Katerina Tschausovska, LLM student
In March 2023 at the United Nations in New York, history has been written for the least explored region on earth: the waters beyond national jurisdiction are to be newly governed under a multilateral agreement to ensure the protection of marine biodiversity.[1] And with this agreement, hope is given that one of the valuable resources the deep seabed has to offer – Marine Genetic Resources (MGR) – will be protected and sustained.
Growing Interest in MGR
It is within human nature to explore new terrestrial areas. But the greater interest lies in the exploitation of newly discovered resources. The development of new technologies enabled mankind to explore and exploit the deep seabed.[2] Herein, a wealth of never-before-known resources, particularly genetic resources of living creatures, are to be found in abundance. The harsh conditions in the deep waters made the living creatures extraordinarily adapted to their environment.[3] Thus, the probability of finding valuable material through bioprospecting[4] is so high that the ratio for new resources is 1:1 for each genetic material taken from the waters.[5] The commercial use of this material raises significant interest from industrial sectors, especially the pharmaceutical sector.[6]
Deficiencies to Govern and Protect MGR
Obtaining MGR through bioprospecting is a process that follows a multilayered approach[7] and several legal frameworks are relevant. The main ones are the UNCLOS[8], CBD[9] and TRIPS[10]. While at first glance, it is to be assumed that all three treaties should be able to provide a solid ground for the protection of MGR, it quickly becomes apparent that each treaty targets bioprospecting and MGR from different angles.
Although the UNCLOS is the cornerstone for the codification of the sea,[11] it does not ensure that MGR is governed in a way that prevents over-exploitation.[12] Its provisions for the Highs Seas in Part VII and the Area in Part XI are lacking effective provisions in regards to MGR, not deciding under which regulatory framework – whether Part VII or Part XI – it is to be defined and thus giving hardly any rules on how the appropriation is to be managed. This, in turn, gives a lot of space for interpretation and practical solutions, having developed countries taking the lead.[13]
The CBD, on the other hand, was not specifically drafted for the waters beyond national jurisdiction.[14] It rather provides general provisions which aim to achieve the fundamental objectives of CBD.[15] And as such, its provisions do not oppose the preservation of MGR. However, CBD does not provide any limitations to the access and extraction of MGR because the targeted area is geographically limited to the coastal waters.[16] Primarily, the provisions apply to protect states’ sovereign rights over their genetic resources.[17]
On the other side of the spectrum of regulations for MGR is TRIPS. It sets the standard for a uniform intellectual property rights regime.[18] In contrast to UNCLOS and CBD, it does not target the protection of resources in the deep seabed. The focus is to be seen on the commercialization of MGR through obtaining patents for the commercialized product.[19]
It appears that the treaties lack a homogeneous approach. The `first come first serve` approach has evolved naturally over time.[20] The fragmentation is not only within the legal frameworks, but it drags along the policy level. All three conventions are governed by separate and independent regulatory bodies.[21] The conservation and the sustainable use of MGR can hardly be achieved under the current situation.
What is needed
The comparison of the regulatory frameworks displays that a multilateral approach to harness cooperation and capacities to exchange knowledge and technology is a vital attribute to any changes. This in turn should enable equal access to the resources and provide a system for a fair and equitable sharing of benefits that arise from the utilization of MGR. And through this, a functioning legal framework could sustain the use of MGR.
High Hopes for Biodiversity of Areas Beyond National Jurisdiction Treaty
Led by the auspices of the United Nations, the international legally binding treaty under UNCLOS for `the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction`[22] presents itself as the rescuer in distress. The Biodiversity of Areas Beyond National Jurisdiction Treaty (BBNJ) is a culmination of almost two decades of work.[23] It consists of 70 articles and two Annexes.[24] It explicitly includes MGR and questions around the aspect of benefit-sharing.[25] Measures are being considered such as area-based management tools[26] and the assessment of the environmental impact.[27] The treaty contains provisions on capacity-building and transfer of marine technology.[28]
The core elements of the treaty promise to give what is most needed to govern MGR: structure and guidelines. It encompasses all practices throughout the areas around the deep seabed and compounds elements of all three treaties – UNCLOS, CBD and TRIPS.
The provisions for capacity building and technology transfer highlight an effort to close the gap between developed and developing states.[29] Such provisions acknowledge that not all states have the capacity to participate in the activities around MGR. The transfer of scientific, technical and technological capacities aims to provide access to the resources in the deep seabed to all parties of the agreement.[30]
An innovative solution is presented by the new provisions within the regulatory sector. The new provisions focus on establishing a decision-making body – e.g. an Assembly or a Conference of Parties, subsidiary bodies to analyse technical and scientific elements of any process and provide issue recommendations, and a secretariat to be seen as an executive body to coordinate between states and international organizations as well as supervising and managing the different mechanisms set in the agreement.[31]
Conclusion
It is noticeable that the treaty is incorporating already existing practices into the provisions which have developed over the years out of necessity.[32] The protracted negotiations show how difficult it is to find a suitable solution for the multifaceted legal issues around MGR. It is to be seen whether the treaty will pass the proficiency test.
This blog post builds upon the author’s LLM dissertation.
[1] The draft treaty is still to be ratified in the foreseeable future, see United Nations, `Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction` <https://www.un.org/bbnj/> accessed 27 April 2023.
[2] Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert < https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.
[3] Salvatore Arico, `Marine Genetic Resources in Areas beyond National Jurisdiction and Intellectual Property Rights` in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation, IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Nijhoff 2010) 383, 383.
