Benefit sharing of marine genetic resources and intellectual property protection under the BBNJ agreement – Frontiers

Report on Marine Genetic Resources in Areas Beyond National Jurisdiction and Sustainable Development Goals

1. Introduction

Marine Genetic Resources (MGRs) are categorized based on their geographical location into those within national jurisdictions and those in areas beyond national jurisdiction (ABNJ). The Convention on Biological Diversity (CBD) and the Nagoya Protocol primarily regulate MGRs within national jurisdictions. However, the United Nations Convention on the Law of the Sea (UNCLOS) governs MGRs in ABNJ but lacks provisions on benefit-sharing. The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), adopted on June 20, 2023, fills this gap, marking a significant step toward restoring ocean health and supporting Sustainable Development Goal (SDG) 14: Life Below Water.

The relationship between benefit-sharing of MGRs in ABNJ and the intellectual property system is a key issue. MGRs are strategic resources driving the “blue economy” due to their bioactivity and pharmaceutical potential, but their development faces high technical and investment risks. Institutional guarantees via intellectual property rights are essential to incentivize developers. However, controversies remain regarding the legal status of MGRs in ABNJ and the legitimacy of privatizing derived knowledge. This report addresses:

1. Are MGRs in ABNJ common property or the common heritage of mankind?
2. Is there a conflict between MGRs use and the intellectual property system?
3. How to balance benefit-sharing under the intellectual property regime?

2. Legal Nature of MGRs in ABNJ

2.1 International Law Dispute: Common Property vs. Common Heritage of Mankind

2.1.1 Historical Origins and Limitations of Common Property Theory

The concept of “common property” originates from Roman law, emphasizing free use without exhaustion. The principle of freedom of the high seas, rooted in this theory, established freedoms such as navigation and fishing. However, technological advances have led to overexploitation, causing ecological crises, reflecting the “tragedy of the commons” and challenging the sustainability premise. UNCLOS limits freedom of the high seas and defines “areas of the sea” but debates remain whether deep seabed areas containing MGRs fall within this scope. Developing countries advocate for the seabed and its resources as the common heritage of mankind, promoting collaborative development and equitable benefit-sharing, aligning with SDG 14 and SDG 10: Reduced Inequalities.

2.1.2 Justification for the Principle of the Common Heritage of Mankind

The principle is justified by global public interest and intergenerational equity, emphasizing sustainable use and equitable distribution of biological genetic resources. Developed countries’ technological advantages risk widening benefit gaps if resources are treated as common property. Intergenerational equity mandates preserving resources for future generations, supporting SDG 12: Responsible Consumption and Production, and SDG 13: Climate Action. The principle promotes joint management and shared benefits, foundational to the BBNJ Agreement.

2.2 Divergences and Coordination in BBNJ Negotiations

Negotiations revealed three positions:

• Common Property: Supported by developed countries (e.g., USA, Japan), emphasizing freedom and privatization of MGRs.
• Common Heritage of Mankind: Supported by developing countries (e.g., Group of 77, China), emphasizing management and benefit-sharing.
• Pragmatic Approach: Supported by the EU and others, focusing on benefit-sharing mechanisms without resolving legal status.

The final BBNJ Agreement incorporates both principles, with institutional designs reflecting the common heritage principle, aligning with SDG 16: Peace, Justice and Strong Institutions.

3. Adaptation Between the Common Heritage Principle and Intellectual Property System

3.1 Interpretation of UNCLOS Provisions

Article 241 of UNCLOS prohibits claims to marine environment or resources based on scientific research, including MGRs in ABNJ. However, intellectual property rights over specific knowledge derived from MGRs are not explicitly excluded, as they protect intangible information rather than the resources themselves. This interpretation supports coexistence of intellectual property rights with the common heritage principle, facilitating innovation while ensuring equitable access.

3.2 Compatibility of MGR Protection with Intellectual Property Systems

MGRs’ value arises from development activities requiring advanced technology and investment. Intellectual property rights provide necessary incentives by granting limited exclusive rights, encouraging research and innovation aligned with SDG 9: Industry, Innovation and Infrastructure. Although concerns exist about monopolization conflicting with the common heritage principle, intellectual property aims to balance private incentives and public welfare through time-limited rights and exceptions. Patents require technological modification beyond mere discovery, ensuring alignment with public interest and SDG 3: Good Health and Well-being.

