Principles, Objectives of Benefit-Sharing among Issues Discussed in Conference to Draft Marine Biological Diversity Treaty
The intergovernmental conference tasked with drafting a legally binding treaty under the 1982 United Nations Convention on the Law of the Sea governing maritime diversity in ocean waters beyond national jurisdiction entered its seventh day, with speakers discussing matters related to marine genetic resources, including questions on the sharing of benefits.
The bulk of deliberations focused on the objectives, principles and approaches to benefit-sharing; whether the treaty should include a list of benefits; how benefits might be distributed; and the relationship between the instrument and intellectual property rights.
Uruguay’s representative, associating himself with the statements made by the “Group of 77” developing countries and China, emphasized that the question of geographic scope is at the core of the instrument under discussion — even more so, given the complexity of the topic. It must be borne in mind that the effects, interpretation and application of the treaty will vary from one case to another, he said, noting that the International Court of Justice had pointed out that many provisions in the Convention on the Law of the Sea are considered customary law.
Also addressing the question of geographic scope, the representative of Switzerland emphasized that the instrument under negotiation is clearly about biodiversity in areas beyond national jurisdiction. She also said her delegation is ready to distinguish between fish as a commodity and fish exploited for genetic resources.
The delegate of Indonesia voiced his hope that the drafters of the text will address possible jurisdictional overlaps. Regarding extended continental shelves, he added that article 76 of the Convention on the Law of the Sea must be respected, with the new instrument providing further clarification.
However, Japan’s delegate pointed out that there was too much of an emphasis on the sharing of monetary benefit. In reality, the chances of the successful commercialization of marine genetic resources are very slim. Developing pharmaceuticals from marine genetic resources can take as much as 17 years and $1 billion. In one case it took almost 40 years to develop and approve a medicine based on marine genetic resources from a coastal area. No Japanese company is planning to collect marine genetic resources in areas beyond national jurisdiction, which could require descending thousands of metres to the seabed.
The representative of the United States, reiterating his country’s objections to the concept of the oceans as the common heritage of mankind, voiced his agreement with Japan’s delegate about the realities of the economic benefits of marine genetic resources. The instrument under negotiation must be consistent with the Convention on the Law of the Sea and the scope should be limited to marine genetic resources found in areas beyond national jurisdiction. Further, he said fish as a commodity should not be covered or regulated by the new instrument, and that the United States did not support a definition of ex situ marine genetic resources in the agreement.
Canada’s delegate, noting his agreement with others regarding geographic scope, added that the instrument should cover both areas beyond national jurisdiction and the high seas, and that it distinguish between the use of fish as a commodity and as a source of genetic material. Because of the subject’s complexity, it should be subject to detailed discussion around a draft text. Emphasizing the need to go beyond general statements, he suggested that proposals be explored and their meanings investigated in order to ensure that any outcome is workable and practical while serving the objectives of the agreement.
Also weighing in on the issue of geographical scope, Morocco’s representative said that it should be exclusively limited to areas beyond national jurisdiction. All marine genetic resources not already covered by the Convention on the Law of the Sea and the International Seabed Authority could be included in the new instrument. However, the freedom of the seas must be guaranteed, with marine genetic resources defined as part of the common heritage of mankind and subject to benefit-sharing.
The Russian Federation’s delegate stated that there is no conflict between the principle of the freedom of the high seas and the concept of the common heritage of mankind. It is from that position his delegation is approaching the question of fishing and marine research, he said, adding that it would be incorrect to establish a regime governing access to marine genetic resources. He also cautioned that broadening the definition of the common heritage of mankind could alter the balance of interests set out in the Convention on the Law of the Sea.
Norway’s representative emphasized the importance of drafting an agreement for the future, not for the way the world looks like today. On geographic scope, he said the instrument should apply to areas beyond national jurisdiction, including the high seas.
The representative of the Federated States of Micronesia, associating himself with the statements made by the Group of 77, the Alliance of Small Island States (AOSIS) and the Pacific small island developing States, said the geographic scope should include the high seas and areas beyond national jurisdiction, including the water column, sea bed, ocean floor and sub-soil. However, it should not encroach on continental shelves within national jurisdictions. In addition, he stressed, the instrument should not undermine existing fisheries regulations, underscoring the added value of ensuring the traceability of marine genetic resources.
The representative of International Union for Conservation of Nature and Natural Resources (IUCN) cautioned that, in practice, fish and other resources collected for commodity can also be used for genetic research. A distinction between the two should be based on the use of resource, rather than the intention behind their collection. She also suggested that the conference bear in mind technological change when considering the sharing of genetic information.
Also speaking were representatives of Bangladesh, India, Indonesia, Ecuador, Iceland, Togo, El Salvador, Viet Nam, Fiji, Mexico, South Africa and Chile.
Representatives of the Food and Agriculture Organization (FAO) and International Council of Environmental Law also spoke.
Representatives of Algeria (for the African Group), Barbados (for the Caribbean Community), and Nauru (for the Pacific small island developing States) took the floor a second time to clarify positions.
