 The aim of the presentation will be focused on the outcomes of this resolution adopted by the UN General Assembly in 2015. This resolution instructed the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea, UN clause, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. So it's very important to pay attention to all the elements in the title of this declaration. It is in the first place the outcome which is expected an international legally binding instrument. It's not a resolution, non-binding or soft law. It is a new instrument of binding nature which is AMAT. Secondly, this instrument is to be negotiated under the under the Convention on the Law of the Sea. So it is in the framework of this Convention that this negotiation takes place. And the purpose is the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. So this does not deal with the management of biodiversity in areas under national jurisdiction. But the main issue is what to do with biodiversity which is in the high seas, which is in areas which are not subject to sovereign rights by the coastal states. Well, as everybody knows that oceans are very important. Most of the planet are covered by waters, by oceans. So they are important for many reasons. I don't need to tell you for what reasons the oceans are important. Transportation, food security, sports. Very nice to go to the beach also for tourists. So they are very important. But the oceans are also a very rich source of biodiversity. And this is sometimes ignored and there is not sufficient effort to conserve to protect such biodiversity. And then the end of this resolution is to look into means to protect biodiversity, which is not subject to national sovereign rights. And also, and in particular, to look at how get access to that biodiversity and share the benefits. So let me just then present what are the issues I'm going to refer to. In the first place, I will make a brief reference to why marine genetic resources are important from an economic point of view in terms of new technologies, new products, etc. Secondly, I will refer to the possible gaps in the UN Convention on the Law of the Seas that these binding instruments aims to address. Secondly, I will explain briefly why this process is on, which are the concerns that are behind the countries, in particular developing countries, that are pursuing the adoption of these new instruments. Then I will refer to the precedents for these exercises in the international regime, what is there in the international regime that can be used in order to develop this new international regime. And then I will present a few of the main issues and the discussion if we still have time. And I also like to have a dialogue with you and to see how you see the different positions that are present now in these negotiations. So why marine genetic resources are important? Of course, there are many reasons for this, but there is a lot of literature about these resources and this literature agrees on one particular point, that the ratio of potentially useful natural compounds is higher in marine than terrestrial organisms. So marine resources are richer than terrestrial resources. And there are many examples of this. For instance, one study that was produced by the Center for International Law, this is a center in Singapore, indicated that there is a strong difference between the yields of marine biodiversity versus terrestrial biodiversity. If a marine species is isolated, there is a greater chance to derive a biotechnological application from it than if it was a terrestrial species. So the potential is greater than the potential in case of terrestrial biodiversity. Which are the possible uses of marine genetic resources? They can be used and they have been used in practice to develop new modalities of food, pharmaceuticals, there are many examples of pharmaceuticals for bioenergy, for cosmetics, fertilizers, pesticides, and the least may go on. One report, for instance, indicates that 18,000 natural products were developed from about 4,800 marine organisms with a significant growth, estimated 4% a year. And then the global market for the last year was estimated at about 5 billion US dollars. So marine genetic resources are very important because they allow to develop new products, new treatments, and they are also important from an economic point of view. In pharmaceutical, for instance, between 2010 and 2015, 52 active compounds from marine bacteria with specific clinical actions were identified. So this is quite a significant number. And these are some of the resources that provide this genetic information, more frequently. Sponses, for instance, are very important. Some products against cancer, for instance, have been developed on the basis of molecules containing particles, particular soft quarrels are also important as a source of genetic information, moles, worms, algae, vertebrates. This is just one example. One strong analgesic, the commercial name of which is Pryalt, was derived from the venom of the conus magus, which you can see there in the picture. This is a marine snail. So it has not the appearance of the snail, but this is a marine snail. And then this has led to the development of one very powerful medicine against pain. So this is one example, there are many others. Interestingly, about 95% of all marine life is microscopic. So many of the genetic resources that may be used for the production of the different products or technology I've mentioned are microscopic. And I will make a reference to these later on. Microbial organs, for instance, have already been used for the production of some industrial processes, such as enzymes. Several patents exist, and at least three enzymes from hydrothermal vent bacteria are now on the market. So bacteria, microbes, indices are very important source for products in many different areas. So this is important. So it's very clear for all countries, both developed and developing countries that marine genetic resources have a major potential to address different health needs in terms of food security, and they have also a major economic potential. So this is one of the premises on which this resolution has been adopted. But then why was it necessary to do something in addition to what is already in the Convention on the Law of the Sea? Are there gaps in the Convention? Well, this needs to be taken with some caution, because as you have seen the title of the resolution, the purpose of the resolution is to develop an instrument within the context of the Convention. So many people