intergovernmental conference on an international legally ... · intergovernmental conference on an...

Intergovernmental conference on an international legally binding instrument under the United Nations

Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of

areas beyond national jurisdiction (UNGA Res. 72/249):

Access and Benefit Sharing of Marine Genetic Resources of Areas Beyond National Jurisdiction

The Tiered Approach, August 2019

Summary

This information paper updates the concept and an illustration of a tiered approach (Tiered Approach) to marine

genetic resource (MGR) governance in areas beyond national jurisdiction (ABNJ). The initial concept was

introduced in March 2019 for the second session of the intergovernmental conference (IGC)1 and as it was done for

the previous paper, this paper also focuses on the operational aspects of an ABS of ILBI rather than to propose

specific text for the international legally binding instrument (ILBI). This paper also takes into account the

President’s draft text (Draft Text)2, which provides meaningful ways to analyse the proposed options and potential

consequences arising from some of the options. Moreover, this paper provides possible options that are absent in

the Draft Text with the hope to contribute to the further progress of the negotiations, as encouraged to do so by the

President of the IGC.3

The Tiered Approach considers the unique characteristics of marine organisms of ABNJ and proposes a sui generis

ABS mechanism, which falls within the objectives of the United Nations Convention on Law of the Sea (UNCLOS)

mandate for ‘equitable and efficient’ utilization of resources4 while maintaining consistency with the Convention on

Biodiversity (CBD)’s objective of a ‘fair and equitable’ sharing of the benefits arising from the utilization of genetic

resources5.

The Tiered Approach has the following potential:

Compatibility with national laws to add certainty to cross jurisdictional use of MGRs of ABNJ;

Fostering scientific research and development (R&D) with a focus on a robust capacity building and technology

transfer (CB/TT) and conservation and sustainable use of BBNJ;

Providing targeted support for acute resource (i.e. capacity, technology, funding/financing) constrained

countries;

Promoting efficient utilization of resources by incorporating and building on existing stakeholder best practices,

institutional arrangements, and monitoring/enforcement capabilities of Member States;

Incorporating consideration for relevant traditional knowledge of indigenous peoples and local communities

(IPLC) in MGR governance;

Utilizing a streamlined global electronic notification system, which could be integrated to an overall system for

monitoring all ILBI elements;

Integrating MGR governance into other elements of ILBI to better achieve conservation and equity outcomes;

Incentivizing robust participation in the benefit sharing mechanism by a broad range of stakeholders; and

Incorporating flexibility into governance to meet changing needs of Member States and future scientific R&D.

The building blocks (Tiers) for an equitable and efficient MGR system can be added, modified or tailored to meet

the agreed Member State conservation, sustainable use and benefit sharing objectives. We will continue to

consult, and encourage others to consult, with a broad range of stakeholders (i.e. scientists, traditional knowledge

holders, research institutions, government departments, private sector, IGOs and NGOs) about the practical

implications of the components of MGR governance identified in the Tiered Approach.

1 ICEL issued an information paper on the Tiered Approach for ICG2 in March 2019. While Tiered Approach v2 has structural changes in

response to stakeholder consultations, the main concepts remain the same as those in Tiered Approach v1.

2 The Draft Text is available at https://undocs.org/en/a/conf.232/2019/6 3 Draft Text, Introduction,10 4 UNCLOS Preamble. 5 Convention on Biological Diversity, Article 1.

https://undocs.org/en/a/conf.232/2019/6

ICEL Information Paper on ABS of MGRs of ABNJ on the Tiered Approach

August 2019

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Background Information

Marine organisms of ABNJ have unique characteristics, such as their ability to easily migrate between national

jurisdictions and also, they can exist within and beyond national jurisdiction. Marine organisms of ABNJ are resources

that belong to all and they are used to foster scientific research as well as commercial development that could

significantly contribute to the wellbeing of all humankind. Due to the enormous expenses associate with voyage to

ABNJ, however, access and utilization of MGRs of ABNJ have been limited but are expected to increase in future.

