Resolution 72/249.
49 The package deal covers marine genetic resources, area-based
management tools, including marine protected areas, environmental impact assessments, in addition to capacity building and transfer of marine technology, which are
to be studied separately.
3.1.1 Marine Genetic Resources
First, as regards marine genetic resources, including the sharing of benefits, States
will have to decide whether the exploitation of those resources must be governed by
the principle of the freedom of the high seas, should fall under the common heritage
of mankind regime, or should be governed by an alternative, intermediate solution.
The EU is in favour of the creation of a balanced regime permitting the sharing of
benefits resulting from the exploitation of marine genetic resources, while refusing to
consider them under the common heritage status. The Nagoya Protocol under the
Convention on Biological Diversity could be an inspiration for such a complementary benefit-sharing regime for areas situated beyond national jurisdiction: although
it does not apply in areas beyond national jurisdiction, its principles, such as the
principle of equity, could be relevant for the elaboration of a specific regime for
marine genetic resources beyond national jurisdiction. The EU is, so far, in favour of
a non-monetary sharing of benefits rather than a monetary sharing of benefits,
meaning a benefit-sharing focused mainly on education, sharing of research results,
capacity building and partnerships.
50 However, it remained pragmatic during the
discussions, suggesting that the agreement would “set out the types of benefits that
could be shared”, in order not to oppose too radically the position of the Group of the
77 and China.
The EU defends a very flexible approach for the access and utilization of marine
genetic resources, based on the provisions of the Convention dealing with marine
scientific research in the Area and in the high seas (Articles 242 and 244 on
cooperation and dissemination, as well as the general provisions on marine technology transfer). The access should be free, according to the EU, with a process of ex
Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction:
4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, 20 September 2018, available at
http://enb.iisd.org/oceans/bbnj/igc1/.
49 United Nations General Assembly (UNGA), 24 December 2017, Resolution 72/249 on International legally binding instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biological diversity of areas beyond national
jurisdiction.
50 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Earth Negotiation Bulletin,
vol. 25, n
141, pp. 9–10. IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on
the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas
Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179,
pp. 3–6.
20 The European Union and the Future International Legally Binding Instrument on. . .
391
49 The package deal covers marine genetic resources, area-based
management tools, including marine protected areas, environmental impact assessments, in addition to capacity building and transfer of marine technology, which are
to be studied separately.
3.1.1 Marine Genetic Resources
First, as regards marine genetic resources, including the sharing of benefits, States
will have to decide whether the exploitation of those resources must be governed by
the principle of the freedom of the high seas, should fall under the common heritage
of mankind regime, or should be governed by an alternative, intermediate solution.
The EU is in favour of the creation of a balanced regime permitting the sharing of
benefits resulting from the exploitation of marine genetic resources, while refusing to
consider them under the common heritage status. The Nagoya Protocol under the
Convention on Biological Diversity could be an inspiration for such a complementary benefit-sharing regime for areas situated beyond national jurisdiction: although
it does not apply in areas beyond national jurisdiction, its principles, such as the
principle of equity, could be relevant for the elaboration of a specific regime for
marine genetic resources beyond national jurisdiction. The EU is, so far, in favour of
a non-monetary sharing of benefits rather than a monetary sharing of benefits,
meaning a benefit-sharing focused mainly on education, sharing of research results,
capacity building and partnerships.
50 However, it remained pragmatic during the
discussions, suggesting that the agreement would “set out the types of benefits that
could be shared”, in order not to oppose too radically the position of the Group of the
77 and China.
The EU defends a very flexible approach for the access and utilization of marine
genetic resources, based on the provisions of the Convention dealing with marine
scientific research in the Area and in the high seas (Articles 242 and 244 on
cooperation and dissemination, as well as the general provisions on marine technology transfer). The access should be free, according to the EU, with a process of ex
Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction:
4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, 20 September 2018, available at
http://enb.iisd.org/oceans/bbnj/igc1/.
49 United Nations General Assembly (UNGA), 24 December 2017, Resolution 72/249 on International legally binding instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biological diversity of areas beyond national
jurisdiction.
50 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Earth Negotiation Bulletin,
vol. 25, n
141, pp. 9–10. IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on
the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas
Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179,
pp. 3–6.
20 The European Union and the Future International Legally Binding Instrument on. . .
391