Construction Of The Benefit Sharing Mechanism For Genetic Resources In Area Beyond National Jurisdiction

In recent years,as the level of deep-sea exploration has improved,marine genetic resources(MGRs)in areas beyond national jurisdiction(ABNJ)has gradually become known.However,neither the United Nations Convention on the Law of the Sea(UNCLOS)nor the Convention on Biological Diversity(CBD)clearly defines MGRs.Because of the absence of effective regulation and proper supervision,the 69 th session of the UN General Assembly adopted Resolution No.292 and decided to develop an implementation agreement within the legal framework of the UNCLOS.One of the main concerns of all parties is the issue of benefit sharing of MGRs in ABNJ,which is also the focus of the new agreement.This paper aims to build an intellectual property-based benefit-sharing mechanism through the reference and analysis of the existing multilateral approaches to genetic resources sharing.The first chapter introduces the overview of MGRs in ABNJ.The unclear concept and the absence of the regulatory system have led to the undetermined legal nature of such resources,which has caused disputes among various groups on this issue.The Group of 77 advocate that such resources should apply the principle of "Common Heritance of Mankind",while others advocate it should apply the principle of "Freedom of the High Seas".All parties have insisted on their own interests on this issue,it seems that all states could not reach an agreement on this issue in the short term.However,MGRs is in urgent need of regulation by the international community,it is necessary to constructe a benefit sharing mechanism for MGRs.The second chapter of this paper analyzes the basis of constructingbenefit-sharing mechanism of MGRs from two aspects: legal basis and realistic basis.First of all,due to MGRs' own characteristics and symbiotic relationship with mineral resources,the two types of resources are more appropriate to be regulated by the same regulation.What's more,according to the general principles of UNCLOS,it is feasible to characterize the legal nature of ABNJ's MGRs as CHM.Secondly,judging from the current negotiations,although there is no conclusion on the legal nature of this resources,it is obviously not advisable to apply the principle of free access on MGRs.Jumping out of the quagmire of legal nature,the establishment of the benefit-sharing mechanism for such resources is not only the real concern of all countries,but also a new approach to the current negotiations.The third chapter of this paper introduces the existing multilateral benefit-sharing mechanism for genetic resources,aiming to provide reference for MGRs in ABNJ.Although the existing multilateral benefit-sharing mechanism is based on genetic resources within national jurisdiction,which is fundamentally different from the MGRs located in ABNJ,the principles of utilization and protection of MGRs whtihin and beyond national jurisdiction are consistent,as well as the puopose of benefit sharing of MGRs.So it is feasible to refer to the current multilateral benefit-sharing mechanism.Form the current mechanis,ITPGR and the Nagoya Protocol model have their own reference and limitations.On the one hand,the ITPGR model has established a framework for benefit-sharing from four specific aspects,and The Standard Material Transfer Agreement also saves the cost of genetic resources' acquisition,but ITPGR is only applicable to a small part of genetic resources.and it does not recognize the application of the intellectual property regime.It is obviously not advisable to apply ITPGR model directly to MGRs in ABNJ.On the other hand,the model of the Nagoya Protocol is progressive in that it proposes the establishment of a global multilateral benefit-sharing mechanism,that is,if the approval of genetic resources cannot be obtained due to performance barriers or cannot be met under the condition of approval,it is possible to skip the process of obtaining prior informed consent and share the benefit directly.However,the shortcoming is that the Protocol only stays on the necessity for Parties to consider establishing such mechanisms,without further providing a clear commitment to create it.The fourth chapter of this paper proposes the idea of constructing the benefit sharing mechanism of the MGRs.It is true that the direct application of the “regional”system can enable developing countries to get more opportunities to share benefits,but there are also some infeasible points: the development of the “regional” system gradually weakened the status of developing countries;in recent practice,the“regional” system also has the risk of being further dominated by developed countries.Building a benefit-sharing mechanism for such resources by means of new implementation agreements can break the current fragmentation status of ocean management and improve the efficiency of ocean management.In the process of negotiating the new implementation agreement,the definition of MGRs should be further clarified.We can refer to the experience of the Nagoya Protocol to define the definition of “MGRs” and “using MGRs”.In addition,the requirements of the benefit-sharing mechanism should be set,such as setting different benefit content for different stages of access and benefits,raising the requirements for patent applications,creating a multilateral benefit-sharing mechanism to ensure the realization of benefits and so on.In the fourth chapter,the paper further proposes the construction method of MGRs benefit-sharing mechanism based on intellectual property.From the past international practice we can know,only the existence of the benefit-sharing mechanism does not enable benefit-sharing to be truly implemented.The huge treasure needs to be stimulated,and the intellectual property system can stimulate the development and utilization of the resource and make it produce the greatest benefit.However,developing countries often resist the use of intellectual property rights in MGRs,arguing that the system would transform the phenomenon of “biopiracy”into the scope of ABNJ.As for MGRs,to serve the common interests of all mankind,the rationality of intellectual property system should be recognized.Combining the benefit-sharing mechanism with the intellectual property system can promote the sharing of MGRs and promote the development of resources.Based on the analysis of the applicability of the intellectual property system,this chapter further proposes specific construction methods.It mainly includes two aspects: First,improve the disclosure requirements of source.The disclosure of the MGRs used in the intellectual property under application shall be made in a loose priming manner,and the evidence of the inventor's commitment to benefit sharing shall also be disclosed.The disclosure requirements can not only guarantee the international community's right to know about the development and utilization of MGRs,but also ensures the realization ofbenefit-sharing by improving the rigor of patent application review.Second,establish a public trust fund.The conservation and sustainable use of MGRs is achieved by returning some of the monetary benefits generated by the use of MGRs.Specifically,developers who use MGRs for inventions and creations should pay a certain amount of royalties to the public trust fund when applying for patent protection.This paper is a comprehensive study on the construction of benefit-sharing mechanism for MGRs in ABNJ.The main innovations are: based on the goal of serving the interests of all mankind,the application of the intellectual property system shall be recognized conditionally in the development and utilization of ABNJ's MGRs,and such system should be restricted and improved to serve the common interests of all mankind.