MGR governance in ABNJ lacks:

1. rules and oversight of in-situ collection in ABNJ;

2. legal clarity/certainty on managing ex-situ MGRs of ABNJ and their relationship with national ABS laws;

3. benefit sharing;

4. consideration for relevant traditional knowledge of IPLC;

5. global information system to foster sharing of data, capacity building and technology transfer (CB/TT);

6. funds/financing to support robust CB/TT for developing States;

7. global standard of practice/protocol for collection, sharing of data, monitoring and enforcement; and

8. incentives for a broad range of stakeholders to actively participate in an ABS of MGRs of ABNJ.

The Draft Text outlines a proposed framework for governing MGRs of ABNJ, which incorporates: (a) access

procedures according to subject matter (in situ, ex situ, in silico, traditional knowledge); and (b) a ‘one size fits all’

model of benefit sharing and monitoring applying to all MGRs of ABNJ. While the Draft Text clearly indicates that

the proposed options may vary significantly in the final outcome of the ILBI (including whether to govern ex situ and

in silico resources), Table 1 summarises one interpretation of the MGR governance elements raised in the Draft Text.

In-situ Ex-situ? In-silico? Traditional knowledge

Scope of

subject

matter

All biological resources

located in ABNJ that are used

for research into their genetic

properties

Undefined but text

indicates biological

resources originating

from ABNJ but physically

located in national

jurisdiction

Undefined Depends on national

ABS laws concerning

traditional knowledge

associated with

genetic resources

Access

governance

process

• Notify (Secretariat) • Permit/licence • PIC of State with in-situ

MGRs

“free and open” “facilitated” Prior Informed Consent

(PIC) and Mutually

Agreed Terms (MAT for

benefit sharing)

Benefit

sharing

trigger

Access or utilization or

research Access or utilization or

research Access or

utilization or

research

Access

Benefit

sharing

recipient

Other State Parties including developing State Parties Traditional Knowledge

holders


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Table 1 Interpretation of the Draft Text approach to ABS

Questions for implementing the options in the Draft Text in practice

The proposed options in the Draft Text raise various questions on how they may operate in practice. Some fundamental

questions include:

In situ access:

o Would a permit/licence be issued by the flag State (which has a potential to place disproportionate burden

on developing countries with acute resource needs) or the lead researcher’s State?

o How would notification work in practice when many trips can extend to months and years, with multiple

research programs/activities/researchers from various countries on board?

o How does the notification system relate to other ILBI elements, including EIA, ABMT and capacity

building/technology transfer?

o What does it mean for a facility to be an ‘open source platform’? Would they need to be

certified/registered in some way? How would a requirement to deposit duplicate samples and data in

‘open source platforms’ work in practice without causing undue burden on the researchers? For example,

researchers may collection millions of organisms in one water sample. Other researchers may need a

period of exclusivity for research and development, publication and/or patent applications.

o What would be the roles/responsibilities of existing facilities (public & private) under the ‘open source

platform’ concept? If there are to be additional roles/responsibilities, who would bear the burden of the

associated increase in costs/resources? How could resources flow to the existing facilities to ensure that

they continue to exist? Who, if any, would provide oversight of the existing facilities?

Ex situ access:

o Once MGRs of ABNJ are taken out of their natural environment, it will be used in national jurisdictions

and subsequently become an ‘ex situ’ resource. Would this mean that any subsequent use of MGRs

(‘accessed’ or collected from the laboratory or facility) are ‘free and open’?

Types of

benefits • Monetary + royalties from commercial products, subject to

information embargo period • Non-monetary (upon access, researcher use) including deposit of

samples and information in open source platforms at time of

access

Depends on MAT

Monitoring • State (flag state?)

assigns identifier (for

each individual

resource?) upon access • Disclosure of origin of

MGRs used in

inventions in patent

applications to trace compliance with ILBI

ABS

• Ex situ facilities + databases notify

ILBI body upon subsequent user

access to MGR, information +

derivatives • ILBI body assigns identifier

(separate to the identifier assigned

in situ?) • Disclosure of origin of MGRs and

information (e.g. digital sequence

information) used in inventions in

patent applications to trace

compliance with ILBI ABS

No ILBI measures

Reports • “Proponents” (undefined) submit periodic status reports to ILBI

body • State parties submit reports to Conference of the Parties about

their use of MGRs of ABNJ

No ILBI measures


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o What does it mean to be ‘free and open’? Databases require users to enter into a user agreement with

certain conditions of access and use.

o How will the genetic chain of custody be maintained for the purposes of benefit sharing if all MGRs

effectively become ‘ex situ’ resources and therefore ‘free and open’ after collection?

o How can the ILBI require countries to make all ex situ MGRs of ABNJ ‘free and open’ if national laws

do not have jurisdiction or control over how ex situ facilities manage their MGRs?

