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Marine Policy xxx (xxxx) xxx
Please cite this article as: Fran Humphries, Marine Policy, https://doi.org/10.1016/j.marpol.2020.103910
0308-597X/© 2020 Published by Elsevier Ltd.
A tiered approach to the marine genetic resource governance framework
under the proposed UNCLOS agreement for biodiversity beyond national
jurisdiction (BBNJ)
Fran Humphries
a
,
*
, Hiroko Muraki Gottlieb
b
, Sarah Laird
c
, Rachel Wynberg
d
, Charles Lawson
e
,
Michelle Rourke
f
, Morten Walløe Tvedt
g
,
1
, Maria Julia Oliva
h
, Marcel Jaspars
i
a
Law Futures Centre, Grifth Law School, Grifth University, Nathan, Qld 4111 Australia
b
Department of Organismic and Evolutionary Biology, Harvard University, Biological Laboratories Building, 16 Divinity Ave. Rm. 3085, Cambridge, MA 02138-2020,
USA
c
People and Plants International, PO Box 251, Bristol, VT 05443, USA
d
Department of Environmental and Geographical Science, University of Cape Town, Rondebosch, 7700, South Africa
e
Environmental Futures Research Institute, Grifth Law School, Grifth University, Gold Coast, Qld 4222 Australia
f
CSIRO and Law Futures Centre, Grifth Law School, Grifth University Nathan Queensland 4111 Australia
g
University of Molde, Høgskolen i Molde Postboks, 2110 6402, Molde, Norway
h
Union for Ethical Biotrade, De Ruijterkade 6, 1013 AA Amsterdam, the Netherlands
i
Marine Biodiscovery Centre, Department of Chemistry, University of Aberdeen, Old Aberdeen, AB24 3UE Scotland, UK
ARTICLE INFO
Keywords:
UNCLOS
Marine genetic resources
Convention on biological diversity
Access and benet sharing
ABSTRACT
Developing a governance framework for Marine Genetic Resources (MGRs) is a crucial element of the proposed
treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction
(BBNJ). Negotiating countries’ positions on MGRs, including questions on the sharing of benets from their use,
range from no regulation to elaborate infrastructure for access and benet sharing (ABS) of all MGRs. This article
proposes a Tiered Approach to MGR governance that nds a middle ground between negotiating countries’
positions on ABS and aims to foster scientic research on samples and data, protect traditional and local
knowledge, promote consistency with existing ABS frameworks within national jurisdiction and address con-
servation gaps including the absence of a biosafety framework. This practical activities approach to MGR
governance provides an alternative to the ‘one size ts all’ approach to ABS currently under negotiation with
range of governance options more suited to ABNJ’s unique environmental and geo-political conditions. These
include an ABNJ Activity Notication and Monitoring System, a Facilitated Information and Sample Sharing
Hub, an ABNJ Benet Sharing System and an End-user Due Diligence approach to monitoring and benet
sharing. This article concludes that MGR governance should implement the United Nations Convention on the Law
of the Sea’s vision for an ‘equitable and efcient’ utilisation of resources and protection of the marine envi-
ronment, offering a range of tools and approaches that complement ABS, but that are more diverse and exible
than the ABS concept alone.
1. Introduction
The United Nations Convention on the Law of the Sea (UNCLOS) forms
the ‘Constitution of the Seas and Oceans’ and, among other things,
provides a framework for environmental protection, scientic research
and technology transfer in different maritime zones [1]. The zones
include States’ territorial waters, the continental shelf, the exclusive
economic zone (all areas within national jurisdiction) and areas beyond
* Corresponding author.
E-mail addresses: frances.humphries@grifth.edu.au (F. Humphries), hmurakigottlieb@fas.harvard.edu (H.M. Gottlieb), sarahlaird@aol.com (S. Laird), rachel.
wynberg@uct.ac.za (R. Wynberg), c.lawson@grifth.edu.au (C. Lawson), michelle.rourke@grifth.edu.au (M. Rourke), Morten.W.Tvedt@himolde.no
(M.W. Tvedt), julia@ethicalbiotrade.org (M.J. Oliva), m.jaspars@abdn.ac.uk (M. Jaspars).
