January 01, 2015

Marine Genetic Resources: The Clash Between Patent Law and Marine Law

Erica Wales

Marine genetic resources (MGRs) found within areas beyond national jurisdiction (ABNJ) are an issue at the core of international debate. ABNJ cover 64 percent of the surface of the ocean and include both the water column (high seas) and the seabed (the Area). These areas are unique in that no single state regulates all activities. Rather, regulation occurs via a patchwork of regulatory authorities and regional agreements. Because of this patchwork of regulation, gaps in regulation and conservation can occur. One of these gaps is MGRs. Except for resources of the Area, regulated by the International Seabed Authority (ISA) (and defined by the United Nations Convention on the Law of the Sea (UNCLOS) Article 133.a as “all solid, liquid, or gaseous mineral resources found in situ in the Area at or beneath the seabed”), resources not found within national jurisdiction are open for exploitation by those with the technical and financial capacity to do so. Although MGRs are not formally defined in UNCLOS or any other conventions or agreements, the 1992 Convention on Biological Diversity (CBD) does define “genetic resources” and “genetic material.” Using those definitions, for the purposes of this article I define “marine genetic resource” to mean any material of plant, animal, microbial, or other origin found within the marine environment and containing functional units of heredity with actual or potential value.

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