In silico access:

o What information does in silico encompass? If it encompasses digital sequence information, what would

be included in such category? Information associated with the physical sample (i.e. passport data)?

o What does ‘facilitated’ access mean?

o What is ‘access’ in this context? Scanning sequences? Downloading? A researcher’s computer program

may scan millions of sequences for patterns. Is that access?

o How could compliance be tracked to the original resource when millions of bits of information (and parts

of information) are used in a single computation?

Traditional Knowledge access:

o What is the definition of traditional knowledge in ILBI?

o How will the ILBI manage traditional knowledge held by multiple indigenous groups or in the public

domain?

o Does access include use of MGRs without knowing or using the traditional knowledge that exists in

relation to it?

Benefit sharing and monitoring:

o How will the ILBI avoid placing the highest burden of benefit sharing on the initial collecting researcher

(most are academic institutions) if access by subsequent users is ‘free and open’ (breaking the genetic

chain of custody for benefit sharing and monitoring)?

o What governance system (e.g. information technology infrastructure, human resources, etc.) will be

necessary to accommodate monitoring access and benefit sharing of all MGRs of ABNJ? Certain types

of research (i.e. microorganism, virus, etc.) could involve thousands or even millions of organisms in

one research project so how would a system of unique identifiers work in practice?

o If benefit sharing applies to all MGR research investigating genetic properties, how does it avoid undue

burden on research for conservation of biodiversity and MGRs with low economic value?

o What would be the trigger for disclosure of origin of the MGR in patent applications – whether the

invention ‘includes’, is ‘derived’ from, ‘associated’ with or ‘based’ on the MGRs?

o How will the ILBI ensure that any new MGR governance requirements are compatible with national

laws on ABS?

Building on the Draft Text using a Tiered Approach to MGR governance

The MGR section of the Draft Text (i.e. Part II) appears to focus on the CBD’s Access and Benefit Sharing (ABS)

concept of the fair and equitable sharing of benefits from the use of MGRs, technology transfer and capacity building.

The overall objective in Article 2 of the Draft Text ensures the long-term conservation and sustainable use of BBNJ,

which applies to all of the provisions of the ILBI. The specific objectives of Part II MGR Governance, however, focus

on sustainable uses of MGRs but conspicuously absent are specific objectives and mechanisms for the conservation

of MGRs. Also absent is a reference to the Preamble in UNCLOS that mandates the ‘equitable and efficient utilisation

of resources’ (emphasis added), which means that there needs to be considerations of whether the burden of regulation

and the cost of infrastructure to support ABS (including monitoring) is proportionate to the benefits that countries are

likely to receive from the use of MGRs of ABNJ.

The Tiered Approach seeks to address the difficult questions arising from the current Draft Text options by shifting

the regulatory focus from the subject matter (form and location of the MGRs), towards a regime that regulates people’s

interactions with MGRs and associated knowledge. This is similar to fisheries management that does not regulate the

fish but the people’s activities in relation to the fish. The Tiers of interaction are: ABNJ exploration and collection

(Tier 1), access and use of ABNJ physical samples regardless of location (Tier 2), use of the information separately

from the physical resource (Tier 3), use of traditional knowledge associated with MGRs of ABNJ (Tier 4) and finally,


August 2019

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use of MGRs that affects biodiversity in ABNJ (Tier 5). Figure 1 illustrates a mechanism as an example of this

activities or interaction-based approach that not only incorporates the spirit of ABS (see table 2) but incorporates

broader MGR conservation and sustainable use considerations to integrate MGR governance with other ILBI

elements.

