Thomas Greiber (LL.M.) Senior Legal Officer, IUCN Environmental Law Centre

1. Different Options for ABS in Relation to Marine Genetic Resources in ABNJSeminar on Conservation and Sustainable Use of Marine Biodiversity Beyond National Jurisdiction Thomas Greiber (LL.M.) Senior Legal Officer, IUCN Environmental Law Centre

2. 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

3. 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, [...] capacity-building and the transfer of marine technology” Why ABS in relation to marine genetic resources?

4. 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 Why ABS in relation to marine genetic resources?

5. 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 Why ABS in relation to marine genetic resources?

6. 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 Existing international legal frameworks

7. 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) Existing international legal frameworks

8. CBD Nagoya Protocol Applies to GR within scope of Art. 15 CBD Art. 15 CBD does not expresslyexclude MGR in ABNJ, but refers to GR subject to national sovereignty Art. 15 CBD requirespriorinformed 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 Existing international legal frameworks

9. 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) Existing international legal frameworks

10. WIPO and WTO WTO Doha Round discusses conditions for patent application (Art. 27.3 and 29 TRIPS) WIPO IntergovernmentalCommittee on IntellectualProperty and GeneticResources, TraditionalKnowledge and Folklore (IGC) Existing international legal frameworks

11. Conclusion Currently existing international legal frameworks manifest a lack of Harmonization amongst different fora and processes Clear and comprehensiveregulation of ABS related to marine geneticresources in ABNJ What options exist to move forward? Existing international legal frameworks

12. 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 Different ABS options

13. 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 Different ABS options

14. 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) Different ABS options

15. 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 Different ABS options

16. 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? Different ABS options

17. 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 Different ABS options

18. 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 Different ABS options

19. 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 Different ABS options

20. 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 Different ABS options

21. 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 Different ABS options

22. 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’ Possible procedural way forward

23. 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 Possible procedural way forward

24. 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 Conclusion

25. 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 Conclusion

26. Thank you for your attention!