[4] Bioprospecting is to be understood as the activity that derives and collects genetic resources with the help of modern technology from the deep seabed to commercialize the material through various processes and developments. See: Tullio Scovazzi, `The assumption that the United Nations Convention on the Law of the Sea is the legal framework for all activities taking place in the sea`, in Salvatore Aricò (ed), Ocean Sustainability in the 21st Century (Cambridge University Press 2015) 232, 244.
[5] Salvatore Arico, `Marine Genetic Resources in Areas beyond National Jurisdiction and Intellectual Property Rights` in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation, IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Nijhoff 2010) 383, 383; Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert < https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.
[6] Midwestern University, `Clinical Pipeline, Marine Pharmacology, Approved Marine Drugs` < https://www.midwestern.edu/departments/marinepharmacology/clinical-pipeline> accessed 27 April 2023; Michael Banks and others, `Use of Marine Genetic Resources` in United Nations (ed), The First Global Integrated Marine Assessment: Word Ocean Assessment I (Cambridge University Press 2017) chapter 29.
[7] Bioprospecting is a process which takes several steps from the initial abstraction of the genetic resources to the final commercial or scientific product.
[8] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 U.N.T.S. 3.
[9] The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 U.N.T.S. 69.
[10] Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 U.N.T.S. 299.
[11] Tullio Scovazzi, `The assumption that the United Nations Convention on the Law of the Sea is the legal framework for all activities taking place in the sea`, in Salvatore Aricò (ed), Ocean Sustainability in the 21st Century (Cambridge University Press 2015) 232.
[12] Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert <https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.
[13] Tullio Scovazzi, `The Rights to Genetic Resources beyond National Jurisdiction: Challenges for the Ongoing Negotiations at the United Nations` in Catherine Banet (ed), The Law of the Seabed (Nijhoff 2020).
[14] Convention on Biological Diversity, `History of the Convention, Introduction` <https://www.cbd.int/history/> accessed 27 April 2023.
[15] The provisions are addressing issues of sovereign rights and the legal status of genetic resources. Under CBD article 1 the aim is to ensure the sustainable use of biodiversity, the equitable sharing of the benefits arising from such usage and the technology transfer.
[16] Salvatore Arico and Charlotte Salpin, `Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects` (2005) UNU-IAS Report 38; CBD article 4.
[17] Louise Angélique de La Fayette, `A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction` (2009) 24(2) The International Journal of Marine and Coastal Law 221, 243.
[18] TRIPS article 7 and article 8.
[19] Salvatore Arico and Charlotte Salpin, `Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects` (2005) UNU-IAS Report 43; TRIPS article 27.
[20] Alexander Proelss, `ABS in Relation to Marine GRs` in Evanson Kamau and others (eds.), Genetic resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing (London: Routledge 2009) 63; Louise de La Fayette, `The Conversation of Biodiversity and Genetic Resources of the Deep Sea, Is There a Legal Gap? ` (2007) Biodiversity and Genetic Resources of the Deep Sea Symposium number 7 and 10; UNCLOS article 87.
[21] UNCLOS is governed by UN Division for Ocean Affairs and the Law of the Sea, see: UN environmental programme <UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS) | UNEP – UN Environment Programme> accessed 27 April 2023; CBD has its own Secretariat, see: Welcome to the CBD Secretariat <https://www.cbd.int/secretariat/> accessed 27 April 2023; TRIPS agreement’s secretariat is managed by the World Trade Organisation, see: Secretariat Divisions servicing WTO bodies <https://www.wto.org/english/thewto_e/bodies_divisions_e.htm> accessed 27 April 2023.
[22] United Nations, Intergovernmental Conference in Marine Biodiversity of Areas Beyond National Jurisdiction <https://www.un.org/bbnj/> accessed 27 April 2023.
[23] United Nations, `Secretary General, Statement attributable to the Spokesperson for the Secretary-General – on Int`l Legally Binding Instrument under the UN Convention on the Law of the Sea` <https://www.un.org/sg/en/content/sg/statement/2023-03-04/statement-attributable-the-spokesperson-for-the-secretary-general-intl-legally-binding-instrument-under-the-un-convention-the-law-of-the-sea?_gl=1*8sc79t*_ga*NDIyMjY0MTcyLjE2NzYxNzAyODE.*_ga_TK9BQL5X7Z*MTY3ODA3MjkyMS43LjAuMTY3ODA3MjkyMS4wLjAuMA> accessed 27 April 2023.
[24] United Nations, General Assembly, ` Further refreshed draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction` A/CONF.232/2023/2 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/467/94/PDF/N2246794.pdf?OpenElement> accessed 27 April 2023.
[25] BBNJ draft text Part I and Part II.
[26] BBNJ draft text Part III.
[27] BBNJ draft text Part IV.
[28] BBNJ draft text Part V.
[29] BBNJ draft text Part V.
[30] Fran Humphries and Harriet Harden Davies, `Practical policy solutions for the final stage of BBNJ treaty negotiations` (2020) Elsevier Public Health Emergency Collection 4ff; BBNJ draft text preamble and article 42 with further explanations in ANNEX II.
[31] SRE, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) (A/RES/69)/292), Submission by Mexico (2017) <https://www.un.org/depts/los/biodiversity/prepcom_files/streamlined/Mexico.pdf> accessed 27 April 2023.
[32] Such an example is Marbank from Norway which is a national marine biobank that provides academia and industry with easy and safe access to marine biological resources for research and exploitation purposes. The samples and data of marine organisms were collected in Artic, sub-Artic and boreal habitats, varying from the intertidal zone to the deep seas, see: Institute of Marine Research, Marbank <https://www.hi.no/en/hi/forskning/research-groups-1/marbank> accessed 27 April 2023.