1 INTRODUCTION

Due to the development of high technologies, along with the need to effectively respond to such challenges and threats as famine, disease, and lack of environmentally friendly energy sources, the academic community’s interest in marine genetic resources (MGRs) has grown substantially. Currently, MGRs are extensively utilized in the pharmacological industry for the manufacture of medicines, vaccines, and diagnostic tools.¹ MGRs also play an essential role in food security since they are employed in food production, agriculture, and improving aquaculture efficiency.² Biological samples used in marine research are applied to a wide variety of scientific fields, e.g. taxonomy, ecology, biogeography, environmental biology, and climate change studies (RABONE et al., 2019). By now, the MGR concept and the regulatory mechanism for the use of MGRs have not been sufficiently explored from the point of international law. There is still no universal international act containing a definition of MGRs. This fact entails a number of legal and non-legal concerns. On top of it, as marine and biological technologies are spreading, there is a problem of the international legal protection of MGRs, e.g. against the so-called biopiracy. Modern international law also lacks a universal definition of biopiracy.

We should also mention the problem of protecting intellectual rights to MGRs and genetic information.

All the aforementioned issues make it necessary to conduct a legal analysis of the MGR concept and legal framework of MGRs in addition to the legal problems associated with the way they are utilized.

2 LEGAL ANALYSIS OF THE MGR CONCEPT AND RELATED CONCEPTS

As we have mentioned, there is no conventional definition of MGRs. Nevertheless, maritime law experts and specialists in environmental protection, fisheries, and other branches of international law are currently working on developing the legal framework for MGRs. Next, we are going to analyze the MGR concept and related concepts, which are about to be approved at the expert level.

Under the revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the Revised Draft), “marine genetic resources” should be understood as “any material of marine plant, animal, microbial or other origin, [found in or] originating from areas beyond national jurisdiction and containing functional units of heredity with actual or potential value of their genetic and biochemical properties.”³ Not all the experts involved in developing the Draft agreed on the aforementioned definition. That is why the Draft contains an alternative definition of MGRs, which reads as follows: “marine genetic material of actual or potential value.” ⁴

It should be noted that this alternative definition of MGRs is just a quotation of the genetic resources definition given in the Convention on Biological Diversity of 1992 (the Biodiversity Convention). Under Article 2 of the Biodiversity Convention, genetic resources refer to “genetic material of actual or potential value.” ⁵

It is noteworthy that during the debates on the Revised Draft, the definition of the term “marine genetic material” (MGM) was changed several times. First, it was proposed to phrase it as follows: “any material of marine plant, animal, microbial or other origin containing functional units of heredity [collected from areas beyond national jurisdiction] [; it does not include material made from material, such as derivatives, or information describing material, such as genetic sequence data].” (UNITED NATIONS, 2019, p. 5). ⁶

The definition suggests that the future agreement is going to have a territorial application. Since the term “areas beyond national jurisdiction” usually means the high seas and the international seabed area, it is logical to assume that the document will regulate MGM only in the specified maritime zones. Besides, the definition that we are analyzing has a part, which excludes derivatives as well as certain types of information and data from the MGM concept. Consequently, all these elements will be excluded from the scope of the future agreement. Moreover, genetic information and data as well as the corresponding marine and biological technologies might constitute the objects of intellectual rights, which are regulated by the World Intellectual Property Organization (WIPO). In this context, it seems weird that the final definition of MGM in the Revised Draft has been simplified to mirror the definition of “genetic material” in the Biodiversity Convention. The final version does not mention maritime zones or any other exclusion.⁷

It is also necessary to emphasize that the United Nations Convention on the Law of the Sea, which is the major written source of maritime law, does not mention the term “marine genetic resources”. Instead, it has the term “living resources”⁸ as well as the derived terms like “living resources of the sea”⁹ and “living resources of the high seas”.¹⁰ However, the Convention does not say what is actually meant by these concepts. Beyond that, there are terms related to various species, e.g. “highly migratory species”¹¹, “marine mammals”¹², “anadromous stocks”¹³, and “catadromous species”.¹⁴ These notions are not defined in the Convention either.