say that this is a new instrument that will implement some provisions of the Convention, develop and implement. Meaning that this will not add to the rights and obligations which are contained in the Convention. In fact, there are already two agreements for implementation of the Convention on the Law of the Sea. But which are the problems that are faced in relation to marine genetic resources? One of the problems is the definition of resources in the Convention. In accordance to Article 133, part of A, for the purposes of Part 11 of the Convention, resources means all solid, liquid or gaseous mineral resources in situ in the area at or beneath the seabed, including polymetallic nodules. So this is the definition of resources. Do you see this definition genetic resources? Does the definition cover organisms, living organisms? It doesn't seem to. So this is the first problem. The first problem is that the Convention on the Law of the Seas deals with the management of resources, including in areas beyond national jurisdiction. But the resources are defined in this very narrow way. And the reason for this is very interesting, because at the time this Convention was negotiated. It was thought that it was not possible to find living organisms without light in the very deep sea. So the idea was that there was not need to talk about resources as living materials, because the hypothesis was that there was no living beings in the deep sea. But now scientists have discovered, there is of course huge evidence, that there are many organisms that live in the deep sea without light. And many of them contain very interesting genetic information for the development of new treatments and new products. So this is the first problem that the Convention on the Law of the Seas did not foresee the situation. This Convention took a long time to negotiate. Negotiate started in the 1950s. And the Convention was adopted in 1982. And it still took many years for the Convention to enter into force in 1994, if I recall correctly. So it was a long process, and during this long process science changed a lot. And now all countries, scientists, industries realize that this definition may not be the appropriate one. So this is one issue. And then it is important when you look at this definition that it refers to resources in situ, that means that are found in the area. So what's the area? That's also an important element to take into account the definition of the area. The area is the seabed and ocean floor and subsolidary off beyond the limits of national jurisdiction. So the area is defined under the Convention as the seabed and ocean floor. So it's not the water column. The area is what is in the floor. And then the Convention developed an important concept in relation to the resources as defined, which are in the seabed. This was clarified by a resolution in the 1970, resolution 25, 2749, which clarified that the seabed and ocean floor, seabed and ocean floor, and the subsolidary off beyond the limits of national jurisdiction, as well the resources of the area, as defined, are the common heritage of mankind. And this is a concept contained in Article 136 of the Convention. So these resources, which are in the seabed, in the floor, are common heritage of mankind. So this means that these are resources which we may consider public goods. So they belong to the humanity of large. And then the consequence of this is that the exploration of the area and the exploitation of the resources shall be carried out for the benefit of mankind as a whole. This is a principle which is contained in the Convention on the Law of the Sea. But then take into account which is the definition of resources, mineral resources, which are in the seabed, which are in the floor. So this is one problem. The second problem with the Convention is that there is a part of the Convention, Part 13, that actually regulates scientific research in relation to the oceans. But scientific research is considered as a research without commercial objectives. And therefore there are certain obligations for those that undertake scientific research in the oceans to share the information, to disseminate, to publish. The basic concept is that the outcomes of that research is public knowledge, is scientific knowledge, not subject to appropriation, and possibly not subject to the use on a commercial basis. But then the further question is, is bioprospecting with commercial intent covered by the Convention or not? Because the definition is about scientific research. What the companies do, what the industry does for instance, is to collect specimens, it could be microbes, it could be other specimens from the ocean. This is called bioprospecting with a commercial intent, with intent of finding some biochemical compounds which may be useful for a certain purpose. But then the question is, is this actually covered or not under the Convention, which does refer to scientific research with the very idea of public access to the outcomes of this research. So these are two main issues that are in the basis of discussion that are taking place today. A third issue are asymmetries, asymmetries in terms of developed and developing countries, or the North House if you wish, for the capacity to exploit the resources in the oceans. This is largely recognized under the Convention on the Love of the Sea. So there are many provisions that make it clear that the capacity of developed and developing countries to exploit the resources in the seas are not the same. For instance, this is just an example, in this article 244 part of 2, it is said states, both individually and in cooperation with other states and with competent transfigurations, shall actively promote the strengthening of the autonomous marine scientific research capabilities of developing states, through interrelia programs to provide adequate education and training of their technical and scientific personnel. So it is very clear that there is this major asymmetry. And one of the reasons for these asymmetries is the cost of doing bioprospecting. For that you need this, this is just one example, there are many of these vessels that are specialized in bioprospecting. They have a very expensive equipment. The cost of operating one of the vessels per day on average is 50,000 euros. It is between 50,000 and 100 euros per day. So it's quite clear that developing countries have not got the resources to do this. This is shown, for instance, in the number of patents which are claimed, which are filed in relation to marine genetic