1. Marine genetic resources in areas beyond national jurisdiction
Dr. Alejandro Iza
Director, IUCN Environmental Law Centre
Head, IUCN Environmental Law Programme

2. Outline IUCN and its Environmental Law Centre Background
A new international legally binding instrument
Competing principles
A practical approach
Final thoughts

3. Part 1: International Union for Conservation of Nature (IUCN)

4. IUCN-United for Life and Livelihoods
IUCN, the world’s largest and most diverse environmental network : with credible knowledge, global-to-local reach, standards & practices, convening all players

5. Environmental Law Centre (ELC)
Established in 1970 in Bonn, Germany
Focus on
Conceptual development of the environmental law
Assistance in designing and implementing legal frameworks
Strengthening capacities for environmental law and governance at local,
Dissemination of legal knowledge and informationion on
ECOLEX Management Unit (

6. Part 2: Background

7. What are Areas Beyond National Jurisdiction?

9. Map of ABNJ

10. What are marine genetic resources?

11. Part 3: A new international legally binding instrument

12. The need for a
new agreement

13. Existing ocean governance frameworks
UN Convention on the Law of the Sea (UNCLOS)
UNEP Regional Seas Conventions
UN Fish Stocks Agreement
Barcelona Convention
RFMOs
Nairobi Convention
Regional Agreements
Polar Agreements
FAO Agreements
CCAMLR
FAO Compliance Agreement
Arctic Treaty System
Port State Measures
Species Conventions
Voluntary Codes
International Whaling Convention
International Maritime Organization (IMO)
Multilateral Environmental Agreements (MEAs)
MARPOL
London Dumping Convention
CBD
Ballast Water Agreement
CMS

14. Why a new instrument? Fragmented coverage that is not comprehensive
Current coverage is patchy, focusing on a specific region, species, or sector (e.g. fishing, shipping)
Current organizations do not have a comprehensive mandate, and do not always coordinate
Some regions and sectors do not have an applicable entity
Weak regional or sectoral organizations
Different regional / sectoral organizations have different levels of capacity
Some are less able to address problems
Cumulative impacts
Sectoral activities that are regulated separately have cumulative impacts on marine biodiversity
Coordination is necessary to address these impacts
Gaps
Emerging issues are not currently covered by the instrument
E.g., access and benefit sharing in relation to marine genetic resources in ABNJ

15. Pathway to the Negotiation
: Ad-hoc Open Ended Informal Working Group
2012: Rio +20 Conference
2015: UNGA Res. 69/292
: Preparatory Committee
2017: PrepCom report
2018: UNGA Res. 72/249
: Intergovern-mental Conference

16. BBNJ Topics of discussion
Environmental Impact Assessment
Capacity Building and Technology Transfer
Area-based Management Tools
Marine Genetic Resources (MGR)

17. How to reconcile competing principles?
How will the capacity building and technology transfer provisions relate to existing requirements?
How will the capacity building activities be funded?
How to share benefits without blocking progress?
How to create a system that is workable?

18. Part 4: Competing principles

19. Freedom of the high seas Common heritage of mankind

20. UN Convention on the Law of the Sea
Article 136
The Area and its resources are the common heritage of mankind.
Article 1
For the purposes of this Convention:
(1) "Area" means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction
Article133
For the purposes of this Part:
(a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules

21. UN Convention on the Law of the Sea
Article 87
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

22. Considerations Questions
Are genetic resources in the Area governed by common heritage of mankind?
If they are not, are they instead covered by freedom of the high seas?
Are genetic resources in the High Seas governed by freedom of the high seas?
If not, could they be covered by common heritage of mankind?
If UNCLOS is not clear, can an implementing agreement define a new regime for these resources?
Key points
Having a different regime for the Area and the High Seas would be unworkable
The regime for ABNJ needs to work with the regime applying within national jurisdiction under the Nagoya Protocol

23. Part 5: A practical approach

24. What kind of system
do we want?

25. What is needed? Areas of consensus
Facilitate access to marine genetic resources and promote research that will benefit humanity
Enable participation of all States, including developing States
Ensure sharing of non-monetary benefits, including sharing research results and scientific data and involving developing country scientists in research
Consider an option for sharing of monetary benefits
Provide legal certainty

26. What could this look like?
Notification requirement pre- and post-cruise
Opportunity for developing country researchers to participate in cruises
Keeping track of data relating to origin of samples
Open access to samples in bio-repositories
Possible requirement for payment at the time of patenting or licensing, that goes into a global fund for conservation and capacity building
Sharing of data, cruise information, research opportunities, and funds available through clearing house mechanism

27. Part 6: Final thoughts

28. Sovereignty vs. Freedom?

29. IUCN Environmental Law Centre Godesberger Allee 108-112 53175 Bonn
Germany
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