Sumario
Introduction. 1. Sharing benefits under sovereignty. 2. Lack of regulation: sharing benefits equitably and just from MGR in HSS. Conclusion. References.
Introduction
Have been enacted rules in International Law answering who owns what and gets what and how equitably and just when sharing benefits from Marine Genetic Resources (MGRS) in High Seas (HS): "water column"1? No discussions have been held on the possible legal rules related to MGRS above this "legal area" or as an "object of regulation". United Nations convention of the Law of the Sea (IJNCLOS) rules "biological resources"; the convention on Biological Diversity (CBD) rules "genetic resources"2 and none of them rules "benefits" from utilization of MGRS in HS's "water column". Main point is the ownership of benefits, later the definition on how to share them.
Possible answers: Hypothesis and thesis
Answers should be generated from international rights and obligations derived from international rules of law3 or interpretation and application of international legal rules (rights and obligations) proposing new rules to be enacted or a change of previous rules of law creating new legal consequences4. Rights of States, persons or groups of persons will be protected legally assuring gains from utilizations of these resources5. Later, international obligations and rights should be incorporated in accordance to current "legal situation" of international legal community according the forms in which fairness and justice take place (retribution, distribution, procedure) and main limits ("no-nothing" and "not-all": everyone should get something according to certain criteria based on rights but not all unless right over the resource allow this)6.
Further, certain basic international legal rules have been established in UNCLOS for living resources. MGRS are part of living resources or they have their own legal identity. Therefore, international legal rules on MGRS in HS should include the current international legal situation of these resources: sharing benefits from genetic information based on the knowledge from the research of this genetic information. It is based on the ownership of these resources, article 1 paragraph 2 of the International covenant on Economic, Social and cultural Rights (ICESCRS) states this right on natural resources7.
The focus of this article is on the application and interpretation of a rule of law (in international law "application" means "interpretation" because rules should be incorporated into national legal system and it is necessary interpretation8 and application) by focusing on the point arises an answer to the question on the nature of Justice as well as Equity, but it does not search for changing behaviour9-10. Law is not related to changing "a behaviour" or the behaviour of people, solving economic, social or environmental problems11 but it might help. It is the last ratio to solve human problems; the first one are political willingness, political ideas and economic capacity12 (main focus on sharing benefits is development in environmental areas13). Solving legal problems, gaining benefits for environmental and social needs, avoiding social and economic losses under the concept of legal system are important achievements for Law14. CBD, Nagoya Protocol (Protocol), ICSECR, various conventions on cultural rights, the International Treaty on Plant Genetic Resources, the International Treaty on Trade Related Intellectual Property Rights, the convention on Trade of Endangered Species15 are some treaties ruling part of the "international legal system" related to equitableness and justice on genetic resources. CBD focus on prohibitions, allowances or orders on one "factual element"16 or "rational legal element": "equitably and just sharing gains from the commercialization of genes" ("fair and equitable sharing benefits from the utilization") in the form of resources or knowledge. Gains will be shared to support conservation, sustainable use from biological resources or development (economic growth or economic support of the owners of the knowledge). Like any other "legal concept" ("share in a just and equitable way") should be analysed and defined17.
Subjects of law gain benefits from balance between distribution, negotiations and procedures dividing gains. These gains share equitably achieving certain goals based on CBD18, particularly article 15 paragraph 7 that reads:
7. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms19.
The thesis argued here is that a systematic interpretation of international legal rules should be considered for interpretation and application and creation on sharing benefits of MGRS in HS equitably and just.
1. Sharing benefits under sovereignty
CBD was adopted in Rio de Janeiro, Brazil in 1992 and opened for signature on June 5, 199220 and representatives of the Member States realized about "sustainable development" implicitly included and ruled by law when gains from the utilization of resources should be divided equitably and just. The concept has evolved including rights of human being(s) on the knowledge derived from the use of these resources, the possibility of confrontation between rights from the States or human beings and rights of companies. Main elements to solve the inclusion of new legal subjects in order to develop legal foundations to the division of gains are interpretation and procedure of interpretation and application of these rights21.
