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CHINA LEGAL SCIENCE 2019年第5期 | 国际海底区域遗传资源开发制度构建
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第5期 作者:zzs

ESTABLISHING THE EXPLOITATION REGIME OF GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA


Xu Ying


TABLE OF CONTENTS


I. LEARNING FROM GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA

A. Bilateral Development Pattern

B. The Multi-Lateral Pattern

C. Intellectual Property Pattern

II.  CHOICE ON EXPLORATION AND EXPLOITATION PATTERNS OF GENETIC                      RESOURCES IN THE INTERNATIONAL SEABED AREA

A. Legal Attributes of Genetic Resources in the International Seabed Area

B. Management Institutions of Genetic Resources in the International Seabed Area

III.  ACCESS PATTERN OF GENETIC RESOURCES IN THE INTERNATIONAL SEABED              AREA

A. The Management System of Access

B. The Application Scope of Access

C. Condition Restriction of Access

IV. THE BENEFIT-SHARING SYSTEM FOR GENETIC RESOURCES IN                                      THE INTERNATIONAL SEABED AREA BASED ON INTELLECTUAL PROPERTY

A. Theoretical Basis: The Applicability of Intellectual Property

B. System Construction: The Equity of Benefit Sharing

V.   CONCLUSION


The exploitation regime of genetic resources in the international seabed area has become a compelling issue amongst the international community. The existing exploitation regimes of genetic resources include bilateral pattern, multilateral pattern and intellectual property pattern. On the basis of the comparison and reference, genetic resources in the international seabed area should be deemed as the common heritage of all mankind and regulated by the International Seabed Authority. Meanwhile, the access should be a joint system dominated by the International Seabed Authority to break through the limitations of the parallel system and balance different interests. More importantly, the benefit-sharing system should be based on intellectual property and oriented to public interest by taking measures, including establishing disclosure requirement of source information, making strict patent requirements, expanding benefit sharing of monetary and technology, and strengthening benefit-sharing supervision. 


Since the discovery of living creatures in deep-sea hot springs by humans in the 1970s, the exploration and research of deep-sea genetic resources have never stopped. The special living environment, metabolic structure and enzyme system of deep-sea genetic resources have enabled them to be widely used in the field such as medicine, industry, and ecology, and made a top priority in resource development by countries. However, as a new type of marine resource, the existing international law lacks explicit pertinent provisions. No consensus has been reached among the countries regarding its legal status and attributes. Consequently, the international community has shifted its focus of attention to building an exploitation system. Therefore, how to regulate the exploration and exploitation of genetic resources in the international seabed area (hereinafter referred to as the Area), a concentrated area of deep-sea genetic resources, has become the major concern of the international community and an urgent problem to be solved. This paper, therefore, takes the genetic resources in the Area as the research object and, through studies in the patterns of exploration and exploitation of genetic resources, attempts to build an access and benefit sharing-based mechanism for exploration and exploitation of genetic resources in the Area so as to effectively regulate exploration and exploitation of genetic resources in the Area and make contributions to China in deep-sea activities. 


I. LEARNING FROM GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA


The United Nations General Assembly has put exploration and exploitation of genetic sources in the agenda of discussion on conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Studies in previous BBNJ work reports found that the international community has broken through the limitations of a single legal framework and transitioned to a diverse applicability model in terms of exploration of genetic resources in the areas, which, in particular, includes bilateral pattern, multilateral pattern and intellectual property pattern.


A. Bilateral Development Pattern


The Convention on Biological Diversity and the Nagoya Protocol are typical examples of bilateral pattern, which regulate the access to and benefit sharing of biological resources by the provider countries and user countries of biological resources. In accordance with the above-mentioned convention and protocol, the significance of the bilateral pattern for exploration and exploitation of regional genetic resources is as follows. Firstly, the bilateral pattern aims at the conservation of biological diversity and the fair and equitable sharing of the benefits derived out of the utilization of genetic resources, based on the principle of balancing interests of the countries involved, which provides the guidance to the exploration and exploitation of the genetic resources of the Area. Secondly, the bilateral pattern explicitly requires the prior informed consent by the resource provider country or mutually agreed terms regarding access and benefit sharing between the provider country and user country, which provides new ideas for establishing the exploration and exploitation mechanism of genetic resources in the Area. Thirdly, the bilateral pattern for sharing multi-benefits, including intellectual property rights, is consistent with the attributes of regional genetic resources and the expectations of the countries in the Area for benefit sharing.