resources. According to one study, 90% of the patents filed in relation to marine genetic resources have been filed by entities from developed countries, which shows the asymmetry in the capacity to get this investigation made. So in addition to this asymmetry, there is a further problem that is very much behind the initiative by developing countries to pursue the adoption of this new binding instrument. And this is the appropriation of marine genetic resources. How? Through patents in particular, as you probably know, today a patent may be obtained on a living organism after an important decision by the Supreme Court of the United States in the Chacrabarty case. In the United States and in other jurisdictions, it has become possible to get patents on bacteria, modified, for instance, on an animal who has been genetically modified, on plants. So there is no limitation for the patentability of living organisms. So on the basis of this doctrine that after this case Chacrabarty became very popular in other jurisdictions too, today is possible to get patents on organisms. For instance, in the case of krill, which is often called the pin gold, more than 400 patents have been identified. So on these little things, more than 400 patents. So because there are different aspects of this little krill that may be subject to patent protection. I'll show you some examples. So here you will find a couple of examples of a patent on microbe, which is in one case useful for polymerase. Another case is useful for proteins and nucleic acid encoding. So here you have the names of the corporation that file for the patent. These are other examples, the thermococcus barophilus. And these are organisms which have been accessed beyond national jurisdiction. Of course, in many cases, you find marine species, which are both in jurisdictions which are under the control of states and in jurisdictions beyond their control. So there are no possible frontiers, you cannot just put frontiers to nature. So it is, in many cases, you may find the same species in both national jurisdictions and beyond the national jurisdiction. In many cases, you find some specific specimens beyond national jurisdiction. And the patents I'm showing right now as examples are examples of patents on organisms which have been accessed beyond national jurisdiction. Then the question is, and this has been one of the issues raised, is there a right to appropriate this organism and the patent, which as you know grants a monopoly, which lasts at least for 20 years, is there a right to appropriate something which should belong to mankind, which should be a common, as it is indicated by the convention, should be part of the common heritage of humanity. So is this acceptable? In Europe, for instance, this is possible because of the European Directive on Biotechnological Inventions, which in Article III states that biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention, even if it previously occurred in nature. So clearly in the case of the European law, it is possible to just get patents on living organisms or other biological material with the only condition that they must be claimed as isolated. So this is one of the problems that have raised these concerns about the situation of managing the resources. And then fourth and finally is the issue of dematerialization of genetic resources. In general, in the past, when you wanted to extract some biochemical compounds from some biological source, you needed to get a sample of that. So you need to get access, physical access to a specimen, and then on the basis of that sample you could, through different procedures, get the biochemical compounds which are active, for instance, as pharmaceutical, cosmetic, etc. But this is changing. This is one statement by Craig Venter Institute, which is very well known in this field, which indicated that sequencing genomes has now become routine, giving rise to thousands of genomes in the public databases. In essence, scientists are digitizing biology by converting the ACT and G's of the chemical makeup of DNA into ones and zeros in a computer. So this is a trend that is taking place in plant biodiversity, in animal biodiversity, and also, of course, in marine biodiversity. This is just one example of a patent which makes a reference to a genome sequence which is available in a public database. So an invention can be developed without getting access to a physical sample, without actually doing the collection of the specimen, but just looking at what is available in databases in a digital form, and then, as this example shows, then some developments can be done through the basis of this information. Another statement by the report I mentioned before, for instance, in the case that gene information is everywhere. Everybody deposits genes online very quickly, and a marine genetic resource or genetic information can be readily obtained and redesigned. The DNA can be redesigned so thoroughly that it would be very difficult to trace it back to its roots. So this is another problem which is faced by countries that are interested in sharing the outcomes of investigation and research on managing the resources, the fact that once the information is available on a digital databases, it's impossible to know which is the origin of these resources, as it is stated in this statement. This is something taken from an article from the New York Times where this is indicated in quite a remarkable manner. It is said before the introduction of gene synthesis, this referring to a particular case, Mr. Kuhn had to isolate the genes from the virus itself, so there was a need to get access to the virus, then put them into bacteria to have them produce the proteins. Now he ordered the genes from the DNA A20, a foundry. So there are companies that are able to provide these, so there is no need to do research to identify a particular gene to get access to, in this case, a virus. If we were starting this today, I wouldn't even bother trying to get any of these from the natural source, Mr. Kuhn said, I would just order everything. So this is a very important transformation that is taking place in data generative sources, discussions are going on in the context of the conventional biological diversity, et cetera, that has changed significantly the scenario in relation to access and use of these resources. So these are the main reasons why developing countries have pushed for a negotiation on these new binding instruments. The fact that these asymmetries exist, the fact that these resources have a