Since international rights and obligations need to be "implemented", some of these discussions have had a direct impact both, in international and national legal systems22. Further, the context is based on Sovereignty and relations between States organized in "International community"23: two or more countries being "a social system of continuing interaction and transaction"24. In sharing gains from genetics resources (financial or not) is necessary to comply with rights of States having a part in gains based on Sovereignty over them25.
International rights and obligations ordering an "Equitable Sharing of Benefits" have set reciprocity in the CBD. This treaty includes the right to define sharing of benefits by States in which genetic resources have been found without requirements that can run against the objectives of the CBD. In other words, rights as well as obligations play a key role in keeping reciprocity among parties of the aforementioned convention26.
As with any international legal rule, Article 15 of CBD has to obey "General Principles of Law" established for wrongful acts of States in their international relationships27. Therefore, violation of international rights and obligations stated in an international legal rule might generate State's responsibility28 including Article 15 of the CBD. "States do have to obey International Law" is the "line of reasoning" explored by international scholars in the second half of the 20th century29. "State Sovereignty", a key standard of International Environmental Law30, was presented to avoid responsibility of the State in implementing international obligations on human rights impeding external intervention in internal affairs of a country31, "State Sovereignty" has changed based on the idea of rights and obligations of the State32: the faculty to oblige other States to protect rights from violation impeding sharing benefits equitably to and from genetic resources33. "Sovereignty over Genetic Resources" is related, today, to the right to utilize (trading) resources for gains from them providing, protecting rights of other States on their own resources when genetic resources will be brought to their own jurisdiction to get protection from national and legal rules on property34.
The State, subject of rights: protection of them
The State "is a type of legal person recognized by International Law"35 fulfilling certain conditions, because International Law governs rights and obligations of international subjects with international legal personality36: on its territory State exercise sovereign rights from Sovereignty representing rights of people of a country protecting other States' rights in the same territory37. The State might be obliged by International Law to sanction violation of rights of other States by nationals or agents of the own State38. Further, the State protects resources inside its territory exercising its Sovereignty. Therefore, the territory defines limits but sharing benefits should have no limits39.
Rights and obligations
Right is "that which a person is entitled to have, or to do, or to receive from others, within the limits prescribed by law" or "a claim or title to or an interest in anything that is enforceable by law"40. In these two concepts the subject or "person", according to Gifts, is the State41. Obligation is the requirement to do what is imposed by International Law or promise42. In the Anglo-Saxon world the most important source of obligations is contracts between private parties whereas in the continental legal system the most important source is Law. International obligations do have a source in contracts, international customs and Principles of International Law, depending on the subject, States might be bound by contracts with private parties43. The nature of the obligation is different: obligations between States are based or on Private Law or on Public Law depending on the source of law applied (contracts, treaties) establishing legal obligations. Scholars have interpreted obligations of Article 15 in a Private interpretation (contracts vis-à-vis law44) while other in a Public interpretation.
Recognition and classifications
International rights and international obligations can be seen from different viewpoints, following one of them45, wording is one main object. In the case of international rights, Article 15 paragraph 1 of the CBD specifies categories included in this international legal rule: what (benefits) and how (equitable and just) to share. One author expresses46: words help recognizing existence of international obligations: "shall do", a command in a given situation47 and "may" adds a different view in terms of permission for a State in a given situation. From paragraph 2 to 7 of Article 15 of the CBD include various obligations and paragraph 4 the expression "shall be" states an international obligation regarding to the conclusion of "Mutually Agreed Terms"48. Nevertheless, Article 15 uses expressions like "shall endeavour" (paragraphs 2 and 6), "shall be" (paragraphs 4 and 5) and "shall take" (paragraph 7), in which international obligations have been asserted to make States meet the terms of the duties imposed by international rules. Article 15 has included a reference to Equity and Justice including them into the rule as a condition and asking for interpretation.
- Article 15 of the convention on Biological Diversity
Article 15 of CBD is general and abstract because legal rules order as a whole rather considering specific details and based on general concepts, sometimes difficult to interpret because richness in meaning e.g. "Equity"49. One of the criticisms about CBD is "ambiguity" of expressions due the drafting of them under the pressure of an international negotiation process in Kenya in 199150: terms shall be "general" and "abstract" to be accepted by all negotiators. Finally, commentators of the CBD have argued that its obligations are extremely "weak" and consider only certain obligations51. However, Law should be general and abstract and weaknesses or not of the rules depend on the willingness of their application by the State.
