The Research On The Legal Regimes Regarding Access To And Benefits-Sharing Of Marine Genetic Resources In Areas Beyond National Jurisdiction

The 21st century is the century of the ocean.The value and potential value of the ocean and its resources have been gradually explored and utilized by human beings.As a new type of marine resources,marine genetic resources in areas beyond national jurisdiction(hereafter ABNJ)have become the object of marine activities,which has given birth to the practical need by establishing special regimes to distribute rights and interests,setting obligations and building marine order.The negotiation regarding BBNJ agreement has lasted for 16 years.The legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources is an important part of the BBNJ agreement.ABNJ includes the High Seas and the Area,which accounts for 64%of the ocean and is the largest geographical area of ocean governance.As a new field of global ocean governance,it is necessary to integrate the concept of good ocean governance into the law-making process of the law of the sea.This study takes the concept of good ocean governance as the basis to analyze how to establish the legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources,which is of integrity.Based on the needs of theoretical and institutional deconstruction,the access regime and the benefit-sharing regime of the ABNJ marine genetic resources,are relatively independent in the perspective of legal research.Therefore,focusing on relevance and consistency,this research examines the establishment of the access regime and the benefit-sharing regime of ABNJ marine genetic resources on the basis of the concept of good ocean governance successively.The concept of good ocean governance has been formed in the international community’s summing up and reflection on the past experience of ocean governance.It takes sustainable development as the core,safeguarding the common interests of all mankind as the purpose,and global ocean governance as the path.This research holds that good ocean governance includes core elements as follow:the rule of law,civic participation,transparency,consensus-based decision making,accountability,equity and inclusiveness,responsiveness,coherence.For the establishment of a new regime of the law of the sea,countries often hold different positions based on their own interests.It needs to achieve consensus with the concept of good ocean governance.Firstly,in order to protect the common interests of all mankind and promote the long-term conservation and sustainable use of ABNJ marine genetic resources,it is necessary to define the legal status of ABNJ marine genetic resources reasonably,so as to set up the core of the legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources.Secondly,the access regime is the initial distribution of the resources,which needs to establish a relatively loose one,ensuring equal opportunities,promoting the generation of new knowledge and common marine well-being.Thirdly,the benefit-sharing regime is to redistribute residual the resources,which needs to safeguard the benefits of mankind as a whole through fair and equitable benefit-sharing.The establishment of a new legal regime needs to be supported by basic principles.Otherwise,it will inevitably lead to the problems of the non-standard external system and non-uniform internal system,which will lead to the confusion of legal application and interpretation.Looking back on the historical development of the law of the sea,with the wind of land rule blowing to the sea,the freedom of the High Seas has been increasingly restricted by international treaty law and international customary law.In ABNJ,the principle of freedom of the High Seas,which has long been regarded as the standard,has been gradually replaced by the principle of the common heritage of mankind.The UNCLOS legalizes the principle of the common heritage of mankind and takes it as the core of the Area regime.The 1994 Implementation Agreement revised and improved the Area regime,enriching and developing the legal connotation of the principle of the common heritage of mankind in the field of the law of the sea.During the negotiation process of BBNJ agreement,developing countries advocate the principle of the common heritage of mankind as the general principle of BBNJ agreement,which conforms to the development law of the law of the sea.As the core of the legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources,this study chooses the position of the principle of the common heritage of mankind to define the legal status of ABNJ marine genetic resources.Firstly,the institutional arrangement of ABNJ marine genetic resources should be clarified.The objectives of the present study include choosing the mode of the Conference of Parties and establishing the Scientific and Technological Body,Secretariat and clearing-house mechanism,so as to promote the integration of global ocean governance.At the same time,it needs to clarify the main subjects of activities with respect to ABNJ marine genetic resources.Secondly,the temporal scope,geographical scope and material scope of ABNJ marine genetic resources should be defined.Lastly,clarify the rights and obligations of all subjects in the development and utilization of ABNJ marine genetic resources.The activities with respect