Marine Genetic Resources Research Articles

Space Mining Governance from the Perspective of International Consultations with regard to Marine Genetic Resources and the Multilateralism-Unilateralism Dichotomy – Preliminary Considerations

The 50 th anniversary of the constitution of international space law – 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter Outer Space Treaty) coincided with enacting legislation regarding the commercial use of the space resources by the United States in November 2015 and preparation of an analogical act on the other side of the Atlantic, in Luxemburg. These domestic initiatives commenced an intensive discussion with regard to its legality, legitimacy and suitability. Until now the debate related to exploitation of the space natural resources was to large extend concentrated on the interpretation of fundamental customary and Outer Space treaty principles and did not take into account new scientific tools, which can significantly contribute to the assessment of the space mining governance. As first such a instrument – this article recognizes current international consultations on the marine genetic resources aimed at creation of new international regime, which can have several important similarities with the space law resources regime. As the second instrument – this article identifies multilateralism-unilateralism dichotomy, which have practical implications for process of finding international framework relating to space mining. The issue of space mining is the subject of discussion on international fora. In particular from March 2017 it started to be discussed by the COPUOS Legal Subcommittee. The outer space technologies constitute a sector of global economy, which is considered as the most prospective one. According to European Commission “The space sector is both a driver to scientific progress and enables systems and services with growth potential (…) These systems and services (…) help us to address major societal challenges such as climate change, scarce resources. health, or the ageing of our population. (…) They stimulate innovation and competitiveness well beyond the space sector, and contribute to economic growth and job creation in almost all economic areas”. This assessment is supported by figures. According to European Space Agency: “In 2015, the global space economy maintained its long-term growth trend, expanding from 14% compared to 2014 and totaling 291.4 billion of euro. Thus, proposing new scientific instruments for international community aiming at evaluation of the space mining will constitute a valuable tool in the search for appropriate model of governance in this regard.The 50 th anniversary of the constitution of internationalspace law – 1967 Treaty on Principles Governing the Activities of Statesin the Exploration and Use of Outer Space, including the Moon andOther Celestial Bodies (hereinafter Outer Space Treaty) coincided withenacting legislation regarding the commercial use of the space resources bythe United States in November 2015 and preparation of an analogical acton the other side of the Atlantic, in Luxemburg. These domestic initiativescommenced an intensive discussion with regard to its legality, legitimacyand suitability. Until now the debate related to exploitation of the spacenatural resources was to large extend concentrated on the interpretationof fundamental customary and Outer Space treaty principles anddid not take into account new scientific tools, which can significantlycontribute to the assessment of the space mining governance. As first such* Assistant professor, Faculty of Law and Administration, Cardinal Stefan WyszyńskiUniversity in Warsaw.66Łukasz Kułagaa instrument – this article recognizes current international consultationson the marine genetic resources aimed at creation of new internationalregime, which can have several important similarities with the spacelaw resources regime. As the second instrument – this article identifiesmultilateralism-unilateralism dichotomy, which have practical implicationsfor process of finding international framework relating to space mining.The issue of space mining is the subject of discussion on internationalfora. In particular from March 2017 it started to be discussed by the COPUOSLegal Subcommittee. The outer space technologies constitute a sectorof global economy, which is considered as the most prospective one. Accordingto European Commission “The space sector is both a driver to scientificprogress and enables systems and services with growth potential (…) Thesesystems and services (…) help us to address major societal challenges suchas climate change, scarce resources. health, or the ageing of our population.(…) They stimulate innovation and competitiveness well beyond the spacesector, and contribute to economic growth and job creation in almostall economic areas”. This assessment is supported by figures. Accordingto European Space Agency: “In 2015, the global space economy maintainedits long-term growth trend, expanding from 14% compared to 2014 andtotaling 291.4 billion of euro. Thus, proposing new scientific instrumentsfor international community aiming at evaluation of the space mining willconstitute a valuable tool in the search for appropriate model of governancein this regard

Implementation challenges of area-based management tools (ABMTs) for biodiversity beyond national jurisdiction (BBNJ)

