post notification as regards the collection of marine genetic resources in situ. The
flexibility and pragmatism of the European position are also characterised by the
suggestion not to mention the relationship with intellectual property rights in the
ILBI, in order not to hamper too much the activities of scientists and industries,
which is an important argument for the scientific research.
51 The EU also appears to
be against any form of monitoring on the utilization of marine genetic resources,
while the question of intellectual property rights is still very problematic.
52 Other
questions remain to be raised: would a benefit-sharing regime be applicable to all
marine genetic resources, or only to resources of the Area? Would the International
Seabed Authority play a role in their exploitation? The question of the articulation
with the intellectual property rights and notably the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) or with the work of the World
Intellectual Property Rights Organisation (WIPO) is also at the centre of the debate
and the Union has not really taken yet a position on these elements. For instance, it is
not necessary under the existing regimes to indicate the origin of the resource used to
obtain a patent. Moreover, patenting a microorganism is possible under the TRIPS
agreement.
53 Those difficult and crucial issues are still open to discussion, and the
EU’s balanced position will probably be a decisive point for the success of the
negotiating process.
3.1.2 Area-Based Management Tools
Second, as far as area-based management tools—including marine protected areas—
are concerned, States will have to decide whether or not it is appropriate to create a
centralized system for the designation of protected areas, in areas beyond national
jurisdiction. Indeed, so far, only a few global sectorial organizations (such as the
51 See Arnaud-Haond (2018). For the author, it is indeed necessary to preserve the freedom and
flexibility of marine scientific research, while trying to reach at the same time a more equitable
regime, in order to foster the research and discoveries dealing with the conservation of marine
biodiversity and environment.
52 During the meeting of September 2018, the question of the elaboration of a sui generis system,
including a mandatory disclosure of origin, was discussed. The other option in this regard would be
to leave the matter to another body such as the WTO or WIPO. See 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, p. 6. See notably Chiarolla (2014), pp. 171–194.
53 Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 Article 27
(3)(b): “Members may also exclude from patentability: (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, Members shall provide for the protection
of plant varieties either by patents or by an effective sui generis system or by any combination
thereof.” See also Voigt-Hanssen (2018), pp. 683–705.
392
P. Ricard
flexibility and pragmatism of the European position are also characterised by the
suggestion not to mention the relationship with intellectual property rights in the
ILBI, in order not to hamper too much the activities of scientists and industries,
which is an important argument for the scientific research.
51 The EU also appears to
be against any form of monitoring on the utilization of marine genetic resources,
while the question of intellectual property rights is still very problematic.
52 Other
questions remain to be raised: would a benefit-sharing regime be applicable to all
marine genetic resources, or only to resources of the Area? Would the International
Seabed Authority play a role in their exploitation? The question of the articulation
with the intellectual property rights and notably the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) or with the work of the World
Intellectual Property Rights Organisation (WIPO) is also at the centre of the debate
and the Union has not really taken yet a position on these elements. For instance, it is
not necessary under the existing regimes to indicate the origin of the resource used to
obtain a patent. Moreover, patenting a microorganism is possible under the TRIPS
agreement.
53 Those difficult and crucial issues are still open to discussion, and the
EU’s balanced position will probably be a decisive point for the success of the
negotiating process.
3.1.2 Area-Based Management Tools
Second, as far as area-based management tools—including marine protected areas—
are concerned, States will have to decide whether or not it is appropriate to create a
centralized system for the designation of protected areas, in areas beyond national
jurisdiction. Indeed, so far, only a few global sectorial organizations (such as the
51 See Arnaud-Haond (2018). For the author, it is indeed necessary to preserve the freedom and
flexibility of marine scientific research, while trying to reach at the same time a more equitable
regime, in order to foster the research and discoveries dealing with the conservation of marine
biodiversity and environment.
52 During the meeting of September 2018, the question of the elaboration of a sui generis system,
including a mandatory disclosure of origin, was discussed. The other option in this regard would be
to leave the matter to another body such as the WTO or WIPO. See 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, p. 6. See notably Chiarolla (2014), pp. 171–194.
53 Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 Article 27
(3)(b): “Members may also exclude from patentability: (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, Members shall provide for the protection
of plant varieties either by patents or by an effective sui generis system or by any combination
thereof.” See also Voigt-Hanssen (2018), pp. 683–705.
392
P. Ricard