The global debate on how to regulate use of marine genetic resources from the area beyond national jurisdiction is going in the United Nations. This chapter discusses potential elements in regulating rights and use of these genetic resources. The perspective is to approach one factual manner to integrate non-monetary and monetary benefit sharing into a legally binding system. Taking practical manners of using marine biological resources for specific purposes, this chapter discusses theoretical models (as OPEN) that are on the table for discussion for approaching the regulation of access and benefit sharing. This approach will identify the extent to which they hold a potential to establish a legally functional model for a binding access and benefit sharing system. The legal aspects discussed aim at presenting a practical system for the user of marine material along with promoting global research and development based on marine genetic resources. This discussion is based on applying the fundamental principle of freedom of the high seas with adapting the principle of flag state jurisdiction. The chapter provides a clear view on how such a regulatory model can be aligned with the exclusive rights awarded by patents when the activity results in an invention. The chapter discusses open and semi-open source options for using repositories as a practical means of securing access to the resources for the many. It highlights the potential role of private contracts for such a global regime to become functional.
This article examines the law governing bioprospecting in the high seas and subsequent use of biological material. Seen in relation to the on-going debate on a new legal regime for marine areas beyond national jurisdiction, the authors explore the degree to which existing rights and obligations under the law of the sea and patent law could coincide with one of the objectives of the Convention on Biological Diversity, namely that of promoting benefit sharing. The activity of bioprospecting is examined in light of the different freedoms of the high seas, making the point that different interpretations give different indications of existing provisions on benefit sharing. In particular, the regime for marine scientific research under the law of the sea exemplifies different ways for sharing benefits, all of which run up against implementation challenges when seen in relation to rights awarded by patents to inventions resulting from bioprospecting.