Area-based management tools (ABMTs), including marine protected areas (MPAs) are widely recognized as a key mechanism for conserving and restoring biodiversity. The developing international legally-binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) is considering a range of approaches to ABMTs. While the process is still in early stages, this paper looks ahead to anticipate implementation challenges for ABMTs, given previous experiences with regional fisheries management organizations (RFMOs) and high seas MPAs. Drawing on the implementation of MPAs under the OSPAR Convention and the Convention on the Conservation of Antarctic Living Marine Resources (CCAMLR), key suggestions revolve around: (1) improving the evidence basis for protecting BBNJ, (2) designing effective compliance and enforcement mechanisms, and (3) engaging adequately with relevant stakeholders. In addition to the case studies, which are primarily marine pollution and fishing-oriented, considerations related to mitigating the effects of deep sea mining and the harvesting of marine genetic resources are also touched upon.

Fair and Equitable Benefit-Sharing in a New Treaty on Marine Biodiversity: A Principled Approach Towards Partnership Building?

This article suggests a principled approach to the negotiations on benefit-sharing from the use of marine genetic resources under a new international legally binding instrument on marine biodiversity of areas beyond national jurisdiction (BBNJ). It first reflects on the terms in which benefit-sharing has been discussed in the BBNJ negotiations until now, which have been characterized by an operational concern for the type of benefits that could be accrued and distributed. It then contrasts the negotiations with insights arising from other international benefit-sharing regimes, with a view to suggesting a more principled approach focused on “sharing” benefits “fairly and equitably.” This helps highlight the potential value added of benefit-sharing to foster deeper and cosmopolitan international cooperation (that is, a global partnership) vis-a-vis existing international obligations on marine scientific research, capacity building, marine technology transfer and the protection of the marine environment. The article then applies these considerations to the thorny and novel question of digital information on marine genetic resources of areas beyond national jurisdiction.

KEBIJAKAN PEMERINTAH PADA BIDANG PERLINDUNGAN SUMBER DAYA GENETIKA LAUT DI INDONESIA DALAM RANGKA MENJAGA DAN MENGELOLA SUMBER DAYA ALAM LAUT

Indonesia is a country that has a wealth of marine genetic resources of interest to researchers and scientists to do research in order to produce findings and new innovations. Thus, the necessary arrangements are clear and unequivocal. The implementation of the system of intellectual property rights requires not only good legislation in the field of intellectual property, but also need to be supported by the Administration, the rule of law as well as the optimal dissemination programs about intellectual property rights. At present, Indonesia has had a device regulation in the field of intellectual property that protects marine genetic resources, namely Act No. 13 of the year 2016 about patents. Since the year 2000, the filing of the application for intellectual property rights can be made at the offices of the Ministry of Justice and human rights areas. This can be seen with the promulgation of Act No. 13 of the year 2016. Through this Act an awful lot of refinement and the addition of the former patent laws i.e. Law No. 14 of the year 2001. As for the formulation of the problem in this research is how Government policy in the field of the protection of genetic resources of the sea in Indonesia in order to maintain and manage the natural resources of the sea. The results showed that decisive action from the Government in preventing violations of patents in the form of damages for Patent holders that have been used by other parties without permission from the patent holder. It also ordered the violators with stops in producing goods that have been patented.

Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument

Negotiations on an internationally binding legal instrument on biodiversity and marine genetic resources beyond national jurisdictions will commence in September 2018. Based on international biodiversity law, patent rights and the recent developments in the governance and circulation of genetic resources, this note suggests ten key components for a fair, informed and progressive internationally binding instrument on marine genetic resources beyond national jurisdictions.

Marine Genetic Resources Beyond National Jurisdiction: Elements of a New International Legally Binding Instrument

This note is intended to inform country representatives, negotiators, and legal and technical advisers of springboards and roadblocks to an acceptable international legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction under UNGA resolution 69/292.

Corporate control and global governance of marine genetic resources.

