Chapter 3 The Legal Status of Marine Genetic Resources in the Context of BBNJ Negotiations: Diverse Legal Regimes and Related Problems

In: New Knowledge and Changing Circumstances in the Law of the Sea
Konrad Jan Marciniak
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The purpose of this Chapter is to present selected issues relating to the legal status of marine genetic resources (MGRs), having in mind the ongoing UN-based negotiations concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). Hence, it provides a brief overview of the history and current stage of these negotiations, describes the main controversies relating to MGRs and questions on the sharing of benefits, subsequently turns to issues related to the definition of MGRs and, finally, concentrates on their legal status per se, i.e. whether these resources are covered by the freedom of the high seas or the common heritage of mankind (CHM) principle.

The Chapter argues that it is necessary to look at the above-mentioned issues from a broader perspective, encompassing the developments in other fora, in particular the Convention on Biological Diversity and the Nagoya Protocol or the International Treaty for Plant Genetic Resources for Food and Agriculture. Hence, it presents such questions, which actually arose during the BBNJ negotiations, as on silico/digital sequence information concerning MGRs or ex situ MGRs, while taking account of discussions in these other fora. While this Chapter argues that MGRs do not constitute the common heritage of mankind, it also suggests that the debate in this respect does not bring, notwithstanding the results it may yield, obvious solutions to the cluster of issues negotiated within the BBNJ process, relating to access to various types of MGRs or benefit-sharing linked to their utilization.

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