1 A New Negotiation
On 19 June 2015, following the recommendations of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction, the United Nations General Assembly adopted by consensus Resolution 69/292, relating to the development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
A Preparatory Committee (Prepcom), chaired by Mr. Eden Charles, was established by Resolution 69/292 with the mandate to make substantive recommendations to the General Assembly on the elements of a draft text of an international legally-binding instrument under the UNCLOS. The negotiations addressed four main topics, intended as a “package”, in the sense that none of them can be separated from the others, namely:
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marine genetic resources, including questions on the sharing of benefits;
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measures such as area-based management tools, including marine protected areas;
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environmental impact assessments;
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capacity building and transfer of marine technology.
On the basis of the recommendations of the Prepcom, the General Assembly, by Resolution 72/249 of 24 December 2017, decided to convene an intergovernmental conference, with a view to developing the above mentioned instrument as soon as possible. The first session of the conference, chaired by Ms. Rena Lee, was held in September 2018.
Because of its scope and objectives, the present negotiation is likely to become a turning point in the progressive development of international law of the sea. A number of issues that are not fully covered by the UNCLOS are being addressed and hopefully will be regulated under an internationally agreed regime. However, the path towards the new legal instrument is far from being an easy one. While many States feel that there is a need for a new agreement to fill gaps in the UNCLOS, a minority of States express scepticism about such an instrument. They think that a better implementation of existing instruments would be sufficient to address the questions posed by conservation and sustainable use of marine biological diversity beyond national jurisdiction.
The topic of marine genetic resources, including questions on the sharing of benefits, presents a number of conceptual, political and legal difficulties that probably make it the most challenging aspect of the negotiation. After the second session of the Prepcom (2016), the chairperson published a document with his understanding of possible areas of convergence of views and possible issues for further discussion emanating from the discussion.1 After the first session of the conference (2018), the chairperson issued a paper, called “President’s aid to negotiations”.2 It presents options of provisions, including the “no text” option, that reflect the different positions taken by the negotiating States. Both documents show that fundamental differences persist as regards a number of matters on which the future regime should be built. This chapter reviews the main pending questions relating to the genetic resources regime.
2 The Concept of Common Heritage of Mankind
Under Art. 136 of the UNCLOS, the “Area”, that is the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction, and its resources, are the common heritage of mankind. This is the main innovating aspect of the UNCLOS with respect to the previous law of the sea regime. It is based on a new concept which is completely different from both the traditional concepts of sovereignty, which applies in the territorial sea and, to a certain extent, the Exclusive Economic Zone (EEZ), or freedom, which applies on the high seas. The common heritage of mankind is a third option (tertium genus), referring to a particular kind of resources located in the seabed beyond national jurisdiction.
The principle of common heritage of mankind was launched in a memorable speech made on 1 November 1967 at the United Nations (U.N.) General Assembly by the representative of Malta, Mr. Arvid Pardo. The opportunity for proposing it came from the technological developments which were expected to lead in a relatively short time to the commercial exploitation of the polymetallic nodules located on the surface of the deep seabed and containing some valuable minerals, such as manganese, nickel, cobalt and copper. The application of a regime of sovereignty was likely to lead to a series of competitive extensions by coastal States of the limits of national jurisdiction on the sea bed. The application of the regime of freedom was likely to lead to a rush towards the exploitation of economically and strategically valuable minerals under a first-come-first-served criterion. According to Mr. Pardo, the consequences of both possible scenarios would have been equally undesirable. They would have encompassed political tension, economic injustice and risks of pollution. In a few words, “the strong would get stronger, the rich richer”.
The basic elements of the regime of common heritage of mankind, applying to the seabed beyond the limits of national jurisdiction, are the prohibition of national appropriation, the destination of the Area for peaceful purposes, the use of the Area and its resources for the benefit of mankind as a whole, with particular consideration for the interests and needs of developing countries, as well as the establishment of an international organization entitled to act on behalf of mankind in the exercise of rights over the resources. The assumption that sovereign States are bound to share the profits resulting from the exploitation of some natural resources could be considered as the second most revolutionary idea ever conceived in the framework of international law (of course, the first is the prohibition to make war, as embodied in the U.N. Charter).
The proposal by Malta led to Resolution 2749 (XXV), adopted on 17 December 1970, whereby the U.N. General Assembly solemnly declared that “the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (…), as well as the resources of the area, are the common heritage of mankind” (Art. 1). It should be noted that, according to this resolution, all the resources of the seabed beyond national jurisdiction, fall under the common heritage of mankind regime.
Today the basic elements of the concept of common heritage of mankind can be found in Part XI of the UNCLOS. The Area and its resources are the common heritage of mankind (Art. 136). No State can claim or exercise sovereignty over any part of the Area, nor can any State or natural or juridical person appropriate any part thereof (Art. 137, para. 1). The Area can be used exclusively for peaceful purposes (Art. 141). All rights over the resources of the Area are vested in mankind as a whole, on whose behalf an international organization, that is the International Sea-Bed Authority (ISBA), is entitled to act. Activities in the Area are carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States (Art. 140, para. 1). The ISBA provides for the equitable sharing of financial and other economic benefits derived from activities in the Area through an appropriate mechanism (Art. 140, para. 2).3
As it is well known, in 1982 the text of the UNCLOS was submitted to vote after all efforts to reach consensus had been exhausted. It received 130 votes in favour, 4 against and 17 abstentions. Many developed States were among those which cast a negative vote or abstained. The main criticism was addressed to the regime of the Area. According to the developed States, it would have discouraged mining activities by individual States and private concerns, would have unduly favoured the monopoly of activities by the ISBA, would have burdened the contractors with excessive financial and other obligations relating also to the field of transfer of technology and would have disregarded the interests of industrialized countries in the decision-making procedures of the Council, the executive organ of the ISBA.