1
And the Fridtjof Nansen Institute, the research behind Tvedts contribution to this article funded was conducted under the project BiosPolar funded by the
Norwegian Research Council “Legal frameworks for bioprospecting and bio-innovation in Polar Regions (BiosPolar)” (Project number 257631/E10)
Contents lists available at ScienceDirect
Marine Policy
journal homepage: http://www.elsevier.com/locate/marpol
https://doi.org/10.1016/j.marpol.2020.103910
Received 31 October 2019; Received in revised form 17 February 2020; Accepted 1 March 2020
Marine Policy xxx (xxxx) xxx
2
national jurisdiction (ABNJ), which is comprised of the High Seas water
column and the seabed, ocean oor and subsoil below the High Seas
water column (‘The Area’). Marine genetic resources (MGRs) are the
biological building blocks for biodiversity in all of these areas. Gover-
nance of MGRs within national jurisdiction is affected by a range of in-
ternational, national and local measures and tools. Conservation tools
include those that protect the genetic diversity of wild species, such as
biosecurity to manage the spread of disease, protected species regula-
tions and biosafety measures that manage the risks of genetically engi-
neered organisms. Tools for sustainable use of marine biodiversity
include regulating the access to, and use of MGRs. Although technolo-
gies are making it easier to conduct activities in ABNJ, there are sig-
nicant international governance gaps due to the fact that countries do
not have sovereign rights to adopt effective measures for MGRs in these
areas. In response, United Nations countries agreed to negotiate an in-
ternational legally binding instrument (ILBI) under UNCLOS on the
conservation and sustainable use of marine biological diversity of ABNJ
[2]. This article: (1) explores the negotiators’ approach to date; (2) ar-
gues that the focus on a narrow, ‘one size ts all’ approach does not take
into account the unique characteristics of ABNJ environmental and
geo-political conditions; and (3) offers a practical pathway, called the
Tiered Approach, for a more sustainable, equitable and efcient MGR
governance regime that could accommodate technological advances and
increase conservation measures for ABNJ.
At the rst negotiating session for the ILBI, delegations reafrmed
that it ‘should operationalize and strengthen the provisions of UNCLOS
for the conservation and sustainable use of marine biodiversity of areas
beyond national jurisdiction (ABNJ) [3]. The program of work for the
negotiations addresses four elements of governance: (1) MGRs,
including benet sharing; (2) Environmental Impact Assessments; (3)
Area Based Management Tools, including marine protected areas); and
(4) Capacity Building and Transfer of Marine Technology [2]. Unless the
Member States agree on all of the elements, there will be no ILBI [2].
Negotiating the MGR element is challenging with few areas that coun-
tries agree upon [4]. This may derail the entire agreement unless new
options are explored to overcome the impasse.
In November 2019, the President of the intergovernmental confer-
ence (IGC) released a revised Draft Text that consolidated governance
options raised at previous negotiating sessions [5]. This states that the
primary objective of the ILBI is ‘to ensure the [long-term] conservation
and sustainable use’ of marine biodiversity in ABNJ (draft article 2).
While the text is for discussion purposes only, the objectives and
framework of the MGR element appear to focus only on the Convention
on Biological Diversity’s (CBD) [6] concept of access and benet sharing
(ABS), without consideration of broader concepts of equity, or other
tools to achieve equity, conservation and sustainable use.