Who owns ocean biodiversity? This is an increasingly relevant question, given the legal uncertainties associated with the use of genetic resources from areas beyond national jurisdiction, which cover half of the Earth's surface. We accessed 38 million records of genetic sequences associated with patents and created a database of 12,998 sequences extracted from 862 marine species. We identified >1600 sequences from 91 species associated with deep-sea and hydrothermal vent systems, reflecting commercial interest in organisms from remote ocean areas, as well as a capacity to collect and use the genes of such species. A single corporation registered 47% of all marine sequences included in gene patents, exceeding the combined share of 220 other companies (37%). Universities and their commercialization partners registered 12%. Actors located or headquartered in 10 countries registered 98% of all patent sequences, and 165 countries were unrepresented. Our findings highlight the importance of inclusive participation by all states in international negotiations and the urgency of clarifying the legal regime around access and benefit sharing of marine genetic resources. We identify a need for greater transparency regarding species provenance, transfer of patent ownership, and activities of corporations with a disproportionate influence over the patenting of marine biodiversity. We suggest that identifying these key actors is a critical step toward encouraging innovation, fostering greater equity, and promoting better ocean stewardship.

Registration of BBNJ Research Activities: A Move towards Transparency in Research Governance

The Prep Com recommended in July that the UNGA initiate a negotiating conference on areas beyond national jurisdiction. It is widely expected to make such a decision. Then, the long haul negotiation will begin. The 1982 UN Convention on the Law of the Sea does not regulate marine genetic resources in areas beyond the national jurisdiction of States (BBNJ). Part XIII of the Convention could accommodate BBNJ research, but not its governance. The triangulation of three factors-the interim absence of an international framework for governance of BBNJ research, an indirect reference to this issue in the on-going BBNJ deliberations on access and benefit sharing and an interim laissez-faire attitude in BBNJ exploration and exploitation-leads to a need for transparency in governance of BBNJ research activities. To address this lacuna, a United Nations Register on BBNJ Research Activities is recommended, encouraging scientists from all regions including Asia to engage in BBNJ research.

Planning on law: Fair and just in the division of benefits. The case of genetic resources in the high seas (water column)

How to define sharing benefits from Marine Genetic Resources in the High Seas (water column) as equitable and just? Supposedly, the United Nations Convention on the Law of the Sea, international custom and the Convention on Biological Diversity do not rule Marine Genetic Resources in the High Seas as far as sharing benefits is concerned. The basic feature of international law and its sub-disciplines (of environment, investment, conflict resolution), subjects, and objects has to do with its content whatever the validity from international law as such or national law and the content based on sense and limits by interpretation and application (internationally and nationally). Interpreting international legal rules is only possible utilizing the elements established by international law, one is the systematically interpretation considering all and certain legal rules as foundations of the international legal system.

The Legal Protection of Marine Biodiversity of Areas Beyond National Jurisdiction: Where Do We Stand?

Where do we stand in the negotiations of the BBNJ agreement, prior to the commencement of the first session of the intergovernmental conference in September 2018? The basis for the intergovernmental conference (IGC) negotiations will be the Report to the General Assembly made by the Preparatory Committee (PrepCom), that ended in July 2017. The mandate of the PrepCom was to – while exhausting every effort to reach agreement on substantive matters by consensus – make “substantive recommendations to the General Assembly on the elements of a draft text” regarding the following 4 issues: area based management tools, including marine protected areas; marine genetic resources, including questions on the sharing of benefits; environmental impact assessments; and capacity building and transfer of marine technology. But that didn’t happen. Although the PrepCom Report was adopted by consensus, it clearly states that its recommendations “do not reflect consensus”; and it didn’t contain real “substantive” recommendations on the elements of a draft text. Given that, we can expect that the IGC will have to work from ground zero on almost every single issue, confronting all over again the same challenges that the PrepCom did.

