Year

2018

Degree Name

Doctor of Philosophy

Department

Australian National Centre for Ocean Resources and Security

Abstract

The genetic diversity of marine life can be harnessed through scientific research and technological development to provide a range of benefits to society and the ocean. However, due to gaps and ambiguities in the international legal framework, existing access and benefit-sharing regimes are not applicable to marine genetic resources in the 60 percent of the ocean that lies in areas beyond national jurisdiction (ABNJ). Equity concerns have arisen from disparities in scientific and technical capacity that prevent many countries from acquiring and utilising marine genetic resources in ABNJ. Consequently, benefit-sharing presents a challenging issue for historic intergovernmental negotiations that are poised to commence to develop a new international legally-binding instrument (ILBI) under the 1982 United Nations Convention on the Law of the Sea (LOSC) for the conservation and sustainable use of marine biological diversity in ABNJ. Pragmatic and science-based solutions are urgently needed to navigate the divergent views on the nature of marine genetic resources, the benefits to be shared, and the options for capacity building and technology transfer if an agreement is to be reached in the forthcoming Intergovernmental Conference.

This thesis investigates practical options to achieve the objective of benefit-sharing identified by States: to serve the dual interests of building the capacity of developing countries to access and use marine genetic resources of ABNJ and the conservation and sustainable use of marine biodiversity. The analysis demonstrates that international science collaboration, technology transfer and scientific capacity building are key ingredients for benefit-sharing. A conceptual model for a holistic approach to the acquisition, sharing and utilisation of benefits from marine genetic resources in ABNJ is developed. The study provides the first illustration of the linkages between benefit sharing and the development and transfer of marine technology under the law of the sea, identifying a new paradigm of technology transfer based on international collaboration and inclusivity in innovation. The study reveals that the LOSC framework provisions for marine scientific research (Part XIII) and the development and transfer of technology (Part XIV) provide a basis for an integrated approach to benefit-sharing. Thus, this thesis provides the first comprehensive analysis of the potential to enable benefit-sharing from marine genetic resources of ABNJ by strengthening the implementation of existing LOSC framework provisions in Part XIII and XIV relevant to scientific and technological capacity through the ILBI.

Drawing on an examination of existing scientific practices and legal frameworks for benefit-sharing, a suite of measures elaborating existing LOSC provisions are proposed for inclusion in the ILBI, that are grounded in international law and scientifically practicable. The measures are targeted to enable benefit-sharing by producing four outcomes: first to enhance international scientific research cooperation and facilitate marine scientific research in ABNJ; second, to support access to data and knowledge; third, to empower scientific capacity building at global, regional, national, institutional and individual levels; and fourth, to create an enabling framework for implementation by specifying institutional responsibilities and implementation mechanisms. Thus, this thesis presents suggestions an integrated approach to sharing benefits from marine genetic resources of ABNJ that supports the conservation and sustainable use of marine biodiversity in ABNJ.

The adoption of the proposed integrated approach could transform benefit-sharing from a polarising challenge into a unifying opportunity for the international community by providing a framework to enhance global, regional and national scientific and technological capacity to study, conserve and sustainably use marine biodiversity. Against this backdrop, this thesis proposes tangible measures that could be adopted to serve as a means to both incentivise and enable the conservation and sustainable use of biodiversity in the vast expanse of the global ocean that lies in ABNJ.

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Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong.