Geoscience Reference
In-Depth Information
to further capacity-building among countries, including in relation to facilitating access to
samples and technology transfer.
The question of genetic resources from the deep seabed has triggered a process which
may lead to the development of a new, dedicated implementing agreement under UNCLOS
(cf.
Chapters 9
and
10
)
. Divergent views exist between those who consider the CBD to be
competent in dealing with these resources and those who insist on the non-applicability of
CBD provisions to deal with issues in areas beyond national jurisdiction. There is a possib-
ility that future negotiation of a multilateral benefit-sharing mechanism under the Nagoya
Protocol could assist the process of determining a benefit-sharing arrangement in relation
to marine genetic resources in areas beyond national jurisdiction. A further difficulty exists
in the challenge to combine legal boundaries established under UNCLOS with the biolo-
gical and ecological features of marine life. Classification of the latter, in particular, in the
In addition to the main legal and policy aspects related to marine genetic resources,
a review of the international instruments that govern activities concerning these resources
must also include intellectual property rights instruments, which involve both incentives
for and obstacles to dealing with marine genetic resources. Since the inception of biotech-
nology patenting in the 1980s, debates have taken place on the impact of these patents on
research and innovation; moreover, the scope of patentable subject matter varies depend-
ing on national law. A difficulty lies in the possibility that under relevant provisions of the
World Trade Organization (WTO), member countries may be allowed to take measures ex-
cluding the granting of patents or the enjoyment of patent rights for inventions based on
marine genetic resources from areas beyond national jurisdiction.
There is a general broadening and strengthening of patent protection versus its social
benefits in many technological areas. Under the current patent regime and practice there is
a risk that newly discovered marine genetic resources may be 'locked up' by patent mono-
polies. Consideration of the relationship between UNCLOS and intellectual property in-
struments is important, as well as the relationship between UNCLOS and the Nagoya Pro-
tocol.