That is why it is extremely necessary to make a clear distinction between marine genetic resources and marine biological resources (MBRs). According to the definitions of MGRs and MGM, it can be stated that “living resources” mentioned in the Convention are likely to be marine biological resources but not genetic ones. Moreover, we have confirmed this conclusion by the examination of the MBR definition fixed in the EU Regulation No 1380/2013. Article 4 of the Regulation defines MBRs as “available and accessible living marine aquatic species, including anadromous and catadromous species during their marine life”.¹⁵

International law still lacks a universally accepted definition of MBRs. But based on the analysis of the Law of the Sea Convention and EU Regulations, it is quite possible to conclude that in a broad sense, biological resources are all living resources, including fish. In a narrow sense, MBRs are fish resources of the seas used for industrial fishing.¹⁶

3 PRESENT-DAY REGULATION AND MAIN CONCERNS OF MGR LEGAL FRAMEWORK

The question of the extent to which the use of MGRs on the high seas and in the international seabed area is regulated by the Law of the Sea Convention is controversial due to deviations in the interpretation of its provisions about the legal framework of maritime spaces and marine scientific research. It should be noted that the MGRs located in areas beyond the limits of national jurisdiction, i.e. on the high seas and deep-sea areas of the seabed, do not fall within the scope of the Law of the Sea Convention and the Nagoya Protocol.¹⁷ However, the provisions of the two documents apply to a particular country, i.e. to “processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.” (UNITED NATIONS, 1992, p. 5).¹⁸

For this reason, there was a need to prepare a universal international legal act that would regulate the relations of States in the field of the use and conservation of marine biodiversity. In June 2012, the UN held the Conference on Sustainable Development “The Future We Want” (Rio 2012). Paragraph 162 of its outcome document highlighted the importance of the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction as well as the necessity to develop an international instrument under the Convention on the Law of the Sea.¹⁹ In July 2015, the UN General Assembly decided to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.²⁰

The draft text of the Agreement has already undergone several revisions in recent years. The revised draft of the Agreement under the Convention on the Law of the Sea was proposed by the President for consideration at the fourth session of the Conference, which was postponed.

Let us move on to the analysis of the revised draft main provisions, which cover marine biodiversity and MGRs.

The draft of the Agreement consists of the Preamble, 70 Articles divided into XII Parts, and 2 Annexes. The provisions we are interested in are mostly contained in the first two Parts. Part I (General Provisions) has information about the use of terms, the general objective, the relationship between the Agreement and relevant legal instruments together with its general principles and approaches.

For example, Article 2 of the revised draft says that

the objective of this Agreement is to ensure the long-term conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination (UNITED NATIONS, 2020, p. 6).

Thus, the Agreement does not eliminate or amend the provisions of the Convention on the Law of the Sea but only fills gaps in the international regulation of marine biodiversity conservation and use. Article 4 confirms this conclusion: “Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention.” (UNITED NATIONS, 2020, p. 6). Besides, Article 4 stipulates that “the rights and jurisdiction of coastal States in all areas under national jurisdiction, including the continental shelf within and beyond 200 nautical miles and the exclusive economic zone, shall be respected in accordance with the Convention.” (UNITED NATIONS, 2020, p. 6).

Article 5 of the Agreement gives the list of principles and approaches, which must be applied to marine biodiversity:

• The principle of non-regression;

• The polluter pays principle, which means “the endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”;

• The principle of the common heritage of mankind;

• The principle of equity;

• The precautionary principle;

• An ecosystem approach;

• An integrated approach;

• An approach that builds ecosystem resilience to the adverse effects of climate change and ocean acidification and restores ecosystem integrity (UNITED NATIONS, 2020, p. 7).

It is interesting to note that in the international law doctrine, genetic resources are considered to be the common heritage of mankind, the collective genetic property of mankind, which is available to everyone.²¹ So, the principle of the common heritage of mankind regarding marine diversity has been officially confirmed in Article 5.

Now, let us analyze Part II “Marine Genetic Resources, Including Questions on the Sharing of Benefits”. This part of the Agreement also describes the objectives, which are to:

• promote the fair and equitable sharing of benefits arising from marine genetic resources of areas beyond national jurisdiction;

• build the capacity of developing States Parties, in particular, least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries, to [collect] [access] and utilize marine genetic resources of areas beyond national jurisdiction;

• promote the generation of knowledge and technological innovations, including by promoting and facilitating the development and conduct of marine scientific research in areas beyond national jurisdiction, in accordance with the Convention;

• promote the development and transfer of marine technology, subject to all legitimate interests, including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology (UNITED NATIONS, 2020, p. 8).

