Regulating access and the use of marine genetic resources within the exclusive economic zone

Abstract

Although there are differences in their respective backgrounds in time, physical matter and the physical environment of concern, between the 1982 United Nations Convention on the Law of the Sea (LOSC) and the 1992 United Nations Convention on Biological Diversity (CBD), there are more similarities in their core concerns. These are found particularly in their core purposes of promoting the practice, between nation states, of conservation and the equitable and efficient utilization of resources in either marine or terrestrial systems. There is compatibility, rather than incompatibility between these two UN Conventions, despite their apparent differences. This is particularly the case for Parts V and XII of the LOSC and the CBD. The current regime as provided under Parts V and XII of the LOSC and the CBD, represents a reference point but also a starting point when considering issues of access and use rights of genetic resources, and the conservation of marine biodiversity within the Exclusive Economic Zones (EEZs) of coastal states. This chapter examines the consequences of the introduction of the EEZ on the aquatic ecosystems and on the use of living (marine) resources within the EEZ of Papua New Guinea. The primary concern of the EEZ is the exploitation and management of fisheries resources However, when Parts V and XII of the LOSC are considered together, the purpose becomes much broader, so as to include concerns regarding access rights to, and the conservation and utilization of marine genetic resources occurring within the EEZ. The recent Seoul Oceans Declaration, coming out of the 1st Asia- Pacific Economic Cooperation (APEC) Ocean-Related Ministerial Meeting, from April 2226, 2002 lends support to this trend in thinking and action. The APEC Ocean (Fisheries) Ministers, representing 21 economies bordering the worlds largest oceans, resolved as part of a regional action plan, to encourage cooperation with economies and relevant regional institutions to develop marine scientific research capacity with respect to a range of issues including bio-prospecting and non-living marine resources (APEC, 2002: Para. 17) The application of the EEZ regime under the LOSC, and the CDB, however, have limitations in their ability to respond to and deal with issues of proprietary rights over marine genetic resources, and benefit sharing arrangements.1 Neither is intellectual property law able to adequately respond to the challenges presented by these concerns, as we have now come to realize in indigenous knowledge and cultural property rights and related issues. We must therefore look in the direction of a sui generis approach to addressing the issues of proprietary rights over and benefit sharing arrangements for marine genetic resources. To assess the consequences of the introduction of the EEZ on the marine ecosystem and on the use of the living resources in this zone, one has to begin first by looking at the territorial and archipelagic waters, the sea areas that constitute national seas, preceding the EEZ. In other words, we must first understand the relationship of the EEZ to the other regimes of the sea, particularly, the territorial seas, the contiguous zone and the archipelagic waters. This is significant from the point of view of the practical accessibility by indigenous peoples to these various areas of the seas and for the assessment of traditional usage rights over those areas of the sea. Hence, the pertinent questions to ask must be: do indigenous people have access to these various areas of the seas and if so, have they developed traditional or customary practices and techniques to access marine resources in these areas? Do they have any traditional or customary connections to specific marine resources in these areas? Only if we get a positive response to these questions can we competently assess the impact of the introduction of the EEZ regions on the marine ecosystems, but more particularly, on rights over ownership issues or claims to marine genetic resources by indigenous people. To address these issues, a case study of the Trobriand Islanders of Papua New Guinea is presented to illustrate the impact of the LOSC on traditional, indigenous practices of marine tenure.