"Sharing of benefits" and "utilization of genetic resources"
Division of gains obtained from those resources, whether in scientific or commercial terms, in a broad sense, is the concept of "Equitable Sharing of Benefits arising from the utilization of Genetic Resources". Equity plays major roles in International Law as a basis for52:
"[I]ndividualizing" Justice tempering rigor of strict laws.
consideration of Fairness, reasonableness and good faith.
certain specific principles of legal reasoning associated with Fairness and reasonableness: estoppel, unjust enrichment, abuse of rights.
Equitable standards for the allocation and sharing of resources and benefits.
"Distributive Justice" used to justify demands for economic and social arrangements and redistribution of wealth.
This article considers to the concept on allocation of resources. As well, to understand the contribution of "Equity" and "Justice" it is necessary to point out that international rights and obligations on "Equitable Sharing of Benefits" seem to collide with the international obligations included in rules of the Agreement on Trade Related Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO)53. If the latter is applicable no "Equity" or "Justice" will be achievable because any information of genetic resources will be the property of the researcher. countries around the world have put forth the potential conflict between legal rules54. The Doha Declaration of the WTO55 clearly states importance of the conflict and solutions concerning legal rules. Legal rules enforcing sharing of benefits in an equitable and just form, the Protocol or rules of EU reinforce rights of people and States to receive gains from trade of these resources (based on human rights treaties or international environmental treaties). As well, national legal rules clarify the process of interpretation and application of this article. clarification will be drawn up from a basic classification between distributive, commutative and procedural Equity.
Equity, the formal view points
"commutative Equity" is the exchange or interchange that happens between parties in a transaction, contract, on genetic resources. Parties in the negotiation process will achieve one of the form of "Equity" if they are equal in legal and economic powers. "Distributive Equity" is the act of apportionment by a third party of benefits arising from genetic resources. "Procedural Equity" is the process in which a series of steps gives the opportunity to those that hold a right to the benefits to voice and ask for a share arising from genetic resources. Article 15 paragraph 7 establishes juridical acts to the CBD States parties should follow to comply with the obligation in the paragraph:
Share benefits in "a fair and equitable way".
Sharing should be with States provider of those resources.
Object of this sharing are results from research and development, benefits from the utilization (including commercialization).
Agreements for sharing benefits should be between States56.
As put forth by cassese57, International Law without interpretation and application in the national legal system has no interest. This is due to a process called "incorporation" in which International Law is included into the national legal system.
At the international level, the process of implementation in a legal sense can be achieved by treaties derived from other treaties like the Protocol as well as other sources of international law. These conventions can be considered interpretation of abstract terms of an international treaty, for example, Article 15 of CBD. On the other hand, laws rules the legal implementation in the national legal system.
"Equitable Sharing of Benefits" is primarily ruled by Article 15 of CBD58 and the article establishes certain commands for parties to CBD. Moreover, following Article 26 of VCLT, the performance of "Equitable Sharing of Benefits" is ruled by Article 1559 in good faith, therefore a new term should be considered. In this sense, any result of the division of gains should consider those involved by protecting their rights60.
The recognition of sovereignty over genetic resources
International treaties such as the ICSECR recognized sovereign rights over Natural Resources to people61 but it was not sufficient for the requirements of developing countries. Mexico, for example, defended States' control over Genetic Resources during CBD'S negotiations62. Nevertheless, its position changed during the last part of the negotiation process of CBD63, because acknowledgement of sovereign rights over Genetic Resources (the first international legal recognition of rights over genetic resources). certainly, this principle has been included in the Stockholm Declaration on Environment and Development64 and in UNCLOS65. However, since the inclusion in a treaty ruling genetic resources on land is considered a legal rule. Recognition of Sovereignty makes clear that States do have a right in decisions on genetic resources. However, this has not been the case in the history of these resources.