However, the significance of the bilateral pattern to exploration and exploitation of genetic resources in the Area can hardly offset its limitations. Firstly, the prerequisite of the bilateral pattern is clear ownership, provider country and user country of the genetic resources. Nevertheless, the fact is that the ownership of the genetic resources beyond the national jurisdiction is obviously contentious and there is no genuine provider. Therefore, the biggest issue is that the prior informed consent and mutually agreed term mechanisms of the bilateral pattern can hardly work effectively. Secondly, the bilateral pattern to access to resources and benefit sharing is based on the contract entered by the provider country and user country. The contract is signed with no guidance of international regulations and the mutually agreed terms are subject to the interference of the contractual countries. Thirdly, the scope of benefit sharing established by the bilateral pattern is limited to the resource provider, which is consistent with the national attributes but inconsistent with the non-national attributes of the genetic resources in the Area, thus resulting in a narrow scope of benefit recipients. Finally, the bilateral pattern lacks supervision over and evaluation of access to and benefit sharing of genetic resources by specific institutions. The Nagoya Protocol explicitly provides that benefits shall be monitored by the user country, but as for the genetic resources in the Area, the self-monitoring by the user country can hardly be effective in regulation.


B. The Multi-Lateral Pattern


The multilateral pattern is represented by the International Treaty on Plant Genetic Resources for Food and Agriculture (hereinafter referred to as the Food and Agriculture Treaty) with the multi-lateral system as its core, under which access to and benefit sharing of the genetic resources are specified. Studies of the Food and Agriculture Treaty found that the multi-lateral pattern is helpful to the genetic resources in the Area mainly in the aspect of establishing a pertinent multi-lateral system. The multi-lateral system is a regulatory mechanism created by developing countries to curb biopiracy in developed countries. Each contracting party determines the access to and benefits of genetic resources in advance through multilateral negotiations. Resource providers and acquirers only need to comply with the requirements, without having to agree on mutually agreed terms for each access. The framework of the mechanism strikes a balance between ensuring easy access to genetic resources and protecting the intellectual property rights of their derivatives. This framework requires cooperation, coordination, transparency and efficiency and thus has a positive effect on the exploration and exploitation of genetic resources in the Area.

However, the studies in the specific contents of the multilateral system found that there are still many difficulties in the application of the multilateral pattern to genetic resources in the Area. Firstly, the multilateral system is not inclusive. Instead, it only applies to particular plant genetic resources for food and agriculture. Whether a genetic resource can be included in the annex of the instrument requires re-examination by the parties, and the examination process embodies the game of power of all parties. At the present time, scholars do not know everything about genetic resources. Without complete naming or classification systems, it is in fact unlikely to define them and short of the base of interests for the game of the state power. Secondly, the multilateral system clearly distinguishes the access to genetic resources and applies different access rules. Access, if for the purpose of research, breeding and training, is free of charge. Otherwise, payment for commercial purposes is mandated, amounting to 1.1 percent of total sales after commercialization. However, as for the genetic resources in the Area, scientific research is closely related to and hard to distinguish from bioprospecting. The mandated payment for benefits has little effect in practice. Few payments have been made. Distinguishing between different purposes of access does not correspond to the characteristics of genetic resources in the Area. Thirdly, the multilateral system lacks a supervisory and management mechanism and cannot effectively evaluate the access and benefits. But it is necessary to establish a long-term regulatory mechanism based on the special living environment of the genetic resources in the Area and its unique social value.

In general, the multilateral pattern has overcome the defects of the bilateral pattern to a certain extent, and is obviously helpful to the genetic resources in the Area. The multilateral system, which is at the core of the multilateral pattern, can be an important reference for the mechanism of the genetic resource exploration and exploitation in the Area.

C. Intellectual Property Pattern


Intellectual property is an incentive mechanism that encourages technological innovation by granting inventors a certain period of time and a certain range of monopoly rights. The resource exploitation model with intellectual property as the core can effectively promote the generation of benefits and lay the basis for benefit sharing. The intellectual property  pattern is reflected in the Food and Agriculture Treaty and the Nagoya Protocol. In terms of genetic resources in the Area, the main incentives provided by intellectual property are as follows. Firstly, intellectual property  can effectively promote the research and development of genetic resources in the Area. The scientific research of the genetic resources in the Area is an arduous project involving high costs, huge investment, long time and high risks. Without the encouragement and stimulation of the corresponding incentive mechanism, it is difficult to effectively promote the continuous development of the project. Secondly, intellectual property can fully achieve the potential value of genetic resources in the Area and maximize the benefits of humanity. The incentive mechanism of intellectual property can encourage developers to increase their investment in genetic resources, fully achieve their potential value, and strive to extract their own value to promote human progress. Thirdly, intellectual property have clear property boundaries separating the public and private sectors, which defines the boundaries of free access and licensing. The private ownership of intellectual property  is limited to the intellectual achievements the inventor creates, excluding the genetic resources in the Area themselves. The former belongs to the private sector and needs licensing while the latter is in the public domain and is free to access. This is essential for quelling disputes between developed and developing countries on property rights of the genetic resources in the Area. Finally, it should also be specified that the work done by the developers of genetic resources in the Area should be respected. This is an inherent requirement of benefit-sharing system based on intellectual property, and also an important factor to consider in establishing the exploration and exploitation system of genetic resources in the Area. 