The 1992 CBD and its supplementary agreement the 2010 Nagoya
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing
of Benets Arising from their Utilisation to the Convention on Biological
Diversity (Nagoya Protocol) [7], provide the basis of the international
framework for ABS within national jurisdiction. The CBD recognises
sovereign rights over genetic resources and encourages countries to
provide access to their genetic resources in return for a share in the
monetary or non-monetary benets from their use (article 15). Two core
legal and institutional processes have evolved since the CBD entered into
force to achieve this in practice:
An administrative (government) process for regulating access to
genetic resources and associated traditional knowledge for their
utilisation, through prior informed consent and permitting; and
A contractual process for determining how the benets arising from
the utilisation of genetic resources are ‘fairly and equitably’ shared
between users and providers (on mutually agreed terms).
ABNJ present particular environmental, geo-political, legal and so-
cial contexts that vary considerably from the biodiversity and genetic
resources envisaged by the CBD. For example, most of the deep ocean is
located in ABNJ, an environment presenting high pressures, stable low
temperatures (~4 C) and low oxygen concentrations, meaning that
organisms grow very slowly in this environment and that environmental
damage can take decades or centuries to repair. Trenches, forming less
than 1% of the ocean area, are isolated ecosystems where unique life-
forms may have evolved over millions of years. Many other unique en-
vironments exist in ABNJs that have extraordinarily high diversity of
marine macro- and micro- organisms. The marine biotechnology in-
dustry is interested in these unique organisms as biological diversity
translates to chemical and genetic diversity, leading to the discovery of
new products and processes. However, with no sovereign rights recog-
nised in ABNJ (in contrast to the CBD) there is no legally recognised
‘provider’ entitled to prior informed consent and a share of the benets
from genetic resource use under bilateral arrangements. Instead the ILBI
needs to conceive an ABS system that is not dependent on this trans-
actional approach but still creates incentives for governments and
stakeholders to be transparent about collection and use of MGRs of ABNJ
and to share benets from their use. With potentially billions of or-
ganisms not yet discovered in the most remote marine areas of the globe,
the scope of a model based on the CBD, where enforcement for benet
sharing is dependent on proving a link with an entitlement for the
original access, would be enormous. There are other ABS models that
narrow the scope of their regimes such as the United Nations Food and
Agriculture Organisation’s International Treaty for Plant Genetic Resources
for Food and Agriculture (ITPGRFA) [8] and the World Health Organi-
sations’ Pandemic Inuenza Preparedness (PIP) Framework [9]. These
multilateral systems tailor the ABS concept to the special circumstances
for biological resource use within their scope to achieve a particular
purpose - food and health security goals respectively.
This article explores the challenges and opportunities associated
with MGRs of ABNJ, including access, benet sharing and monitoring.
We argue that attempting to retrot the CBD’s concept of access and ‘fair
and equitable’ benet sharing to the unique circumstances of ABNJ
could lead to unintended consequences, such as an inequitable and
inefcient utilisation of ocean resources.
While ideally countries would design an MGR policy from scratch
that takes into account ABNJ’s unique characteristics, to date they have
more narrowly focused on the CBD’s framing of ABS during negotia-
tions. We propose a way forward, called the Tiered Approach, navi-
gating between ‘open’ or ‘restrictive’ positions on ABS but in a way that
supports biodiversity conservation and fosters scientic research, pro-
tects traditional and local knowledge, operationalises international
collaboration and promotes consistency with existing MGR benet
sharing frameworks within national jurisdiction.
The article concludes that MGR governance should be considered in
the broader context of equity, sustainable use and biodiversity conser-
vation, offering a range of tools and approaches that complement, but
are more diverse and exible than the ABS concept alone. Strong
engagement with key stakeholders, such as scientists, the private sector,
local communities and traditional knowledge holders will likely increase
the odds that any new framework will not only be practical and remain
relevant in decades to come but also provide a platform that will foster
research, collaboration and marine conservation.
