Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument

(Un)claiming rights, resources, and ocean spaces: Marine genetic resources and area-based management tools in high seas governance negotiations

“…The collection of MGRs within the EEZ of a coastal state currently triggers the Nagoya Protocol's ABS mechanisms, and the coastal state can share in the benefits of the resource in exchange for permitting access. However, under the status quo, if the organism crosses into ABNJ, private actors can freely collect and utilize it (Thambisetty, 2018). Competing claims to benefits may arise based on the subsequent movement of the resource by those who collect and use it (Humphries et al, 2021), as opposed to the movement of the organism during its life.…”

“…This lack of certainty may also have profound impacts for global equity. In the absence of new legislation, the status quo first-come first-served approach will allow the perpetuation of conversion of this knowledge to patent rights in ways that will disproportionately benefit the developed world (Thambisetty, 2018, 2022; Vadrot et al, 2021). Global gaps in the capacity to exploit MGRs are pronounced, with only a handful of (mostly, but not all developed) countries having access to MGRs due to the cost of technology to sample and access samples, scientific skills needed for research on biodiversity, the cost of skills needed for molecular screening, and the scientific skills necessary for data analysis (Broggiato et al, 2018).…”

“…Given the uncertain distinction between “commercial activity” and “conservation,” patent rights may limit access to knowledge in ways that could hamper scientific research and academic enterprises (Boyle, 2003; David, 2004). While, theoretically, knowledge from MGRs developed through academic research should enter the public domain, as a practical matter, the sheer volume of genetic material available makes examining patents difficult and gives private entities an advantage that may result in this material ultimately being patented and unavailable for use by researchers (Thambisetty, 2018). This result would be diametrically opposed to the expressed intent of most parties to the BBNJ Negotiations, who often highlight the protection of scientific research as a key concern of the new Implementing Agreement.…”