Bridges Trade BioRes • Volume 6 • Number 4 • 3rd March 2006

Legal Status of Marine Genetic Resources in Question

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A 13-17 February informal meeting of a UN General Assembly Working Group on marine biological diversity struggled with the legal status of and access and benefit sharing arrangements for marine genetic resources on the high seas. Delegates, meeting in New York with a mandate to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, clashed in particular over the legal status of marine genetic resources and whether they fall under the ‘common heritage of mankind’ principle or the ‘freedom of the high seas’ principle. While the G77/China adhere to the regime of the common heritage of mankind, namely that no state can claim or exercise sovereignty or sovereign rights over any part of the marine genetic resources, some countries within the group stressed that the benefits arising from marine genetic resources should be shared with developing countries by expanding the jurisdiction of the International Seabed Authority (ISA) or through new international regulations. While they pointed to article 136 of the UN Convention on the Law of the Sea as justification for the relevance of the common heritage principle to marine genetic resources, the US and Japan argued that this regime applies only to mineral resources whereas marine genetic resources should be subject to the freedom of the high seas principle, namely that the high seas are open to all States, and pointed to article 87 of UNCLOS to justify their position.

Countries also discussed how destructive fishing practices on marine ecosystems and genetic resources. The EU proposed a new UNCLOS implementation agreement and the creation of marine protected areas, invoking the precautionary principle in the face of overwhelming evidence of disastrous impacts of practices such as bottom trawling on ecosystems. However, the idea of such an agreement met with opposition from the US, Japan, Korea, Norway and Iceland and was not embraced by developing countries, either, as it said little on the issue of marine genetic resources. In the absence of a new agreement, these groups as well as Mexico, New Zealand and the EU urged delegates to adopt short-term measures to address the most critical threats to marine biodiversity.

ICTSD reporting; Earth Negotiations Bulletin; “Protection for High Seas Biodiversity - Time to Get Serious,” DSCC, 13 January 2006; “EU Position Change Signals Real Hope for Deep Oceans,” DSCC Press Release, 17 January 2006.