Washington Lawyer - May/June 2024 - 16

FEATURE
ble Sharing of Benefits Arising From Their Utilization to the Convention
on Biological Diversity in 2010.
Effective since October 2014, the Nagoya Protocol includes specific obligations
to support compliance with domestic legislation or regulatory
requirements of the contracting party providing genetic resources and
for " mutually agreed terms " to be integral to genetic resource frameworks.
The agreement also calls on parties to protect Indigenous peoples'
rights to genetic resources and associated traditional knowledge.
While it has instigated a new global policy and raised the profile of Indigenous
peoples' rights, the Nagoya Protocol has also been criticized for
spawning regulatory burden, especially for international scientific researchers
and patent applicants.
WHAT'S ON THE HORIZON
In May, member states of the World Intellectual Property Organization
(WIPO) will convene in Geneva, Switzerland, to negotiate a proposed international
instrument focused on intellectual property, genetic resources,
and traditional knowledge associated with those resources.
Intellectual property law
scholar Margo Bagley, vice
dean and professor at Emory
University School of Law,
calls the proposed agreement
a " transparency mechanism
... designed to provide
information regarding
origin or source, but not to
slow down the patent acquisition
process. " Bagley says
that the proposed WIPO instrument
is not coupled
with the Nagoya Protocol.
" Having transparency and
improving transparency,
I think, could be helpful
from a CBD perspective in
terms of both incentivizing
patent applicants to get agreement ahead of time as well as possibly
aiding countries in finding users that they can talk to about getting an
agreement, " Bagley says. " It could be beneficial in the long term, but only
for tangible genetic resources, not digital sequence information, and
only if it works as a formality and does not unduly impact legal certainty. "
Digital sequence information (DSI) refers to genomic sequence data and
other related digital data such as details of an organism's DNA and RNA.
Digital sequence information is a focus of the CBD, which is currently
working on a multilateral approach for equitably managing the technology
and sharing its benefits. The 2023 Agreement 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 (BBNJ Treaty) repeatedly mentions DSI and specifically includes
it as part of marine genetic resources in its benefit-sharing mechanism.
The treaty requires 60 ratifications before it can come into force.
Promoting the establishment of large-scale marine protected areas in
the high seas and setting procedures for impact assessments, the BBNJ
16 WASHINGTON LAWYER
* MAY/JUNE 2024
Treaty also establishes the
sharing of benefits, both monetary
and nonmonetary, from
marine genetic resources.
Kristina Gjerde, senior high
seas advisor to the International
Union for Conservation
of Nature and adjunct professor
at the Middlebury Institute
of International Studies, has
been involved in all BBNJ Treaty
negotiations and preliminary
discussions. Gjerde says
genetic resources had always
been envisioned as integral to
the BBNJ Treaty, but there
were divisions at play.
The common heritage of humankind
principle was explicitly
applied to minerals on the deep-sea floor but, ironically, there was
some vagueness and division as to whether it applied to genetic resources
there, Gjerde says. For example, prospectors could conceivably
claim the freedom-of-the-seas principle for exclusive use and ownership
of living resources located at hydrothermal vents.
" It was a big lacuna of international law, as well as reflecting poorly on
interests of all to produce a more equitable regime for the deep seas, "
Gjerde says. " So, there was always this push to get at least deep-seabed
living resources considered as part of the common heritage of mankind. "
KRISTINA GJERDE
International Union for Conservation
of Nature
Júlia Schütz Veiga, a legal adviser to Brazil's BBNJ delegation and visiting
fellow at the Nippon Foundation-University of Edinburgh Ocean Voices
program, says the BBNJ Treaty creatively clarified the common heritage
of humankind and the freedom of the seas principles as applied for both
seabed and water column.
MARGO BAGLEY
Emory University School of Law
She points to a balance struck
in Article 7, stating that parties
will be guided by both the
common heritage of humankind
principle and freedom
of marine scientific research.
" The language was established
in such a way as to specifically
guarantee freedom
of the high seas in relation to
marine scientific research " -
the main concern of developed
states arguing that " the
advancement of science could
be jeopardized if such freedom
was not expressly guaranteed, "
Veiga says.
According to Veiga, the application
of both principles satisfied
developing nations'
hopes for genuine sharing of
JÚLIA SCHÜTZ VEIGA
Nippon Foundation-University of Edinburgh
Ocean Voices Fellowship Program
Courtesy of Kristina Gjerde
Courtesty of Júlia Schütz Veiga
Emory University
Washington Lawyer - May/June 2024

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