The international legal regime of marine genetic resources. Current status and problems

Anisimov Igor' Olegovich ORCID: 0000-0002-6575-6381 PhD in Law Candidate of Legal Sciences, Deputy Dean of the Faculty of International Relations and International Law, Associate Professor of the Department of International Law, Diplomatic Academy of the Ministry of Foreign Affairs of Russia 119992, Russia, g. Moscow, ul. Ostozhenka, 53/2, str.1, of. 453 i-anisimov@mail.ru Other publications by this author

Introduction

Due to the development of high technologies, as well as the need to effectively respond to such challenges and threats as hunger, disease, lack of environmentally friendly energy sources, the scientific community's interest in marine genetic resources (MGR) has increased. At the moment, MGR is actively used in the pharmacological industry for the manufacture of medicines, vaccines, and diagnostic tools ^[1] (also see: UNEP. UNEP/CBD-SBSTTA/11/11, PAR.44. 22 July 2005. // URL: https://www.cbd.int/doc/meetings/sbstta/sbstta-11/official/sbstta-11-11-en.pdf. (accessed: 02/21/2022); UNITED NATIONS. Sustainable Development GOALS. Goal 14: Conserve and sustainably use the oceans, seas and marine resources. // URL: https://www.un.org/sustainabledevelopment/oceans/. (accessed: 02/21/2022)). MGR also plays an important role in food security, since they are used for food production, agriculture, and improving the efficiency of aquaculture ^[2] (see: Specialized international documents regulating access to Genetic Resources and Benefit Sharing, in the context of paragraph 4 of Article 4 of the Nagoya Protocol CBD/SBI/3/14. 13 July 2020. pp. 9-10.). Biological samples used in marine scientific research are used in a variety of scientific fields, such as taxonomy, ecology, biogeography, environmental biology and climate change research ^[3,4]. At the same time, the concept and mechanism of regulating the use of MGR are insufficiently studied in international legal science. There is still no universal international act containing the definition of MGR, which entails a number of legal and non-legal problems. In addition, due to the widespread use of marine and biotechnologies, there is a problem of international legal protection of MGR, including from the so-called biopiracy, the universal definition of which is also absent in international law.

Separately, it is worth noting the problem of protecting intellectual property rights to MGR and genetic information.

All of the above necessitates a legal analysis of the concept and legal regime of the MGR, as well as legal problems associated with their use.

Legal analysis of the concept of marine genetic resources and related concepts

As we mentioned earlier, there is no conventional definition of MGR. At the same time, specialists in the field of maritime law, environmental protection, fisheries and other branches (sub-branches) of international law are currently actively working in the field of developing the legal regime of the MGR ^[4]. We propose to proceed to the analysis of the concept of MGR and related concepts that are in the process of approval at the expert level.

In accordance with the Revised draft text of the agreement based on the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond the Limits of national jurisdiction (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 (Revised Draft) / 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. // URL: https://digitallibrary.un.org/record/3847798 (date of application: 02/21/2022)), marine genetic resources are understood as "any material of marine plant, animal, microbial or other origin found in areas beyond the limits of national jurisdiction and containing functional units of heredity having actual or potential value in terms of their genetic and biochemical properties" (Article 1). Due to disagreements between experts that arose during the development of the definition, an alternative definition of MGR was proposed in this draft: "marine genetic material of actual or potential value." It is worth noting that the alternative definition of MGR actually quotes the definition of genetic resources, which is given in the Convention on Biological Diversity of 1992 (Convention on Biological Diversity (1992 Convention) (Rio de Janeiro, June 05, 1992) [Text] // Environmental protection. International legal acts: Handbook. St. Petersburg. - 1994). Thus, in accordance with Article 2 of this international legal act, genetic resources mean "genetic material representing actual or potential value."