All the specified objectives align with the objectives of another international instrument, i.e. the Criteria and Guidelines on the Transfer of Marine Technology developed by the Intergovernmental Oceanographic Commission (2005).

Of particular interest is Article 8 of the Agreement. Article 8 (2) states that the provisions of this Agreement shall not apply to:

• the use of fish and other biological resources as a commodity;

• marine genetic resources accessed ex situ or in silico;

• derivatives;

• marine scientific research (UNITED NATIONS, 2020, p. 8).

It is notable that there are a lot of alternative versions of the provisions. This means that Article 8 has triggered a spirited discussion. Therefore, the final version of the Article might have a completely different list of the provisions.

Article 9 “Activities with respect to marine genetic resources of areas beyond national jurisdiction” (UNITED NATIONS, 2020, p. 9) is one of the most essential components of the revised draft. It provides that “activities with respect to marine genetic resources of areas beyond national jurisdiction may be carried out by all States Parties and their natural or juridical persons under the conditions laid down in this Agreement.” (UNITED NATIONS, 2020, p. 9). When “marine genetic resources of areas beyond national jurisdiction are also found in areas within national jurisdiction, activities with respect to those resources shall be conducted with due regard for the rights and legitimate interests of any coastal State under the jurisdiction of which such resources are found.” (UNITED NATIONS, 2020, p. 9).

Moreover, Article 9 confirms the principle of the common heritage of mankind regarding MGRs:

No State shall claim or exercise sovereignty or sovereign rights over marine genetic resources of areas beyond national jurisdiction, nor shall any State or natural or juridical person appropriate any part thereof]. No such claim or exercise of sovereignty or sovereign rights [nor such appropriation] shall be recognized (UNITED NATIONS, 2020, p. 9).

This provision is analogous to Article 137 of the UN Convention on the Law of the Sea. In addition, we believe that the implication of the principle of the common heritage of mankind to MGRs may further generate conflicts of law because it is impossible to imply this principle to the high seas. That is why it is necessary to find a balance between the freedoms of the high seas and the protection of MGRs.

Article 9 (4) says that

the utilization of marine genetic resources of areas beyond national jurisdiction shall be for the benefit of mankind as a whole, taking into consideration the interests and needs of developing States, in particular the least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries (UNITED NATIONS, 2020, p. 9).

It is worth pointing out that the IOC Criteria have a similar provision but without a reference to the coastal African States (INTERGOVERNMENTAL OCEANOGRAPHIC COMMISSION, 2005). In our opinion, references of this type are unnecessary and discriminatory because developing countries, geographically disadvantaged States, and small island developing States must enjoy an approximately equal number of rights and preferences, taking into account national circumstances.

Article 9 (5) stipulates that “activities with respect to marine genetic resources of areas beyond national jurisdiction shall be carried out exclusively for peaceful purposes.” (UNITED NATIONS, 2020, p. 9). This provision mirrors Article 88 of the Convention on the Law of the Sea under which “the high seas shall be reserved for peaceful purposes.” Article 141 of the Convention on the Law of the Sea also provides that “the Area shall be open to use exclusively for peaceful purposes.”

Article 10bis of the draft Agreement “Access to traditional knowledge of indigenous peoples and local communities associated with marine genetic resources [collected] [accessed] in areas beyond national jurisdiction” (UNITED NATIONS, 2020, p. 10) is also interesting. It states that

States Parties shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that traditional knowledge associated with marine genetic resources [collected] [accessed] in areas beyond national jurisdiction that is held by indigenous peoples and local communities shall only be accessed with the prior and informed consent or approval and involvement of these indigenous peoples and local communities. The clearing-house mechanism may act as an intermediary to facilitate access to such traditional knowledge. Access to such traditional knowledge shall be on mutually agreed terms (UNITED NATIONS, 2020, p. 10).