However, in practice, intellectual property is often used as an important weapon by developed countries to extract resource benefits, and hinder the development of developing countries, and become shackles that constrain the fair and equitable distribution of genetic resources in the Area, thus resulting in strong resistance from developing countries. The basic connotation of intellectual property is balancing interests, that is, seeking the most ideal way of benefit sharing between the inventor and the public. Intellectual property  have become a tool for the benefit of the developed countries due to the imbalance of their distribution of interests, that is, partially protecting the interests of developers while ignoring the actual needs of developing countries. Therefore, the correct and effective implementation of intellectual property in the field of regional genetic resources requires a focus on the contradiction between private rights and public rights and the balance of interests between developed and developing countries.

In a word, the intellectual property pattern is crucial in encouraging the exploration and exploitation of genetic resources in the Area. It lays an importation foundation for benefits production of genetic resources in the Area. In building the exploration and exploitation mechanism of genetic resources in the Area, it is suggested that efforts could be made to establish a benefit sharing system based on intellectual property rights.


II. CHOICE ON EXPLORATION AND EXPLOITATION PATTERNS OF GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA


As is remarked in the previous text, the existing exploitation patterns of genetic resources has both advantages and disadvantages to be used for reference to genetic resources in the Area, which is hard to explain briefly. Therefore, the advantages and disadvantages of each current exploitation pattern should be examined comprehensively, so as to construct a rational pattern in line with the characteristics of genetic resources in the Area. Specifically, the rational pattern should be as follows: identifying genetic resources in the Area as the common natural heritage granted to mankind, making the resources to be managed by the International Seabed Authority, specifying their conditions of access through the multilateral system and then establishing a benefit-sharing system based on intellectual property. Details are provided below in regard to the four aspects concerning legal attributes, management institutions, access patterns and the benefit-sharing system of genetic resources in the Area.


A. Legal Attributes of Genetic Resources in the International Seabed Area


Genetic resources in the Area are beyond national jurisdiction. Hence it is crucial to define the legal attributes for their further exploitation. Disputes between developed and developing countries on the legal attributes of the resources focus on whether genetic resources in the Area belong to the common heritage of all mankind or are res nullius. If the genetic resources belong to res nullius, they are available on the basis of first come, first serve. If they are the common heritage of all mankind, then the four elements of the principle of common heritage of all mankind should be followed, including no allocation, international management, benefit sharing and exploitation for peaceful purposes. From previous discussions of the BBNJ on the legal attributes of genetic resources in the Area, we can find out that defining the genetic resources as the common heritage of all mankind will be more in line with the characteristics thereof and can balance the interests of both parties.

First of all, defining genetic resources in the Area as the common heritage of all mankind is in full compliance with the object and purpose of the United Nations Convention on the Law of the Sea (hereinafter referred to as the UNCLOS). Although the UNCLOS does not specify genetic resources in the Area, as a charter instrument in the field of law of the sea, the relevant principles and purposes of the UNCLOS are still of guiding significance. The purpose of the UNCLOS is to safeguard the common interests of all mankind and promote the exploitation of marine resources in a more equitable and efficient way. Therefore, once the genetic resources in the Area are deemed as res nullius, developed countries with advanced technology and sufficient capital will monopolize these resources, which will run counter to the principle of fair and equitable exploitation. On the contrary, if they are deemed as the common heritage of all mankind, both the developed and developing countries can participate in relevant activities and share the interests, which is in compliance with the object and purpose of the UNCLOS.

Secondly, genetic resources in the Area lie in the Area, and they are inseparable from each other. In accordance with the provisions of the UNCLOS, the principle of common heritage of all mankind is applicable to the Area and its mineral resources. Apparently, the genetic resources in the Area do not fall under the category of mineral resources, but they are located in the Area, so the principle of common heritage of all mankind is applicable. There are two main criteria for determining whether an object belongs to the Area or its surrounding waters. One is to determine how close the object is to the Area, and the other is to determine whether the object is different from surrounding waters. Genetic resources in the Area are mainly located near deep-sea hydrothermal vents where they gain energy released from inorganic chemical reactions at the vents, and the mentioned vents are caused by the strong geological activities in the Area. As a result, genetic resources in the Area are considered to be closely connected to and inseparable from the geographic area. In addition, the waters flowing through the genetic resources are fundamentally different from waters in the surrounding area, and the waters flowing through the genetic resources are an integral part of genetic resources or hydrothermal vents while the surrounding waters are just the external environment that exists objectively. Genetic resources in the Area, therefore, fall into the range of the Area and are the common heritage of all mankind.

