LEGAL FRAMEWORK OF MARINE GENETIC RESOURCES: FILLING THE GAPS OF THE UNITED NATION CONVENTION ON THE LAW OF THE SEAS

Resumo

Objective: We seek to understand the definition of marine genetic resources and marine biological resources, placing it in the historical context of narratives of international law of the sea. We seek to look into the content of common heritage of mankind towards MGRs. We seek to analyze the international legal framework of extraction and use of MGRs while securing easy access to them in accordance with the concept of common heritage of mankind. We seek to investigate the international legal regulation of biopiracy in legal research. The authors consider the importance of necessity to fulfil the lack of the universal definition of biopiracy in relation to MGRs in International Law of the Sea.

Methodology: The research uses general scientific and special cognitive techniques wherein legal analysis and synthesis, systemic, formal-legal, comparative-legal, historical-legal and dialectical methods are applied.

Results: We found out that for the first time ever, the legal protection of the intangible MGR heritage belonging to indigenous peoples and local communities is going to be universally fixed by maritime law.  The law will also establish a special mechanism to control the concerned parties’ access to this knowledge. The traditional knowledge of indigenous peoples falls within the definition of intangible cultural heritage. This fact raises a question about an overlap between the future Agreement and the Convention for the Safeguarding the Intangible Cultural Heritage. Though the sphere that is going to be regulated by the future Agreement is very specific, many of its provisions build upon the previously adopted international legal instruments like the UN Convention on the Law of the Sea, the Convention on Biological Diversity, and the IOC Criteria and Guidelines on the Transfer of Marine Technology. Moreover, the scope of the Agreement might overlap with the scope of other international instruments, which have nothing to do with marine law, marine ecology, and marine biodiversity, e.g. the Convention for the Safeguarding the Intangible Cultural Heritage.  All the aforementioned aspects should trigger further studies of the legal framework of marine genetic and biological resources. The authors came to the conclusion to extend the concept of the common heritage of mankind to marine genetic resources and we found out the fact that the lack of international legal regulation of the extraction and use of marine genetic resources while securing facilitated access to them in accordance with the concept of the common heritage of mankind, which may lead to an increase in the commission of acts of biopiracy.

Contributions: Following a review of the content, we raised possible problems, strategies, suggestions and guidelines for the marine genetic resources and biopiracy.The authors conclude that the implication of the principle of the common heritage of mankind to MGRs may further generate conflicts of law because it is impossible to imply this principle to the high seas. On top of it, the simplified access to MGRs together with the lack of protection of intellectual rights to MGRs and genetic information may result in the overexploitation of marine and oceanic resources as well as the spread of biopiracy. We also point out that it is necessary to find a balance between the freedoms of the high seas, the safeguard of MGRs, and the protection of intellectual property rights to genetic information or marine biotechnologies. The researches considered the distinction between the concepts of marine biological and marine genetic resources and revealed the problems of international legal regulation of the use of marine genetic resources. The authors conclude that generalization of the international legal framework for regulating the use of marine genetic resources needs legal improvement. The authors encourage the complement to the international legal regulation of the universal definition of marine genetic resources and biopiracy.