The conference then focused its discussion on the access and benefit-sharing aspects of marine genetic resources.
Speaking for the Group of 77, the representative of Egypt said, among other things, that terms and conditions for access could be established, drawing upon the principles in the Nagoya Protocol (The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity). The guiding principle of benefit-sharing must be the common heritage of mankind, providing a legal foundation for the fair and equitable regime for marine biological diversity in areas beyond national jurisdiction. Further, the use of such resources should be exclusively for peaceful purposes. The instrument should also include a detailed and non-exhaustive list of monetary and non-monetary benefits — including the transfer of knowledge and capacity-building — that would be subject to review.
Algeria’s representative, speaking for the African Group, proposed that access be regulated without hampering marine scientific research or burdening the private sector. Because the Group no longer favours a license-based system, delegations could consider an obligatory prior notification system. Regarding benefit-sharing, the principle of the common heritage of mankind should underpin the new instrument and be explicitly included in the text. All users of marine genetic resources should be required to share the non-monetary benefits. As well, the new instrument should cover intellectual property rights, with mandatory origin disclosure, which would help increase knowledge of biodiversity.
The representative of Maldives, speaking for the Alliance of Small Island States, said principles in the Nagoya Protocol could be considered with regard to traditional knowledge and consultation with indigenous communities. Benefit-sharing should include capacity-building and the promotion of marine scientific research. Marine genetic resources are a common heritage of mankind, he said, adding that it would be useful for the instrument to include a non-exhaustive and indicative list of benefits elaborated at a later date, with States parties to the instrument as beneficiaries. Intellectual property rights should be considered in a manner consistent with the World Intellectual Property Organization (WIPO), and marine genetic resources should not be patented, he stated.
While he agreed with the Group of 77 that access to marine genetic resources should be open, the European Union’s delegate underscored that did not mean such access should be unregulated. Elaborate provisions on how access would be addressed in the instrument aren’t needed, as general rules will apply in default. On benefit-sharing, the most practical option would focus first on non-monetary benefits that align with the objectives of the Law of the Sea Convention. A general provision setting out a broad definition of capacity-building and technology transfer could be considered. Any indicative list of non-monetary benefits should be future-proof. The bloc, he said, would support an enhanced mechanism within and without the Law of the Sea Convention. It could also consider an added-value clearing house mechanism.
The representative of Barbados, speaking for the Caribbean Community (CARICOM), said, among other things, that a notification system, critical for access and benefit-sharing, must not be used to frustrate marine scientific research, an objective of the treaty. Given potential interlinkages, perhaps different levels of regulated access might be required. The principles of the common heritage of mankind and the freedom of the high seas are not mutually exclusive, she continued, explaining that the former can apply to exploitation of marine genetic resources while the latter can address the question of access.
Nauru’s delegate, speaking for the Pacific small island developing States, said the instrument should include an access mechanism with either a permit-bases system or the licensing of marine genetic resources. For Pacific small island developing States, traditional knowledge is a key issue, she said, recalling the Nagoya Protocol and the need for the mechanism to underscore the principle of free and prior consent. The instrument should also provide for a mechanism and institutional arrangement enabling traceability, thus assuring benefit sharing. Underscoring the special case of small island developing States, she said it is important for principles and approaches to be spelled out clearly. She added that the instrument should provide for the inclusion of benefits and non-monetary benefits. On intellectual property rights, she said they should not be granted in the case of marine genetic resources, which are the common heritage of mankind and thus cannot be privatized.
There should be two regulatory tracks, Mexico’s representative proposed: one for scientific research and the other for commercial purposes. A procedure should be in place to enable a change of intent between the two. He cautioned against excessive regulation, adding that the results of access requests must be made public. He also recommended further discussion on the question of traditional knowledge. All access to marine genetic resources must lead to benefit-sharing, the details of which should be included in a non-exhaustive list. A fund that distributes royalties emanating from marine genetic resources should be established. Modalities for the sharing of benefits should be discussed more thoroughly, he added, also suggesting the establishment of a clearing house. On intellectual property rights, he said — emphasizing the principle of the common heritage of mankind — that they must be considered through WIPO.
The representative of the Federated States of Micronesia said access to marine genetic resources could be regulated based on the Convention of the Law of the Sea, with the instrument addressing regulatory concerns. A robust access and benefit-sharing mechanism should be attuned to the needs and interests of developing countries. Access without benefit-sharing would not be equitable, he said, adding that it is crucial for the instrument to regulate access, particularly when national legislation is absent. Intellectual property rights must be secondary to the treatment of marine genetic resources in accordance with the principle of the common heritage of mankind.
Brazil’s delegate proposed a notice-based procedure to regulate access, adding that benefit-sharing should not apply to research work. The objective of benefit-sharing should be to help the international community, including developing countries, to acquire the tools for research into marine genetic resources. Brazil supports an international fund for benefit-sharing, he added.