In 1994 it was clear that the UNCLOS was expected to formally enter into force without the participation of many developed countries, that is without the participation of the only States having the command of the high technological and financial capability required to engage in deep seabed mining activities. To avoid this danger, a new negotiation began on Part XI of the UNCLOS. It resulted in the Agreement Relating to the Implementation of Part XI of the UNCLOS, which was annexed to Resolution 48/263, adopted by the General Assembly on 17 August 1994. This resolution, while reaffirming that the Area and its resources are the common heritage of mankind, recognizes that “political and economic changes, including in particular a growing reliance on market principles, have necessitated the re-evaluation of some aspects of the regime for the Area and its resources”.
The provisions of the Part XI Implementation Agreement and those of Part XI of the UNCLOS “shall be interpreted and applied together as a single instrument” (Art. 2). However, in the event of any inconsistency between the Part XI Implementation Agreement and Part XI itself, the provisions of the former shall prevail. In fact, the label of “implementation agreement” is a diplomatic device – a fig leaf, in non-diplomatic language – that covers the evident reality that the UNCLOS was amended and several provisions were changed within the original system for exploitation of the resources of the Area.
Following the adoption of the Implementation Agreement, the UNCLOS has today achieved a broad participation (with some notable exceptions). Although modified, the original spirit of the UNCLOS is not betrayed. The principle of common heritage of mankind is still there and remains a major source of inspiration for a treaty that aims not only at the codification, but also the progressive development of international law.
Since several years the ISBA has been working on its mandate. In 2000, the ISBA Assembly approved the Regulations on prospecting and exploration for polymetallic nodules and in 2010 the Regulations on prospecting and exploration for polymetallic sulphides. The approval of a third set of regulations, relating to prospecting and exploration for cobalt-rich ferromanganese crusts has taken place in 2012. Several plans of work for exploration for polymetallic nodules and polymetallic sulphides have so far been approved by the ISBA Council. On 1 February 2011 the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea rendered an advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, as requested by the ISBA Council, which provides important clarifications on a number of aspects of the mining regime.4
However, the prospects coming from the mineral resources in the Area remain uncertain, as some factors have a negative impact on progress towards their commercial exploitation. They include the great depths at which deposits occur, the high costs involved in research and development of mining technology and the fact that, under current economic conditions, deep seabed mining may remain uncompetitive if compared to land-based mining.
3 The Conflicting Views on the General Principles Applicable to Genetic Resources beyond National Jurisdiction
In the meantime, the exploitation of genetic resources found beyond the limits of national jurisdiction has become a commercially promising activity. The deep seabed is not a desert, despite extreme conditions of cold, complete darkness and high pressure. It is the habitat of diverse forms of life associated with typical features, such as hydrothermal vents, cold water seeps, seamounts or deep water coral reefs. In particular, it supports forms of life that present unique genetic characteristics. For instance, animal communities of micro-organisms, fish, crustaceans, polychaetes, echinoderms, coelenterates and molluscs live in the complete absence of sunlight where warm water springs from tectonically active areas (so-called hydrothermal vents). These communities, which do not depend on plant photosynthesis for their survival, rely on specially adapted micro-organisms able to synthesize organic compounds from the hydrothermal fluid of the vents (chemosyntesis). The ability of some deep seabed organisms to survive extreme temperatures (thermophiles and hyperthermofiles), high pressure (barophiles) and other extreme conditions (extremophiles) makes their genes of great interest to science and industry.5
So far, only few States and private entities have access to the financial means and sophisticated technologies needed to reach the deep seabed and to take samples of organisms found there, in order to study and isolating in laboratories genetic material deriving from such organisms. The result of this kind of activity could be the patenting of commercially valuable products to put them on the market.
Neither the UNCLOS, nor the 1992 Convention on Biological Diversity (CBD) provide any specific regulatory framework for the genetic resources of the seabed beyond national jurisdiction. This could be considered as an evident gap in international law of the sea.6
In 2006, the subject of the international regime for such resources began to be discussed within the already mentioned Working Group. Opposite views were put forward by the States concerned. Several States, especially within the group of developing countries, took the position that the UNCLOS principle of common heritage of mankind applies also to marine genetic resources and that the mandate of the ISBA should cover also such resources. Other States, in particular some developed countries, relied on the principle of freedom of the high seas, which would imply freedom of access to, and unrestricted exploitation of, deep seabed genetic resources.
This basic difference of views persists. On 18 December 2015 the chairperson of the Prepcom invited delegations who wished to do so to submit papers with their views on the elements of a future legally binding instrument.7
On the one hand, according to the views expressed on 9 September 2016 by the United States,
there is no legal gap in regard to marine genetic resources in areas beyond national jurisdiction. Rather, these resources fall under the high seas regime of international law as reflected in the Law of the Sea Convention (LOSC). Marine genetic resources (MGR) in areas beyond national jurisdiction are not covered by the provisions pertaining to the International Seabed Authority or the Area (Part XI), except as part of the marine environment that must be protected in connection with ‘activities in the Area’ (which are defined as activities of exploration for and exploitation of the resources of the Area; in the context of the Area, ‘resources’ are expressly defined to include only mineral resources).
We support application of the concept of the common heritage of mankind to mineral resources in the Area, as is clearly articulated in the Law of the Sea Convention. However, we do not support the application of this concept beyond that, and in particular, we oppose any application of the concept of ‘common heritage of mankind’ to marine genetic resources in areas beyond national jurisdiction. […]
In the high seas regime under international law, no State nor any other entity has sovereign rights over MGR in areas beyond national jurisdiction. Anyone can freely access such MGR in accordance with international law. […]
MGR in areas beyond national jurisdiction fall under the high seas regime of the law of the sea, and we do not want to see restrictions placed on those resources.8
On the other hand, according to the paper by Costa Rica, the principle of common heritage of mankind has a broad content that goes beyond the mineral resources of the Area:
Common heritage of mankind is a principle of international law that states that the cosmos, defined territorial areas and elements of humanity’s common heritage (cultural and natural) are common to humankind. The principle states that areas of Antarctica, the sea bed, and outer space cannot be monopolized for the benefit of one state or group of states alone, for they are to be used for the benefit of all mankind.9
Besides relying on the above mentioned General Assembly Resolution 2749 (XXV),10 Costa Rica also points out that Art. 137 UNCLOS
contemplates a general provision that encompasses all resources of the Area (‘All rights in the resources of the Area are vested in mankind as a whole’), and a specific one for mineral resources (‘The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority’).