Mare Geneticum: Balancing Governance of Marine Genetic Resources in International Waters

Abstract A fair and effective regime regulating benefit-sharing of marine genetic resources (mgr) in areas beyond national jurisdiction (abnj) must consider the inclusion of developing states, support scientific research and safeguard investments of the private sector. The present innovative proposal ensures a delicate balance through an approach based on open access, albeit with limitations. Access to mgr in abnj is facilitated, but conditional on the public release of collected samples and raw data. Adoption of the open access principle guarantees a powerful form of non-monetary benefit-sharing. The balance is maintained by the option for an extended embargo period, allowing samples and data to be kept confidential for a certain period, against payment to a biodiversity contribution fund. Monetary benefit-sharing, as a sector-negotiated percentage on revenue, could be imposed at the point of product commercialisation, and would offer a tangible payment system with a low transaction cost.

National Security Considerations for a Binding Instrument on Managing Biodiversity Beyond National Jurisdiction

The effort to negotiate and adopt a legally binding instrument to manage marine biodiversity beyond areas of national jurisdiction (BBNJ) implicates national security interests both directly and tangentially. First, negotiations for any agreement will contend with the long-standing concept that the oceans are reserved for “peaceful purposes.” The maritime powers will insist that the concept, which reflects customary law and the practice of virtually all states, does not demilitarize the oceans. Second, any BBNJ treaty must overcome two interrelated spatial issues: the geographic parameters of what constitutes “areas beyond national jurisdiction” when those maritime boundaries are often uncertain, and how measures to protect the environment interact with military activities in those areas. Naval powers will insist that requisite marine protected areas (MPAs) and associated protective measures do not diminish naval freedom of navigation and other military uses of the sea. Third, BBNJ negotiations will be compelled to address how a new treaty will relate to the United Nations Convention on the Law of the Sea (UNCLOS), a host of other treaties, and customary norms. Imperfect as the contemporary global order of the oceans is, major maritime powers and even middle powers will seek to protect it and resist efforts at radical change that may destabilize existing regimes in pursuit of an ephemeral gain for BBNJ. This strategic interest in international stability, while understandable, unintentionally creates inertia that is likely to frustrate the most progressive proponents of BBNJ. Fourth, more broadly, any treaty is likely to affect marine ecosystem services and perhaps marine genetic resources (MGR), which help propel the “blue economy” and undergird national security. We may expect most coastal states to continue to jealously protect their exclusive rights to the living and nonliving resources offshore, and even to propose expansion of those rights and jurisdiction to “adjacent areas.” The most developed states, for their part, are unlikely to agree to any text that diminishes their rights to intellectual property related to marine biotechnology, which is a strategic sector for bio-weapons research and defense. In short, states with advanced military capabilities, and major maritime powers in particular, are unlikely to support more than incremental change to the regimes reflected in UNCLOS.

Bio-Piracy on the High Seas? Benefit Sharing from Marine Genetic Resource Exploitation in Areas beyond National Jurisdiction

Transnational benefit sharing from the exploitation of Marine Genetic Resources’ (MGR’s) in Areas Beyond National Jurisdiction (ABNJ) presents a unique problem in international law. Proposals to govern MGR’s in ABNJ include leaving them unregulated, governance under the International Seabed Authority (ISA) or the Convention on Biological Diversity (CBD) or implementing a new international regime. This paper demonstrates that a hybrid solution for MGR governance under the ISA which is modeled on the CBD and The Nagoya Protocol (Nagoya), provides the most adroit solution to the problem of equal benefit and access to MGR’s for all States. This solution ensures adequate conservation of MGR’s, meanwhile fostering sustainable exploitation and maintaining equality in access, biodiversity and the sharing of financial and technological benefits amongst the internationalcommunity. Further, examining benefit sharing from bioprospecting under the CBD and Nagoya provides a foundation for a benefit-sharing regime in ABNJ under The United Nations Convention on the Law of the Sea (UNCLOS). Examining the CBD, Nagoya and UNCLOS demonstrates how benefits arising from exploitation of MGR’s in the high seas and deep bed should be included as a mandate of the ISA. This methodology is accomplished by focusing on bioprospecting for MGR’s and how the CBD and Nagoya facilitate access to the resource while ensuring that the host State or community benefits from granting access. As the CBD and Nagoya focus on benefit sharing in light of national sovereignty, and UNCLOS regulates in areas beyond national jurisdiction, the ISA is perfectly placed to adopt the principles of the CBD and Nagoya and provide a mechanism to ensure that MGR’s in ABNJ are adequately conserved and the benefits arising from their exploitation equitably shared.

