Marine genetic resources are likely to be useful for the development of new drugs, compounds, for use in food and industrial process, among others. For both pharmaceutical companies and researchers, this offers an opportunity to engage in marine bioprospecting, by searching for new genes and biomolecules of plants and animals located in oceans. Despite the value marine genetic resources offer, their use is not well regulated.
There are currently gaps in the international legal framework that exists around the use of marine genetic resources. Different legal instruments exist which are related to marine biodiversity and access and benefit sharing (ABS). These include Convention of Biological Diversity and its Nagoya Protocol. The ITPGRFA is also a useful model applicable to plant genetic resources. However, these agreements place a greater emphasis on the protection of terrestrial genetic resources compared to marine genetic resources. In fact, marine genetic resources that lie beyond the national jurisdiction are not covered under these agreements. There currently lacks a specific legal instrument to regulate their use.
The United Nations Convention on the Law of the Sea (UNCLOS) helps provides some context on marine genetic resources. Under the Convention, marine resources found up to 200 nautical miles of the coast fall within jurisdiction of the coastal state. Yet, approximately 2/3 of the oceans lie beyond the jurisdiction of any one state. The high seas and the deep seas are two distinct areas of the oceans that are home to unique marine wildlife that are beyond national jurisdiction. Since these resources do not belong to any one state, they are subject to the international law. However, the UNCLOS does not provide guidance on marine genetic resources. Hence, marine genetic resources located in places beyond national jurisdiction can be considered “unregulated.”
Negotiations have been underway for many years to develop an international agreement to address the sustainable use of marine resources found in high seas and international sea beds. The first session of the Preparatory Committee, who has been tasked with the role of drafting a text for this purpose, took place in Spring this year. This agreement would fall under the UNCLOS. Member states are divided over the approach for ABS of marine genetic resources.
Some states argue that marine genetic resources should be considered as a “common heritage of mankind”. This means that even if countries have the technology to extract the resources, they should not be exploited to the exclusion of other states. Rather, they should be exploited only for the benefit of humankind. The research should be for equitable purposes only.
Other states support the freedom of exploitation approach by arguing that marine genetic resources may be appropriated by any state on a first-come-first-served basis. This is based on the view that research is costly, time-consuming and a risky undertaking. These countries have expressed their openness to some form of benefit sharing such as sharing research results.
The next UN session to discuss the development of a legal instrument on marine genetic resources in areas beyond national jurisdiction will take place from August 26 to September 9 in New York. Some other topics for discussion include capacity building, technology transfer as well as marine management tools. These discussions will help move the way forward in addressing the current gaps in the ABS regime.
- Greiber, Thomas. Access and Benefit Sharing in Relation to Marine Genetic Resources from Areas Beyond National Jurisdiction - A Possible Way Forward, Federal Agency for Nature Conservation, (Bonn, Germany: Bundesamt für Naturschutz, 2011).
- Morgera, Elisa. “Benefit-sharing in marine areas beyond national jurisdiction: where are we at? (Part 1)”, (23 May 2014), Benelex Blog, online: <http://www.benelexblog.law.ed.ac.uk/2014/05/23/benefit-sharing-in-marine-areas-beyond-national-jurisdiction-where-are-we-at-part-i/>.
- Salpin, Charlotte. “Marine genetic resources and the law of the sea”, Division for Ocean Affairs and the Law of the Sea, United Nations (March 2010), online: <http://www.marinebiotech.eu/sites/marinebiotech.eu/files/public/images/conference/presentations/04SalpinCharlotte.pdf>.
- “UN Committee begins work on high seas biodiversity pact”, International Centre for Trade and Sustainable Development (13 April 2016), online: <http://www.ictsd.org/bridges-news/biores/news/un-committee-begins-work-on-high-seas-biodiversity-pact>.