In this regard all other resources from ‘the Area’ are also common heritage of mankind.
This is the case of the marine genetic resources of the Area and any other resources that may be discovered in the future.11
Also in the view of the Federated States of Micronesia (paper of 14 March 2016),
the living resources of ABNJs [= areas beyond national jurisdiction] are the common heritage of humankind, deserving of coordinated conservation and sustainable use by the international community lest the resources are forever depleted. This designation extends to marine genetic resources of ABNJs, in light of their potential for providing important benefits for the health and livelihoods of all humankind for generations to come if properly studied and sustainably exploited. The sole exception to this designation among the living resources of ABNJs is fish, but only to the extent that existing international, regional, and subregional instruments, institutions, and other regulatory entities do not currently allow for such a designation to attach to the fish stocks they regulate.12
In the already mentioned document containing his overview of the second session of the Prepcom,13 the chairperson remarked that
discussions will need to intensify to identify ways to bridge the divergent views of delegations regarding the application of the high seas freedom and the common heritage of mankind in relation to marine genetic resources of areas beyond national jurisdiction, including questions on the sharing of benefits.
It may be asked whether the common heritage of mankind and the freedom of the high seas are mutually exclusive or could apply concurrently in an international instrument. In the already mentioned “President’s aid to negotiations” paper14 the following alternatives are provided:
“Common heritage of mankind;
No text;
Freedom of the high seas;
The freedom of the high seas shall govern the provisions for access to marine genetic resources of areas beyond national jurisdiction, while the common heritage of mankind shall govern their exploitation”.
4 Some Considerations on the Conflicting Views
Both the conflicting views move from the frequently repeated assumption that the UNCLOS is the legal framework for all activities taking place in marine spaces. For instance, General Assembly Resolution 73/124 of 11 December 2018 on “Oceans and the Law of the Sea”, following several previous resolutions on the same subject, emphasizes in the preamble “the universal and unified character” of the UNCLOS and reaffirms that it “sets out the legal framework within which all activities in the oceans and seas must be carried out”.
However, such an assumption is not completely true.15 There is no doubt that the UNCLOS is a cornerstone in the field of codification of international law. It has been rightly qualified as a “constitution for the oceans,” “a monumental achievement in the international community,” “the first comprehensive treaty dealing with practically every aspect of the uses and resources of the seas and the oceans,” an instrument which “has successfully accommodated the competing interests of all nations.”16 Nevertheless, the UNCLOS, as any legal text, is linked to the time when it was negotiated and adopted (from 1973 to 1982). Being itself a product of time, the UNCLOS cannot stop the passing of time. While it provides a solid basis for the regulation of many matters, it would be illusory to think that the UNCLOS is the end of legal regulation. International law of the sea is subject to a process of natural evolution and progressive development which involves also the UNCLOS.
In particular, the UNCLOS cannot work the miracle of regulating those activities that were not foreseeable in the period when it was being negotiated. At this time, very little was known about the uses of the genetic properties of marine organisms. For evident chronological reasons, the economic value of this kind of uses was not taken in consideration by the UNCLOS negotiators. When dealing with the special regime of the Area and its resources, they had only mineral resources in mind. This is evident from the plain text of the UNCLOS, in which the expressions “genetic resources” and “bioprospecting” do not appear anywhere. By regulating today genetic resources no pre-existing balance could be altered for the simple reason that genetic resources were not included in any UNCLOS balance.
It is a matter of fact that the term “activities” in the Area is defined as “all activities of exploration for, and exploitation of the resources of the Area” (Art. 1, para. 1) and that the term “resources” of the Area is defined as “all solid, liquid or gaseous mineral resources in-situ in the Area at or beneath the sea-bed, including polymetallic nodules” (Art. 133, a). This means that the present UNCLOS regime of common heritage of mankind does not include the non-mineral resources of the Area and that the rules conceived for the exploration and exploitation of mineral resources cannot be extended to other resources located therein.
However, this does not prevent States from extending the most innovating principle of common heritage of mankind to newly discovered resources not covered by the UNCLOS, if they wished to do so. Yet, such an extension would be a natural evolution within the spirit of the UNCLOS, a treaty based on General Assembly Resolution 2749 (XXV)17 and aiming at contributing “to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular the special interests and needs of developing countries, whether coastal or land-locked” (UNCLOS preamble).
The scope of the regime of the Area is already today broader than it may be believed at first sight. Under the UNCLOS, the legal condition of the Area as common heritage of mankind has an influence also on the regulation of activities that, although different from mining activities, are located in this space. The regime of the Area encompasses subjects which are more or less directly related to mining activities, such as marine scientific research (see Art. 143, para. 1), the preservation of the marine environment (see Art. 145) and the protection of underwater cultural heritage (see Art. 149). As far as the first two subjects are concerned, it is difficult to draw a clear-cut distinction between what takes place on the seabed and what in the super-jacent waters.