Thus, for the first time ever, the legal protection of the intangible MGR heritage belonging to indigenous peoples and local communities is going to be universally fixed by maritime law. The law will also establish a special mechanism to control access to traditional knowledge related to MGRs in areas beyond national jurisdiction. The correlation of this provision with the provisions of the Convention for the Safeguarding the Intangible Cultural Heritage is easy to notice.²²

Article 11 “Fair and equitable sharing of benefits” in general copies what is fixed in the IOC Criteria with respect to the transfer of marine technology. In particular, it is stated that States Parties, including their nationals, that have [collected] [accessed] [utilized] marine genetic resources of areas beyond national jurisdiction [shall] [may] share benefits arising thereof [in a fair and equitable manner] with other States Parties, with consideration for the special requirements of developing States Parties. Benefits [shall] [may] include [monetary and] non-monetary benefits. Besides, Article 11 provides for a very detailed way of sharing benefits arising from MGRs. The benefits shall be used:

• to contribute to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;

• to promote scientific research and facilitate [the collection of] [access to] marine genetic resources of areas beyond national jurisdiction;

• to build capacity to [collect] [access] and utilize marine genetic resources of areas beyond national jurisdiction;

• to create and strengthen the capacity of States Parties to conserve and use sustainably marine biological diversity of areas beyond national jurisdiction, with a focus on small island developing States;

• to support the transfer of marine technology;

• to assist developing States Parties in attending the meetings of the Conference of the Parties (UNITED NATIONS, 2020, p. 11).

In Article 12 “Intellectual property rights”, the experts tried to find a balance between the facilitation of access to MGRs and the protection of patent holders’ intellectual property rights. Among other things, Article 12 provides that

States Parties shall cooperate to ensure that intellectual property rights are supportive of and do not run counter to the objectives of this Agreement [, and that no action is taken in the context of intellectual property rights that would undermine benefit-sharing and the traceability of marine genetic resources of areas beyond national jurisdiction.

Moreover, MGRs utilized in accordance with this Agreement shall not be subject to patents except where such resources are modified by human intervention resulting in a product capable of industrial application.

Some experts think that this approach puts genetic resources in a legal vacuum since they are not protected by property rights and everyone has free access to them. As a result, such free access is a source of international conflicts in this field.²³ We believe that in the future this approach may result in the overexploitation of marine and oceanic resources (both living and non-living) and the spread of so-called biopiracy.²⁴

Due to the fact that MGRs are a potential object of intellectual property law, the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge, and Folklore (IGC) decided to submit draft Provisions/Articles for the Protection of Traditional Knowledge and Traditional Cultural Expressions, and IP & Genetic Resources to the WIPO General Assembly. The Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources, and Traditional Knowledge Associated with Genetic Resources was also passed to the Assembly.

4 CONCLUSIONS

Thus, we have come to the following conclusions:

1. 1. The concepts of “marine genetic resources” and “marine biological resources” are not identical. Having analyzed the international legal instruments, we have found that “living resources” mentioned in the UN Convention on the Law of the Sea refer to marine biological resources but not genetic ones. In a broad sense, biological resources are all living resources, including fish. In a narrow sense, MBRs are fish resources of the seas used for industrial fishing. Marine genetic resources are perceived as “a material”, i.e. non-living resources.
2. 2. The implication of the principle of the common heritage of mankind to MGRs may further generate conflicts of law because it is impossible to imply this principle to the high seas. On top of it, the simplified access to MGRs together with the lack of protection of intellectual rights to MGRs and genetic information may result in the overexploitation of marine and oceanic resources as well as the spread of biopiracy. That is why it is necessary to find a balance between the freedoms of the high seas, the safeguard of MGRs, and the protection of intellectual property rights to genetic information or marine biotechnologies.
3. 3. For the first time ever, the legal protection of the intangible MGR heritage belonging to indigenous peoples and local communities is going to be universally fixed by maritime law. The law will also establish a special mechanism to control the concerned parties’ access to this knowledge. The traditional knowledge of indigenous peoples falls within the definition of intangible cultural heritage. This fact raises a question about an overlap between the future Agreement and the Convention for the Safeguarding the Intangible Cultural Heritage.
4. 4. Though the sphere that is going to be regulated by the future Agreement is very specific, many of its provisions build upon the previously adopted international legal instruments like the UN Convention on the Law of the Sea, the Convention on Biological Diversity, and the IOC Criteria and Guidelines on the Transfer of Marine Technology. Moreover, the scope of the Agreement might overlap with the scope of other international instruments, which have nothing to do with marine law, marine ecology, and marine biodiversity, e.g. the Convention for the Safeguarding the Intangible Cultural Heritage. All the aforementioned aspects should trigger further studies of the legal framework of marine genetic and biological resources.

REFERENCES

ANISIMOV, I. O.; GULYAEVA, E. E. Promoting the development and transfer of marine technologies as a mechanism for implementing the sustainable development goals: international legal aspect. Revista Opinio Juridica, Fortaleza, v. 19, n. 32, p. 184-201, 2021. Available at: Available at: https://periodicos.unichristus.edu.br/opiniaojuridica/article/view/3860. Accessed on: 9 Aug. 2021.

ASIMAKOPOULOU, Eleftheria; MOHAMMAD, Essam Yassin. Marine genetic resources in areas beyond national jurisdiction: a ‘common heritage of mankind’. IIED Briefing, 2019. Available at: Available at: http://pubs.iied.org/17498IIED. Accessed on: 9 Aug. 2021.

CHUMYCHKIN, A. A. To the issue of the role of regulation on the sustainable management of external fishing fleets in the development of legal regulation of protection of marine biological resources in the European Union. Courier of Kutafin Moscow State Law University (MSAL), n. 4, p. 228-235, 2019. Available at: https://doi.org/10.17803/2311-5998.2019.56.4.228-235. Accessed on: 9 Aug. 2021.

EUROPEAN UNION. Regulation (EU) no 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC. Official Journal of the European Union, 2013. Available at: Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R1380&from=bg. Accessed on: 9 Aug. 2021.

INTERGOVERNMENTAL OCEANOGRAPHIC COMMISSION. IOC Criteria and Guidelines on the Transfer of Marine Technology. Paris: UNESCO, 2005.

KLOPPENBURG, J. R. First the Seed: the political economy of plant biotechnology. New York, NY: Cambridge University Press, 1988. p. 1492-2000.

RABONE, Muriel; et al. Access to Marine Genetic Resources (MGR): Raising Awareness of Best-Practice Through a New Agreement for Biodiversity Beyond National Jurisdiction (BBNJ). Front. Mar. Sci., 12 Sept. 2019. Available at: https://doi.org/10.3389/fmars.2019.00520. Accessed on: 9 Aug. 2021.

SPECIALIZED international instruments, regulating access to genetic resources and benefit-sharing (in the context of Article 4 (4) of the Nagoya Protocol. CBD/SBI/3/14. 13 July 2020. p. 9-10.

UNEP. UNEP/CBD-SBSTTA/11/11. Marine and coastal biological diversity. 2005. Available at: Available at: https://www.cbd.int/doc/meetings/sbstta/sbstta-11/official/sbstta-11-11-en.pdf. Accessed on: 31 Mar. 2021.

UNITED NATIONS. Convention on Biological Diversity. 1992. Available at Available at https://www.cbd.int/doc/legal/cbd-en.pdf. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Convention for the Safeguarding of the Intangible Cultural Heritage. 2003. Available at: Available at: https://ich.unesco.org/en/convention. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Convention on Biological Diversity. 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. 2011. Available at Available at https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Outcome Document of the United Nations Conference “The Future We Want” (2012). 2012. Available at Available at https://sustainabledevelopment.un.org/content/documents/733FutureWeWant.pdf. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Resolution adopted by the General Assembly on 19 June 2015. [without reference to a Main Committee (A/69/L.65 and Add.1)] 69/292. Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. A/RES/69/292. Distr.: General 6 July 2015. Available at: Available at: https://undocs.org/en/a/res/69/292. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The third session, New York, p. 19-30 Aug. 2019. Available at: Available at: https://undocs.org/en/A/CONF.232/2019/6. Accessed on: 9 Aug. 2021.

UNITED NATIONS. United Nations Convention on the Law of the Sea. Available at Available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction Fourth session New York, 23 March-3 April 2020. Available at: Available at: https://undocs.org/en/a/conf.232/2020/3. Accessed on: 9 Aug. 2021.

UNITED NATIONS. Sustainable Development Goals. Goal 14: Conserve and sustainably use the oceans, seas and marine resources. Available at: Available at: https://www.un.org/sustainabledevelopment/oceans/. Accessed on: 31 Mar. 2021.

TOLKACHENKO, E. V. Otdel'nye aspekty pravovogo regulirovaniya ispol'zovaniya morskikh geneticheskikh resursov = Some Aspects of the Legal Regulation of Marine Genetic Resources Utilization. Vіsnik Odes'kogo natsіonal'nogo unіversitetu, v. 21, n. 2, p. 96-104, 2016. Available at: Available at: http://nbuv.gov.ua/UJRN/Vonu_prav_2016_21_2_12. Accessed on: 9 Aug. 2021.

Notes

Author notes