2. The proposed ‘ABS one-size-ts all approach’ to MGRs of
ABNJ under the ILBI
This section argues that while negotiating parties recognise that
ABNJ is a unique jurisdictional area, they continue to import objectives,
values and tools based on the CBD’s concept of ABS that suits genetic
resource transactions (material and knowledge exchanges) within na-
tional jurisdictions. First, a narrow view of the CBD’s approach to equity
and technology transfer has been adopted as the basis of MGR gover-
nance, rather than conservation of MGRs, equity and efciency as
envisaged by UNCLOS. Second, the CBD’s approach of regulating access
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
3
to MGRs based on the form and location of the tangible or intangible
genetic resource, compounds the governance challenges already faced in
national jurisdictions. Third, a ‘one size ts all approach’ to benet
sharing and monitoring, imports the CBD’s model of benet sharing that
is dependent on establishing a direct link with access (the transaction
approach) – an approach that would consume enormous resources for
monitoring and compliance.
2.1. Proposed MGR governance objectives
While UNCLOS does not directly provide a framework for MGR
governance in ABNJ, its vision for a legal order for the seas and oceans
includes the ‘equitable and efcient utilisation of [the ocean’s] re-
sources’, Recognizing the desirability of establishing through this
Convention, with due regard for the sovereignty of all States, a legal
order for the seas and oceans which will facilitate international
communication, and will promote the peaceful uses of the seas and
oceans, the equitable and efcient utilisation of their resources, the
conservation of their living resources, and the study, protection and
preservation of the marine environment … [preamble]
2.1.1. The missing link to conservation of MGRs
The overall objective of the ILBI in the Draft Text is to ‘ensure the
long-term conservation and sustainable use of marine biological di-
versity of ABNJ through effective implementation of the relevant pro-
visions of the [UNCLOS] and further international cooperation and
coordination’ (preamble). However, the draft objectives of the specic
MGR governance section of the ILBI at the time of writing are more
narrowly focused:
1. Build the capacity of developing States Parties to access and utilize
MGRs of ABNJ;
2. Promote the generation of knowledge and technological innovations;
3. Promote the fair and equitable sharing of benets arising from the
utilisation of MGRs of ABNJ;
4. Promote the development and transfer of marine technology;
5. Contribute to the realization of a just and equitable international
economic order (draft article 7).
These objectives focus largely on access, benet sharing and tech-
nology transfer as the means of achieving MGR governance in ABNJ.
Conspicuously absent are goals for ensuring the long-term conservation
of marine biological diversity. Although many would argue that the ABS
concept inherently supports conservation as an economic incentive,
conservation has largely fallen out of the spotlight within CBD ABS
discussions; this is contrary to the early years of implementation when
ABS measures, contracts and partnerships often required conservation
measures [10]. Today, it is more common for governments to consider
benets for conservation to result indirectly from sharing of materials,
scientic data, forms of capacity building and contractual agreements
between parties. However, there is little or no published research
providing evidence that the ABS transaction per se is an effective tool for
conservation of genetic resources (as opposed to equitable use) [10].
Tier 5 of the Tiered Approach (section 3.5 below) identies ways in
which the missing link to conservation can be more directly incorpo-
rated into MGR governance under the ILBI.
2.1.2. The missing link to UNCLOS values for benet sharing
The Draft Text imports the CBD’s values of ‘fair’ and ‘equitable’ into
MGR benet sharing, terms that are undened but underlie the trans-
action between provider and user of a particular resource within na-
tional jurisdiction. The CBD leaves what is ‘fair and equitable’ to be
negotiated between the parties. In the absence of an identied ‘provider’
of MGRs in ABNJ with whom to negotiate and share benets or a
contractual mechanism for achieving benet sharing, it is unclear how
these values alone can guide behaviour under the ILBI’s MGR
framework. The President of the negotiations has said that the ILBI’s
provisions ‘should be fully consistent with the provisions of’ UNCLOS
[5]. In the absence of express provisions on MGRs under UNCLOS, its
preamble might serve as a guide to the values that underlie MGR ex-
changes between countries. The preamble recognises the desirability of
‘establishing a legal order for the seas and oceans’ that promotes the
‘equitable and efcient utilisation of resources’ (emphasis added). The
UNCLOS values of equity and efciency apply to both living and
non-living resources [11]. Section three on the Tiered Approach below
demonstrates how incorporating UNCLOS values of ‘equity and ef-
ciency’ into designing an MGR governance framework can have a pro-
foundly different effect on guiding the achievement of conservation and
sustainable use goals.
