MARINE GENETIC RESOURCES AND LAW. Jean-Dominique WAHICHE MNHN/UMR 7206

Transcription

1 MARINE GENETIC RESOURCES AND LAW Jean-Dominique WAHICHE MNHN/UMR 7206

2 INTRODUCTION: A LEGAL CHALLENGE The need for environmental protection The need for an economical balance Regulating the access Regulating the use

3 THE LEGAL PROBLEMS Who owns these resources? How to use these resources? How to share the benefits of their use? How to ensure their conservation and continuous use?

4 ACCESS: THE INTERNATIONAL LEGAL INSTRUMENTS The United Nations Convention on the Law of the Sea (1983) The Convention on Biological Diversity (1992) and the Nagoya Protocol (2010)

5 ACCESS: MARINE BIOLOGICAL RESOURCES AND STATES SOVEREIGNTY The rules of the Convention on the Law of the Sea Inside waters Continental Shelf Exclusive Economic Zone High Seas

6 ACCESS: MARINE BIOLOGICAL RESOURCES AND STATES SOVEREIGNTY The rules of the Convention on the Law of the Sea Protection of the environment no reference to marine genetic resources but addresses marine life, natural resources, living resources and living organisms Scientific research sharing of information, data and research samples, participation in the research project = non-monetary benefits

7 ACCESS: MARINE BIOLOGICAL RESOURCES AND STATES SOVEREIGNTY The Rules of the Convention on Biological Diversity The principle of sovereignty of states over their genetic resources The principle of access on common agreed terms The previous informed consent The fair and equitable sharing of the advantages derived from the use of genetic resources

8 BENEFIT SHARING FROM THE HIGH SEAS Present situation Beyondthe mandate of the CDB Not mentioned in UNCLOS No authorityto deal with Proposals Ocean development taxes Commons trust funds Using the International Seabed Authority

9 USE: INTERNATIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS OVER MARINE BIOTECHNOLOGY The international patent treaty system -Paris Convention for the Protection of Intellectual Property (1883) -Patent Cooperation Treaty (1970) -WTO Agreement on Trade Aspects of IPR TRIPS (1994) -Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977)

10 THE USE OF THE RESOURCES The justification of intellectual property rights -encourage research and improvement Characteristics of IPR -a sovereign act of a nation State -an invention: new, -involving an inventive step, -be capable of industrial application

11 USE: INTERNATIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS OVER MARINE BIOTECHNOLOGY The patentability of biotechnology Genes or partial DNA sequences Proteins encoded by genes and function in the organism Vectors used for the transfer of genes Genetically modified organisms and processes used Trade-mark protection for hydrothermal vents products Debate over the extent of patentability

12 USE: INTERNATIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS OVER MARINE BIOTECHNOLOGIES Patentability of microorganisms Impossibility to describe International deposit authorities No withdrawal possible for specified period Name and address of depositor Details of condition for cultivation, storage and viability Identification reference Properties dangerous to health or the environment

13 EX-SITU COLLECTIONS ACCESS AND SOVEREIGN RIGHTS The rules of the owner: access Public and private collections The rules derived from UNCLOS: EEZ or High Seas The rules derived from the CBD: prior informed consent, mutual agreement and benefit sharing Prior to 1993 After 1993

14 Material transfer agreements -conservation -benefit sharing -transfers (or not) to third parties

15 EX-SITU COLLECTIONS Benefit sharing Repatriation of information Monetary and non monetary advantages Property of results

16 CONCLUSION An emerging field of research A promising field for development A challenge for IPR Law A topic for ocean conservation A stepforwardto a commonheritageof mankind?