Figure 1 Sample mechanism of the Tiered Approach


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Table 2 Key differences between the Draft Text and Tiered Approaches

Tier 1 – ABNJ exploration/collection

Important practical considerations for this phase of interaction with MGRs of ABNJ and possible governance options

include:

Consideration: Ocean expeditions can involve multiple research teams from various countries and activities

over prolonged periods that may trigger multiple ILBI elements (e.g. MGR, EIA, ABMT, CB/TT).

o Options: The Tiered Approach suggests a prior trip notification system utilizing a platform, such as

an online platform (e.g. some type of a clearing house mechanism proposed in Article 51 of the

Draft Text), requiring best practice trip information in return for a ‘trip identifier’ with information

about ILBI requirements. The best practice trip information packet could contain resources to be

provided to the principle investigator of the research project, such as information on:

ABMTs, including MPAs (e.g. existing and proposed ABMTs, including MPAs, etc.);

EIAs (e.g. procedures on EIAs, etc.);

CB/TT (e.g. a link to a capacity building database that could match developing country

researchers seeking on board experience to the principle investigator of the research

project, etc.);

Traditional knowledge; and

How the PI can contribute to conservation and sustainable use of BBNJ in various ways,

including providing:

relevant information that may help in setting the baseline of the environmental

condition of the areas sampled; and

best practices to reduce sampling impacts, etc.


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Consideration: Researchers do not know what MGRs they will find from ABNJ until a sample is validated

in the laboratory weeks or even years after the trip, with some organisms that could remain in storage

untouched for an indefinite amount of time due to various reasons (e.g. lack of funding).

o Options: The Tiered Approach proposes ‘collection identifiers’ for all of the collections of a

research program that was part of the Trip Identifier that can be updated as research progresses.

Another reason for using this bulk identifier approach instead of attaching a unique identifier to each

organism is that when there are millions of organisms from one water sample (i.e. microorganisms),

individual record keeping becomes unmanageable. The ‘collection identifier’ can follow transfers

of physical samples in the metadata (passport) data.

Consideration: Using prior notification and identifiers as the foundation of an ABS monitoring system for

all MGRs of ABNJ (nearly 2/3 of the planet) could require significant resources, which may be an inefficient

use of infrastructure, human resources and associated funding.

o Option: One of the aspects of the Tiered Approach is the proposal to take a targeted approach to

ABS. For example, the economic tool of ABS could target those MGRs with the greatest potential

for economic returns, while also protecting those species for their intrinsic conservation value.

Figure 1 illustrates this through an example a registration system for collection of MGRs in ABNJ

hydrothermal vents, which is estimated to only cover 50km2 of the sea floor but with a

disproportionately high concentration of species diversity of value to conservation, science and

commercial applications.6 This is an example of a more manageable area for ‘track and trace,’

particularly if a registration system links with a multilateral ABS system (see Tier 2). For MGRs of

ABNJ outside a multilateral system, the notification system could link to CB/TT initiatives that are

not dependent upon monitoring individual ABS transactions. Countries may agree on other means

for a more targeted scope for a registration and multilateral system.

Consideration: Compulsory deposits of all MGRs of ABNJ and data are impractical for various reasons,

including the necessary infrastructure, logistics and expense of curating large volumes of samples and data.

o Option: The Tiered Approach recognises that mandatory deposits of MGR collections may be easier

to enforce under a dedicated multilateral system similar to the Food and Agriculture Organisation’s

Plant Treaty7 or the World Health Organisation’s Pandemic Influenza Preparedness Frameworks8.

Negotiators could consider either capacity building for additional curation responsibilities or an

identifier system allowing samples to remain under the research funder or the principal

investigator’s control but with an obligation to provide access upon request. Negotiators could

consider incentive schemes for voluntary deposits of MGRs outside the multilateral system.

Whether the deposits are subject to ‘open’ or facilitated access with conditions will depend on the

national law and individual facility/database protocols.

Tier 2 Use and subsequent access to physical materials with passport data


include:

Considerations: MGRs and associated information will be used on vessels or land within national

jurisdiction, which may cause confusion if there are different access regimes for in situ, ex situ and in silico

MGRs applying to one research activity.

o Option: To avoid the monitoring challenges and disproportionate burden of benefit sharing and

reporting on the initial researcher arising from the Draft Text’s three distinct MGR access processes,

6 Johnson, David Edward, ‘Protecting the lost city hydrothermal vent system: All is not lost, or is it?’ (2019) 107 Marine Policy 103593.

7 Information on the Plant Treaty is available at: http://www.fao.org/plant-treaty/en/ 8 Information about the WHO PIP is available at: https://www.who.int/influenza/pip/en/

http://www.fao.org/plant-treaty/en/

https://www.who.int/influenza/pip/en/


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the Tiered Approach’s Tier 2 targets the activity that uses physical materials with passport data (e.g.

scientific name, origin, collection date), regardless of whether they relate to in situ or ex situ

resources. Tier 3 recognises there are special governance challenges for managing the use of

information separately from the physical resource (see below).