Thirdly, more and more genetic resources are recognized as the common heritage of all mankind. The Convention on Biological Diversity has established the principle of national sovereignty to genetic resources in order to prevent developed countries from wantonly grabbing genetic resources within national jurisdiction. However, its establishment has not fundamentally broken up the monopoly of the genetic resources in these developed countries. Therefore, in the negotiation process of the Food and Agriculture Treaty, the principle of state sovereignty over genetic resources was de facto restrained for the purpose of establishing the access and benefit sharing polysystem, and thus, in return, to push those developed countries to make concessions in the intellectual property system. All of these show a promising trend that the principle of state sovereignty of genetic resources is gradually approaching to the principle of common heritage of all mankind. Under the circumstances, it follows the trend to deem genetic resources in the Area outside national jurisdiction as the common heritage of all mankind.

Fourthly, the definition of the common heritage of all mankind can be expanded. Since the common inheritance of all mankind is not clearly and solidly defined, there lacks a complete and self-consistent internal regulatory system, or an international convention with universal binding force. Therefore, in terms of genetic resources in the Area, this principle should be applied to balance the interests of developed and developing countries through expanding or narrowing down its connotation. Therefore, developing countries, on the premise that genetic resources are deemed as the common inheritance of mankind, may make adjustments to relevant contents in exchange for the recognition and acceptance of these attributes by developed countries.


B. Management Institutions of Genetic Resources in the International Seabed Area


The common limitation of the bilateral and multilateral patterns of genetic resources is the lack of unified regulatory institutions. Therefore, for the purpose of protecting and monitoring genetic resources in the Area, it is necessary to set up corresponding regulatory institutions to manage them. However, the functions of the International Seabed Authority has been limited to regional mineral resources, so there exist some problems with its application to the genetic resources in the Area. However, if its scope of functions is expanded, the International Seabed Authority will still have inherent advantages as the governing body for genetic resources in the Area.

Firstly, setting up a new institution will meet with many difficulties and may be hard to meet with real needs. The new regulatory institution is responsible for dealing with multiple relations, among which there are two significant issues which must be tackled: one is to balance the interests of developed and developing countries, and the other is to draw the functional boundary between the new institution and the International Seabed Authority. At present, international negotiations on the area of genetic resources have reached an impasse and it seems unlikely that substantive progress will be made in a short period. Under the circumstances, the negotiation of the new management institution is inevitably to move in cycles and make progress slowly with twists and turns, thus unable to make the timely response to urgent practical needs, which will undermine the practical value of the new institution. In addition, the genetic resources in the Area are so closely connected to the Area that the new institution cannot ignore the protection of the Area and its mineral resources located therein when managing the genetic resources in the Area. Similarly, in managing mineral resources in the Area, the International Seabed Authority may often encounter problems with the management of genetic resources in the Area. Therefore, how to properly draw the functional boundary between the International Seabed Authority and the new institution is a practical issue that the new institution needs to deal with.

Secondly, the International Seabed Authority has rich regional management experience and is capable of effective management of genetic resources in the Area. Since its inception in 1994, the International Seabed Authority has taken effective measures to control regional mineral resources, to have a positive and innovative attitude to promote the orderly development of regional mineral development and constantly improve its organizational structure on the basis of these procedural matters, such as monitoring and reviewing contracts and substantive matters and formulating mining regulations and environmental protection rules. The International Seabed Authority has publicly strived for its management status on genetic resources in the Area on a number of international occasions, identifying its potential to become a significant forum for the development of regional biodiversity legal regimes and making substantive efforts to that end. These efforts lie in the recent research results and technologies of genetic resources in the Area, monitoring of the global economic impact of the resources and the study of possible legal issues concerning the resources.

Thirdly, the International Seabed Authority occupies a dominant position, which facilitates the exploitation of genetic resources in the Area by developing countries. At the very beginning of its establishment, the International Seabed Authority encouraged developing countries to take an active part in regional mineral exploration activities and provided technical training, scientific research and other support policies for those countries. The examination of the contracts entered by the countries regarding the exploitation of minerals found that 20 pioneering investment state parties are involved in the 29 contracts, out of which 9 are developing countries, including the least developed countries such as Tonga and Nauru. The impartiality of the International Seabed Authority in judging the interests of developed and developing countries has enabled it to naturally balance the interests of both parties and the International Seabed Authority protect the interests of those developing countries to the utmost as long as it can fairly safeguard the interests of both sides. In consequence, it is therefore in accordance with the regional interests of developing countries to have the International Seabed Authority as the regulatory institution for genetic resources in the Area.


III. ACCESS PATTERN OF GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA


The access pattern of genetic resources in the Area is primarily concerned with the management system, the application scope and the restricted conditions of access. The management system of access deals with the relationship between the access subject and the management organization. The application scope of access is used to clearly identify the objects, regions and uses. And the restricted conditions of access are based on the protection of the environment of the Area and the disclosure of the acquired information.


