by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za
Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development and public policy
Key points
Countries have begun to negotiate a new international legally binding instrument on marine genetic resources in the high seas.
The negotiation is an opportunity for countries to re-think existing frameworks which regulate access to and benefit-sharing in genetic resources.
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. IP issues are relevant in both cases.
What is the issue?
International law already regulates access to and fair and equitable benefit-sharing in genetic resources located within the territories of countries.
The Convention on Biological Diversity, 1992, its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, 2010, the Food and Agricultural Organization’s International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, and, the World Health Organization’s Pandemic Influenza Preparedness Framework, 2011 are some of the main international instruments that currently regulate access to and benefit-sharing in genetic resources.
However, it’s not clear what legal regime applies to marine genetic resources (MGRs) in areas beyond national jurisdiction – such as in the high seas and the seabed beyond the limits of national jurisdictions.
Member countries of the United Nations (UN) have therefore begun to develop a new international legally binding instrument on MGRs beyond national jurisdiction. This negotiation is taking place under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).
This negotiation touches on a panoply of issues – realization of the Sustainable Development Goals, poverty alleviation, the reduction of hunger, mitigating climate change, biodiversity conservation, the improvement of health, the “Blue Economy” and so on.
This blog post focuses on one aspect of this process: the intellectual property (IP) dimension, and its relationship with two issues that are of particular interest to developing countries: fair and equitable benefit-sharing and the transfer of marine technologies.
As the negotiation has only just started – there is not even a zero draft text of the instrument yet – this first post simply sketches the main issues and navigates the broad contours of the process so far. It will be followed by updates as the process evolves.