Marine Technology Transfer under a BBNJ Treaty: A Case for Transnational Network Cooperation

Our ability to protect and sustainably use the high seas is ultimately subject to our ability to understand this vast and remote environment. The success of an international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) will depend, in part, on utilizing technology to access ocean life, to analyze it, and to implement measures for its conservation and sustainable use. Indeed, technology, broadly defined, is integral to meeting the ILBI's objectives: not just the mandate to address “capacity-building and the transfer of marine technology,” but also the sustainable use and conservation of marine genetic resources, the implementation of environmental impact assessments, and biodiversity conservation measures such as area-based management tools. To maximize marine technology deployment to protect marine biodiversity in areas beyond national jurisdiction, transferring technology to developing countries will be critical. Provisions for the transfer of technology, generally from developed to developing countries, are included in many international environmental agreements and declarations, but these provisions have often proven difficult to implement. Part of the difficulty is that the relevant technology is dispersed among states; universities, research institutes and other nonstate actors; and private industry. The particular challenge in crafting an ILBI is, as the European Union has identified, to avoid repeating existing provisions and instead to “focus on added value.” One opportunity for an ILBI to add value on technology transfer is to further develop a network model to facilitate marine technology transfer.

Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic

The development of an Internationally Binding Legal Instrument (ILBI) for the conservation and sustainable management of marine biological diversity in areas beyond national jurisdiction (BBNJ) has profound implications for the future regulatory activities of a host of regional governance structures exercising competence over these waters. In the rather stilted vernacular of the BBNJ Process, the ILBI aspires to “not undermine” the work of preexisting institutions and initiatives. Inevitably, given the emphasis upon future institutional symbiosis, a key challenge facing the ILBI is to promote its four thematic priorities—marine genetic resources, area-based management tools, environmental assessment, and capacity building and technology transfer—in a manner that can be effectively harnessed by current regional and sectoral frameworks. One region in which the intriguing set of challenges and opportunities presented by the ILBI are strikingly manifested is the Arctic. Some have argued for a regional treaty or clearer recognition of the “special” nature of Arctic conditions. However, we view the ILBI as a potential milestone in Arctic governance that can provide a firm platform to build on current cooperative arrangements for these vulnerable and rapidly changing marine ecosystems. Moreover, we argue that the present legal and institutional framework for the Arctic need not be revisited at this juncture, as it provides a strong regime through which to implement the core objectives of the ILBI. Its ability to do so, however, will depend on whether the ILBI (1) is effectively designed to work with preexisting machinery and (2) succeeds in clarifying and advancing universally-agreed methodological requirements for its four priority areas.

The Relevance of the Southern Ocean to the Development of a Global Regime for Marine Areas beyond National Jurisdiction—An Uncommon Commons

Abstract The Southern Ocean’s areas beyond national jurisdiction (abnj) are uncommon in a number of ways. This article first discusses features of the Southern Ocean’s uncommonness that may be relevant to the relationship between the Antarctic Treaty System (ats) and the development of the international legally binding instrument on the conservation and sustainable use of marine biological diversity of abnj under United Nations General Assembly Resolution 69/292 (ilbi). Second, the article considers the potential relationship between the ilbi and the ats. Third, the article discusses the current approach of the ats to governance of the Southern Ocean’s abnj by focusing on two particular topics which are to be included in the development of the ilbi. The topics discussed are measures (such as area-based management, including marine protected areas) and marine genetic resources.