major potential, the fact that today only some countries have the capacity to exploit and get the benefits of these resources, which should be considered part of the mankind, and the fact that this visitation also allows to use information without even getting recognition to which the source of the materials is. Okay, then let's look at the precedence for this new instrument which is being negotiated. Of course, this is not the first instrument that deals with genetic resources. This is a specific or minor genetic resources, but there are important precedents that are actually taking into account these discussions. The first one is the FAO resolution adopted in 1883. This is called International Undertaking on Plant Genetic Resources for Food and Agriculture. The second one is the Convention on Biological Diversity. Again, this is a binding instrument. The third one is the FAO Treaty on Plant Genetic Resources for Food and Agriculture. The fourth one is the Nagoya Protocol, and another interesting scheme. I will just refer to this very briefly is the World Health Organization, Pandemic Influence Preparedness Framework. So the first one, the undertaking adopted by FAO in 1883 is in relation to plant genetic resources. This undertaking stated that plant genetic resources were a heritage of mankind. So the concept was that there was no possibility, no right to appropriate these genetic resources because they were the heritage of mankind. But this also led to some controversy in particular developing countries so that most of biodiversity is actually located in developing countries that often companies from developed countries get this access to this biodiversity. They produce new compounds, they sell them, cosmetic pharmaceuticals, without any recognition of rights or compensation to the countries from which these resources have been taken. So this led to negotiation on genetic resources and to adoption of the Convention on Biological Diversity. And in fact, developing countries had a lot of expectations about the income that could be generated on the basis of resources identified in their territories for which a commercial application could be developed. But the Convention on Biological Diversity introduced a major shift in the concept. So this Convention is not recognizing anymore plant genetic resources as a common heritage of mankind. On the contrary, this Convention is on the principles of sovereign rights of the states on the resources that reside in their territories. So this is contained in Article 3 of the Convention which is very clear stated that plant genetic resources are subject to sovereign rights of the states where they reside. This Convention has three main objectives, conservation, sustainable use of genetic resources, in general, not only plant. This applies to all type of genetic resources, including aquatic resources, or marine resources in national jurisdictions. And the third objective is very important in the context of what I'm just trying to explain here. This is a fair and equitable sharing of the benefits deriving from the use of genetic resources. So one basic aim of the Convention was to make it possible for the states from which resources were taken to participate in the benefits generated by the commercial exploitation of the resources in this territory or elsewhere. This was one of the main objectives in the negotiation of this Convention, adopted in 1982. So this Convention included a definition of genetic material, which means any material of plant, animal, microbial or other origin containing functional units of heredity. So it's very important to understand this question about the new instrument, which is negotiated to look at this definition, what is meant by genetic material and then genetic resources, which means genetic material of actual or potential value. That means that it's material that contains the functional units of heredity. The CBD, the Convention on biological diversity, then is based on what we call a bilateral model. In the sense that if there is a company interested in getting some biological resources from a particular country to develop whatever product may be obtained, there is a need for this company to apply for access. So there is a need of a prior informed consent by the state where the resources exist in order for this company to do bioprospecting to get access and eventually to exploit these resources. And then this prior informed consent is subject to mutually agreed terms. That means that the state may impose conditions for this access and in general this is based on a contract in which it establishes what kind of benefits will be given in case that there is a commercial exploitation of the resources. This can be monetary benefits in terms of compensation, royalties for instance, or this could be non-monetary benefits, for instance capacity building, training, transfer of technology, but in any case these contracts in general aim at getting some benefits from the use, commercial exploitation of the resources which are obtained in a particular country. So this is the concept and the Convention on biological diversity. But now this Convention, as I'm saying, was based on this idea of bilateral deals getting particular permits to get access to the resources. In the field of agriculture, this model is dysfunctional because most countries are interdependent in relation to planetary resources of food agriculture. So immediately after conclusion of this Convention on biological diversity those working in their agriculture made the point that this Convention was not suitable to allow the exchange of planetary resources which is vital for food security. So this is a very special field in which there is a need to ensure a flow of planetary resources. In many cases when there is a problem with the crop for instance there is a need to get new genes from a crop which exists in another part of the world. So this has been essential and there is a lot of exchanges in terms of planetary resources. So a new treaty was negotiated under the general framework of the Convention on biological diversity but on the understanding that exchange of planetary resources for food agriculture could not be subject to the same kind of permits, which may be applied to other genetic resources. Then this treaty developed what is called a multilateral system. A multilateral system is a system that allows for facilitated access to resources in relation to crops which are listed in an annex to the treaty. So this does not comprises all planetary resources