An interesting remark is that bioprospecting, an activity that is currently understood as the search for commercially valuable genetic resources, can already be considered as falling under the UNCLOS regime of marine scientific research. While the UNCLOS does not provide any definition of “marine scientific research”, Art. 246, which applies to the EEZ and the continental shelf, makes a distinction between two kinds of marine scientific research projects, namely those carried out “to increase scientific knowledge of the marine environment for the benefit of all mankind” (Art. 246, para. 3) and those “of direct significance for the exploration and exploitation of natural resources, whether living or non-living” (Art. 246, para. 5, a). This distinction supports the view that, under the UNCLOS logic, research activities of direct significance for the purpose of exploration and exploitation of natural resources also fall under the general label of “marine scientific research”. It follows that bioprospecting is also covered by Art. 143, para. 1, UNCLOS, which sets forth the rule that “marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole.”18 This provision refers to any kind of marine scientific research and is not limited to research on mineral resources. Yet, the reading of Art. 143 UNCLOS in combination with Art. 246 UNLOS contradicts the assumption that there is an absolute freedom to carry out bioprospecting in the Area.19 States which are active in bioprospecting in this space are already bound to contribute to the benefit of mankind as a whole.20 There is an inextricable link between marine scientific research and bioprospecting. A research endeavour organised with the intent to increase human knowledge may well result in the discovery of commercially valuable information on genetic resources.
While a specific regime for genetic resources is lacking, the aim of sharing the benefits among all States, which was the main aspect of the seminal proposal made by Mr. Pardo, can still be seen as a basic objective embodied in the UNCLOS spirit. Also in the field of genetic resources, the application of the principle of freedom of the sea, that is based on a “first-come-first-served” or “freedom-of-fishing-for-resources” approach, leads to inequitable consequences. New cooperative schemes, based on provisions on access and sharing of benefits, should be envisaged as the basis of a future regime for marine genetic resources beyond national jurisdiction. This would also be in full conformity with the principle of fair and equitable sharing of the benefits arising out of the utilization of genetic resources, set forth by Art. 1 of the CBD and by Art. 10 of the Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya, 2010).21
The major conceptual, but also practical, obstacle to be addressed by the ongoing negotiations on marine genetic resources beyond national jurisdiction is to be found in the ghost of a contradiction. On the one hand, it may not seem politically expedient to rely on the concept of common heritage of mankind, because this could since the beginning prevent many hopes to reach consensus among all the States involved in the negotiations. On the other, to meet evident requirements of equity, any future regime on genetic resources located in a “common” space could hardly result in the granting of all the benefits therefrom only to a few developed States. This brings into the picture the need for a regulation of access and sharing of benefits, which are the two typical elements of the principle of common heritage of mankind.
5 Other Relevant Questions
Besides the basic dilemma between a heritage-based or a freedom-based approach, progress on the way for the drafting of a new regime for marine genetic resources is also linked to the capacity of States to address and solve a number of specific issues which are far from being trivial.
In the already mentioned document containing his overview of the second session of the Prepcom,22 the chairperson listed the following possible areas of convergence of views on marine genetic resources:
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“Usefulness of agreeing on working definitions of marine genetic resources and other key concepts at the preliminary stage;
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Usefulness of drawing on definitions contained in existing instruments;
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Guiding principles and approaches constitute a cross-cutting issue;
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Benefit-sharing for non-monetary benefits;
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The rights of coastal States over their continental shelf should be respected;
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Benefit-sharing should/should also/could contribute to conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction;
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Benefit-sharing should be beneficial to current and future generations, build capacity to access marine genetic resources of areas beyond national jurisdiction, and not be detrimental to research and development”.
This list does not seem to reflect much convergence. A convergence to define key concepts at a preliminary stage does not mean that agreement on the content of the definitions has already been reached.23 Moreover, any convergence on specific aspects of benefit-sharing seems conditional on an agreement on “whether to have a benefit-sharing mechanism” itself, which instead is listed among the issues requiring further discussions. Notable is that convergence exists on the assumption that the rights of coastal States over their continental shelf should be respected. This should be understood in the sense that the new regime will not affect coastal States’ rights over the genetic resources found in the so-called extended continental shelf, that is in the seabed beyond the 200 n.m. and up to the limit of the continental margin (see the definition of continental shelf given by Art. 76 UNCLOS).24
Among the still pending issues related to genetic resources, the following seem particularly important.
5.1 Access and Benefit Sharing Regimes
In the already mentioned document containing the Prepcom chairperson’s overview of the second session of the Prepcom,25 the issues on “whether to regulate access to marine genetic resources of areas beyond national jurisdiction or not”, “whether to have a benefit-sharing mechanism”, “whether to include monetary benefits or not” and “whether access to resources ex situ / resources in silico / genetic sequence data should be included in an access and benefit-sharing regime” are listed among those requiring further discussions. The four issues are closely connected.