2.2. Proposed MGR access framework
The Draft Text proposes to achieve its objectives by requiring parties
to take legislative, administrative or policy measures to ensure compli-
ance with the ILBI’s access arrangements, benet sharing, monitoring
and intellectual property restrictions [5].
Countries have not yet agreed whether the MGR provisions apply to
in situ, ex situ and/or in silico MGRs and ‘derivatives’ of MGRs. However,
the Draft Text proposes different access procedures depending on the
form and location of the subject matter:
In situ access options include prior notication or permit or prior
informed consent systems;
access to ex situ MGRs of ABNJ is proposed as ‘free and open’
(undened);
access to in silico information or data is proposed as ‘facilitated’
(undened); and
access to traditional knowledge associated with (or useful for
unlocking the value of) MGRs of ABNJ would require the prior
informed consent or approval and involvement of those holding this
knowledge on mutually agreed terms.
The CBD’s distinction between in situ and ex situ genetic resources is
relevant in situations where a country can exercise control over its re-
sources but may cause confusion in ABNJ’s unique geo-political condi-
tions. In the ABNJ context where there are no sovereign rights to in situ
MGRs, as soon as they are landed on the research vessel and the ag state
jurisdiction becomes the relevant regulatory framework, they become ex
situ and could be regarded as ‘free and open’. This means that unless the
ILBI clearly denes what it means by ‘in situ’, ‘ex situ’ and ‘access’, most
MGRs of ABNJ will be ‘free and open’ and incapable of being subject to a
form of benet sharing that depends on maintaining the chain of custody
of the resources from the point of access. It is therefore concerning that
there is no explanation in the ILBI about the relationship with domestic
ABS laws that already control ex situ genetic resources located in na-
tional jurisdiction.
By adding a separate (undened) procedure for accessing in silico
information or data about MGRs, the ILBI is further complicating one of
the biggest challenges facing national ABS frameworks – the demateri-
alisation of genetic resources. There is ongoing debate in other ABS
forums (CBD [12], ITPGRFA [13] and the PIP Framework [14]) about
whether including intangible aspects of genetic resources such as digital
sequence information (DSI) as the subject matter of ABS transactions is
feasible in practice, and if so, how benet sharing and monitoring can be
practically effected [15,16]. Section 3.3 analyses this debate to propose
an alternative approach to governance of information separate to the
physical material.
2.3. Proposed benet sharing and monitoring frameworks
The Draft Text takes a ‘one size ts all’ approach to benet sharing
and monitoring, which appear to apply equally to all forms of MGRs in
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
4
ABNJ, regardless of whether they are in situ, ex situ or in silico. It draws
on the CBD concept of ABS where benets are triggered only by the act
of access or utilisation (negotiators have not yet agreed on the options).
It is unclear how this link is to be proven in practice for ex situ MGRs if
access is to be ‘free and open.’ This causal link may also dispropor-
tionately require the initial researcher (rather than downstream users)
to provide benets at the time of access, before any commercial value of
the genetic resource is unlocked.
3. The Tiered Approach
Given the deciencies described, we propose a Tiered Approach for
accessing MGRs and sharing the benets associated with their use. The
current iteration of the ILBI Draft Text outlines an ABS system modelled
from the CBD and Nagoya Protocol that were designed for accessing
genetic resources within national jurisdictions. The Tiered Approach is a
novel approach to ABS that better suits the unique nature of MGRs of
ABNJ.