In this regard, it should be noted that the definition of the term "marine genetic material" (MGM) has repeatedly changed during the discussion of the Draft text of the agreement based on the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond the Limits of national jurisdiction (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 (Project) / 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. Third session New York, 19-30 August 2019. // URL: https://digitallibrary.un.org/record/3811328 (accessed: 02/21/2022)). Thus, in the initial version, the following definition of MGM was proposed – "any material of marine plant, animal, microbial or other origin containing functional units of heredity [and collected in areas beyond the limits of national jurisdiction] [; this concept does not include material derived from another material, such as derivatives, or information describing the material, such as genetic sequence data].]" (v. 1).

As can be seen from this definition, it outlines the territorial scope of the future agreement. Due to the fact that areas beyond the limits of national jurisdiction are usually understood as the high seas and the international seabed area, it is logical to assume that the future agreement will regulate the use of MGR only in these maritime spaces. In addition, the analyzed definition of MGM contains an exception that excludes derived genetic material, relevant information and data not only from the concept of MGM, but also from the scope of the future agreement. Moreover, genetic information and data, as well as related marine and biotechnologies, are subject to intellectual property rights, which falls within the scope of WIPO's activities.  In this regard, it seems strange to simplify the definition of MGM in the Revised Draft, which is formulated by analogy with the definition of genetic material in the Convention on Biological Diversity of 1992 and does not contain any indication of zones of marine space or relevant exemptions (Article 2).

It should be mentioned that in the 1982 UN Convention on the Law of the Sea (United Nations Convention on the Law of the Sea (1982 Convention) (Montego Bay, December 10, 1982) [Text] // Collection of legislation of the Russian Federation. – 1997. – No. 48, Article 5493) – the main written source of maritime law, the term "marine genetic resources" is not mentioned. It uses the term "living resources" (Articles 61-62), as well as such derived terms as "living resources of the sea" (Article 21) and "living resources of the open sea" (Articles 116-119). However, the content of these concepts is not disclosed. In addition, the 1982 Convention mentions such specific terms as "highly migratory species" (Annex I), "marine mammals" (Article 65), "anadromous species" (Article 66) and "catadromous species" (Article 67), the definition of which is also not given.

In this regard, it is necessary to draw a clear distinction between marine genetic resources and marine biological resources (MBR). Based on the definitions of MGR and MGM, it can be stated with confidence that the living resources mentioned in the 1982 Convention are more likely to refer to marine biological rather than genetic resources. Moreover, this conclusion is confirmed by the analysis of the definition of ICBMs, which is enshrined in Regulation (EU) No 1380/2013 (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. // URL: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF /?uri=CELEX:32013R1380&from=bg (accessed: 02/21/2022)). In Article 4 of this Regulation, marine biological resources are understood as "available and accessible living marine aquatic species, including anadromous and catadromous species during their marine life."

Despite the absence of a universal definition of "marine biological resources" in international law, based on the analysis of the 1982 Convention and the EU regulations, it can be concluded that, in a broad sense, biological resources mean all "living" resources, including fish; in a narrow sense, the definition of "marine biological resources" means the fish resources of the sea, which are used for catching on an industrial scale ^[5].

Current regulation and main problems of the legal regime of marine genetic resources

The question of the extent to which the use of MGR on the high seas and the international seabed area is regulated by the 1982 Convention is controversial due to differences in the interpretation of a number of its provisions concerning the legal regime of maritime spaces and marine scientific research. It is worth noting that the MGR located in areas beyond the limits of national jurisdiction, i.e. in the high seas and deep seabed areas, are not within the scope of the 1992 Convention and the Nagoya Protocol ^[6] (the Nagoya Protocol Regulating Access to Genetic Resources and the Fair and Equal Sharing of Benefits from Their Use to the Convention on Biological Diversity: Text and annex / secretariat of the Convention on Biological Diversity. 2011, Secretariat of the Convention on Biological Diversity. - 15 p.). However, the provisions of these two documents apply to a particular State with regard to processes and activities, regardless of the place of manifestation of their consequences, carried out under its jurisdiction or control, both within and outside its national jurisdiction (Article 4b. The 1992 Convention).