According to the United States, no access regime should be put in place at the international level, as it would be contrary to the principle of freedom of the high seas:
In the high seas regime under international law, no State nor any other entity has sovereign rights over MGR [= marine genetic resources] in areas beyond national jurisdiction. Anyone can freely access such MGR in accordance with international law.26
In the United States’ view, any future regime should not put in question the right of ownership over marine genetic resources. Access itself to genetic resources, in the sense of capacity building for those States that need it, should be considered as the main, if not the only, benefit that could be shared:
As we do not have to discuss issues of ownership of MGR, we are instead free to share ideas on how sharing benefits might allow us to best achieve our overarching conservation objectives, and how such benefit sharing arrangements might work. Benefit sharing must be considered in the context of how any benefit sharing might allow us to achieve our conservation objectives. We do not want to advance any benefit sharing conditions that might create operational inefficiencies or otherwise obstruct beneficial research or development activities. In our view, especially given the difficulty for many to even access MGR, access to MGR in areas beyond national jurisdiction could itself be considered a benefit, and it is important for this group to discuss how we might be able to advance access as a benefit.27
MGR in areas beyond national jurisdiction fall under the high seas regime of the law of the sea, and we do not want to see restrictions placed on those resources. If, however, a new instrument were to include a benefit-sharing regime, the benefits should focus on capacity building and conservation. At the last Prepcom session we heard compelling descriptions of the difficulties some scientists, particularly from developing countries, face in terms of having access to BBNJ [= biodiversity beyond national jurisdiction]. Increased access to BBNJ, in ways acceptable to States, could be an example of positive benefit-sharing.28
A different view, based on strong access and benefit sharing regimes that presuppose an international machinery, is put forward by those States that are in favour of the principle of common heritage of mankind. As stated in the paper by Micronesia,
it is the FSM’s [Federated States of Micronesia’s] view that marine genetic resources (MGRs) – being the common heritage of humankind and a key component of the marine biological diversity to be regulated by the BBNJ instrument – must be subject to an access and benefit sharing (ABS) regime that is robust, equitable, and properly attuned to the needs and interests of developing countries. The sharing of benefits accruing from access to and exploitation of MGRs of ABNJs is essential to ensuring that the BBNJ instrument will be acceptable for SIDS [Small Island Developing States] like the FSM with longstanding historical and cultural connections to and reliance on the Ocean’s bounty.29
In Micronesia’s view, the ABS machinery should play in favour of developing States and could include the establishment of an international fund and the prohibition of activities not complying with the future international instrument:
For example, the BBNJ instrument can allow developed country Parties to sponsor exploration and exploitation of MGRs of ABNJs by private contractors – similar to the exploration and exploitation of non-living resources in the Area – in exchange for financial contributions by those Parties and/or contractors to an ABS fund, which will then be disbursed in an equitable manner to BBNJ States Parties. The BBNJ instrument can also encourage developing country Parties to sponsor private contractors as well, in exchange for granting those developing country Parties preferential access to the ABS fund. The sizes of financial contributions from developed country Parties may be based on a flat rate, or be proportionate to the geographical scope of the ABNJs to be explored and/or exploited by the private entities they contract. The BBNJ instrument can prohibit access to MGRs – including any benefits that accrue from their exploration and exploitation – that does not comply with this ABS regime.30
What kinds of benefits, if any, should be shared is another difficult question linked to the previous one. The Nagoya Protocol provides in an annex a detailed list of monetary and non-monetary benefits.31 But it is open to discussion, especially in the case of monetary benefits, which among them could be relevant, mutatis mutandis, also for the future instrument being discussed in the present negotiations on marine biological diversity of areas beyond national jurisdiction.
According to the paper submitted on 29 August 2016 by Nauru on behalf of the group of twelve Pacific Small Island Developing States, the following forms of benefit sharing could be considered in the future implementing agreement:
Monetary:
A trust fund could be created to fund capacity building initiatives for developing countries, in particular SIDS [= Small Island Developing States]. Given our special circumstances, this trust fund could provide a special allocation to SIDS.
This trust fund could be funded by both:
Royalties or milestones payments from the exploitation of MGRs could be transferred to a trust fund. Not all MGR-related research lead to lucrative outcomes. Therefore, a system focusing solely on royalties or milestones payments will not suffice.
Mandatory fees: Proponents of MGR related activities could be required to financially contribute to a trust fund.
Non-monetary:
Technology transfer refers to instruments, equipment, vessels, processes and methodologies to produce and use knowledge to improve study and understanding of ocean/coastal nature/resources:
Proponents of MGR related activities could be required to transfer specific technology.
In the SAMOA Pathway it was agreed that Marine technology transfer should consist of appropriate, reliable, affordable, modern and environmentally sound technologies (including software and equipment) and know-how (based on SAMOA Pathway, para. 111).
Knowledge sharing and access to information: Possible consideration for a clearinghouse mechanism.
Capacity building: Proponents of MGR related activities could be required to provide capacity building to SIDS. Elements of capacity building could include as an initial matter:
– the provision of education/training in science and technologies, policy and governance, including through joint research efforts supported through the establishment of a global scholarship fund, and enhanced through collaboration in research and development on marine genetic resources;
– support for and development of regional centres of excellence (such as the University of South Pacific) to address regional needs and provide long-term education and training.32
The definition to be chosen for marine genetic resources has also an influence on the question of the access and benefit sharing regimes. According to the United States,
it is best to limit the definition of marine genetic resources to in situ collection. Including ex situ samples and procedures in the definition of MGR would introduce a range of complex variables, such as how materials are collected, transported, and stored. These would dramatically complicate the operation of BBNJ benefit-sharing and move us farther away from achieving our objectives.33
However, the Pacific Small Island Developing States stress the importance of being provided access also to ex situ marine genetic resources:
(…) special consideration for developing countries, in particular SIDS, in the access to MGRs activities is important. This requires capacity to undertake such research and prospecting activity or research ex-situ. It also requires appropriate technology. Furthermore, access to the data gathered from accessing these resources should also be provided. This requires capacity to understand and use the data. Therefore, the concepts of transparency and traceability of MGRs are important.34
The already mentioned “President’s aid to negotiations” paper35 shows that the alternative between both kinds of benefits (monetary and non-monetary), on the one hand, and only non-monetary benefits, on the other, is a crucial question that still needs to be settled:
For the purposes of this Part, the term ‘benefits’ shall mean monetary and non-monetary benefits;
For the purposes of this Part, the term ‘benefits’ shall mean non-monetary benefits. It includes but is not limited to capacity-building, the exchange and public availability of information and scientific knowledge, access to samples and sample collections, access to technology and technical knowledge and transfer of technology.
Benefits arising from the use of marine genetic resources of areas beyond national jurisdiction may be shared on a voluntary basis.
The last option could be seen as very disappointing for all those who believe in the principle of common heritage of mankind.
If a strong access and benefit sharing mechanism is put in place, the question should be asked about the role of the ISBA within the future regime for marine genetic resources. It would be logical to involve an international organization that has already acquired knowledge and experience in activities on the seabed beyond the limits of national jurisdiction and in the protection of its unique environment. Yet, the mandate of the ISBA deserves close scrutiny, especially if it is to be understood not only as an entity involved in marine mining activities in competition with others, but as the international organisation which bears the main responsibility to realize a just and equitable economic order of the oceans and seas. Nothing prevents States from expanding the responsibility of the ISBA and granting it some management competences also in the field of genetic resources.
5.2 Intellectual Property Rights
Another issue requiring further discussions is whether to address intellectual property rights (IPRs) in the future international instrument.