Consideration: There is a huge variation in national approaches to regulating (or not regulating) their ex situ

MGRs of ABNJ that may promote forum shopping and create gaps and loopholes for governance.

o Option: Consider more targeted ABS using a multilateral system (e.g. ABySS in Figure 1). Unlike

bilateral ABS where the benefits go to the provider in return for access, the multilateral system

directs benefits to an institutional arrangement pursuant to ILBI (e.g. COP, Advisory Body, Finance

Committee, etc.) for equitable distribution to countries for the purposes of conservation and

sustainable use of BBNJ. All MGRs of ABNJ not within the multilateral system would then fall

under national bilateral ABS laws. Since not all countries have ABS laws, the ILBI could only

encourage Member States to incorporate collection identifiers within their monitoring systems and

encourage MGR users to share some benefits in accordance with the ILBI from MGRs of ABNJ

used within their jurisdictions (if origin can be established). Incentive mechanisms in Tier 3 could

have a strong role in encouraging stakeholders to voluntarily participate in the ILBI benefit sharing

regimes.

Consideration: A high benefit sharing and reporting burden on the researchers that conduct sampling in

ABNJ (most researchers are based in academic institutions) may have a dampening effect on BBNJ research,

which could include basic research on conservation.

o Option: The Tiered Approach aims for the highest level of benefit sharing to target end users of

MGRs of ABNJ with a potential for commercial application of MGRs rather than the initial

researchers that conduct sampling in ABNJ. Like the Draft Text and the OPEN9 model, people

depositing materials into the multilateral system could choose immediate open access to others or a

defined exclusivity period subject to payment to a benefit sharing fund (which completes benefit

sharing or reporting obligations). To ensure access for subsequent users, as is done in the

multilateral system under the Plant Treaty, recipients of ABySS materials must not prevent others

from using the MGRs ‘in the form received’ from the ABySS. However, if a user restricts access to

results of their research based on ABySS materials or derivatives created/under development, then

they will be subject to benefit sharing, which could include monetary contribution, using a

transparent formula set out by the designated institutional arrangement per the ILBI.

Tier 3 Use and subsequent access of MGR information separate from the physical sample


include:

Considerations: ABS in other fora (i.e. CBD, Plant Treaty, etc.) continue to debate whether it is possible,

practical or desirable to regulate MGR information used separately from the physical sample, such as

information categorized as digital sequence information (DSI)10.

o Option: The Tiered Approach encourages11 researchers who conduct sampling in ABNJ and users

of the physical resources to voluntarily deposit information into a decentralised network of databases

(either open access or embargoed for a defined period) using existing best practices. In practice,

9 Broggiato, Arianna, Thomas Vanagt, Laura E. Lallier, Marcel Jaspars, Geoff Burton, and Dominic Muyldermans. ‘Mare Geneticum: Balancing

Governance of Marine Genetic Resources in International Waters’ (2018): 33(1) The International Journal of Marine and Coastal Law 3-33. 10 Ad Hoc Technical Expert Group on Digital Sequence Information on Genetic Resources, (2018) Fact-Finding and Scoping Study on Digital

Sequence Information on Genetic Resources in the Context of The Convention on Biological Diversity and The Nagoya Protocol by S Laird and R

Wynberg CBD/DSI/AHTEG/2018/1/3. 11 As discussed above, a mandatory requirement may be easier to enforce under a registration system for targeted MGRs of ABNJ under the

ABySS.


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conditions for access to, and use of the information would depend on the national law where the

information is accessed and/or based on the terms and conditions of the database.

Considerations: It is impractical to monitor access of information (e.g. DSI) separate to the physical material

because researchers can access (scan) millions of bits of information (and rearrange information) in a single

computation.

o Option: Instead of relying on impractical unique identifiers for monitoring MGR information, the

Tiered Approach incorporates incentives and peer pressure under the ‘prestige economy’ to foster

robust voluntary benefit sharing. Such incentives would match the movement within responsible

private sector entities and academic institutions that are actively supporting sustainability in a

comprehensive way, such as through fostering the multifaceted UN Sustainable Development

Goals. Initiatives such as the Union for Ethical Biotrade’s Ethical Sourcing System Certification12

is a good example of how non-regulatory obligations can foster conservation and sustainability.

