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Marine genetic resources in areas beyond national jurisdiction

Explore the need for a new international legal instrument to govern marine genetic resources in areas beyond national jurisdiction, covering competing principles, fragmented coverage issues, negotiation pathways, and reconciling competing principles.

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Marine genetic resources in areas beyond national jurisdiction

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  1. Marine genetic resources in areas beyond national jurisdiction Dr. Alejandro Iza Director, IUCN Environmental Law Centre Head, IUCN Environmental Law Programme

  2. Outline • IUCN and itsEnvironmentalLaw Centre • Background • A new international legally binding instrument • Competing principles • A practical approach • Final thoughts

  3. Part 1: International Union for Conservation of Nature (IUCN)

  4. IUCN-United for Life and Livelihoods IUCN, the world’s largest and most diverse environmental network : withcredible knowledge, global-to-local reach, standards & practices, convening all players

  5. Environmental Law Centre (ELC) • Established in 1970 in Bonn, Germany • Focus on • Conceptual development of the environmental law • Assistance in designing and implementing legal frameworks • Strengthening capacities for environmental law and governance at local, • Dissemination of legal knowledge and informationion on • ECOLEX Management Unit (www.ecolex.org)

  6. Part 2: Background

  7. What are Areas Beyond National Jurisdiction?

  8. Map of ABNJ

  9. What are marine genetic resources?

  10. Part 3: A new international legally binding instrument

  11. The need for a new agreement

  12. Existing ocean governance frameworks • UN Convention on the Law of the Sea (UNCLOS) • UN Fish Stocks Agreement • RFMOs • Regional Agreements • FAO Agreements • FAO Compliance Agreement • Port State Measures • Voluntary Codes • International Maritime Organization (IMO) • MARPOL • London Dumping Convention • Ballast Water Agreement • UNEP Regional Seas Conventions • Barcelona Convention • Nairobi Convention • Polar Agreements • CCAMLR • Arctic Treaty System • Species Conventions • International Whaling Convention • Multilateral Environmental Agreements (MEAs) • CBD • CMS

  13. Why a new instrument? • Fragmented coverage that is not comprehensive • Current coverage is patchy, focusing on a specific region, species, or sector (e.g. fishing, shipping) • Current organizations do not have a comprehensive mandate, and do not always coordinate • Some regions and sectors do not have an applicable entity • Weak regional or sectoral organizations • Different regional / sectoral organizations have different levels of capacity • Some are less able to address problems • Cumulative impacts • Sectoral activities that are regulated separately have cumulative impacts on marine biodiversity • Coordination is necessary to address these impacts • Gaps • Emerging issues are not currently covered by the instrument • E.g., access and benefit sharing in relation to marine genetic resources in ABNJ

  14. Pathway to the Negotiation • 2006-2015: Ad-hoc Open Ended Informal Working Group • 2016-2017: Preparatory Committee • 2018-2020: Intergovern-mental Conference • 2012: Rio +20 Conference • 2015: UNGA Res. 69/292 • 2017: PrepCom report • 2018: UNGA Res. 72/249

  15. BBNJ Topics of discussion Environmental Impact Assessment Capacity Building and Technology Transfer Area-based Management Tools Marine Genetic Resources (MGR)

  16. How to reconcile competing principles? • How will the capacity building and technology transfer provisions relate to existing requirements? • How will the capacity building activities be funded? How to share benefits without blocking progress? How to create a system that is workable?

  17. Part 4: Competingprinciples

  18. Freedom of the high seas Common heritage of mankind

  19. UN Convention on the Law of the Sea Article 136 The Area and its resources are the common heritage of mankind. Article 1 For the purposes of this Convention: (1) "Area" means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction Article133 For the purposes of this Part: (a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules

  20. UN Convention on the Law of the Sea Article 87 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

  21. Considerations Questions • Are genetic resources in the Area governed by common heritage of mankind? • If they are not, are they instead covered by freedom of the high seas? • Are genetic resources in the High Seas governed by freedom of the high seas? • If not, could they be covered by common heritage of mankind? • If UNCLOS is not clear, can an implementing agreement define a new regime for these resources? Key points • Having a different regime for the Area and the High Seas would be unworkable • The regime for ABNJ needs to work with the regime applying within national jurisdiction under the Nagoya Protocol

  22. Part 5: A practicalapproach

  23. What kind of system do we want?

  24. What is needed? Areas of consensus • Facilitate access to marine genetic resources and promote research that will benefit humanity • Enable participation of all States, including developing States • Ensure sharing of non-monetary benefits, including sharing research results and scientific data and involving developing country scientists in research • Consider an option for sharing of monetary benefits • Provide legal certainty

  25. What could this look like? • Notification requirement pre- and post-cruise • Opportunity for developing country researchers to participate in cruises • Keeping track of data relating to origin of samples • Open access to samples in bio-repositories • Possible requirement for payment at the time of patenting or licensing, that goes into a global fund for conservation and capacity building • Sharing of data, cruise information, research opportunities, and funds available through clearing house mechanism

  26. Part 6: Final thoughts

  27. Sovereignty vs. Freedom?

  28. IUCN EnvironmentalLaw Centre GodesbergerAllee 108-11253175 Bonn Germany Phone: ++49 - 228 - 2692 - 231Fax: ++49 - 228 - 2692 – 250 Email: ELCSecretariat@iucn.org

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