It is a matter of fact that only few States and private entities have the financial means and sophisticated technologies needed not only to reach the genetic resources of the deep seabed, but also to develop commercially valuable products therefrom. Already in 2005, a document issued by the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the CBD pointed out that
reaching deep seabed extreme environments and maintaining alive the sampled organisms, as well as culturing them, requires sophisticated and expensive technologies. (…) Typically, the technology associated with research on deep seabed genetic resources involves: oceanographic vessels equipped with sonar technology, manned or unmanned submersible vehicles; in situ sampling tools; technology related to culture methods; molecular biology technology and techniques; and technology associated with the different steps of the commercialization process of derivatives of deep seabed genetic resources. With the exception of basic molecular biology techniques, most of the technology necessary for accessing the deep seabed and studying and isolating its organisms is owned by research institutions, both public and private. To date, only very few countries have access to these technologies.36
The prospects for commercial application of marine bioprospecting activities are quite promising, especially in the pharmaceutical sector. However, the IPRs legislation of several States does not compel the applicant for a patent to disclose the origin of the genetic materials used. This may prevent the establishment of an international regime which would provide for the joint ownership over, or other form of benefit sharing from, IPRs related to genetic resources found in the seabed beyond national jurisdiction.
It is not surprising that those States that support the application of the principle of common heritage of mankind also envisage substantive changes in the present regime of IPRs. As stated by Micronesia,
the study of MGRs is a cutting edge field, and as such, it is subject to competing and complex intellectual property (IP) considerations. It is the FSM’s view that the Ocean must be an open source for research innovation and solutions for the ills and challenges of humankind, particularly the living resources of ABNJs. Although discoveries and commercial innovations are encouraged with regard to MGRs of ABNJs, such innovation should not cater exclusively to profit motives, but should instead respect the common interest of humankind in benefitting from the sustainable use of such MGRs. Discoveries among living resources of ABNJs that are useful for the further preservation of biodiversity and MGRs should not be beholden to exclusive rights of discrete private entities or individuals. IP rights should not be applied with such rigidity in pursuit of exclusively commercial ends that they preclude the use of the targeted living resources to ameliorate some of the common concerns of humankind. Thus, it is the FSM’s view that any IP rights that attach to MGRs of ABNJs under the BBNJ instrument must be secondary to the entitlements of the international community that flow from the designation of MGRs as the common heritage of humankind. An ABS regime for MGRs of ABNJs must reflect this treatment of IP rights.37
Any proposals of innovations in rules regarding IPRs have proved to be a major subject of discussion in the ongoing negotiations. The already mentioned “President’s aid to negotiations” paper38 under the heading “intellectual property rights” lists options ranging from compulsory disclosure of the origin of marine genetic resources involved in patents to “no text”.
5.3 Genetic Resources of the Water Column
The United States puts forward that MGRs found in the high seas water column above the seabed should not be included in any benefit sharing arrangement. They rely on the precedent established by Art. 77, para. 4, UNCLOS, where species on the seabed (sedentary species) are treated differently from species found in the super-jacent waters.39
Other States take the position that the future regime should be the same and should apply to all marine spaces beyond national jurisdiction, irrespective of whether the genetic resources are found in the waters or on the seabed.
In the Prepcom chairperson’s overview, the issue of “whether to include marine genetic resources of the water column beyond areas of national jurisdiction in a benefit-sharing regime” is listed among the issues requiring further discussions. Conflicting options appear also in the “President’s aid to negotiations” paper.
5.4 Role of Traditional Knowledge
The view has been expressed that those indigenous coastal communities who possess special knowledge about living resources in marine areas beyond national jurisdiction should be afforded special consideration under the future regime. According to Micronesia,
the ancestors of the current indigenous inhabitants of the islands and atolls of the FSM navigated the wide expanse of the Pacific Ocean using, among other things, the creatures of the Ocean as guides and sources of sustenance, based on ancient knowledge about their behavior patterns and nutritional values. In ABS regimes under the Nagoya Protocol […]to the Convention on Biological Diversity (CBD), entities wishing to access biological diversity under the jurisdiction of a CBD Contracting Party must first secure the informed consent of indigenous communities in the jurisdiction who are considered custodians of that biological diversity. Similarly, for the BBNJ instrument, it is the FSM’s view that an entity wishing to study, explore, and/or exploit MGRs in a particular ABNJ must at the very least consult the indigenous communities of the coastal States whose EEZs abut that ABNJ prior to commencing their engagement with the MGRs. The ABS regime for the MGRs can also prioritize those indigenous communities in terms of receiving benefits from the regime, including benefits from the aforementioned ABS fund.40
In the Prepcom Chairperson’s overview, the issue of the “role of traditional knowledge in the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction” is listed among the issues requiring further discussions. The question is still open, at least insofar it is linked to agreement on the access and benefit sharing regimes.
5.5 The Double Nature of Fish
While listed in the Prepcom chairperson’s overview as an issue requiring further discussions, “whether to take into account the distinction between fish used for its genetic properties and fish used as commodity when developing a definition” should not become a major point of contention. Even though different options are listed, the “President’s aid to negotiations” paper goes in the direction that the future instrument will not apply to fish used as a commodity.
A distinction between fishing and the exploitation of marine genetic resources is needed and is conceptually clear enough. Both fishing and the exploitation of marine genetic resources presuppose the taking of living resources from the sea. However, what is important for the fishermen is the whole body of the exploited resource or tangible parts of it, in order to harvest it for consumption. Fishing activities aim at exploiting large quantities of given living resources to produce the maximum yield from the target species. The purpose of those who look for genetic resources is different. Here the bodies are considered mainly as receptacles of genes. The objective is to seize the functional units of heredity to determine whether and how they can be used or stored waiting for a future use. For this kind of activity there is no need of large quantities of living resources, as quality and difference are much more significant than quantity and similarity. Unlike the case of fisheries, the added value of the use of genetic material is tremendous and questions of patents and protection of intellectual property can easily arise. Although genetic resources could be extracted also from fish or other marine living resources normally used as commodities, it would be completely illogical to apply to activities directed at marine genetic resources the rules of the UNCLOS relating to conservation and management of the living resources of the high seas (for example, the determination of the total allowable catch). It would equally be illogical to transform the future implementation agreement into a treaty devoted to the management and allocation of fish resources.