Before CBD, a large number of treaties on the Environment ruled biological resources; large animals and plants. None focused on genetic resources66. Today, more than 500 international agreements rule the Environment. Largely, these treaties rule conservation without considering micro-organisms and genetic resources. Briefly, CBD solved the problem of ruling genetic resources' sharing of benefits equitably and just (micro-organisms, plants and animals) but under territorial sovereignty.
- Cases studies on interpretation and application
Equity and Justice have been applied at the "International Law level", the Protocol and at the "comparative national law level" Brazil, India and the European Union.
Nagoya Protocol
The Protocol has been enacted to obtain an "Equitable sharing of benefits from the utilization of genetic resources"67 intrinsically related to CBD68. It has included rules on obligations to respect benefits according to international rights and obligations69 by reference "to the sovereign rights of States" and Article 1570. The scope of this Protocol includes sharing "benefits arising from the utilization of such resources"71. "[T]raditional knowledge" and the benefits from its utilization have been included as well72. The Protocol has been considered sharing benefits between States ("Party") providing or acquiring these resources73 as well to include genetic resources "held by indigenous people and local communities" in accordance to national legislation regarding rights over these resources74. Benefits might be monetary and non-monetary75 and knowledge over these resources has been included76. Therefore, definitions, moments, procedures for subjects of Equitable Sharing Benefits by International Law and later by national legislation as well as by "common agreed terms" have been considered. Benefits from utilization should be paid to subjects entitled by rights over these resources. The exact amount has to be defined by national legislation but it should not be, under any legal standard, unfair. What is "fair" and "unfair" is not established by the rule. However, when it is included in a legal rule is based on interpretation, in this case, considering different types of equity and amounts or percentage should rule the rights on the idea of earning "no-all" but "no-nothing" to those involve. Benefits should be used for improving quality of life of those entitled by Law or for conservation and sustainable use of the resources.
Regulation 511/2014
The European Union, in accordance to the Protocol and CBD, enacted a Regulation ruling one of the aspects of the gains ensuring that no genetic resources will be utilized without a lawful benefit sharing just and equitable to them77. The Regulation recognizes CBD as source of international legal rules on equitable sharing of benefits from genetic resources78 establishing "rules governing compliance with access and benefit sharing". Implementation of this Regulation in an effective manner will help "conservation of biological diversity and sustainable use of its components"79. The main goal of equitableness has been defined in this Regulation: the real possibility to receive gains from utilization of resources sustaining conservation and sustainable use80 (the "no-nothing" and "no-all").
2. Lack of regulation: Sharing benefits equitably and just from MGR in HSS
Legally speaking, the High Seas81 is a "common space" and everything there is under "open access regime" due to the "freedom of the high seas"82 including MGRS83; International Law protects such possibility under the legal figure of "occupancy"84. Once defined as a space in which States do not have jurisdiction, International Law has "moved" to define certain degree of control on the human activities on this part of the Earth85: the "flag rule" defining control over activities of vessels in the High Seas86, the International Court of Justice defining application of international treaties on certain biological resources87, a proposal towards an international agreement88vis-à-vis conservation, sustainable use and utilization of biological and genetic resources in this area have been discussed at the United Nations Organization and other international subjects89. This discussion is related to recent scientific discoveries90 as well as recognition of the degree of degradation of the Seas91. For this article the main point is to elaborate on the definition of rights of people, States and other subjects on biological and genetic diversity in the High Seas.
Such a definition might help determining division of gains to be occurred when genetic resources, accessed in this area, would be for development of new drugs or medicaments and new sources of information or development of research.
CBD and UNCLOS have been framed on the equitableness. Both recognized the sovereignty of States but used equity as a source to solve possible future conflicts in the utilization of resources. UNCLOS expressed such recognition to equity in the Preamble, the same for CBD.
Particularly, access to High Seas is unrestricted: There is no legal regime for genetic resources in High Seas unless the application of a different regime ruling biological resources and particular species92. However, an "inclusive interpretation" has been put forth93 as well a mixture of law and governance: institutional cooperation and coordination94. Others claim "commodification" and privatization although the gene pool might be "common heritage of mankind"95 but there will be no sharing benefits from genetic resources. conservation and sustainable use depending on the legal situation of the resource, is under a combination of two treaties, CBD and UNCLOS. However, utilization is not clearly ruled: Sharing the possible MGRS benefits' in High Seas is beyond these conventions: rule by CBD in TS, not ruled by UNCLOS in the High Seas, a first lack of regulation96. But, what is a gap, who define the gap and the quality of an act as necessary to be ruled and how in a legal syste,? And as an answer: Which sources will define who gets what from genetic resources equitably?97.