In this regard, there was a need to prepare a universal specialized international legal act that would regulate the relations of States in the field of the use and conservation of marine biodiversity. Thus, paragraph 162 of the Final Document of the UN Conference on Sustainable Development "The Future we want", held on June 20-22, 2012 in Rio de Janeiro, contained a commitment to urgently address the issue of conservation and sustainable use of marine biological diversity in areas beyond the limits of national jurisdiction, including through decision-making on the development of an appropriate international document on the basis of the 1982 UN Convention on the Law of the Sea. In July 2015, the UN General Assembly decided to develop, on the basis of the 1982 Convention, an international legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond the limits of national jurisdiction (Agreement).

It is worth noting that the draft Agreement has already undergone several iterations in recent years. The revised draft text of the agreement under the 1982 Convention was prepared by the Chairman for consideration at the fourth session of the Conference, which was postponed.

Let us proceed to the analysis of the main provisions of the Revised Draft concerning marine biodiversity and MGR.

The revised draft consists of a preamble, 70 articles divided into XII parts, as well as 2 annexes. The provisions of interest to us are contained mainly in the first two parts. Part I "General provisions" contains: terminology, the purpose of the Agreement, the relationship of the Agreement with other international legal acts, as well as the principles of activity.

Thus, article 2 of the Revised Draft establishes that the purpose of the Agreement is to "ensure the long-term conservation and sustainable use of marine biological diversity in areas beyond the limits of national jurisdiction based on the effective implementation of the relevant provisions of the Convention and facilitate international cooperation and coordination." Thus, the Agreement does not cancel or change the provisions of the 1982 Convention, but only eliminates gaps in the international legal regulation of the conservation and use of marine biodiversity. This is confirmed by Article 4 of the Revised Draft: "No provisions of this Agreement infringe on the rights, jurisdiction and obligations of States under the Convention. This Agreement shall be interpreted and applied in the context of the Convention and in the manner prescribed by it." In addition, this article provides that the rights and jurisdiction of coastal States in all maritime areas under their national jurisdiction, including the continental shelf and the exclusive economic zone, must be respected in accordance with the 1982 Convention.

Article 5 of the analyzed document provides a list of principles and approaches in the implementation of activities in relation to marine biodiversity, namely:

- the principle of non-regression;

- the "polluter pays" principle, which means "the desire to promote the internalization of environmental costs and the use of economic means, taking into account the approach according to which the polluter should, in principle, cover the costs associated with pollution, taking due account of public interests and without disrupting international trade and investment";

- the principle of the common heritage of mankind;

- the principle of justice;

- the precautionary principle;

- ecosystem approach;

- an integrated approach;

- an approach that promotes ecosystem resilience in the face of the adverse effects of climate change and ocean acidification and the restoration of ecosystem integrity.

It is worth noting that the doctrine of international law considers genetic resources as the common heritage of mankind, the collective genetic property of mankind, which is available to everyone ^[7,8,9]. Thus, the principle of the common heritage of mankind in relation to marine biodiversity was officially confirmed in Article 5.

Let's move on to the analysis of Part II "Marine genetic resources, including benefit-sharing issues".  It also contains goals that include:

- promoting fair and equitable sharing of benefits derived from the use of marine genetic resources in areas beyond national jurisdiction;

- Building the capacity of developing participating States, especially least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, African coastal States and middle-income developing countries, to access marine genetic resources in areas beyond national jurisdiction;

- Promoting the development of knowledge and technological innovations, including by encouraging and facilitating the preparation and conduct of marine scientific research in areas beyond national jurisdiction in accordance with the 1982 Convention.;

- encouraging the development and transfer of marine technologies, taking into account all legitimate interests, owners, suppliers and recipients of marine technology.

It is worth noting that all these goals correlate with the goals of another international document – the IOC Criteria and Guidelines for the Transfer of Marine Technologies from 2005 ^[6] (Intergovernmental Oceanographic Commission. IOC Criteria and Guidelines on the Transfer of Marine Technology (CGTMT) (IOC Criteria)/Paris, UNESCO. – 2005. 68 pp. (IOC Information document, 1203).).