As remarked by the United States,
(…) if marine genetic resources from a fish are used for their genetic properties, they should be treated as other MGR under any new instrument. There would be no reason to treat a gene from a fish differently than a gene from any other marine organism. If, however, fish are used as a commodity, then many would fall under existing regimes, including regional fisheries management organizations, and should not be addressed here.41
5.6 The “Straddling” Genetic Resources
The already mentioned Nagoya Protocol, which applies to the components of biological diversity found in areas within the limits of its national jurisdiction (see Art. 4, b, CBD) grants a number of rights to the country of origin of genetic resources, intended as “the country which possesses those genetic resources in in-situ conditions” (Art. 2 CBD). As areas of deep waters can also be located within the EEZ, depending on the broad or reduced extension of the continental margin of a given coastal State, it may happen that the same genetic resource is found both within and beyond areas of national jurisdiction. It would potentially fall under two different regimes, namely those of the Nagoya Protocol and the future implementation agreement. The problem would get worse if the implementation agreement were to cover also the genetic resources of high seas waters.
The “President’s aid to negotiations” paper includes, as an option, a detailed provision addressing the thorny question of “straddling” genetic resources:
Activities with respect to marine genetic resources of areas beyond national jurisdiction that are also found in areas within national jurisdiction shall be conducted with due regard to the rights and legitimate interests of any coastal State under the jurisdiction of which such resources are found. Consultations, including a system of prior notification, shall be undertaken with the State concerned, with a view to avoiding infringement of such rights and interests. In cases where activities with respect to marine genetic resources of areas beyond national jurisdiction may result in the exploitation of marine genetic resources which are found in areas both within and beyond national jurisdiction, the prior consent of the coastal State concerned shall be required.
6 Conclusive Remark
The work for a third UNCLOS implementation agreement is ongoing.42 If the agreement will ever be adopted, it could lead to a major improvement in international law of the sea and to a more equitable system of exploitation of marine resources. Given the difficulties and intricacies of many among the issues under discussion, the work needs to be pursued by the States involved in a spirit of moderation and through an effort constructive imagination. Such qualities have not yet sufficiently materialized. Time will tell about the future meetings.
See the document Preparatory Committee Established by General Assembly Resolution 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 – Chair’s Overview of the Second Session of the Preparatory Committee, available on the website of the United Nations.
U.N. Doc. A/CONF.232/2019/1 of 3 December 2018.
See chapter 7 of this book, J. Dingwall, ‘Commercial Mining Activities in the Deep Seabed Beyond National Jurisdiction: The International Legal Framework’.
For further consideration of the ISBA’s Mining Code, see Ibid, chapter 7 of this book, J. Dingwall.
See chapter 2 of this book, E. Ramirez-Llodra, ‘Deep-Sea ecosystems: biodiversity and anthropogenic impacts’.
On this question see L. Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area’, in (eds.) Ocean Yearbook (Brill, 1996) at p. 156; T. Scovazzi, ‘Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority’ (2004) International Journal of Marine and Coastal Law, 383; S. Arico and C. Salpin, Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects (United Nations University, 2005); D.K. Leary, International Law and the Genetic Resources of the Deep Sea (Brill Nijhoff, 2006); A.G. Oude Elferink, ‘The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas’ (2007) International Journal of Marine and Coastal Law at p. 143; F. Millicay, ‘A Legal Regime for the Biodiversity of the Area’, in Nordquist, Long, Heider and Moore (eds.), Law, Science and Ocean Management (Brill, 2007), p. 739; de La Fayette, ‘A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction’ Vol. 24:2 (2009) International Journal of Marine and Coastal Law, p. 221; F. Armas-Pfirter, How Can Life in the Deep Seabed Be Protected? (2009) ibidem, p. 281; L. Ridweway, ‘Marine Genetic Resources: Outcomes of the United Nations Informal Consultative Process’, (2009) ibidem, p. 309; R. Barnes, ‘Entitlement to Marine Living Resources in Areas Beyond National Jurisdiction’, in A.G. Oude Elferink& E.J. Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments(Brill, Leiden, 2010), p. 83; T. Scovazzi, ‘The Seabed Beyond the Limits of National Jurisdiction: General and Institutional Aspects’, ibidem, p. 43; A. Jørem and M. Walløe Tvedt, ‘Bioprospecting in the High Seas: Existing Rights and Obligations in View of a New Legal Regime for Marine Areas beyond National Jurisdiction’29 (2014:2) International Journal of Marine and Coastal Law, p. 321; L. Glowka, ‘Marine Genetic Resources within and beyond the Limits of National Jurisdiction: Challenges and Opportunities Posed by Existing and Emerging International Legal Framework and Processes’, in M.C. Ribeiro (ed.), 30 Years after the Signature of the United Nations Convention on the Law of the Sea (Coimbra, 2014) p. 251; J. Wehrli and T. Cottier, ‘Towards a Treaty Instrument on Marine Genetic Resources’, ibidem, p. 517.
The papers are available on the website of the United Nations.
Paper by the United States (supra, n 7), p. 1.
Paper by Costa Rica (supra, n 7), p. 5.
Supra, para. 2.
Paper by Costa Rica (supra, n 7), p. 6.
Paper by Micronesia (supra, n 7), para. 5.
Supra, n 1.
Supra, n 2.
See T. Scovazzi, ‘Is the UN Convention on the Law of the Sea the Legal Framework for All Activities in the Sea? The Case of Bioprospecting’, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, (Brill Leiden, 2010), p. 309.
T. Koh, A Constitution for the Oceans, in U.N., The Law of the Sea – Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, New York, 1983, p. xxiii.