A. The Management System of Access


Given the facts that genetic resources in the Area belong to the common heritage of all mankind and are managed by the International Seabed Authority, the access system of the genetic resources can be established with the reference of the access system of mineral resources in the Area. The latter once hovered between the unitary system and the registration system, and finally the parallel system prevails. In fact, the parallel system is the coordination and integration of the unitary system and the registration system. On the one hand, the Business Department of the International Seabed Authority has the right to directly exploit the reserved area, which reflects the unitary attribute of the unitary system. On the other hand, other subjects are allowed to exploit the contract area on their own, which is consistent with the requirements of the registration system. However, the parallel system has many limitations for genetic resources in the Area. Firstly, the parallel system is weak in control, which makes it hard to safeguard the interests of developing countries. Unlike the reserved area, the contract area is under the control of the International Seabed Authority mainly on the administrative basis, which is weak in force. Within the reserved area, the internal control is not stable as the Business Department is entitled to choose to exploit independently or with other countries. In addition, the increasingly obvious trend of joint exploitation has discouraged the International Seabed Authority from independently exploiting the reserved area. Secondly, the reserved area system is weak in force, and biased toward developed countries. The reserved area system, as the core of the parallel system, has blocked developed countries’ direct participation in exploiting resources in the Area; but some joint enterprise is seeking changes of the reserved area system in the sulphide exploration regulations. This indicates that the blocking mechanism of the reserved area has been challenged and developed countries have increasingly participated in the exploitation of the reserved area.

Based on the analysis above, the access mechanism of genetic resources in the Area should take the effective monitoring of the International Seabed Authority as its primary goal in order to ensure fair access and safeguard the interests of developing countries. It, therefore, should attract other countries to get involved, increase the access efficiency and reflect the interests of developed countries. To meet the two requirements, the access mechanism of genetic resources in the Area can be deemed as a joint exploitation system led by the International Seabed Authority that realizes its leading position through the system designs such as equity distribution, real-time reporting and voting weight. The major advantage of the joint exploitation system is the balance of the interests of developed and developing countries.

First of all, the joint exploitation system can overcome the drawbacks of the parallel system and safeguard the interests of developing countries. Unlike the substantive characteristics of mineral resources, genetic resources in the Area are endowed with special information attributes, which generate new requirements for the monitoring of the International Seabed Authority and make continuous and stable monitoring necessary. The joint exploitation system can ensure the real-time participation of the International Seabed Authority and help the International Seabed Authority to timely access to the information and results related to genetic resources in order to ensure monitoring the full process of the exploitation. Secondly, the joint exploitation system encourages the participation of developed countries, which is in line with the interests of developed countries. The joint exploitation system reduces the exploitation costs of developed countries by abandoning the reserved area system. When cooperating with the authority, developed countries directly participate in resource exploitation, and thus will obtain more exploitation interests. Thirdly, the joint exploitation system puts different weight on the interests of developed and developing countries, which reflects the principle of fairness. The joint exploitation system is slanted when protecting the interests of developed and developing countries and such a slant can be justified by the strength gap between developed and developing countries. Respect for the interests of developing countries is literally an important manifestation of the principle of fairness.


B. The Application Scope of Access


The scope of access can be specified from three aspects: object, usage and area. Specifically, the objects of access should be all the genetic resources in the Area. The purposes of access should not be distinguished. And the areas of access should be limited.

Firstly, the objects of access should be all the genetic resources in the Area. The easy access mechanism established by the Food and Agriculture Treaty has defined the types of food and agriculture genetic resources. This is mainly because developed countries try to curb the interests of developing countries. But for genetic resources in the Area, access should apply to all the genetic resources. First of all, genetic resources are not clearly classified due to the lack of a realistic basis for its classification. At present, the scientific research on genetic resources in the Area is still in its infancy, and the value and characteristics of various genetic resources are far from clear, so there are no objective conditions for its classification. In addition, the inclusion of all the genetic resources is helpful to establish a complete research system and promote the development of scientific research. Secondly, the full coverage of all the genetic resources will benefit developing countries. Excluding certain genetic resources from the access scope may lead to the exclusive use of relevant resources by developed countries, which will incur detriment to the interests of developing countries.

Secondly, the purposes of access should not be distinguished. The Food and Agriculture Treaty limits the applicable purposes of access to research, breeding and training, and it also restricts commercial use through mandatory payments. For genetic resources in the Area, research and business should be viewed equally. Research needs business support, and business is based on scientific research. The research of international community on genetic resources in the Area is still far from adequate. Against this backdrop, the access based on scientific research should be actively encouraged. At the same time, genetic resources are easier to be accessed than mineral resources, so we should also value their commercial access. Therefore, scientific and commercial purposes should not be distinguished and applied to different access mechanisms.

