Download Different Options for ABS in Relation to Marine Genetic

Different Options for ABS in Relation to
Marine Genetic Resources in ABNJ
Seminar on Conservation and Sustainable Use of
Marine Biodiversity Beyond National Jurisdiction
Thomas Greiber (LL.M.)
Senior Legal Officer, IUCN Environmental Law Centre
INTERNATIONAL UNION FOR CONSERVATION OF NATURE
Content
• Why access and benefit-sharing (ABS) in relation to marine
genetic resources?
 Socio-economic relevance
 Governance challenge
• Existing international legal frameworks
• Different ABS options
• Possible procedural way forward
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Why ABS in relation to marine genetic
resources?
• UNGA Resolution 65/37 recognized
– “the abundance and diversity of marine genetic resources and their
value in terms of the benefits, goods and services they can
provide”
– “the importance of research on marine genetic resources for the
purpose of enhancing the scientific understanding, potential use and
application, and enhanced management of marine ecosystems”
• 4th meeting of BBNJ Working Group recommended a process
which
– “would address the conservation and sustainable use of marine
biodiversity in ABNJ, in particular, [...] marine genetic resources,
including questions on the sharing of benefits, [...] capacitybuilding and the transfer of marine technology”
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Why ABS in relation to marine genetic
resources?
• Scientific interest
– Some marine organisms in ABNJ present interesting metabolic,
physiological and taxonomic characteristics
• Economic interest
– Genetic resources of such marine organisms considered as “blue
gold”
•
Sociological interest
– Development of knowledge and cultivation of products for the
benefit of entire human well-being
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Why ABS in relation to marine genetic
resources?
Governance challenges:
• Potential environmental threats
– No rules that regulate how to access the resources
• Questions of fairness and equity
– 10 countries own 90% of the patents deposited with marine genes,
with 70% belonging to the top 3 (USA, Germany, Japan)
• Need for realistic expectations
– Upfront investment are high, but monetary benefits are uncertain
• Different ecosystems
– Focus not limited to benthic environment, but also pelagic zone
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Existing international legal frameworks
UN Convention on the Law of the Sea (UNCLOS)
•
ABS related to marine genetic resources not explicitly regulated
•
Part XI UNCLOS includes benefit-sharing provisions
– Exploration and exploitation of resources of the Area for benefit of
mankind (Art. 137.2 and 140.1)
– ISA provides for equitable sharing of financial and other economic
benefits (Art. 137.2 and 140.2)
– Promotion and encouragement of transfer of related technology so
that all states benefit (Art. 144.1)
BUT
•
Scope of Part XI UNCLOS limited to (Art. 133(a))
•
•
Mineral resources, i.e. not marine genetic resources
Resources at or beneath the seabed, i.e. no resources in water
column
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Existing international legal frameworks
•
Part VII UNCLOS provides for ‘freedom of high seas’
 No ABS regime for marine genetic resources
– But no absolute freedom:


•
Duty to cooperate in management of living resources (Art. 118)
Scientific research subject to Part XIII UNCLOS
Part XIII UNCLOS provides for benefit-sharing related to marine
scientific research in pelagic zone
 Information on and knowledge from research programs (Art. 244.1)
 Data and knowledge transfer (Art. 244.2)
 International cooperation in research (Art. 242)
•
Part XI UNCLOS provides for benefit-sharing related to marine
scientific research in the Area
– Scientific research for benefit of mankind as a whole (Art. 143.1)
– Dissemination of research results (Art. 143.3)
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Existing international legal frameworks
CBD Nagoya Protocol
• Applies to GR within scope of Art. 15 CBD
– Art. 15 CBD does not expressly exclude MGR in ABNJ, but refers to
GR subject to national sovereignty
– Art. 15 CBD requires prior informed consent of provider of GR
• Provides for development of specialized international ABS
instruments, such as an ABS regime for MGR in ABNJ
• Introduces idea of global multilateral benefit-sharing mechanism
– Could be developed in order to address situations where it is not
possible to grant or obtain prior informed consent
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Existing international legal frameworks
Antarctic Treaty System
• Area south of 60° South Latitude, including all ice shelves
• Freedom of scientific investigation in Antarctica (Art. II
Antarctic Treaty)
– Condition: “to the greatest extent feasible and practicable…
scientific observations and results from Antarctica shall be
exchanged and made freely available” (Article III(1)(c) Antarctic
Treaty)
– How does this relate to commercial discoveries, product
development?
• Protocol on Environmental Protection to the Antarctic Treaty
(Madrid Protocol) includes overarching principles:
– Environmental Impact Assessment process (Annex I)
– Permits to collect specimens (Annex II, Annex V)
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Existing international legal frameworks
WIPO and WTO
• WTO Doha Round discusses conditions for patent application
(Art. 27.3 and 29 TRIPS)
• WIPO Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore
(IGC)
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Existing international legal frameworks
Conclusion
Currently existing international legal frameworks manifest a lack
of
• Harmonization amongst different fora and processes
• Clear and comprehensive regulation of ABS related to marine
genetic resources in ABNJ
What options exist to move forward?