but a number of crops which are listed more than 60 crops are listed. Then for these crops the exchange of planetary resources is free so there are no conditions for access. And if there are benefits these benefits do not go to a particular country these benefits are of a multilateral nature so these benefits should for instance contribute to a multilateral fund to contribute to support farmers in developing countries that conserve biodiversity but this treaty has a very different approach as compared to the Convention on biological diversity which is based on you take resources from here then you need to bring back some benefits to this state. Under this treaty and for the multilateral system the idea is you get resources from here but the benefits should be shared globally is that there is a need of global pool of resources because of the need of full security. So this is the concept of the FAO treaty which seems to be most adequate perhaps to the situation that we are going to discuss in the case of the modern gender resources beyond national jurisdiction. In this treaty there is an interesting provision that addresses the issue of appropriation because given that the idea is that these resources are part of a pool, global pool that should be accessible to everybody without limits then the treaty contains a provision which says recipients shall not claim any intellectual property or other rights that limit the facilitated access to the planned genetic resources for agriculture or the genetic parts or components in the fund received from the multilateral system so this is a clause against appropriation under patents in particular. So this is the concept of the FAO treaty on planned genetic resources it's a global pool, access should be free. But then after this treaty was adopted it took seven years of negotiations a new legal instrument international legal instrument was developed and this is the Nagoya protocol this is a protocol to the Convention on Biological Diversity this protocol was promoted by developing countries which are very supportive of the Convention of Biological Diversity but the problem that developing countries identified were several but I will just mention two of them the first one is that very often the commercial exploitation is done not on the genetic resource as such so remember the definition of genetic resource is a material which contains the functional units of heredity so this is a living organism but often the commercial benefits are obtained on the basis of a derivative of such resources the biochemical compounds for instance so it's not on a grain in particular it's not an alimony living organism it's not a bacteria such that the benefits are obtained but they are obtained from a biochemical compound which is found in that resource and therefore there was some discomfort on the side of developing countries because the Convention on Biological Diversity had not generated the income that they expected and one of the reasons for this was thought the fact that the definition of Convention on Biological Diversity is too narrow in terms of how the share of benefits should take place then one important element that this Nagoya Protocol introduced is the concept of derivatives Benefit sharing should take place not only when the genetic resources as such are subject to commercial exploitation but also when derivatives from those resources are exploited and then the definition is derivative means naturally occurring biochemical compounds resulting from the genetic expression or metabolism of biological or genetic resources even if it does not contain functional units of heredity so as you can see it has expanded the scope for beneficiary another issue that was raised for the negotiation of this protocol but I'm not going to refer to this in particular is the problem of compliance the lack of compliance on the part of the members to the Convention was a second major concern that led to the adoption of this protocol ok then the last precedent for the negotiation of this new binding instrument is this framework that was developed in the context of the World Organization again here the main issue has been about beneficiary in this case the situation is one in which a virus is identified a pathogen in this case that may generate a pandemic and then this virus is identified in a particular country very often in a developing country then a company that produces vaccines in a developed country just identifies the virus and then produces a vaccine in order to fight this particular virus then the question raised by the countries that originated pathogen is what are we getting out of this what kind of benefits sharing is taking place are we getting even the vaccines because in some cases because of limitation of supply the countries in which this virus was identified were not able or could not be able to get the vaccines or to get any benefit from this so a framework was developed in the context of the World Organization to deal with the sharing of H5N1 you may recall this another influenza virus is with human pandemic potential so this is not a binding instrument interestingly is a voluntary instrument but which has worked quite well on the basis of which when there is access to a virus to a pathogen in order to develop a vaccine then a particular agreement is signed and on the basis of this agreement there are some obligations and in this case since 2012 the system has been able to generate benefits to the system that amounted to $170 million based on this scheme of sharing some of the benefits that arise from identification of particular viruses so it is considered in general to be quite a successful experiment in the sense that it has addressed the issue of benefit sharing in a way that has led to some compensation ok so last the new binding instrument on marine generative sources which is being negotiated so now I will show you some of the options that are being submitted for negotiation so let me just tell you that a conference has already been convened in order to negotiate this instrument the second session of the conference has taken place in March, April this year so there is in accordance to the resolution these binding instruments should be finalized at the fourth conference so there is still some time to finalize and the process has been based on a document prepared by the chair of the conference which is called President's 8th for negotiation so generally when you start negotiation like this of course you need what is called a zero draft you need a draft