Supra, para. 2. Under this resolution, all the resources of the seabed beyond national jurisdiction fall under the common heritage of mankind regime.
Art. 241 UNCLOS is also relevant in the discussion on the legal condition of the genetic resources of the deep seabed. It provides that “marine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources”.
Art. 143, para. 3, UNCLOS grants the States the right to carry out scientific research in the Area, but obliges them to cooperate with other States and the ISBA in various fields, including the dissemination of results. Also this provision refers to any kind of marine scientific research in the Area.
As stated by F. Francioni, ‘Genetic Resources, Biotechnology and Human Rights: The International Legal Framework’, in F. Francioni (ed.), Biotechnologies and International Human Rights, (Hart Publishing, 2007), p. 14, “the principle of common heritage in its substantive aspect is, like any norm of international law, capable of being applied in a decentralised manner by states. Even in the absence of ad hoc institutions every state is under an obligation to respect and fulfil the principle of the common heritage by ensuring that subjects within its jurisdiction do not act contrary to its object and purpose. This would be the case if a state authorised or negligently failed to prevent biotechnological activities in common spaces that had the effect of causing severe and irreversible damage to the unique biodiversity of that space. Similarly, a state would fail the common heritage if it authorised exclusive appropriation of genetic resources without requiring equitable sharing of pertinent scientific knowledge and without ensuring that a fair portion of economic benefits accruing from their exploitation be devoted to the conservation and sustainable development of such common resources”.
Hereinafter: Nagoya Protocol. According to Art. 10, “Parties shall consider the need for and the modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally”. While the Nagoya Protocol does not apply to areas beyond national jurisdiction, it could become a source of inspiration for a future regime applying to resources located in such areas. Another source of inspiration could be the International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, 2001), concluded under the auspices of the Food and Agriculture Organization of the United Nations (FAO). On this treaty, see C. Chiarolla, Intellectual Property, Agriculture and Global Food Security (Edward Elgar, Cheltenham, 2011).
Supra, n 1.
According to the restrictive position taken by the United States, “marine genetic resources should be limited to material from living organisms containing functional genetic units of heredity. The definition should not include material such as enzymes or other proteins or information generated from MGR [= marine genetic resources] such as genetic sequence data”: paper by the United States (supra, n 7), p. 1.
Under Art. 82 UNCLOS, the coastal States’ obligation to make payments or contributions in kind in respect of the exploitation of the continental shelf beyond 200 nautical miles is limited to the exploitation of the “non-living resources” of the extended continental shelf.
Supra, n 1.
Paper by the United States (supra, n 7), p. 2.
Ibidem, p. 2.
Ibidem, p. 3.
Paper by Micronesia (supra, n 7), para. 6.
Ibidem.
Pursuant to the Annex: “1. Monetary benefits may include, but not be limited to: (a) Access fees/fee per sample collected or otherwise acquired; (b) Up-front payments; (c) Milestone payments; (d) Payment of royalties; (e) Licence fees in case of commercialization; (f) Special fees to be paid to trust funds supporting conservation and sustainable use of biodiversity; (g) Salaries and preferential terms where mutually agreed; (h) Research funding; (i) Joint ventures; (j) Joint ownership of relevant intellectual property rights. 2. Non-monetary benefits may include, but not be limited to: (a) Sharing of research and development results; (b) Collaboration, cooperation and contribution in scientific research and development programmes, particularly biotechnological research activities, where possible in the Party providing genetic resources; (c) Participation in product development; (d) Collaboration, cooperation and contribution in education and training; (e) Admittance to ex situ facilities of genetic resources and to databases; (f) Transfer to the provider of the genetic resources of knowledge and technology under fair and most favourable terms, including on concessional and preferential terms where agreed, in particular, knowledge and technology that make use of genetic resources, including biotechnology, or that are relevant to the conservation and sustainable utilization of biological diversity; (g) Strengthening capacities for technology transfer; (h) Institutional capacity-building; (i) Human and material resources to strengthen the capacities for the administration and enforcement of access regulations; (j) Training related to genetic resources with the full participation of countries providing genetic resources, and where possible, in such countries; (k) Access to scientific information relevant to conservation and sustainable use of biological diversity, including biological inventories and taxonomic studies; (l) Contributions to the local economy; (m) Research directed towards priority needs, such as health and food security, taking into account domestic uses of genetic resources in the Party providing genetic resources; (n) Institutional and professional relationships that can arise from an access and benefit-sharing agreement and subsequent collaborative activities; (o) Food and livelihood security benefits; (p) Social recognition; (q) Joint ownership of relevant intellectual property rights”.
Paper by Nauru (supra, note 7), p. 6.
Paper by the United States (supra, n 7), p. 2. As regards the so-called in silico genetic resources, the United States makes the following remarks: “Indeed, for purposes of clarity, we should refer to information taken from MGR by its proper name: genetic sequence data, or GSD, and not use the term in silico. GSD is information and its sharing can promote uses of GSD in research and development. If GSD is included, and a decision were made to attempt to trace the downloading and use of such information, how would that work? We struggle to envision a scenario that could be workable. How could we manage benefit-sharing (and promote compliance) if data, something that is freely and openly shared as part of research best-practices, were included in it?” (ibidem).
Paper by Nauru (supra, n 7), p. 6.
Supra, n 2.
Status and Trends of, and Threats to, Deep Seabed Genetic Resources beyond National Jurisdiction, and Identification of Technical Options for their Conservation and Sustainable Use, doc. UNEP/CBD/SBSTTA/11/11 of 22 July 2005, paras. 12 and 13.
Paper by Micronesia (supra, n 7), p. 2.
Supra, n 2.
Paper by the United States (supra, n 7), p. 3.
Paper by Micronesia (supra, note 7), para. 8.
Paper by the United States (supra, n 7), p. 2.
See T. Scovazzi, ‘The Negotiations for a Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity beyond National Jurisdiction’, Vol. 70 (2016) Marine Policy, p. 188.