Of particular interest is Article 8 "Application". Part 2 of this article establishes that the provisions of this Agreement do not apply to:

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

(b) Marine genetic resources available ex situ or in silico;

c) derivative;

(d) Marine scientific research.

It is worth noting that, judging by the large number of alternative versions of the provisions, this article has caused a fierce discussion, therefore, in the final version, this list may be completely different.

Article 9 "Activities concerning marine genetic resources in areas beyond the limits of national jurisdiction" is one of the most important in the Revised Draft.

It establishes that activities with respect to MGR "in areas beyond the limits of national jurisdiction may be carried out by all Participating States and their natural or legal persons under the conditions defined in this Agreement", and in cases where "marine genetic resources of areas beyond the limits of national jurisdiction are also found in areas of national jurisdiction activities with respect to these resources shall be carried out with due regard to the rights and legitimate interests of any coastal State under whose jurisdiction such resources are located."

In addition, this article confirms the concept of the common heritage of mankind in relation to the MGR: "No State can claim sovereignty or sovereign rights over marine genetic resources in areas beyond the limits of national jurisdiction, [and no State, natural or legal person can appropriate any part of them]. No such claims or exercise of sovereignty or sovereign rights and no such appropriation shall be recognized." This provision is developed by analogy with Article 137 of the 1982 UN Convention on the Law of the Sea. At the same time, the authors believe that the extension of the principle of the common heritage of mankind to the MGR, if it is impossible to extend this principle to the open sea, may further generate legal conflicts. In this regard, it is necessary to find a balance between the freedoms of the high seas and the protection of the MGR.

Tsch. 4. Article 9 establishes that "the use of marine genetic resources in areas beyond the limits of national jurisdiction should be carried out for the benefit of humanity as a whole, taking into account the interests and needs of developing States, especially least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States States, coastal States of Africa and middle-income developing countries".

It is worth noting that an almost similar provision is contained in the IOC Criteria for the Transfer of Marine Technologies, with the exception of a separate mention of the coastal States of Africa. In our opinion, such a mention is superfluous and discriminatory, since developing States, geographically disadvantaged States, as well as small island developing States should have approximately the same amount of rights and preferences, taking into account national characteristics.

Part 5 of the analyzed article provides that "activities with respect to marine genetic resources in areas beyond the limits of national jurisdiction should be carried out exclusively for peaceful purposes." This provision fully correlates with Article 88 of the 1982 Convention, in which "the high seas are reserved for peaceful purposes" and Article 141, which states that "The Area is open for use exclusively for peaceful purposes."

Of particular interest is Article 10bis "Access to traditional knowledge of indigenous peoples and local communities related to marine genetic resources in areas beyond national jurisdiction".

It states that "States Parties shall take legislative, administrative or policy measures, as appropriate, to ensure that access to traditional knowledge held by indigenous peoples and local communities related to marine genetic resources <...> in areas beyond the limits of national jurisdiction is carried out only with prior and with the informed consent or approval and with the participation of these indigenous peoples and local communities. The clearing-house mechanism can act as an intermediary to facilitate access to such traditional knowledge. Access to such traditional knowledge is carried out on mutually agreed terms." Thus, for the first time in the law of the sea at the universal level, not only the legal protection of the intangible heritage of indigenous peoples and local communities in relation to MGR will be enshrined, but also a special mechanism that will control access to traditional knowledge related to marine genetic resources in areas beyond the limits of national jurisdiction. In this regard, the correlation of this provision with the provisions of the Convention on the Protection of Intangible Cultural Heritage of 2003 is interesting. (Convention for the Protection of the Intangible Cultural Heritage (2003 Convention) (Paris, October 17, 2003) // URL: https://www.un.org/ru/documents/decl_conv/conventions/cultural_heritage_conv.shtml (date of application: 21.02.2022)).