in order to start to discuss what kind of rights of obligation will be developed very often the first draft is presented by the chair in this case this is the President's 8th document that has suggested a number of options so if you look at this document which is available on the website you will see that the President has presented many different options and these options actually reflect very different positions in particular positions from developed countries on the one side and developing countries on the other side so I'll show you some examples in relation to the scope of the instrument so you can you have here one of the options in accordance to option A the scope will be any material of marine plants, animal, microbial or other origin found in or originating from areas beyond national jurisdiction and containing functional units of heredity as well as any material derivatives and or data derivative with actual or potential value of their genetic and biochemical properties so if you look at this definition you will find that of course referring to areas beyond national jurisdiction the Convention on Biological Diversity as I did mention before it only applies in national jurisdiction so it does not apply beyond these jurisdictions but it refers to resources containing functional units of heredity this is the definition of genetic resources that we have seen before but it also refers to derivatives so this means that in accordance to this proposed option the new binding instrument will deal with benefit sharing in relation to genetic resources as such but also in relation to derivatives which may be for instance identification of biochemical compound and in addition to this if you see at this proposed option it refers to data derivative so it's also including this issue of dematerialization of genetic resources so it's also referring to the possibility of claiming benefit sharing in cases where there has been no access to a physical sample but access to information in database so this definition is as you could appreciate quite well but there are other options option B is any material of marine plant, animal, microbial origin containing functional units of heredity of actual or potential value do you see any difference with the previous one well these options aligned different countries so if you look at the document produced for this second conference you will see that there have been support for option A for option B and you can certainly know which countries have supported option A which is broad which covers genetic resources such covers derivatives covers also data or digitized information and option B as you can see is much narrower it only refers to material which contains functional units of heredity so it does exclude beneficiary in relation to derivatives which is of course of major importance in terms of option C is any marine genetic material of plant, animal, or microbial origin on these there is agreement of actual or potential value collected from the area so what does it mean collected from the area, collected where it's collected in the water in the column water collected in the area means that it's only refers only to those materials which are collected at the seabed the floor to materials which are collected in the high water so this option is also very narrow so this is the kind of debates that are taking place which is a scope is just genetic resources is genetic resources as derivatives is genetic resources only found in the area as defined by the convention which is the seabed the floor or will it cover also genetic resources which are found in the water column principles this is a very, very important debate in accordance to this president aid there are options on this the following general principles and approaches apply to marine genetic resources of areas beyond national jurisdiction including questions on the share of benefits one option is common heritage of my kind option, another option is no text so in many cases you will find that one option suggested by the president is no text don't discuss this and the second option is freedom of the high seas and this is a major dividing point among developing and developed countries developing countries hold the view that marine genetic resources and their derivatives should be dealt with as part of the common heritage of my kind meaning that benefits should be shared with everybody developed countries however have the position that marine genetic resources should be dealt with under the principle of the freedom of the high seas which is one of the principles in the convention on the law of the sea and it's interesting because you have another option which is a compromise diplomats are very often they make compromises and if you look at the compromise it reads the freedom of the high seas shall govern the provisions for access to marine genetic resources of areas beyond national jurisdiction while the common heritage of my kind shall govern their exploitation so there is a differentiation between access and exploitation but let me explain why the difference is there in the freedom of the high seas as we have seen in the convention on the law of the seas the resources which are not only defined which are the mineral resources in the sea bed are subject to the principle of common heritage of my kind but the convention defines the high seas as all part of the sea that are not included in the territorial sea so the high seas concept is about the water the water which is not under national jurisdiction and for the water column which is not under national jurisdiction the principle that is contained in the convention on the law of the sea is the principle of the freedom of the high seas so here we have part of the relevant provision which says the high seas open to all states whether coastal or landlocked freedom of the high seas is exercised under the conditions laid down by this convention and by other rules of international law it comprises inter alia both for coastal and low local states freedom of scientific research subject to part 6 and 30 so the point made by developed countries is that managing the resources should be dealt with under the principle of the high seas under this principle there is freedom of scientific research and this means that whoever does the research appropriates the result of the research so the concept is this is not the common good the concept is that you have the capacity to do bioprospecting you have the right to do it because this is part of the freedom of the high seas and if