Thirdly, the accessible areas should be limited. The accessible areas of genetic resources in the Area should be limited for three main reasons. First of all, for the good of the scarce genetic resources, the International Seabed Authority, when deciding to exploit some areas, should temporarily freeze the access to resources in environmentally vulnerable areas and areas rich in genetic resources. Secondly, the immature exploitation mechanism of genetic resources has prompted the International Seabed Authority to temporarily limit the large-scale access to genetic resources, and it will gradually liberalize access to the related area after the exploitation mechanism is improved. Thirdly, the joint exploitation system balances the interests of both developed and developing countries, and on that note, the International Seabed Authority, when deciding joint exploitation subjects, tries to avoid sharing similar areas with developed countries, but leaves them to developing countries.


C. Condition Restriction of Access


In addition to the basic restrictions on funds and technology, access to genetic resources in the Area should also be restricted on their environmental protection and information disclosure conditions.

The first is to establish a full-process environmental monitoring system. The access to genetic resources will inevitably have a negative impact on the environment of the Area, of which the uniqueness raises additional requirements on environmental protection. Specifically, a full-process environmental monitoring system should be established to protect the environment of the Area. The first step is to build a prior warning mechanism for environmental protection. The joint exploitation subjects should make a comprehensive and detailed analysis on the feasibility environmental protection before it files the application, and this analysis should serve as an important factor for the International Seabed Authority in approving its participation in joint exploitation. Moreover, for potential environmental problems, the exploitation subjects should work out a prior warning plan to make sure they are controllable. The second step is to improve the in-process environmental monitoring mechanism. The joint exploitation subjects should conduct full-scale monitoring of all phases and links of the access activities, detect possible environmental problems in time and solve them in the prevention phase so as to avoid irreversible environmental damage. The third step is to build an ex post facto evaluation mechanism of environmental protection. After the access is completed, the joint exploitation subjects should evaluate the environmental conditions in a timely manner, and the Authority will regard the evaluation as an important basis for re-approving its participation in joint exploitation.

The second is to build an information disclosure system. In order to ensure the leading position of the International Seabed Authority and timely access to genetic resources in the Area, the joint exploitation subjects should establish a complete information disclosure system. First of all, in terms of the disclosure scope, the original genetic resources are mainly targeted. All the acquired information related may fall within the disclosure scope, including but not limited to technology, funding, processes, access categories, etc. But the research and exploitation of the original genetic resources and its derivative information will be excluded from disclosure. Secondly, in terms of the disclosure phase, the access phase is highly appreciated. During the access phase, the International Seabed Authority and the exploitation subjects jointly participate, so the information generated in this phase should be disclosed. But the information derived in the research and exploitation phase or even in the commercial application phase should not be disclosed. Thirdly, the International Seabed Authority should monitor and evaluate the content disclosed by the exploitation subjects and prohibit false disclosure and retention disclosure. This evaluation serves as the basis for disapproving of further joint exploitation.


IV. THE BENEFIT-SHARING SYSTEM FOR GENETIC RESOURCES IN THE INTERNATIONAL SEABED AREA BASED ON INTELLECTUAL PROPERTY


The benefit-sharing system is the core and attribution of the exploitation system for genetic resources in the Area. There are two major issues about constructing a benefit-sharing system based on intellectual property. One is the compatibility of intellectual property with the UNCLOS. The other is the balance between the private interests and the public interests in intellectual property. The two issues can be well addressed from the perspectives of the theoretical basis and institutional construction.


A. Theoretical Basis: The Applicability of Intellectual Property


To incorporate the intellectual property system into the construction of an exploitation mechanism for genetic resources, the applicability of intellectual property to genetic resources should be ascertained, that is, whether intellectual property contradicts the UNCLOS. The UN General Assembly has made a special report on this issue and raised three questions: whether intellectual property constitutes a claim to the Area, whether intellectual property conflicts with marine scientific research, and whether intellectual property hinders dissemination of marine information. It is therefore necessary to examine the applicability of intellectual property in the context of the UNCLOS and ascertain their relationship.

Firstly, intellectual property does not constitute a claim to the Area. Intellectual property is an exclusive private right, which is deemed to be in conflict with the prohibition of any claim in the Area under article 137 of the UNCLOS. Pursuant to article 137, the applicable subjects shall include any country, natural person and legal person. The prohibited objects shall include any part of the Area or the resources therein. And it is prohibited to claim for or exercise sovereignty or sovereign rights or to appropriate any part of the Area. As a private right, intellectual property is only applicable to a natural person and legal person. Therefore, pursuant to the prohibition rule, there is only one kind of prohibition related to intellectual property, that is, any natural person or legal person is prohibited from appropriating any part of the Area or its resources, and no such acts shall be recognized.