Tier 4 Access and use of traditional knowledge

Important practical considerations for this phase of interaction with MGRs of ABNJ and possible options for

governance include:

Considerations: Potential users of MGRs of ABNJ may have difficulty identifying the traditional knowledge

holders with whom to engage on the possible use of traditional knowledge, which may include negotiations

for prior informed consent and mutually agreed terms.

o Option: The Tiered Approach suggests extending the mandate of the proposed Scientific and

Technical Body to include other knowledge systems including traditional knowledge. For example,

as one of its areas of responsibilities, this body could consider creating and maintaining an ABNJ

Traditional Knowledge database of communities with potential MGR knowledge as a capacity

building initiative for the scientific and the traditional knowledge holder communities.

Consideration: National laws vary significantly in their definitions of traditional knowledge and

enforcement mechanisms.

o Option: The Tiered Approach suggests utilizing similar incentives and peer pressure mechanisms

as those in Tier 3 to encourage the engagement of traditional knowledge holders in research and

development.

Tier 5 Use of MGRs in ABNJ

Important practical considerations for this phase of interaction with MGRs of ABNJ and possible options for

governance include:

Consideration: CBD’s biosafety framework (the Cartagena Protocol13) only manages the risks of harm to

biodiversity from living modified (engineered) organisms moving between national jurisdictions and not

their uses in, and transfers from, ABNJ, with a potential for significant harm to marine biodiversity in ABNJ.

o Option: The Tiered Approach considers building biosafety into the MGR governance as an

important element for biodiversity conservation. The CBD’s biosafety framework includes elements

of a consent mechanism, EIA, risk management and emergency management, which goes beyond

the scope of the EIA requirements in the Draft Text. ILBI may be a good platform for providing a

comprehensive MGR governance regime that includes biosafety provisions.

12 https://www.ethicalbiotrade.org/ess-certification 13 The text of the Cartagena Protocol is available at: https://bch.cbd.int/protocol/text/

https://www.ethicalbiotrade.org/ess-certification

https://bch.cbd.int/protocol/text/


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Consideration: New technologies are opening up ABNJ to activities that may affect the genetic composition

of MGRs of ABNJ, including deep-sea aquaculture and the dumping of space equipment with potential alien

genetic material.

o Option: Negotiators could consider whether the other ILBI elements such as EIAs are sufficient to

address the future challenges to biodiversity posed by activities in ABNJ that may affect the

genetic composition of MGRs of ABNJ.

Note on the Advisory Body

An Advisory Body consisting of diverse representation of scientists, holders of relevant traditional knowledge and

legal/policy experts could play a key role in advising on the key aspects discussed in the Tiered Approach, including:

the type of platform to be used for trip registration;

the scope and processes of a targeted multilateral mechanism;

relevant traditional knowledge of IPLC;

biosafety;

new technologies that could impact BBNJ (negatively or positively);

changes in biodiversity; and

etc.

Conclusion

The Tiered Approach considers the unique cross-jurisdictional characteristics of marine organisms and proposes a sui

generis ABS mechanism for MGRs of ABNJ that is compatible with the sovereign rights for managing resources used

within national jurisdiction. The proposed mechanism has a built-in flexibility to be molded into an MGR governance

regime that could meet the diverse interests of Member States, while also achieving conservation and sustainable use

objectives of ILBI.

The Tiered Approach is based on the working paper: Fran Humphries, Hiroko Muraki Gottlieb & Morten Walloe Tvedt, ‘A

Tiered Approach to the Marine Genetic Resource Framework under the Proposed UNCLOS Agreement for Biodiversity

Beyond National Jurisdiction’ proposed for publication in the BBNJ special edition of Marine Policy in 2019.

For further information

Hiroko Muraki Gottlieb Representative for the Ocean

Head of delegation to the intergovernmental conference on BBNJ

International Council of Environmental Law

[email protected]

Dr. Fran Humphries Senior Research Fellow

Program Leader of the Law and Nature Research Program at the Law Futures Centre, Griffith University

[email protected]

mailto:[email protected]

mailto:[email protected]

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