you find something you may own it and you have done the effort to get it so this is a measure dividing point between developed and developing countries developed countries in particular the United States are you for this principle the principle of the freedom to do research and therefore freedom to do with the research whatever the personal company wants to and the concept of common heritage of mankind which means that this is the common good and therefore there is an obligation to share the results of their exploitation there are also differences in relation to what we might call the material scope here you can see different differences this instrument applies another suggested provision to the use of fish and other biological resources for research into the genetic properties no text it applies to many genetic resources collected in situ access in ex situ and ex silico and digital sequence data and another option is it applies to many genetic resources collected in situ and accessed in situ and a further option is modern genetic resources collected in situ so this is also very important I don't know whether you are familiar with this concept of in situ and ex situ collection of genetic resources in situ means that you find the specimen as it is in nature so you go to a field you find a plant you go to the ocean and then you identify a specimen this is in situ it is conserved in a natural environment ex situ is when such a material is collected already and is deposited in a particular bank for instance a gene bank for instance there are many gene banks for plant genetic resources as seeds are conserved under low temperature so these banks have these resources ex situ because they have already been taken, collected this is another dividing issue between developed and developing countries because for developing countries it doesn't matter whether access to the material has taken place in situ this directly from nature or it has taken place from an ex situ collection from somebody who has already collected and made the deposit in all cases for developing countries there should be beneficiary independently of these circumstances and also in accordance to this broadest definition even if there is a digital sequence that is used in order to develop a product even in that case there should be beneficiary so developing countries are aiming at the regime that will cover genetic resources exploitation as such will cover exploitation of derivatives which generate the most important thing but also taking into account whether materials are taken from nature in situ are taken from a collection ex situ or even on the basis of data which are in a public in a public database but then if you look for instance at option 3 many genetic resources collected in situ so this is the very narrow scope some countries are pushing for this as saying if there is beneficiary it should be limited only to situations where there is a collection of the material from nature and not in the other situations that are covered by the previous definition and as you can see then later in part of C one option is derivatives and the other option is no text so another issue for discussion is whether beneficiary will cover or not derivatives and not just the genetic resources as such well there is an interesting exception and this is fish as commodity and here you will also see the differences so the main aim of this provision is to say we are working about beneficiary for genetic resources but we are not dealing with fish as a commodity so this is not about fishing this is not about the operation of companies that fish this is not part of the beneficiary concept beneficiary should take place where the genetic information of fish is used then one option suggested by the president is that this instrument does not apply to the use of fish and other biological resources as a commodity fish is captured as a commodity there is nothing then that this new instrument will be dealing with but there is an option one which says fish and other biological resources that are collected beyond a threshold amount shall be considered as a commodity the threshold amount shall be determined by the body set forth in part X so this is suggesting that if a small quantity of fish is captured should be considered genetic resources or used for genetic resources and subject to beneficiary when bioprospecting is done you need to take specimens but you take them in a small quantity so this definition is also a dividing point between develop and developing countries saying ok let's talk about which is the limit under which you will consider that what you are doing is just working with fish as a commodity and there is also another option which says if a species of fish is found to have value for its genetic material that species of fish shall be treated as a marine genetic resource regardless of the volume of the catch so what do you think will this be a proposal supported by develop or by developing countries developing countries if you want to be sure that if there is a value in genetic resources it doesn't matter whether you are getting a big quantity or not of the fish one of the important issues that these binding instruments should deal with is relates to the rule of axis so how axis will take place in the case of the convention biological diversity as I explained before there is a prior reform consent so in many countries we see a ministry that is charged with granting of permits for bioprospecting and negotiating these mutually agreed contracts with the bioprospector so something like this needs to be developed in the case of the new instrument so the question is how this axis will be regulated will there be an international authority this is part of the discussion but there is just to give you a sense of what is going on one of the proposed options says the following terms and conditions will apply in the case of axis there will be an indication of the geographical coordinates of the location where marriage entity resources were collected capacity building so this is what is called non-monetary beneficiary the bioprospector should offer capacity building there is the transfer of marine technology there is another non-monetary benefit there is the deposit of samples data and related information in open source platforms such as databases biorepositories or biobanks so another obligation for the bioprospector would be to make the samples available or the information available and finally a contribution to an axis and beneficiary fund so it means that