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The Marine Microbiome pp 453–472Cite as

Marine Genetic Resources and the Access and Benefit-Sharing Legal Framework

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Abstract

The legal landscape regulating the access to and utilization of genetic resources has changed with the entry into force of the Nagoya Protocol in 2014, and the adoption of the related EU Regulation on user compliance in 2014. Moreover, many countries are now adopting laws that regulate access to their genetic resources. This has clear implications for scientists working on genetic resources, including those doing taxonomic and biotechnology research on marine microorganisms. The first part of this chapter informs the scientific community on the Access and Benefit-Sharing (ABS) legal framework, including a focus on their application to marine genetic resources, for which the United Nations Convention on the Law of the Sea (1982) is also relevant. The difference between (domestic) access legislation to genetic resources, and the compliance mechanisms, such as the EU Regulation 511/2014 is explained in detail. A more practical description of ABS related obligations is then presented in a step-by-step approach, which can serve as a basic guideline for scientists.

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Notes

  1. 1.

    Article 2 CBD.

  2. 2.

    Article 5(1) Nagoya Protocol.

  3. 3.

    Article 3(4) EU ABS Regulation.

  4. 4.

    Article 6 Nagoya Protocol.

  5. 5.

    Article 14 and 17 Nagoya Protocol.

  6. 6.

    Article 13 Nagoya Protocol.

  7. 7.

    Article 4 EU ABS Regulation.

  8. 8.

    A non-exhaustive list of possible monetary and non-monetary benefits is provided in the annex of the Nagoya Protocol.

  9. 9.

    Article 15 Nagoya Protocol.

  10. 10.

    Article 4 EU ABS Regulation.

  11. 11.

    Article 7 EU ABS Regulation.

  12. 12.

    Articles 3(9), 4(7) and 5(3) EU ABS Regulation.

  13. 13.

    Article 8 EU ABS Regulation.

  14. 14.

    The distances mentioned are a maximum allowed by the LOSC. Depending on each coastal States maritime features and/or specific claims, the extent of the maritime zones under their jurisdiction may vary.

  15. 15.

    Article 238 LOSC.

  16. 16.

    Articles 245–257 LOSC.

  17. 17.

    Indeed, the regime of Part XI was purposely designed for activities related to mineral resources and seabed mining. Thus, bioprospecting is excluded from the regime, and the regulatory mandate of the International Seabed Authority does not include activities other than those relating to minerals. However, the Authority must promote, collect, and disseminate the results of scientific research, including in order to better understand the environment and prepare impact assessments of the activities under its jurisdiction. Adding to that the complexity of organizing research campaigns in such deep and remote locations, chances are that a bioprospecting project collaborate with mining exploration campaigns to sample, and thus be dealing directly or indirectly with the Authority.

  18. 18.

    Highs seas are determined as the surface and water column beyond national jurisdiction (art. 86 LOSC).

  19. 19.

    The scope of the CBD being limited to areas under the jurisdiction of States, neither the CBD or the Nagoya Protocol can address the matter of access to and use of GRs in ABNJ.

  20. 20.

    A first draft text of the international legally binding instrument is expected by the end of 2017 (A/RES/69/292 par. 1(a)).

  21. 21.

    If no legal department nor technology transfer office exist it is recommended to look for an external legal consultant or consultancy private company with outstanding experiences in providing legal support on ABS. ABS-int (http://www.abs-int.eu/en/home) for example is a multi-disciplinary team that consists of professionals with different backgrounds, including science, law, and regulatory with experience in providing advice to national and international companies and institutions, including in the fields of sustainable resources management, biodiscovery, biosafety regulations, stewardship, environmental law, and intellectual property law. GeoMedia is also a company providing such kind of support (http://www.geo-media.de/consulting.html?&L=1).

  22. 22.

    List of parties can be found here: https://www.cbd.int/information/parties.shtml.

  23. 23.

    If this country is party to the Convention on Biological Diversity and to the Nagoya Protocol.