Article 11 "Sharing benefits on a fair and equitable basis", in general, repeats what is established in the IOC Criteria for the transfer of marine technologies. In particular, it is established that the participating States, including their citizens, use the benefits arising from the use of MGR on a fair and equitable basis together with other participating States, taking into account the special needs of developing participating States. Such benefits may include both monetary and non-monetary benefits. In addition, the article provides a fairly detailed mechanism for the distribution of benefits from the use of MGR, as well as the goals for which these benefits can be used:

- promoting the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction;

- encouraging scientific research and facilitating access to marine genetic resources in areas beyond national jurisdiction;

- capacity-building for access to marine genetic resources and the use of marine genetic resources in areas beyond national jurisdiction;

- Building and strengthening the capacity of participating States for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, with particular emphasis on small island developing States;

- promoting the transfer of marine technologies;

- Assistance to developing States parties in the work of meetings of the Conference of the Parties.

In Article 12 "Intellectual Property rights", experts tried to find a balance between facilitating access to marine genetic resources and protecting the intellectual rights of patent holders. Thus, in particular, it is established that "the Participating States cooperate with each other to ensure that intellectual property rights comply with and do not contradict the objectives of this Agreement, and that no actions are taken in the context of intellectual property rights that could undermine the distribution of benefits and the tracking of marine genetic resources of areas beyond the scope of the national jurisdiction". Moreover, MGR used in accordance with this Agreement should not become the subject of patents, except in cases where such resources are modified under human intervention, resulting in products of industrial use.

According to some experts, to a certain extent, 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 area ^[10]. The authors believe that in the future this may lead to the overexploitation of marine and oceanic resources (both living and non-living) and the spread of so-called biopiracy (In this context, by biopiracy, the authors understand the practice of patenting and using for commercial purposes know-how related to marine genetic resources, which are traditional knowledge of indigenous peoples and local communities, without the permission of their representatives and without paying them appropriate compensation).

 It is worth noting that due to the fact that marine genetic resources are a potential object of intellectual property law, the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore decided to submit draft articles on genetic resources, traditional knowledge and traditional cultural expressions, as well as the text of the Draft international Legal document in the field of intellectual property, genetic resources and traditional knowledge related to genetic resources to the WIPO General Assembly.

Conclusions

Thus, in the course of the study, the authors came to the following conclusions:

1. The concepts of "marine genetic resources" and "marine biological resources" are not identical. Based on the analysis of international legal acts, it was found that the living resources mentioned in the 1982 Convention relate to marine biological, not genetic resources. In a broad sense, biological resources are understood to mean all "living" resources, including fish; in a narrow sense, the definition of "marine biological resources" refers to marine fish resources that are used for fishing on an industrial scale, while marine genetic resources are material, i.e. non-living resources.
2. The extension of the principle of the common heritage of mankind to marine genetic resources, if it is impossible to extend this principle to the open sea, may further generate legal conflicts. On the other hand, simplified access to marine genetic resources and the lack of intellectual property protection for genetic resources and genetic information beyond the limits of national jurisdiction may lead to overexploitation of marine resources and widespread biopiracy. In this regard, it is necessary to find a balance between the freedoms of the high seas, the legal protection of marine genetic resources and the protection of intellectual property for genetic information and marine/biotechnologies.
3. For the first time in the law of the sea, legal protection of traditional knowledge of indigenous peoples and local communities about marine genetic resources will be enshrined at the universal level, as well as a special mechanism that will control the access of interested persons to this knowledge. Due to the fact that the traditional knowledge of indigenous peoples falls under the definitions of intangible cultural heritage, the question arises about the intersection of the scope of the future Agreement and the Convention on the Protection of Intangible Cultural Heritage of 2003.
4. Despite the specific scope of regulation, many provisions of the Revised Draft Agreement develop the provisions of previously adopted international legal acts - the 1982 UN Convention on the Law of the Sea, the 1992 Convention on Biological Diversity, the 2005 IOC Guidelines and Criteria for the Transfer of Marine Technologies. Moreover, the scope of the Agreement may overlap with other international legal acts which do not relate to the field of maritime law, marine ecology and biodiversity, for example, the Convention on the Protection of Intangible Cultural Heritage. The above makes it necessary to further study the legal regime of marine genetic and biological resources and marine biodiversity.