Research for Regions: Strengthening Marine Technology Transfer for Pacific Island Countries and Biodiversity beyond National Jurisdiction

Abstract Pacific Island Countries have limited capacity to engage in scientific research involving marine genetic resources in areas beyond national jurisdiction (abnj). Marine scientific research and capacity development are central to the regime for technology transfer established by the 1982 United Nations Convention on the Law of the Sea (losc), but gaps and ambiguities weaken this framework. In this article, options to strengthen scientific capacity in Pacific Island Countries, through the development of a new international legally binding instrument for the conservation and sustainable use of biodiversity in abnj under the losc, are examined. The international framework for technology transfer could be strengthened by fostering an integrated approach to the advancement, sharing and application of scientific knowledge. Coordination and collaboration at global and regional levels will be required to increase marine science cooperation, improve access to data and information, deliver training, and overcome barriers to develop institutional and individual scientific capacity.

Sustainable Management of High Seas Marine Resources: Scoping Note

Sustainable development goal 14 is to “conserve and sustainably use the oceans, seas and marine resources for sustainable development.” This scoping note focuses on just the natural resources of the ocean’s high seas area, that is, areas beyond national jurisdiction (ABNJ), which constitute more than half of the world ocean and the world’s largest ecosystem. International law governing natural resources in areas within national jurisdiction—ocean waters landward of 200 nm (or 12 nm for states that have not claimed an Extended Economic Zone) and the seafloor landward of continental shelf boundaries, where they have been claimed—is extensive, and only partially overlaps this topic. High seas marine resources include fisheries, one of the most ancient subjects of international law, and marine genetic resources, one of the most novel. These and other vital ocean natural resources and ecosystem services exist within areas of national control and areas beyond national jurisdiction, with important transboundary effects and commons considerations. Although the UN Convention on the Law of the Sea, Part XII, was intended to provide a framework for the protection and preservation of the marine environment, there is divergence between the law of the sea and international marine environmental law principles. Initiatives are under way to fill gaps in the legal regime for ocean ABNJ. This note provides an overview of the value, threats and status of the ocean; a survey of the international legal terrain; state practice; and future directions.

Marine Genetic Resources in Areas beyond National Jurisdiction: Issues with, in and outside of UNCLOS

The negotiations for a new international legally binding instrument under UNCLOS, on marine biological diversity in areas beyond national jurisdiction, has brought to the fore interesting questions over the applicable regime for marine genetic resources, including issues of benefit sharing. This article examines the different principles that have been suggested as applying to marine genetic resources, as well as suggestions of middle-of-the-way approaches. The freedom of the high seas, common heritage of mankind, common concern of humankind, Part xiii of UNCLOS on marine scientific research, and the Nagoya Protocol, are reflected on in turn. Brief reflections are also offered on the matter of intellectual property rights. This article recognizes the need for coherence with the existing UNCLOS regimes that apply to the areas beyond national jurisdiction, whilst taking into account the specific characteristics of marine genetic resources. There is potential utility in distilling means by which the seemingly diametrically opposed notions in Part vii and Part xi of UNCLOS may overlap. Perhaps the best point of entry for successful navigation of the issues is through the regime for marine scientific research, appropriately informed by other experiences, other existing agreements, and related regimes. Ultimately, the new implementing agreement, like its parent treaty (UNCLOS), will need to maintain a balance of interests.

New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance?

The purpose of this paper is to analyse the relationship of the proposed new UNCLOS Implementing Agreement concerning the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction with the current legal framework concerning fisheries. It elaborates on selected elements that are under negotiations, namely: marine genetic resources, area-based management tools, including marine protected areas, as well as environmental impact assessments. Each of those elements is analyzed with particular emphasis being laid on the following issues. Firstly, how the current legal status quo in the relevant area looks like. Secondly, how the question of fisheries could be included in a future treaty and, thirdly, what bearing it could have on the current framework of the management of fisheries.The article concludes with the identification of possible fields where the new treaty could bring added value. However, some possible challenges are mentioned as well. They relate in particular to the fact that the mandate of negotiations underscores that they shall not ‘undermine existing legal instruments and frameworks and relevant global, regional and sectoral bodies’.