to ABNJ marine genetic resources have a high demand for science and technology and capital,but at present only some developed countries have the conditions to engage in development and utilization activities.The access regime of ABNJ marine genetic resources,which contains the concept of good ocean governance,as a valve and monitoring base point,can guarantee equal development opportunities of all countries,and establish monitoring base point for the ABNJ marine genetic resources utilization monitoring mechanism,so as to promote the realization of fair and equitable benefit-sharing,and ultimately realize the long-term conservation and sustainable use of ABNJ marine genetic resources.Firstly,set up regulation modalities by different types of access to ABNJ marine genetic resources:the notification-based model should be mainly chosen for in situ,supplemented by license system.Adopt the notification-based model with respect to ex situ and in silico.Establish the procedural rules of access to ABNJ marine genetic resources,and set up the clearing-house mechanism and track and trace regime,and connect with the relevant monitoring mechanism.Secondly,the terms and conditions for accessing to ABNJ marine genetic resources should be established respectively by different types,namely,in situ,ex situ and in silico.The terms and conditions should be connected with the other two core topics of BBNJ agreement,namely,area-based management tools and environmental impact assessments.Lastly,pay attention to the protection and balance of relevant pieces of knowledge regarding access to ABNJ marine genetic resources:establish the regime of access to relevant traditional knowledge;clarify the object scope of intellectual property,establish the information disclosure system,in order to effectively link the access regime of ABNJ marine genetic resources with the intellectual property system.In the negotiation of BBNJ agreement,the benefit-sharing arising from the use of ABNJ marine genetic resources is a hot topic and every country has its own position.The benefit-sharing regime of ABNJ marine genetic resources,which contains the concept of good ocean governance,is the key to resolve the above differences.In order to realize fair and equitable benefit-sharing of ABNJ marine genetic resources,research,investment and innovation related to the commercial economic activities of ABNJ marine genetic resources should not be hindered,and developing countries should be guaranteed to obtain practical benefits from them.Firstly,establish the basic rules regarding benefit-sharing of ABNJ marine genetic resources reasonably.Define the scope of benefit-sharing providers and beneficiaries from the standpoint of the principle of the common heritage of mankind.Define two types of benefits,namely,non-monetary benefits and monetary benefits,and set appropriate forms respectively.Stipulate the content,time and purpose of benefit-sharing.Secondly,construct the implementation mechanism regarding benefit-sharing of ABNJ marine genetic resources.Adopt the combining voluntary mode and compulsory benefit-sharing modalities.Establish the clearing-house mechanism,track and trace regime,and information disclosure system in order to effectively link the benefit-sharing regime and monitoring mechanism.Lastly,pay attention to the protection and balance of relevant pieces of knowledge regarding benefit-sharing:establish the regime of benefit-sharing relevant traditional knowledge;set up the information disclosure system,public trust fund and compulsory licensing system in order to effectively link the benefit-sharing regime of ABNJ marine genetic resources with the intellectual property system.The concept of a maritime community with a shared future provides the theory preparation for China’s position and legal responses to the legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources.China should clarify its role in the process of international law-making,and actively participate and promote the process.At the same time,China should develop and improve its domestic legal regimes,fulfill its obligations under international law,and safeguard its maritime rights and interests.Firstly,from the perspective of international law,take the principle of the common heritage of mankind as the core of legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources.Advocate a relatively loose access regime,encouraging the development and use of ABNJ marine genetic resources,which is conducive to the generation of new knowledge and the innovation of science and technology about ABNJ marine genetic resources,and promote the accumulation of wealth for all mankind.Establish a fair and reasonable benefit-sharing regime.The benefit-sharing regime of ABNJ marine genetic resources should aim at achieving fair and just benefit-sharing.Pay attention to the legal protection and balance of relevant pieces of knowledge.Secondly,from the perspective of domestic law,establish the domestic legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources,and improve the existing relevant laws and regulations.Establish the domestic legal regimes regarding access to and benefit-sharing relevant traditional knowledge.Connect the domestic legal regimes regarding access to and benefit-sharing of ABNJ marine genetic resources with intellectual property system.