Thus, intellectual property protection of specific knowledge is institutionally compatible with the common heritage principle, provided benefit-sharing mechanisms address equitable distribution.

4. Balancing Benefit-Sharing Within the Intellectual Property System

4.1 Utilization-Oriented Non-Monetary Benefit-Sharing

Benefit-sharing includes monetary and non-monetary forms. Monetary sharing faces challenges due to limited commercial scale and high development costs, risking disincentives for developers. Non-monetary benefit-sharing focuses on fair use of knowledge and capacity building, crucial for developing countries constrained by technological and financial barriers. The BBNJ Agreement outlines seven non-monetary benefit-sharing forms, including access to samples, digital sequence information, technology transfer, and capacity-building, supporting SDG 17: Partnerships for the Goals.

Non-monetary sharing better addresses equity and sustainability concerns, promoting SDG 10 and SDG 4: Quality Education by enhancing scientific cooperation and knowledge dissemination.

4.2 Restricting Exclusivity of Rights Through International Intellectual Property Treaties

Intellectual property exclusivity can hinder non-monetary benefit-sharing. Limiting injunctive relief in public interest cases, such as health emergencies, can ensure access to critical knowledge without absolving liability for damages. Proposed amendments to the TRIPS Agreement under WTO would mandate member states to restrict exclusivity in public interest scenarios, including use of MGR-derived knowledge for public health, aligning with SDG 3 and SDG 16.

Additionally, establishing mandatory disclosure mechanisms for genetic resources in patent applications, modeled after the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Related Traditional Knowledge, would enhance transparency and benefit-sharing compliance.

5. Conclusion

The BBNJ Agreement fills the international legal gap on benefit-sharing of MGRs in ABNJ, upholding the principle of the common heritage of mankind alongside freedom of the high seas. Intellectual property rights over specific knowledge derived from MGRs are compatible with this principle, provided benefit-sharing mechanisms ensure equitable access and sustainability.

Prioritizing utilization-oriented non-monetary benefit-sharing within the intellectual property framework offers a practical approach to address global equity and sustainability challenges, supporting multiple SDGs including SDG 14, SDG 10, SDG 3, and SDG 17. Proposed international legal reforms, such as TRIPS amendments and mandatory disclosure requirements, are essential to balance innovation incentives with global public interests.

References

• BBNJ Agreement, 2023.
• UNCLOS, 1982.
• WIPO IPR-GRTK Treaty, 2024.
• TRIPS Agreement, 1994.
• Hardin, G. (1968). The Tragedy of the Commons.
• Other scholarly sources as cited in the original article.

1. Relevant Sustainable Development Goals (SDGs) Addressed in the Article

1. SDG 14: Life Below Water
   • The article focuses on marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ), addressing the conservation and sustainable use of marine biodiversity.
   • The BBNJ Agreement aims to reverse destructive trends facing oceans and restore ocean health.
2. SDG 9: Industry, Innovation and Infrastructure
   • The article discusses the role of intellectual property systems and technological development in the utilization of MGRs.
   • It highlights the importance of innovation, research, and development in marine biotechnology and pharmaceuticals derived from MGRs.
3. SDG 10: Reduced Inequalities
   • Benefit-sharing mechanisms aim to ensure fair and equitable sharing of benefits from MGRs, addressing inequalities between developed and developing countries.
   • The principle of the common heritage of mankind emphasizes intergenerational equity and equitable resource distribution.
4. SDG 16: Peace, Justice and Strong Institutions
   • The article discusses international legal frameworks, treaties, and negotiations (UNCLOS, BBNJ Agreement, TRIPS, WIPO) that govern the use and benefit-sharing of MGRs.
   • It emphasizes the importance of international cooperation, legal clarity, and institutional arrangements.
5. SDG 3: Good Health and Well-being
   • The article mentions the pharmaceutical potential of MGRs, including research on antiviral and anti-AIDS drugs, linking to public health security.
   • Non-monetary benefit-sharing includes access to essential medicines and public health technologies.