some monetary contribution of course this is also a very dispute provision on this what kind of benefit should be granted and in particular there is a lot of discussion about monetary and non-monetary benefits under the convention biological diversity you can have both types of benefits in the discussion of this instrument some countries you can imagine which these countries are are saying only non-monetary benefit benefit should be discussed other group of countries is saying also monetary benefits should be discussed you can imagine which countries are on one side or the other another issue is in relation to rule for access is this provision which is suggested exceed to access to manage energy resources within the scope of this part shall be free and open access to in silico information and data shall be facilitated so these are the issues that I refer to so whether it covers only in situ or also exceed to collections and then some of the proponents are saying access to what is already collected should be free and open and also access to in silico information should be facilitated well this is an example of this monetary and non-monetary benefit that I refer to in accordance to one option option A these include but are not limited to those listed in annex so this option is suggesting that would be a list of benefits that the bioprospector should provide and the option 2 for the purposes of this part the term benefits shall mean non-monetary benefits non-monetary benefits so some of the participating countries looking at the possibility of allowing for non-monetary benefits which will not include of course compensation it includes but is not limited to capacity building the exchange of public availability of information and scientific knowledge access to samples and sample collection access to technology and technology and transfer of technology but all of these are non-monetary and then finally what about the appropriation which is one of the concerns that have been raised by developing countries one of the very reasons why these negotiations are taking place well on these there are also different provisions which are suggested and you again you can see here the major division of views between developed and developing countries one option which is suggested by the precedence A the document is managed entity resources accessed in accordance with this instrument shall not be subject to patents except where such resources are modified by human intervention resulting in a product capable of industrial application so this provision is just say patents should not be granted in relation to materials which are obtained exceto inceto whatever shall not be subject to patents then the second part state the state parties shall take appropriate and effective legislative administrative or policy measures to ensure that users of marine genetic resources shall disclose the origin of the marine genetic resources they utilize this is another very very controversial suggestion currently and since the last 15 years or so developing countries are trying to get in the world intellectual property organization and also in the world trade organization provisions that will oblige patent applications to inform the origin of biological resources which are claimed in patent applications so this has been a demand from developing countries for a long time even to amend the TRIPS agreement that's part of the WTO in order to include a new provision that will oblige patent applicants to say where they are obtaining the resources from and this is seen as a condition in order to be able to enforce the beneficiary obligation because if a patent is granted but there is no information of the origin of the genetic resources which are claiming a patent it's very difficult for a particular country to enforce the rights in terms of beneficiary so this is very controversial then as you can imagine this option would be favored by developing countries or developing countries clearly developing countries but there is another option which is with respect to intellectual property rights state parties shall implement this instrument in a manner consistent with the rights and obligations of states and the relevant agreements concluded under the auspices of the world intellectual property organization and the world trade organization so what do you think? this is an alternative to the previous one developed or developing countries we support this as an alternative so it's not saying that patents cannot be obtained it is not saying that information will be provided regarding the origin where the genetic resources are being taken just saying whatever is done in this instrument should be compatible with the TRIPS agreement which is in WTO and with other agreements and the World Intellectual Property Organization this is clear the position of developed countries I imagine you are tired already it is quite late but this is just to give you some sense what is going on so this is quite clearly a North-South discussion to a great extent the demanders in the case of these new binding instruments are developing countries so they want to address the possible gaps in the convention on the love of the sea they want to ensure that they have access to the outcomes of research which is done in relation to marine genetic resources beyond national jurisdiction so they have been accepted as a principle because the resolution actually has mandated to start the negotiation so this process is going on but as you can see the differences are very strong between developed and developing countries so it's very unclear today what the outcome will be on the table it will depend very much on the negotiating capacity also the political and economic power to impose some solutions in the end very often many of these provisions will end up in compromises often the compromises are based on ambiguity so then you have to interpret what is meant by a particular provision but this is the kind of the issues that are going on from our view from the point of view of the South Center government organization composed only of developing countries this is an important initiative because this is one of the few initiatives which is actually promoted by developing countries in order to address one important asymmetry in relation to the capacity to get access and get the results of research in the area of marine genetic resources well thank you very much for your attention so I hope it was clear enough for you to follow and understand what is what is going on thank you very much