Tonga’s representative said in situ access to marine genetic resources must be regulated based on the type of activity in question and where it would take place. Benefit-sharing could include capacity-building, she said, adding that principles and approaches should be listed and operationalized in the instrument to ensure clarity. On a clearing house mechanism, she said it could include an information portal for marine genetic information.
The delegate of Papua New Guinea said that, given a sizeable gulf between delegations, more dialogue is required; leaving issues unaddressed risked weakening the instrument. Non-State actors are another key issue, he said, citing an academic study that found that the majority of patents related to marine genetic resources are held by corporations. A States-based clearing house mechanism would overlook those resources patented by the private sector. He added that his delegation favours open access to scientific information through a clearing house mechanism, held in trust for current and future generations.
China’s representative said a free access regime for in situ marine genetic resources should apply, with States parties informing the secretariat of the conference about their activities. A code of conduct for access to marine genetic resources should be developed and the instrument should require States to develop national legislation for the management of such resources. Priority should go to non-monetary benefits, including sample sharing and technology transfers. There should be no monetary benefit-sharing prior to the large-scale commercialization of a marine genetic resource. He also said that there is no need for a specific provision in the instrument on intellectual property rights.
Fiji’s delegate said any agreement should include provisions to regulate access that would relate to the Convention on the Law of the Sea provisions dealing with marine scientific research. Reporting of marine genetic resource activity should be mandatory as well as reasonable. A single regime is perhaps the way to go, with a key objective aimed at addressing the different life stages of boundary-crossing species. A trust fund should be created that focuses on capacity-building and technology transfer, supporting the Sustainable Developments Goals, particularly in small island developing States. He also underscored the need for a clearing house mechanism and recommended that special circumstances of small island developing States be appropriately reflected in the instrument.
The representative of Nepal said access and benefit-sharing should go to all developing countries, including landlocked developing countries like his. He added that a non-exhaustive list of benefits should be based on the Nagoya Protocol. He also said he was in favour the creation of a single clearing house mechanism with multifunctional purposes under the instrument.
Norway’s delegate echoed speakers’ call for the possibility of combining “free access” with a system of notification. As for the values that could be shared, it was important to focus on what the new regime should deliver. He pointed out that Norway’s experience cooperating with developing countries has taught it to maintain maximum flexibility for the benefit of all parties. A system that aligns needs is a welcomed step. Developing countries must be better placed to sustainably use marine resources. A positive side effect of the regime could also be increased competence and the ability to utilize resources in national waters. The system could also assist developing countries to deliver on conservation efforts and goals.
The observer of the Holy See said the requirement of public registration should apply to all States, without regard to scientific or commercial status of the registrant. Additional information should be required for a corporate entity to properly identify it. Registration fees and change fees should be charged on a cost-recovery basis to meet administrative costs. Providing access to genetic data and information on marine genetic resources is vital for scientific advancement. Any attempt to include measures to restrict intellectual rights would not prove fruitful, she added. Trust provisions could be included in the agreement to ensure inclusive international participation and protect against disproportionate sway by a single country. The Holy See is in strong favour of the equitable sharing of benefits of ocean resources, she stressed, adding that there seems to be agreement that benefit-sharing must be included in the regime. That obligation should be tied to an internationally binding treaty.
Japan’s delegate said he was not in favour of regulating access to marine genetic resources. Regarding benefit-sharing, he also noted he did not support monetary benefit sharing, which could ruin research potential. The regime of voluntary sharing of resources already exists. “What we need to do in the new instrument is continue building on existing regimes,” he stated.
The representative of the United States said access to marine genetic resources beyond national jurisdiction should remain open and unimpeded. Given the difficulties of anyone to even access data on marine genetic resources, advancing access to data could be a benefit. Marine genetic resources should not be regulated for any activity, as such regulation would impede marine advancements. This could have a detrimental impact on research, he warned. On benefit-sharing, he said it is important that related provisions not restrict access to marine genetic resources. Moreover, benefits should be non-monetary. Intellectual property rights standards are provided in relevant treaties. It is not appropriate for new standards to be imposed from this agreement.
Canada’s delegate said the existing intellectual property rights regime is a system of rules, adding that “we do not wish to upset the balance” and emphasizing the need to be careful and protect that balance. There are, indeed, expert discussions taking place on intellectual property rights.
The Russian Federation’s representative said the so-called gap in the regime of access to marine genetic resources does not exist. Turning to benefit-sharing, he stressed that marine genetic resources and their commercial value cannot be established prematurely. From the time they are extracted to when profit is gained could be decades. Not all marine research activities will lead to commercially viable results. Bureaucratization of such activities would lead to making important research more difficult to conduct.
Also speaking were representatives of Argentina, Iran, Sri Lanka, Switzerland, Philippines, India, Paraguay, Singapore, Republic of Korea, Peru, Colombia, and Honduras.
Convened pursuant to General Assembly resolution 72/249, the session — continuing through 17 September — is seeking to elaborate the text of an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
The session is the first in a series, with the second and third to take place in 2019 and the fourth and last session planned for the first half of 2020.
The conference will meet on Thursday, 13 September, to continue its work.