Who Owns Ocean Biodiversity?: The Legal Status and Role of Patents as a Means to Achieve Equitable Distribution of Benefits

Abstract

The technological race to obtain genetic material from the ocean floors has been led by the economically advanced states of the global North. It has been a race for obtaining mineral resources among states, dominated by Inter-State competition for land, people and money. However, when the issue concerns mineral resources found in areas beyond national jurisdiction (ABNJ), there is potential for either competition or cooperation among nation-states. Deep-sea mining and bioprospecting are particularly divisive. Very early on states recognised that this might lead to political tensions among them and so agreed to a standard that they would adhere to in their exploration and exploitation of these resources. This led to the creation of the ‘Common Heritage of Mankind’ principle. Although this agreement was reached in reference to mineral resources, the regulation of marine genetic resources (MGRs), particularly those mined from ABNJ, remains ungoverned. However, with the increasing incidence of ocean exploration, the use of these resources have exposed three gaps within the global framework of access and benefit-sharing stemming from the international law, biodiversity law and intellectual property respectively. Starting under the premise of the public domain, resources are being appropriated under the absence of any applicable legal regime. Chapter I attempts to answer the question who owns biodiversity by identifying the regulatory gap within the Law of the Sea. Chapter II addresses the regulatory gap under biodiversity law and identifies the problem of inefficiency within the current benefit-sharing framework. The question of whether the interlinking of the patent system and biodiversity law would alleviate this inefficiency is considered and three hindrances to such an argument are identified. Chapter III considers academic, political and stakeholder opinion on these issues by taking into account international and transnational law. This thorough analysis indicated that patent law has thus far been unable to lead to an effective and efficient solution. This paper then takes into account the existing political and stakeholder conflicts surrounding the maximisation of economic value that have so far hindered the process of reaching an efficient solution at the international arena. The author proposes that the ‘nondominium’ principle could prove to be an effective solution and potentially pave the way to incentivise user countries to innovate without private appropriation of rights through patents.