  24. 24.

    Contact details of the CBD NFP of the Provider State can be found at www.cbd.int/information/nfp.shtml and more detailed information on national ABS legislations and procedures can be found in this website the country is part to the CBD only www.cbd.int/abs/measures/ or in the website of the ABS clearing House https://absch.cbd.int/countries if the country is also party to the NP.

  25. 25.

    Such requirements may include a simple notification of the sampling and/or an ABS agreement.

  26. 26.

    ABS Clearing House Mechanism: https://absch.cbd.int.

  27. 27.

    One template ABS agreement targeting exactly marine microorganisms has been developed by the EU funded project Micro B3 (https://www.microb3.eu): Model Agreement on Access to Marine Microorganisms and Benefit Sharing (Micro B3 ABS Model Agreements). Its text, included commentaries is available here https://www.microb3.eu/work-packages/wp8.

    The Micro B3 ABS Model Agreement can be adapted to different needs: to public domain, hybrid, and full commercial use at the point of access. It has been used as basis for ABS negotiations during the Ocean Sampling Day Campaign (an https://www.microb3.eu/osd) and it is now available as an example of best practices on the website of the CBD Secretariat. It has been subsequently endorsed by the EU funded project PharmaSea (http://www.pharma-sea.eu).

  28. 28.

    The ABS agreement will not be needed in the drafting phase of a project, but it is advisable to start taking contact with the competent authorities already in the drafting phase.

  29. 29.

    Users need to be absolutely sure that they have the right to transfer the material and/or associated knowledge before sending the material and data to a third party. If the permit/agreement is silent about this, it does not mean that you have the right to transfer. In the latter case, a clarification with the Provider State might be necessary.

  30. 30.

    In case of entering and sampling in a “Special Protected Area” a special permit is needed: basic information can be found here http://www.ats.aq/e/ep_protected.htm.

Abbreviations

ABNJ:

Areas beyond national jurisdiction

ABS:

Access and benefit-sharing

CBD:

Convention on biological diversity

CNA:

Competent national authority

EEZ:

Exclusive economic zone

EU:

European Union

GR:

Genetic resources

IRCC:

Internationally recognized certificate of compliance

LOSC:

Law of the sea convention

MAT:

Mutually agreed terms

MTA:

Material transfer agreement

NP:

Nagoya protocol

PIC:

Prior informed consent

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Acknowledgments

The research leading to these results has received funding from the European Union Seventh Framework Programme (FP7/2007–2013) under grant agreement no 311975. This publication reflects the views only of the authors, and the European Union cannot be held responsible for any use which may be made of the information contained therein.

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Authors and Affiliations

  1. eCOAST Marine Research, Esplanadestraat 1, 8400, Ostend, Belgium

    Laura E. Lallier, Arianna Broggiato & Thomas Vanagt

  2. Department of European, Public and International Law, Faculty of Law, University of Ghent, Universiteitstraat 4, 9000, Ghent, Belgium

    Laura E. Lallier

  3. ABS-int, Technologiepark 3, 9052, Zwijnaarde, Belgium

    Dominic Muyldermans & Thomas Vanagt

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  1. Laura E. Lallier
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  2. Arianna Broggiato
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  4. Thomas Vanagt
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Correspondence to Thomas Vanagt .

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Editors and Affiliations

  1. Royal Neth. Inst. f. Sea Res., University of Amsterdam, Yerseke, The Netherlands

    Lucas J. Stal

  2. Royal Neth. Inst. f. Sea Research, University of Amsterdam, Yerseke, The Netherlands

    Mariana Silvia Cretoiu

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Lallier, L.E., Broggiato, A., Muyldermans, D., Vanagt, T. (2016). Marine Genetic Resources and the Access and Benefit-Sharing Legal Framework. In: Stal, L., Cretoiu, M. (eds) The Marine Microbiome. Springer, Cham. https://doi.org/10.1007/978-3-319-33000-6_17

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