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Bioprospecting for Marine Genetic Resources in Areas Beyond National Jurisdiction

An Update on International Regulatory Developments in the UN

Beveridge & Diamond, P.C. - Client Alert, March 3, 2009

Introduction

  • This note briefly reviews the status of regulatory developments regarding access to and bioprospecting for marine genetic resources (MGRs) in ocean areas located beyond the limits of national jurisdiction.
  • The treatment of MGRs in coastal areas subject to coastal state jurisdiction is also an active topic, particularly in the context of developing coastal state access and benefit-sharing regimes, but is beyond the scope of this note. 

Short Summary

  • The deep ocean is a major reservoir of global biodiversity, particularly around seamounts, hydrothermal vents, methane seeps, and deepwater coral communities.  The organisms that inhabit these isolated ecosystems have evolved under extreme conditions and offer significant opportunities for scientific discovery and commercialization. 
  • Bioprospecting for genetic material is increasingly available to companies as deep-water exploration becomes more feasible.  The pharmaceutical, biotechnology, and cosmetics industries are all active in this field.
  • Beginning in recent years, the international community has become concerned that some of these ecosystems are vulnerable, primarily to the effects of unsustainable fishing practices.  Many are in areas beyond national jurisdiction, however, where there is no clear international framework governing the exploitation of these resources.  
  • The conservation and sustainable use of these resources has therefore become the focus of growing international attention and dispute, as some countries and interest groups propose protective regimes while others attempt to facilitate commercial extraction.
  • In 2004, the UN General Assembly established a working group to examine these issues.  The group has since held two formal meetings, in 2006 and 2008, and as yet has issued no concrete recommendations. 
  • Some developing countries have argued that deep sea ecosystems are “the common heritage of mankind” and therefore the benefits derived from them must be shared among all nations.  They have indicated that they will therefore not give intellectual property rights protection to products derived from marine genetic resources taken on the high seas in the absence of benefit-sharing scheme to be developed.
  • On the other side, some developed countries press to maintain the status quo of open access to the bed of the high seas, as well as guarantees of intellectual property rights for bioprospecting enterprises. 
  • While the opposition between these views remains strong, there has been progress toward cooperation on conservation measures that would protect these resources.
  • The next meeting of the working group will not take place until 2010; in the meantime, the UN Secretary General will prepare a report on related issues for consideration by the UN General Assembly in the fall of 2009.

Existing Legal Frameworks that Arguably Apply to Marine Genetic Bioprospecting

  • There is a patchwork of existing international agreements that potentially apply to marine genetic resources, although none presents clear authority. 
  • The instruments most clearly implicated include the UN Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), various intellectual property rights agreements, and regional fisheries agreements.  Each of these instruments is relevant to some degree, but there is no comprehensive mechanism that governs activities directed at MGRs beyond the limits of national jurisdiction.
  • UNCLOS:  As the framework agreement governing all issues relating to oceans, UNCLOS is widely recognized as the starting point for evaluating any rules applicable to activities relating to these resources. 
    • UNCLOS sets out the rights and obligations of Parties on the basis of maritime zones, delineated according to distance from the coastline.  (The United States is not a party to the Convention but takes the position that its framework largely reflects customary international law.) 
    • States have sovereignty over their territorial seas and sovereign rights over the resources in their Exclusive Economic Zones and continental shelf.  The area beyond these limits is known as the high seas and, with respect to the seabed and ocean floor beyond the continental shelf, as “the Area.” 
    • Living resources in the high seas and in the Area are subject to an open-access regime, and generally not subject to individual national measures to protect the marine environment or  resources.  The jurisdiction of individual states is limited to: (1) vessel-based restrictions imposed by flag states; (2) controls imposed by a port state as a condition of port entry; and (3) controls imposed on the nationals of a given state.
    • UNCLOS does not specify which regime is applicable to genetic resources located beyond national jurisdiction.  A debate has therefore emerged about their status, focused primarily on whether they are analogous to seabed mineral resources, which are declared the “common heritage of mankind,” or instead should be treated as living marine resources on the high seas, generally free to be collected and sampled by all. 
    • The only clear regime under UNCLOS that currently governs bioprospecting beyond national jurisdiction is flag state jurisdiction.  This has raised concerns about whether UNCLOS is appropriately configured to address the conservation, sustainable use, and sharing of benefits derived from marine biodiversity.
  • CBD:  The CBD is a framework instrument that addresses the conservation of biological diversity, its sustainable use, and the fair and equitable sharing of benefits arising from the utilization of genetic resources. 
    • It might therefore be an appropriate instrument for the MGRs in question, except that the jurisdictional scope of the convention is limited to components of biodiversity found in areas within the limits of national jurisdiction. 
    • However, because the CBD applies to all processes and activities carried out under the jurisdiction or control of States within or beyond areas subject to national jurisdiction, and because human activities on the high seas may be subject to the jurisdiction of the flag state of a vessel or the state of a person’s nationality, the CBD remains relevant.
    • Indeed, the CBD conferences of the parties have adopted several resolutions and work programs addressing marine biodiversity beyond national jurisdiction.  But the CBD does not provide binding obligations regarding the use of genetic resources beyond national jurisdiction. 
    • The CBD parties are working actively on the development of an international regime for “access and benefit-sharing” (ABS) for genetic resources under the Convention.  The scope of that regime remains very much uncertain; various proposals under consideration would either expressly exclude MGRs, expressly include them, or implicitly include them to the extent that they fall within the jurisdiction of the CBD.  Although in the end the new ABS regime is unlikely to apply directly to MGRs beyond national jurisdiction, it may nevertheless affect the treatment of these resources under some circumstances.
    • CBD Parties at their most recent meeting (COP-9) also adopted scientific criteria for identifying ecologically or biologically significant marine communities in need of protection in open-ocean waters and deep-sea habitats and the scientific guidance for selecting areas to establish representative networks of marine protected areas.
  • RFMOs:  A number of other instruments exist that may be relevant to bioprospecting activities, including mechanisms under which countries agree to exercise their jurisdiction to control activities in the high seas to protect the marine environment or set sustainable harvest limits for fish.  These include measures to establish so-called “marine protected areas.”  There are currently many such mechanisms in place, with many variations in terms of factors such as criteria for designation and the nature of the protective measures imposed (ranging from the limitation of a specific activity to avoiding the area entirely).
  • TRIPs:  The TRIPs Agreement was established to ensure minimum intellectual property rights (IPR) standards among WTO members.  There is an ongoing debate as to whether to amend TRIPs in accordance with the CBD’s ABS principle which would require that access to naturally occurring genetic resources be balanced by appropriate sharing of the benefits.  If applied to areas beyond national jurisdiction, the ABS principle would impose as yet undefined obligations on the extractors and developers of MGRs.  In return, it would potentially improve the legal status of claims to IPRs based on these resources.
  • Antarctic Treaty System:  The treatment of MGRs (and terrestrial genetic resources) located within the jurisdiction of the Antarctic Treaty System has been on the agenda in that forum for several years.  It will be discussed again at the 30th Antarctic Treaty Consultative Meeting in Baltimore in April 2009.  The specialized rules governing activity under that regime raise issues not squarely presented in other forums, including whether the Treaty’s provisions on freedom of scientific information from Antarctica are inconsistent with intellectual property rights on products derived from Antarctic genetic resources, and whether distinctions should be drawn (for purposes of benefit-sharing policies) between fundamental scientific research, applied scientific research, and commercial use.

