As to the Nagoya Protocol, the EU has argued that a new ILBI under UNCLOS
could borrow the definition of “utilization of genetic resources” from the Protocol
itself. As UNCLOS does not make any reference to genetic resources, this may
actually appear as a useful starting point. The Nagoya Protocol raises complex
issues. For instance, it is generally understood that it comprises not only genetic
resources, but also the so-called “derivatives”, which are material that does not
contain DNA, such as the secretions of certain organisms. This inclusion may be
significant in broadening the range of natural materials from the use of which
benefit-sharing obligations would arise.
69
Now, as remarked above, the IgC will meet for four sessions. The first one was
convened from 4 to 17 September 2018.
70 In this first context, the IgC addressed
several issues, such as the conservation and sustainable use of marine biological
diversity of ABNJ and together and as a whole, MGRs, including questions on the
sharing of benefits, measures such as area-based management tools, including
marine protected areas, environmental impact assessments (EIA) and capacitybuilding and the transfer of marine technology (CB&TT).
71
In the session in question, as described below, the EU participated actively,
speaking with one voice, outlining possible and practical options to develop and to
integrate during all the negotiations and, sometimes, with the support of several
developed countries.
First of all, it is important to outline that the EU urged starting text-based
negotiations on the basis of a zero draft, through a stepwise approach, building on
the options identified at the PrepCom, and clarifying the ILBI’s key functions and
regulatory options to reach a consensus agreement by 2020. In particular, stating that
“we now understand each other better” the EU’s delegate suggested that the zerodraft focus on substantive positions as well as the different options brought to the
table by various Member States. Although the text needs not include definitions or
final clauses, the EU highlighted the idea that it could identify areas of convergence
and commonalities.
72
During the discussion on the MGRs, the EU stressed that it is premature to focus
on definitions at this stage and emphasized that the ILBI negotiations do not depend
on determining the legal status of MGRs. The EU favoured free access to in situ
MGRs, in line with UNCLOS provisions on MSR and Part XII.
Rather, discussions should move forward based on working definitions drawn
from existing instruments. The ILBI should be interpreted in a manner consistent
with the UNCLOS and should not undermine the rights and duties of States under
that text.
69 For a comment, cf., Morgera (2015).
70 The next session of the IgC is scheduled from 25 March to 5 April 2019. A third session is
scheduled from 19 to 30 August 2019. See https://www.un.org/press/en/2018/sea2086.doc.htm.
71 On the position of the EU on all these matters and others, cf., Morgera et al. (2018), pp. 1–18.
72 On the position of the EU on text-based negotiations based on a zero-draft, see https://www.un.
org/press/en/2018/sea2085.doc.htm.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
417
could borrow the definition of “utilization of genetic resources” from the Protocol
itself. As UNCLOS does not make any reference to genetic resources, this may
actually appear as a useful starting point. The Nagoya Protocol raises complex
issues. For instance, it is generally understood that it comprises not only genetic
resources, but also the so-called “derivatives”, which are material that does not
contain DNA, such as the secretions of certain organisms. This inclusion may be
significant in broadening the range of natural materials from the use of which
benefit-sharing obligations would arise.
69
Now, as remarked above, the IgC will meet for four sessions. The first one was
convened from 4 to 17 September 2018.
70 In this first context, the IgC addressed
several issues, such as the conservation and sustainable use of marine biological
diversity of ABNJ and together and as a whole, MGRs, including questions on the
sharing of benefits, measures such as area-based management tools, including
marine protected areas, environmental impact assessments (EIA) and capacitybuilding and the transfer of marine technology (CB&TT).
71
In the session in question, as described below, the EU participated actively,
speaking with one voice, outlining possible and practical options to develop and to
integrate during all the negotiations and, sometimes, with the support of several
developed countries.
First of all, it is important to outline that the EU urged starting text-based
negotiations on the basis of a zero draft, through a stepwise approach, building on
the options identified at the PrepCom, and clarifying the ILBI’s key functions and
regulatory options to reach a consensus agreement by 2020. In particular, stating that
“we now understand each other better” the EU’s delegate suggested that the zerodraft focus on substantive positions as well as the different options brought to the
table by various Member States. Although the text needs not include definitions or
final clauses, the EU highlighted the idea that it could identify areas of convergence
and commonalities.
72
During the discussion on the MGRs, the EU stressed that it is premature to focus
on definitions at this stage and emphasized that the ILBI negotiations do not depend
on determining the legal status of MGRs. The EU favoured free access to in situ
MGRs, in line with UNCLOS provisions on MSR and Part XII.
Rather, discussions should move forward based on working definitions drawn
from existing instruments. The ILBI should be interpreted in a manner consistent
with the UNCLOS and should not undermine the rights and duties of States under
that text.
69 For a comment, cf., Morgera (2015).
70 The next session of the IgC is scheduled from 25 March to 5 April 2019. A third session is
scheduled from 19 to 30 August 2019. See https://www.un.org/press/en/2018/sea2086.doc.htm.
71 On the position of the EU on all these matters and others, cf., Morgera et al. (2018), pp. 1–18.
72 On the position of the EU on text-based negotiations based on a zero-draft, see https://www.un.
org/press/en/2018/sea2085.doc.htm.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
417