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Mind the gap between biological samples and marine genetic resources in areas beyond national jurisdiction: lessons from land
Arnaud-Haond, S. (2020). Mind the gap between biological samples and marine genetic resources in areas beyond national jurisdiction: lessons from land, in: Heidar, T. (Ed.) New knowledge and changing circumstances in the Law of the Sea. Publications on Ocean Development, 92: pp. 29-39. https://dx.doi.org/10.1163/9789004437753_004
In: Heidar, T. (Ed.) (2020). New knowledge and changing circumstances in the Law of the Sea. Publications on Ocean Development, 92. Brill|Nijhoff: Leiden. ISBN 978-90-04-43774-6. xxii, 476 pp. https://dx.doi.org/10.1163/9789004437753, more
In: Publications on Ocean Development. Brill: Leiden. ISSN 0924-1922, more

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    Marine/Coastal

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  • Arnaud-Haond, S.

Abstract
    Oceans are likely the cradle of life on Earth and the oldest and widest repository of genetic diversity. Areas beyond national jurisdiction encompass more than 60% of the oceans and, three-dimensionally, approximately 95% of the biosphere. However, biological resources were excluded from part XI of the 1982 United Nations Convention on the Law of the Sea dedicated to the Area. Difficulties in accessing samples, particularly from the deep sea, have long limited the exploitation of marine genetic resources. However, molecular techniques have allowed, in the past two decades, an unprecedented access to the invisible, leading to an explosion in biotechnological advances, including the use of marine compounds or genes in a diversity of applications spanning from the pharmaceutical, medical, agriculture, and food industries to bioremediation. The instrument being developed through the ongoing negotiations of States in accordance with Resolution 69/292 of the United Nations General Assembly shall address questions related to the conservation of biodiversity, but also the issue of access and benefit sharing (ABS) in relation to marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ). Those areas are not covered by the Convention on Biological Diversity (CBD) and the Nagoya Protocol, which apply to land and maritime areas within national jurisdiction. Expectedly, the negotiations raised the need to clarify essential concepts and definitions, including biodiversity, bioprospecting, sample and genetic resource. There was also a need to clarify the differences in the processes and protocols leading to the knowledge necessary to inventory, understand and protect biodiversity versus the development of molecules of interest that turn some molecule of heredity extracted from a sample into a marine genetic resource in the biotechnological, commercial, and industrial senses. The purpose of this Chapter is to offer some clarification and scientific definition of terms, as well as to describe the main steps necessary for the development of patentable biotechnologies. This reveals a clear difference, both qualitative and quantitative, between samples and marine genetic resources, a difference that may have been overlooked during the negotiations and subsequent implementation of the Nagoya Protocol, resulting in an ABS system that often comes at the expense of research for knowledge and conservation. This emphasizes the need to clearly delineate the scope of the debate, identify the points of confusion, and differentiate the solutions to come from this process from those that can come only from other processes, such as the improvement of WTO TRIPS rules for patent claims. The lessons that we can take from land will help establish a realistic ABS system associated with marine genetic resources and identify priorities for capacity building without hampering conservation.

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