  • “Soft Law”:  There are also various codes of conduct under development that would apply to marine scientific research in the deep seabed.  Reliance on such voluntary codes is likely to increase in the absence of an any clear binding regulatory or management framework. 

Recent Developments

  • In 2004, the General Assembly established the “Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction” to examine these issues. 
  • The Working Group has held two formal meetings, in 2006 and 2008, and as yet has issued no recommendations other than the renewal of its mandate and refinements to its agenda.
  • Participants have found broad consensus that illegal, unregulated and unreported (IUU) fishing immediately threatens fragile marine ecosystems and should be addressed.  They have not yet agreed on the means to address the problem. 
  • On MGRs, an active dispute continues regarding whether MGRs should be regarded as “the common heritage of mankind.”
    • Many developing nations prefer this designation as it would require that the benefits derived from MGRs be shared among all nations. 
    • Many developed nations generally take the position that MGRs should be treated as other living resources of the high seas, leaving bioprospecting under the existing open access regime.
    • At its 2008 meeting, the Working Group tried to sidestep this debate and focus instead on practical measures to conserve the resources.  The discussions covered five major topics:
    • Environmental Impacts of Anthropogenic Activities:  Discussion focused on whether to require environmental impact assessments for new or unregulated activities.
    • Coordination and Cooperation Among States and Other Organizations:  Some supported the creation of a new body -- a multilateral marine conservation institution -- to facilitate such coordination, but new institutions are unlikely in the present climate.
    • The Role of Area-based Management Tools:  CBD parties have already initiated a process to create a network of marine protected areas (MPAs) by 2012.  Delegates discussed the proposed establishment of high seas MPAs and the norms that would guide such decisions.
    • Genetic Resources Beyond Areas of National Jurisdiction:  The EU proposed that an existing treaty could serve as a model for regulating MGRs: the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). 
    • The Existence of a Governance or Regulatory Gap:  The ultimate question appears to be whether UNCLOS provides an adequate framework for future cooperation on the conservation of marine biodiversity:  most states appeared to agree that UNCLOS is sufficient as a framework, but the EU has pushed for the development of an UNCLOS “implementation agreement” that would address these and related issues. 
  • The United States has strongly resisted calls for new instruments and defended the position that MGRs are a high seas resource.  It is unclear whether the Obama Administration will change that position, which could have significant implications for the pace and focus of future meetings in this space.

Next Steps on Marine Genetic Resources in Areas Beyond National Jurisdiction

  • The UN General Assembly agreed to convene the next meeting of the Working Group in 2010.  In the meantime, it requested the UN Secretary General to prepare a report on related issues for consideration by the General Assembly during its meeting in fall 2009.
  • The issues most likely to be addressed in upcoming proceedings are:
    • Continued discussion of practical measures to conserve marine biodiversity;
    • Consideration of ITPGRFA to address the terms of access and benefit-sharing for MGRs;
    • Establishing a network of MPAs both within and beyond areas of national jurisdiction; and 
    • Requirements for environmental impact assessments.

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For more information about these developments, or for more information about Beveridge & Diamond, P.C.’s international environmental and oceans practices, please contact K. Russell LaMotte, 202-789-6080, rlamotte@bdlaw.com, or visit us at www.bdlaw.com.