Research On Benefit-sharing Legal System Of Genetic Resources In Marine Areas Beyond National Jurisdiction

With the development of science and technology,the importance of genetic resources has become increasingly prominent.In 2015,General Assembly of the United Nations made a resolution enacting the third implementing agreement of the UN Convention on the Law of the Sea.The conservation and sustainable use of genetic resources in marine areas beyond national jurisdiction is one of the four major issues,and the benefit-sharing system is the important part of the issue.The benefit-sharing system has its important significance and particularity in the sea beyond national jurisdiction,but the existing norms of international law are concentrated in the genetic resources within the scope of national jurisdiction,and the legal norms of genetic resources in the sea beyond national jurisdiction is almost blank,unable to deal with existing problems.Therefore,it is very necessary and urgent to clearly define the specific content of the system in the new implementation agreement.This article uses the methods of law interpretation,comparative research and inductive and summary method.Based on the theoretical basis for the common heritage of mankind and Stakeholder Theory,the legal basis of the relevant norms of Convention on Biological Diversity,Bonn Guideline,the Nagoya Protocol,ITPGR and the Trips Agreement,the article selects five elements to research such as benefit-sharing subject,construction principle,scope of jurisdiction,benefit type and benefit-sharing approach,with the purpose of establishing specific legal norms to provide reasonable suggestions on constructing the benefit-sharing system of heritage resources in the sea beyond national jurisdiction.Finally,it is suggested that China express different opinions on benefit-sharing issue of genetic resources in marine areas beyond national jurisdiction in the intergovernmental negotiations about BBNJ International Agreement based on the duality of China’s rights and interests,and supplement China’s relevant provisions on the benefit-sharing of genetic resources in marine areas beyond national jurisdiction.This article considers that the legal attribute of genetic resources in marine areas beyond national jurisdiction is the common heritage of mankind;stakeholder in the benefit-sharing system of genetic resources is benefit-sharing subject;we should abide by the principle of fair and equitable sharing and the principle of international cooperation;in addition to developers and users,the benefit-sharing subject should also include all parties to the United Nations Convention on the Law of the Sea and their qualified citizens,legal persons and other organizations,as well as those who made much greater contributions to the conservation and sustainable use of this genetic resource,at the same time,countries that put forward demands and requirements that are not in the benefit-sharing subject can be shared on a voluntary basis;we should expand the scope of the jurisdictional scope of the benefit-sharing system for genetic resources in marine areas beyond national jurisdiction;it is proposed to divide the types of benefits into monetary and non-monetary benefits,and to enumerate the specific forms and content of benefits in an indicative list based on the different links of benefit generation;it is suggested that the setting of approaches to benefit-sharing should closely match the types and specific content of benefits,and we can list the more common approaches to benefit-sharing following the form of indicative list,and integrate them with the framework provisions;the patent system has great applicability in the benefit-sharing system,we should specifically set legal provisions to use it as an effective incentive,at the same time,we should make reasonable restrictions on patent granting and use by setting the mandatory procedure of the disclosure of origin,improving the substantive examination requirements of patent,setting exception clauses and compulsory licensing provisions.