United Nations Convention on the Law of the Sea 98
Legal researchers understand UNCLOS99 ruling on marine richness (legal objects) by ruling renewable natural resources ("species and particular stocks") and non-renewable natural resources. On the first group of "legal objects" none regulation has been defined for genetic resources. Is it possible to define future regulation on MGRS on the High Seas applying certain legal rules from other international treaties? From a legal standpoint is necessary to define who gets what in an area of the World without a subject having rights per se or a priori in the Kantian way of the expression. Supposedly one rule might shade light on the subject: "Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the Law of the Sea"100.
Such rule establishes rights and obligations for coastal States in the Exclusive Economic Zone (EEZ). Beyond 200 Sea Miles no rights neither obligations might be applicable as far as CBD and UNCLOS are concerned because of the regulation of CBD: genetic resources under sovereign rights101. As well, main concern has been "practical options for benefits sharing, including options for facilitating access to samples" that should be read "practical" like contracts and "intellectual property aspects"102 (dimensions of North-South discussion arises: technology's owner against resources' owners: legally no ownership might be claim, prima facie103). However, more important is the place where genetic resources are situated: focus is on High Seas.
Spaces and High Seas
UNCLOS has established three main areas and the State has different rights with different degree of control: Full sovereignty (TS), sovereign rights diminish in extension (CZ), certain State's sovereign rights and certain international legal rights and obligations related to natural resources and with them to the environment (EEZ). TS is defined in article 2 paragraph 1 based. The rule of International Law explains the degree of extension of the rights derived from sovereignty. The extension is not horizontal but vertical too: air space. It is possible to define some specific obligations derived contrario sensu from the "right to innocent passage", for example, letters "h" (pollution), "i" (fishing), "j" (research and survey) of Article 19, international obligations for subjects of "the right to innocent passage" and the flag State of the ship. Other treaties have established rights like those related to climate change104. As well CZ establishes certain rights to the coastal state: to "punish the infringement of the above laws and regulations" it means on international legal rules stated for TS has an extraterritorial application because the State, due to infringement of these laws, will prosecute ships and people established outside TS. The violations of those international legal rules have been committed in the territory or in TS as stated in Article 33 letter "b". Further, EEZ starts after TS and is subject to certain specific rights as stated in "Part v" of UNCLOS. As far as this research is concerned CS has certain rights like sovereign rights for "the purpose of exploring and exploiting, conserving and managing the natural resources" and "other activities for the economic exploitation and exploration of the zone" for example, production of energy, (letter "a" paragraph 1 of Article 56). UNCLOS recognizes jurisdiction to "marine scientific research" and "protection and conservation of the environment" as established in article 56 paragraph 2 "ii" and "iii". UNCLOS in paragraph 2 of Article 56 considers rights of other States on this area.
The utilization of resources
As pointed out in UNCLOS, utilization of resources has been established for the coastal State till 200 Sea Miles and no other regulation after this limit105.
The main problem is the utilization of natural resources beside the Area. Although article 59 includes, in case of conflicts, "equity", "the relevant circumstances", "the respective importance of the interest involved to the parties as well as the international community as a whole" the consideration to an interest from a sovereign State and its rights established in an international treaty creates a different juridical framework vis a vis the utilization of natural resources in the High Seas: it might be a possible source for new international legal rules considering the possibility of establishing of rules of solution of conflicts derived from the utilization of natural resources. In order to define the concept of "utilization" of natural resources, particularly living resources, by defining "its capacity to harvest the living resources", give access to Third States to the "surplus of the allowable catch", paragraph 2 of article 62. As well article 62 paragraph 3 considers "all relevant factors" among them "significance of the living resources of the area to the economy of the coastal State", "its other national interest", "provisions of articles 69 to 70", "requirements of developing States in the sub-region or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone" and the second possibility is on States "which made substantial efforts in research and identification of stocks" something that has been considered by the International Court of Justice106.