From the perspective of intellectual property, intellectual property (patent) protects the human intellect achievements which are novel, creative and useful. Any part of the Area or its resources belongs to the nature, that is, it is not human creation though it may have useful and novel attributes. In terms of genetic resources, both the genetic resources themselves and the DNA fragments or sequences extracted from them are natural products. The pure extraction or discovery behavior is not creative and cannot be deemed as a condition for granting intellectual property (patent). In addition, the exclusive protection of intellectual property is characterized by prescription, and its burden will be lifted after the prescription period expires. But the appropriation of the Area or its resources is subject to no prescription. Therefore, the objects of possession of intellectual property do not include any part of the Area or its resources, and the possession is not appropriated by a natural or legal person.

Secondly, intellectual property does not conflict with marine scientific research. The exclusive use of the marine environment and its resources in intellectual property is deemed to constitute a claim under article 241 of the UNCLOS, which is contrary to the content of the article. However, it is found that article 241 aims to prohibit the application of the preemption theory to limit the possession of the environment and resources by marine scientific research, thus safeguarding the other countries’ right to do marine scientific research. For this purpose, intellectual property does not fall within the scope of the preemption theory, and there is no conflict with article 241. At the same time, from the perspective of intellectual property, intellectual property protects the intellectual works created by human beings, not the marine scientific research activity, nor any part of the marine environment or its resources. Creations based on genetic resources in the Area are not resources and therefore cannot be patented under article 241.

Furthermore, some scholars hold that the attribute of private right of intellectual property is inconsistent with the purpose of marine scientific research for the interests of all human beings. However, the incentive theory of intellectual property is based on utilitarianism and aims at maximizing social welfare, so intellectual property can be used as an incentive to promote the production of public intellectual products, increase the total number of social intellectual products and thereby enhance the welfare of the whole society. It can be seen that there is no absolute conflict between the protection of intellectual property and the protection of the interests of all human beings.

Thirdly, intellectual property and marine information dissemination do not collide with each other. The exclusive nature of intellectual property is deemed to be a hindrance to the dissemination of marine information and thus contradicts the purposes of the UNCLOS. However, based on the analysis of the exclusive nature of intellectual property, it is found that the exclusive barriers set by intellectual property for rights holders only statically isolate the specific information from the public domain. This temporary isolation only slows the information dissemination instead of hindering it. In essence, the exclusive nature of intellectual property, with its incentive function, can effectively promote the generation and accumulation of intellectual products. And the sharing and dissemination attributes of intellectual products will ultimately contribute to the large-scale spiral expansion of information. In addition, the exclusive nature of intellectual property is different from an absolute exclusive and unlimited monopoly. The compulsory licensing of intellectual property, while limiting the exclusive rights, focuses on protecting the public use of information. The prescription of intellectual property allows specific information to return to the public domain after the expiration of the prescription period. Thus, there is no absolute barrier between the intellectual property protection of private rights and the dissemination of marine information.


B. System Construction: The Equity of Benefit Sharing


The incentive attribute of intellectual property and its flexible balance of private rights and public interests make it an inherent advantage in building the benefit-sharing system. In terms of genetic resources in the Area, building an intellectual property benefit-sharing system should be under the guidance of the principle of the common heritage of all mankind, and be oriented to limiting the interests of exploiters and strengthening the public interests. In the specific institutional framework, the basis and the objects of benefit sharing should be clarified. On this basis, the content of benefit sharing should be expanded and the supervision of benefit sharing should be strengthened.

1. Benefit-Sharing Basis: The Disclosure of Source Information. — The initial purpose of the source information disclosure is to contain biopiracy. As the national attributes of biological resources have been clarified, the international community has extended the source information disclosure to the benefit-sharing framework. Although the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has put this on the conference agenda, no substantial progress has yet been made. Nevertheless under the framework of the World Intellectual Property Organization, discussions on source information disclosure and benefit sharing have entered the review stage of the proposal, and detailed studies have been conducted on its cost, impacts, procedures, credibility and supervision. Despite the fact that the proposal has not yet been formally approved, it is of great significance to the construction of the information disclosure mechanism for genetic resources in the Area.

As for genetic resources in the Area, clarifying the source information of their intellectual property is the premise and basis for defining the scope of benefit sharing. The construction of the disclosure mechanism for source information should be clarified from three aspects: content, procedures and supervision. First of all, in terms of the disclosure content, it should be clarified that the genetic resources utilized by the intellectual property are derived from the Area beyond the limits of national jurisdiction and then the relevant natural attributes of the genetic resources should be described. Secondly, in terms of the disclosure procedures, the International Seabed Authority may grant a Source Information Certificate to the genetic resources acquired in joint exploitation, and this certificate will document the source area of the genetic resources. When examining the application for intellectual property, the national authorities, based on this certificate, may require the applicant to fulfill the mandatory disclosure obligation. Thirdly, in terms of the disclosure supervision, penalties of not granting intellectual property or revoking intellectual property may be imposed for the mistakes the applicant made in disclosure.