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Different ABS options
Expanding the mandate of ISA
• Changing definition of term “resources” under Art. 133 UNCLOS
– Benefit-sharing regime under Art. 137, 140 and 144 UNCLOS would
apply
• Broadening scope of Art. 82 UNCLOS
– Benefit-sharing regime for exploitation of non-living resources of
outer continental shelf and seabed area would apply
• Both foresee sharing of monetary and non-monetary benefits
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Different ABS options
Expanding the mandate of ISA
OPPORTUNITIES
• Existing mandate to preserve environment and promote scientific
research
• Existing institutional framework and benefit-sharing mechanisms
provide interesting examples and opportunities for synergies
PROBLEMS
• Limited to resources in Area (seabed), water column not comprised
• Getting back to polarized discussion
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Different ABS options
Expanding the understanding of “marine scientific
research”
• Including not only “pure” scientific research, but also applied /
commercial research
• Broadening (non-monetary) benefit-sharing regime under Part
XIII for pelagic zone
 Information on and knowledge from research programs (Art. 244.1)
 Data and knowledge transfer (Art. 244.2)
 International cooperation in research (Art. 242)
•
Broadening (non-monetary) benefit-sharing regime under Part XI
for Area
 Dissemination of research results (Art. 143.3)
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Different ABS options
Expanding the understanding of “marine scientific
research”
OPPORTUNITIES
• Solving problem of difficult distinction between scientific and
applied research
• Including living as well as non-living resources
PROBLEMS
• Discouraging future exploration of resources in ABNJ
– Competition between developers cannot be ignored
– Need for perspective to be rewarded for upfront investment
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Different ABS options
Using a potential Global Benefit-sharing Mechanism
under the Nagoya Protocol
• Idea of Global Multilateral Benefit-sharing Mechanism introduced
under Art. 10 Nagoya Protocol
 Might complement bilateral ABS approach under Nagoya Protocol
 For genetic resources “for which it is not possible to grant or obtain
prior informed consent”
 Use of benefits for global conservation and sustainable use
• Need for and modalities of such a mechanism is still open
question:
 Mechanism or fund?
 Voluntary or mandatory?
 Triggers for benefit-sharing and recipients of benefits?
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Different ABS options
Using a potential Global Benefit-sharing Mechanism
under the Nagoya Protocol
OPPORTUNITIES
• Sending important signal to other ABS fora
– Promote synergies to reduce overhead and transaction costs
• Funds could be used to support global marine conservation
– Including MPAs, EIA, capacity building
PROBLEMS
• Who would administer and manage the mechanism?
– Joint administration and decision-making needed
– Liaison between UNCLOS and CBD weak
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Different ABS options
Learning from the FAO Plant Treaty
• Multilateral ABS System / common pool for listed resources
 Agreements with others (e.g. International Agricultural Research
Centres) to make their resources available under same conditions
• Facilitated access under certain conditions
 Solely for utilization and conservation in research, breeding and
training, and to continue global exchange (Art. 12.3 ITPGRFA)
 According to conditions of standard Material Transfer Agreement
• Multilateral benefit-sharing
 Facilitated access recognized as major benefit (Art. 13.1 ITPGRFA)
 Further benefits recognized (Art. 13.2 ITPGRFA)
 Mixture of mandatory and voluntary payments
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Different ABS options
Learning from the FAO Plant Treaty
OPPORTUNITIES
• Recognition of different types of benefits
• Different approaches applied according to certain conditions
– Facilitated access; mandatory and voluntary payments
PROBLEMS
• Starting points are not comparable
– No such history of exchange of marine genetic resources from ABNJ
– Selection criteria for list of most important genetic resources
– Difficult funding situation
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Different ABS options
Learning from the UPOV Convention
• Concept of “Plant Breeders’ Rights” as sui generis IPR system
• Investment in plant breeding rewarded
 Exclusive property right over commercialization of new plant
varieties to plant breeder
 Authorization needed and /or conditions and limitations for
production / reproduction; selling or marketing; etc.
• Property rights
 Only granted for limited period of time, afterwards variety becomes
public domain
 Subject to certain exceptions: not extended to acts done privately or
for non-commercial or experimental purposes
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Different ABS options
Learning from the UPOV Convention
OPPORTUNITIES
• Specific rights could be granted to scientists and bioprospectors for
their past, present and future contributions:
– Conserving resources
– Improving resources
– Making resources available
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Possible procedural way forward
• Interpretation of UNCLOS
– No consistent state practice related to ABS
– ‘Agreed interpretation’ by meeting of the Parties not foreseen
– Decision by ITLOS or ICJ only binding for submitting Parties
• UNGA Resolution (or Declaration)
– No binding force
– Possible 1st step, but so far annual resolutions do not include
concrete instruments
• Agreement outside of UNCLOS
– Article 10 Nagoya Protocol: Global Multilateral Mechanism
– Article 4 Nagoya Protocol: Specialized ABS instruments
– However, artificial separation from UNCLOS as ‘Constitution of Law
of the Sea’
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Possible procedural way forward
• Amendment of UNCLOS
– Amending and complementing certain UNCLOS parts
– Article 312 UNCLOS requires consensus on proposed amendments
– Article 313 UNCLOS requires no objection to proposed amendments
• Expansion of regional agreements
– Limited coverage of ABNJ
– Lack of harmonization and transparency
• Implementing agreement under UNCLOS
– Possibility to amend, revise or supplement UNCLOS without going
through UNCLOS amendment procedure
– May be joined by non-Parties to UNCLOS
– Possibility to apply ecosystem approach
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Conclusion
Issues to think about
• Connection with conservation / sustainable use issues
– Providing access rules
– Providing financial resources for conservation
• Mutual benefits
– Considering all types of possible benefits (monetary as well as
non-monetary)
– Considering all possible beneficiaries
• Rewarding upfront investment
– Granting specific rights to providers
– Granting different rights for different types of uses
– Mixture of voluntary and mandatory sharing
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Conclusion
Issues to think about
• Monitoring utilization and compliance
– Disclosure requirements
– Checkpoint(s)
– Passport (International Certificate of Compliance)
• Enforcement
– In particular in view of non-parties
• Synergies
– With existing institutional frameworks
– With other benefit-sharing processes
• Capacity and funding
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Thank you for your attention!
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