¿Private rights on derivatives of Marine Genetic Resources?107
The discussion on benefits has been focus for long time on intellectual property rights and it is a controversial issue not well propose. MGRS have a free access108, clearly sharing of benefits has not been stated in an international legal rule on the subject but the rights over these resources belong to "all people". Therefore, just applying this line of reasoning any other rights on these resources will produce a legal confrontation.
On derivatives, however, the complexity changes. It is clear, under CBD and the Protocol as well as the European regulations that sovereign rights on genetic resources and their derivatives should be protected under national legislation. This is clear for genetic resources under a jurisdiction derived from sovereignty. It is unclear for MGRS. If they belong to "all people", the hypothesis of this article, they have rights over these resources and derivatives. Therefore, a legal collision might be presented.
The conservation and sustainable use of resources
Section II of Part VII rules the Conservation and Management of Living Resources on the High Seas. Fishing living resources109 is free for all nationals of all States in the High Seas in accordance to article 116. However, the same article includes certain legal limits based on treaties from the State, rights and duties for the State based on certain articles of the convention and the provisions from Section II. A general rule on conservation of living resources is established in Article 117. Therefore, in case of genetic resources this general rule should be applicable and the only possible exception might be vessels without a State flag and considering such a vessel as a pirate might be possible. A second international obligation of cooperation in the conservation and management of living resources arises from article 118. On the conservation of living resources in High Seas certain measures should be taken, all of them stated in Article 119, like maintaining and restoring populations of living resources, letters "a" and "b" of the aforementioned article.
Recognition of International Law by an international rule of law
The Preamble of UNCLOS expressly includes "a legal order for the Seas and Oceans" considering goals, among others, "the equitable and efficient utilization of their living resources, the conservation of their living resources" and these goals "will contribute to the realization of a just and equitable international economic order" considering interests and needs of mankind as a whole as well as needs of developing countries. As pointed out before, "Sovereignty over Genetic Resources" is related to the right to control these resources in order to conserve, use but particularly utilize or trade resources for gains from them to provide for their people110. Therefore, international rights as well as international obligations of the State are the viewpoints heralded by this study, proposing, modestly, that genetic resources in High Seas are under the "rights of the people": benefits should be shared in accordance to this international legal rule. Further, future international regulations on this subject should consider and define who or how will be the division of gains considering interest to conserve genetic resources in the High Seas and need from people to have benefits from products derived from the information of MGRS. In principle, such discussion should not prevail because the gains from the products might be shared in order to help for conservation and further research and to provide for the need of people.
Conclusion
In International Law of the Sea no legal rules have been enacted to rule on sharing benefits from MGRS in the water column answering the research questions because such degree of specification has not been achieved and other "spaces" in the sea are under the rule of law. Certainly, rules should be based on minimum impact of costs for research and other activities in the High Seas. Solutions to this problem, lack of legal rules, should considered existing legal rules (actually "in force") in an harmonic and systematic (logical) interpretation and application of these rules as explained in the article. On the subject owning MGRS it is possible to derive legal rules on "ownership" over MGRS based on international conventions, ICSECR particularly, article 1 on the disposition of natural wealth and resources belonging to "all people" (subjects of this right) in the world, might serve as basic rule. High Seas belongs to no one and wealth and resources in these areas belong to "all people" represented by States unless a legal exemption. Therefore, benefits should belong to them but administration might be exercise by the States or an international organization. In defining gains to everyone two rules should be followed, one on investment for creation of benefits and other on ownership over these benefits. Sharing benefits from genetic resources might be possible applying one of current legal "models" or a combination based on rights and principles from International Law and legal theory defining rights and obligations based or on International Customary Law or Principles of International Law or legal reasoning behind international legal rules in UNCLOS (the 200 miles zone regime) and a process of enactment using analogy of new international legal rules, based on sources. Any kind of rights over benefits should consider the rights over resources. On the question of what to get a possibility is intellectual property rights on a discovery or sovereign rights over natural resources properly but might collide against rights of "all people" owned by States and possibly monetary gains from their commercialization. On justice and equitably the case study as well other elements concludes on defining percentages to be used for conservation of MGRS om HS.