to Article 4.b —which provides that the CBD applies in the case of processes and activities, regardless of where their effects occur (whether they are carried out under a party’s jurisdiction or control, within the area of its national jurisdiction, or beyond). What is more, while the Nagoya Protocol is limited to Genetic Resources within national jurisdiction, Article 10 leaves open the possibility for the future negotiation of multilateral benefit-sharing arrangements in regard to MGRs in ABNJ. Be that as it may, I would also argue that the current search for a legal regime for MGRs in ABNJ reflects the recurrent divergence of views between mare liberum (freedom of the seas) and the * Legal Advisor of the Permanent Mission of Peru to the United Nations. The views and opinions herein expressed are those of the author and do not necessarily reflect the position of the Government of Peru. Downloaded from https://www.cambridge.org/core. IP address: 64.115.81.210, on 29 Mar 2018 at 15:09:10, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/amp.2017.76 246 ASIL Proceedings, 2017 concept of common heritage of mankind (CHM, which for many remains the guiding principle for MGRs), but with the difference that the geographical extent of what is now known as “areas beyond national jurisdiction” exceeds that of the Area (in accordance with Part XI of UNCLOS). In this regard, it is also to be noted that most delegations (in the Preparatory Committee, established pursuant to General Assembly Resolution 69/292) that advocate for the application of the CHM concept restrict it to the Area, and hence do not include the water column. Such question has been touched on in said Preparatory Committee when dealing with the “scope” of the future international instrument and could bring about the need for a dualistic approach that makes a distinction between MGRs in the seabed and those of the water column. However, I believe that—for the sake of coherence of those defending the CHM principle—it could be made clear that the legal regime for MGRs in situ of the seabed of the Area is different from that in the water column. Be that as it may, account should be taken, when applicable, to the rights of coastal states over the extended continental shelf. That dichotomy aside, there is the question of whether the two concepts could apply concurrently in the context of the future international instrument. Similarly, another discussion emerged when dealing with the scope of the new instrument, namely, the need to distinguish fish valued for its genetic properties from that used as a commodity. Although in the last session of the Preparatory Committee there seemed to exist general convergence on including only fish valued for its genetic properties, an argument was made whereby there should be some kind of “scientifically informed threshold” to consider as commodity a situation where a particular resource is harvested beyond a certain amount. Looking at this question from a pragmatic viewpoint, access to MGRs is of particular importance if one is to discuss concrete considerations about the sustainable use of these resources. There appears to be some understanding that whatever access regime is to be established, it should not hinder but should promote marine scientific research. Indeed, such access regimes range from free access (the position of mostly developed countries, whose research institutions and companies possess the technology necessary for accessing the deep sea) to restricted access (mostly developing countries). In my opinion, whatever regime is to be applied it should distinguish clearly between accessibility and appropriation (i.e., “access to” and “ownership of”), and should also take into account access to resources in situ, ex situ, and in silico, as well as derivatives. Concerning the sharing of benefits (one of the elements that compose the principle of CHM, but also the principle of sustainability), it is still contentious whether such benefits should include both monetary and nonmonetary benefit-sharing schemes. In this regard, several developed countries consider that only nonmonetary benefits should be shared, because otherwise innovation would be deterred. Some pointed out that different time frames (the so-called in stages approach) for monetary and nonmonetary benefits vary, taking into account the exploration vis-à-vis the commercialization stage. About benefit-sharing mechanisms, it should first be noted that such mechanisms should allow the disclosure of the geographic coordinates of sample collection locations in order to provide greater legal certainty (that is, whether they are collected within or beyond areas of national jurisdiction). In relation to the question of intellectual property (IP) rights, one should note that MGRs, as such, are not susceptible of IP rights, but that they can be modified by human intervention and take on characteristics that do not exist in nature. When such modifications result in an inventive step that is capable of industrial application, the invention may qualify for patent protection. Many delegations in the Preparatory Committee have advanced that the new instrument should include a reference to intellectual property rights. Some delegations have actually suggested the mandatory disclosure of the origin of marine genetic resources in patent applications. On the other hand, several delegations have expressed they are against any inclusion of such references in the legally binding instrument and that it should remain under the competence of the ongoing negotiations, in the framework of WIPO, in Geneva. The problem with the latter approach is that at WIPO, in the ongoing work on the Downloaded from https://www.cambridge.org/core. IP address: 64.115.81.210, on 29 Mar 2018 at 15:09:10, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/amp.2017.76 Regulating the Global Commons 247 Consolidated Document Relating to Intellectual Property and Genetic Resources, there seems to be convergence to exclude the application of that new instrument to genetic resources in ABNJ. Furthermore, some delegations consider that only “genetic resources,” but not “genetic material,” should be subject to benefit sharing, however blurry the distinction between the two concepts. On the other hand, many delegations consider that the new regime should be able to set conditions on every stage of the MGR commercialization process, taking into account that, once collected, it is all “resource.” While some of the fundamental questions concerning the legal regime of MGRs in ABNJ are still quite controversial, that has not prevented delegations from moving forward in looking at pragmatic ways in which to ensure access and benefit sharing for such resources in the High Seas and in the Area. As has been seen, the question of monetary benefit sharing, as well as IP rights, is still one of the sticking points in the current negotiating process. At the end of the third session of the Preparatory Committee, a list of issues was identified as requiring further deliberation by all participants. Such issues include: (1) what other guiding principles and approaches are applicable to marine genetic resources, including questions on sharing the benefits (2) inclusion of derivatives and access to in situ, ex silico, and in genetic sequence data (GSD), taking into account the experience of other forums; (3) departing from monetary and nonmonetary benefits and focusing on when benefits become available—in light of determining the commercial value of MGR in the early phases of research to consider earn-out provisions. In conclusion, the current situation, toward the end of the Preparatory Committee phase, shows that there is still some work to be done, and legal research to be conducted, but taking into account that most participants do not want to extend the number of meetings and would rather keep the road map as established in Resolution 69/292, most probably the committee will end up making substantial recommendations of a future text to the General Assembly. In turn, the Assembly should decide on moving toward an intergovernmental conference before the end of its seventy-second session. In my opinion, this should also include the possibility of having a negotiating text, something along the lines of the Informal Single Negotiating Text (ISNT) during the Third UN Conference on the Law of the Sea, which would help us continue bridging the gaps and achieve a new implementing treaty to adequately regulate one of our more precious global commons for the sake of future generations. AREA -BASED MANAGEMENT TOOLS, I NCLUDING M ARINE PROTECTED AREAS doi:10.1017/amp.2017.77 By Penelope Nevill* THE P ROBLEM The world’s oceans are in peril. A few key facts paint a disturbing picture: • 89.5 percent of the world’s fish stocks are either overfished at a biologically unsustainable level (31.4 percent) or fully fished (58.1 percent).1 That compares with 1974, when the * Barrister, 20 Essex Street; Visiting Lecturer, King’s College, London. 1 U NITED NATIONS F OOD AND A GRICULTURAL O RGANIZATION (FAO), REPORT AND A QUACULTURE 2016 5–6 (2016). ON THE STATE OF WORLD FISHERIES Downloaded from https://www.cambridge.org/core. IP address: 64.115.81.210, on 29 Mar 2018 at 15:09:10, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/amp.2017.76