2. Benefit-Sharing Objects: Requirements for Patent.— With the source information disclosure clarified, the basis of benefit sharing is the interests generated by genetic resources in the Area, but not all such interests are the objects of benefit sharing. The requirements for patenting genetic resources differ widely among different countries, and patent protection about DNA sequences is a typical example. In the US, the patent requirements, especially the creativity requirement, are relatively loose. Extraction and separation of genetic resources are protectable. However, the US precedents in recent years show that the US has fundamentally changed its position on patenting. Now it is definite that extraction only with discovery attribute is not creative and thus cannot be patented.

For genetic resources in the Area that belong to the common heritage of all mankind, the requirements for patent should strictly meet the creativity requirement. In other words, creativity should be regarded as an essential requirement for patents. Creativity can be used to distinguish the genetic resources shared by all human beings in the public domain from the intellectual creations of the patentees, and then the boundaries of benefit sharing can be defined. In the public domain, genetic resources, shared by all mankind, have existed ever since ancient times and are not endowed with creativity, so they cannot be the objects of benefit sharing. In the private domain, the intellectual achievements created by the rights holders based on genetic resources are creative and in line with the patent requirements, so they should be deemed as the objects of benefit sharing. To sum up, the objects of benefit sharing are creative new inventions based on genetic resources.

3. Benefit-Sharing Content: Construction of Allocation Mechanism. — As for the benefit sharing content of marine genetic resources in the Area, it is necessary to establish an allocation mechanism centered on currency sharing and technology transfer. In the case of currency sharing, exploiters should pay the International Seabed Authority an annual fee for resource exploitation to maintain the normal operation of the International Seabed Authority. Since it is hard to estimate the profits from intellectual property, exploiters can pay a fixed annual exploitation fee to the International Seabed Authority so as to create marine genetic resources research funds. To set the fixed fee, the exploitation cost, the difficulty and benefits of exploitation should be taken into consideration. In addition, it is worth noting that the efforts made by exploiters in the process of exploitation should be respected and be a significant indicator when determining the fees.

In terms of technology transfer, a mechanism combining compulsory licensing with commercial transfers should be established based on different technical content. For technologies involving significant public interests, a compulsory licensing mechanism can be used to incorporate them into the public domain and pay a reasonable fee to exploiters. For the use of compulsory licensing, the principle of case analysis should be followed and the scope of application should be reasonably limited. For general technology, the commercial transfer mechanism can be used to obtain it on fair and reasonable commercial conditions.

4. Benefit-Sharing Regulation: Establishing a Regulatory System. — The benign operation of the benefit sharing mechanism of genetic resources in the Area needs to be premised on a sound regulatory and evaluation system. Therefore, the benefit-sharing regulatory system should be established with, the International Seabed Authority as the regulatory body which monitors the full process of benefit sharing through the regular inspection, strict review, post-evaluation and other regulatory means.

Regular inspection is a major means for the International Seabed Authority to monitor the exploitation of mineral resources in the Area. It can ascertain the performance of the contract and the status quo of implementation of the convention. As far as marine genetic resources in the Area are concerned, the inspection of their benefit sharing should focus on the disclosure of source information of exploiters, the distribution of monetary and technical content, and the interests of the entire international community. The strict review refers to a procedural examination of the related content of the exploiter’s application, and ascertains whether the exploiter fulfills the corresponding obligations in accordance with the relevant procedures. Post-evaluation is to determine the status quo of the exploiter’s fulfillment of the sharing obligation, then assess the exploiter’s implementation, and finally decide whether to approve the exploiter’s new joint exploitation application or impose the corresponding penalty. The benefit sharing supervision system is an important part of the exploitation system of genetic resources in the Area and a crucial guarantee for the orderly operation of the exploitation system.


V. CONCLUSION


The special living environment and unique value attributes of marine genetic resources in the Area have become the focus of attention in the international community. Countries globally have put forward different opinions on their exploitation system based on their own interests, which manifest the competition between developed and developing countries for the benefits of regional marine genetic resources. China, as the largest developing country in the world, should be aware of the urgent need to seize the highlands of resource exploitation and obtain a dominant position in talking about the regional rules, which is crucial in the new round of competition for marine resources. In this regard, China should strengthen scientific research in the marine realm, update marine exploitation technologies and enhance the hard power of marine genetic resources exploitation in the Area. More importantly, China should actively participate in making the genetic resources exploitation rules, promote to affirm its attribute of the common heritage of all human beings, support the dominant position of the International Seabed Authority and enhance the soft power of exploitation of genetic resources in the Area.


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