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Keywords:

  • access and benefit sharing;
  • bioprospecting;
  • high seas;
  • marine genetic resources

Abstract

Judging from the debates on the international political scene, the legal regime for the marine areas beyond national jurisdiction might be changing in the years to come. One recurring question is whether and how future international law should incorporate the issue of sharing the benefits that arise from utilizing marine genetic resources (MGRs). In reviewing these questions, this work outlines some of the regulatory options for addressing the activity of bioprospecting in the high seas. De lege ferendae the activity of bioprospecting will likely give rise to a wide range of legislative alternative forms of benefit sharing. These must be consistent with the fundamental principle of freedom of the high seas and the exclusive rights awarded by patents when the activity results in an invention; yet they should also have advantages in terms of conserving MGRs, promoting fairness and spurring innovation. When emphasis is placed on maintaining the incentives to innovate, there are important drawbacks to monetary benefit sharing. On the other hand, open or semi-open source options can be conceived for the material relating to MGRs. This article identifies important practical implications and unresolved legal and practical questions for owners of sampled material and for third-party users.