The meeting, held by WIPO on April 3, 2019, was a side event of the Intergovernmental Conferenceon 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 (General Assembly resolution 72/249) and aimed at providing An Overview of the Marine Biological Diversity Negotiations so far, with Specific Reference to Intellectual Property Issues.
Last year countries launched negotiations of a new international legally binding instrument on marine genetic resources in the high seas to develop frameworks which regulate access to and benefit-sharing in genetic resources beyond national jurisdiction. This negotiation is taking place under the UN Convention on the Law of the Sea, 1982 (UNCLOS).
The current level of the technological innovation allows the companies
and developed countries to reach and explore the resources beyond national jurisdiction in the high seas. The studies revealed a high concentration of the IPRs over marine genetic resources in hangs of few companies registered in a few countries. A single corporation registered 47% of all marine sequences included in gene patents, exceeding the combined share of 220 other companies (37%). Universities and their commercialization partners registered 12%. Actors located or headquartered in 10 countries registered 98% of all patent sequences, and 165 countries were unrepresented. (Blasiak et al, 2018) The studies reveal the increasing problem of corporate control over marine genetic resources, explored beyond national jurisdiction. It poses a series of challenging issues that are highly relevant in the context of sustainable development, achieving the SDGs, mitigating climate change, preserving biodiversity, setting the principles fo “Blue Economy” in the era of “blue growth”.The legal community urges the governments to develop and adopt the internationally binding instrument on marine genetic resources in the high seas.
There are different approaches to drafting such regime informed by divergent views of the developed and developing countries, and different principles underlying such a regime. Traditionally, developing and developed countries have divergent views on if and how IP issues should be addressed in the new instrument. Developing countries have an interest in the establishment of mechanisms for the fair and equitable sharing of benefits from research into marine genetic resources and for the transfer of marine technologies. This approach endorsesthe principle of “common heritage of mankind” (the resources belong to all). Developed countries stand for “freedom of the high seas”, i.e. the resources belong to those who first access and exploit them, given that developed countries have the technologies needed to reach, study and exploit these resources. (Wendland, IPWatch, 2018).
Several scholars (Wendland 2018; Ruiz, 2018) underscore the significance of these negotiations for the existing legal frameworks regulating the issues of the access and benefit-sharing within national borders. Ruiz suggests that new technologies, such as digital sequencing of genetic information and synthetic biology question the principles of sovereignty, prior informed consent and mutually agreed terms and require revisiting of the existing legal frameworks, established in the 1992 The Convention on Biological Diversity, its 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, the FAO’s 2001 International Treaty on Plant Genetic Resources for Food and Agriculture, and, the WHO’s 2011 Pandemic Influenza Preparedness Framework.
