Geoscience Reference
In-Depth Information
9.3.3 Working hand in hand?
The relationship between the various applicable instruments, in particular UNCLOS and in-
tellectual property instruments, is important. Pursuant to Article 311 of UNCLOS, which
governs the relationship between UNCLOS and other conventions and international agree-
ments, UNCLOS 'shall not alter the rights and obligations of States Parties which arise from
other agreements compatible with this Convention and which do not affect the enjoyment
by other States Parties of their rights or the performance of their obligations under this Con-
vention'. In the present context, what this provision means, in substance, is that UNCLOS
and the TRIPs Agreement are compatible, insofar that compliance with the TRIPs Agree-
ment does not alter the exercise by a state of its rights and performance of its obligations
under UNCLOS. The TRIPs Agreement is silent on the question of its relationship with in-
ternational instruments, other than those relating to intellectual property. Whether compli-
ance with the TRIPs Agreement affects the enjoyment by other state parties of their rights
or the performance of their obligations under UNCLOS depends largely on: (1) whether pat-
enting is considered as a claim to part of the marine environment or its resources (and hence
runscountertoArticle 241ofUNCLOS); (2)whether patenting islikely tointerfere withthe
right to carry out MSR or any other activity in relation to marine genetic resources from the
high seas and the Area (and hence runs counter to Article 240 of UNCLOS); and (3) wheth-
er the degree of confidentiality required prior to the filing for patents in order to safeguard
the novel character of an invention is compatible with the requirement for dissemination
and publication of data and research results (or runs counter to Articles 244 and 143.3(c) of
UNCLOS) (Salpin and Germani, 2007 ) .
The relationship between UNCLOS and the 2010 Nagoya Protocol should also be con-
sidered, since the latter foresees the possible establishment of a global multilateral benefit-
sharingmechanismregardinggeneticresources,forwhichitisnotpossibletograntorobtain
prior informed consent in accordance with its Article 10 (Tvedt, 2011 ; Salpin 2013 ) . It will
thus be interesting to see which practical options for benefit-sharing are discussed with re-
gard to these resources and whether they may provide a source of inspiration for the discus-
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