2. Specific Targets Under the Identified SDGs

1. SDG 14: Life Below Water
   • Target 14.2: Sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts.
   • Target 14.5: Conserve at least 10% of coastal and marine areas, consistent with national and international law.
   • Target 14.7: Increase the economic benefits to small island developing states and least developed countries from the sustainable use of marine resources.
2. SDG 9: Industry, Innovation and Infrastructure
   • Target 9.5: Enhance scientific research, upgrade technological capabilities, and encourage innovation.
   • Target 9.b: Support domestic technology development, research, and innovation in developing countries.
3. SDG 10: Reduced Inequalities
   • Target 10.2: Empower and promote the social, economic, and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, or economic or other status.
   • Target 10.6: Ensure enhanced representation and voice for developing countries in decision-making in global international economic and financial institutions.
4. SDG 16: Peace, Justice and Strong Institutions
   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.
   • Target 16.7: Ensure responsive, inclusive, participatory, and representative decision-making at all levels.
5. SDG 3: Good Health and Well-being
   • Target 3.3: End the epidemics of AIDS, tuberculosis, malaria, and neglected tropical diseases and combat hepatitis, water-borne diseases, and other communicable diseases.
   • Target 3.b: Support the research and development of vaccines and medicines for communicable and non-communicable diseases.

3. Indicators Mentioned or Implied in the Article to Measure Progress

1. Indicators Related to SDG 14
   • Proportion of marine areas protected (linked to conservation efforts under the BBNJ Agreement).
   • Measures of marine biodiversity health and restoration (implied by the goal to reverse destructive trends).
   • Number and implementation status of international agreements on marine biodiversity beyond national jurisdiction.
2. Indicators Related to SDG 9
   • Number of patents and intellectual property rights filed related to marine genetic resources and biotechnology.
   • Levels of investment in marine scientific research and technological development.
   • Capacity-building and technology transfer activities (as forms of non-monetary benefit-sharing).
3. Indicators Related to SDG 10
   • Extent of benefit-sharing mechanisms implemented and the equitable distribution of benefits from MGRs.
   • Access of developing countries to marine genetic resources and related technologies.
4. Indicators Related to SDG 16
   • Number of countries ratifying and implementing the BBNJ Agreement and related treaties.
   • Effectiveness of international legal frameworks in regulating MGRs and intellectual property rights.
5. Indicators Related to SDG 3
   • Availability and accessibility of medicines and health technologies derived from MGRs.
   • Number of public health programs utilizing marine genetic resource-derived innovations.

4. Summary Table of SDGs, Targets, and Indicators

SDGs	Targets	Indicators
SDG 14: Life Below Water	14.2: Sustainably manage and protect marine ecosystems. 14.5: Conserve marine areas. 14.7: Increase economic benefits from sustainable marine resource use.	Proportion of marine areas protected. Measures of marine biodiversity health. Implementation status of international marine biodiversity agreements.
SDG 9: Industry, Innovation and Infrastructure	9.5: Enhance scientific research and innovation. 9.b: Support technology development in developing countries.	Number of patents related to marine genetic resources. Investment levels in marine scientific research. Capacity-building and technology transfer activities.
SDG 10: Reduced Inequalities	10.2: Promote social, economic, and political inclusion. 10.6: Enhance representation of developing countries in global institutions.	Extent of benefit-sharing mechanisms implemented. Access of developing countries to MGRs and related technologies.
SDG 16: Peace, Justice and Strong Institutions	16.3: Promote rule of law and equal access to justice. 16.7: Ensure inclusive decision-making.	Number of countries ratifying BBNJ Agreement. Effectiveness of international legal frameworks on MGRs and IP rights.
SDG 3: Good Health and Well-being	3.3: End epidemics of major communicable diseases. 3.b: Support research and development of medicines.	Availability of medicines derived from MGRs. Number of public health programs using MGR-derived innovations.

Source: frontiersin.org