The purpose of the Tiered Approach is to identify the building blocks
for a sustainable, equitable and efcient framework that negotiators can
tailor to meet the agreed purposes of MGR governance and to satisfy
individual country interests. It integrates MGR governance with other
ILBI elements (Environmental Impact Assessment, Area Based Manage-
ment Tools and Capacity Building/Technology Transfer) as well as ar-
rangements for MGR governance within national jurisdiction to promote
a coherent global system for the conservation and sustainable use of
MGRs. It also builds on lessons learned from challenges facing other ABS
systems, including managing traceability across jurisdictions and
addressing challenges posed by DSI which does not involve the exchange
of physical materials. Also incorporated is the intent of Draft Text op-
tions and some of the ideas from innovative governance proposals such
as the OPEN system [17]. Finally, the Tiered Approach attempts to nd a
balance between creating a exible regime that: (1) uses obligations and
incentives for regulating MGRs of ABNJ so that their benets can be
equitably shared; and (2) minimises the cost of governance infrastruc-
ture and the regulatory burden on low income countries and researchers.
Table 1 highlights the key differences between the current Draft Text
approach and the Tiered Approach.
The Tiered Approach has ve tiers that suggests governance ele-
ments around the following activities:
1. Collection of MGRs in ABNJ (Tier 1);
2. ILBI scope activities concerning physical materials of ABNJ
(including contextual information) (Tier 2);
3. ILBI scope activities using DSI separately from the physical sample
(Tier 3);
4 Access and use of traditional knowledge (Tier 4); and
5 Conservation of MGRs in ABNJ (Tier 5).
Fig. 1 provides an overview of the Tiered Approach’s key infra-
structure outlined in this section.
3.1. Tier 1 collection and storage of MGRs in ABNJ
3.1.1. ABNJ Activity Notication and Monitoring System (ANeMONe)
For now, marine scientic research in ABNJ is challenging due to the
expense and difculties of travelling to and operating in the High Seas.
Most expeditions involve cruises by international partnerships of a range
of research institutions and activities, one of which may be to collect
samples that might be relevant to MGR research [18]. This means that a
system of prior notication must be broad enough to feed into each of
the ILBI elements but not burden the researchers with reporting re-
quirements on collection for potential nds (discoveries) that are un-
known at the prior notication stage.
An ABNJ Activity Notication and Monitoring System (ANeMONe),
which could be part of the Clearing House Mechanism proposed in the
Draft Text, could offer researchers a one-stop-shop for assessing whether
their activities trigger MGR, Environmental Impact Assessment, Area
Based Management Tools and/or Capacity Building/Technology
Transfer obligations and opportunities. In return for cruise ‘prior noti-
cation’ and/or cruise registration, a designated ILBI body could allo-
cate a ‘cruise identier’ with information about ILBI requirements and
matches from a Capacity Building database. This database could be
managed as part of the Clearing House Mechanism to ‘match’ providers
and users of capacity building initiatives (e.g. low income country re-
searchers seeking on board experience). Real time vessel tracking da-
tabases are already available
2
; however, developers of the notication
or registration system would need to take into account some countries’
national security requirements. A notication system with publicly
available cruise registration information could offer signicant benets
to the deep-sea research community, for example, enhanced coopera-
tion, efciency for cruise planning and capacity building opportunities
[18].
3.1.2. Monitoring under the Facilitated Information and Sample Sharing
Hub (FISSH): traceability v track and trace
The Tiered Approach makes a distinction between a monitoring
system that serves a ‘track and trace’ function and one that serves a
traceability function. The former is akin to a parcel tracking system,
which records the location of the parcel at every point along the delivery
chain. The latter is like an automobile recall system, where it is not
necessary for manufacturers to track where the car is at every moment,
or record whose custody it passes through, until there is a problem. Then
the system will trace the product number and ownership (e.g. through a
car registration system) to pinpoint the relevant car and issue a notice to
the current owner. Track and trace (the former) is a common monitoring
approach under national ABS laws that need to ‘prove’ the chain of
custody of a genetic resource from the point of access - through to the
hands of subsequent users in order to have a legal right to the share of
benets. However, using prior notication, identiers and status reports
as the foundation of a ‘track and trace’ system where benets are tied
directly to access (as proposed in the Draft Text) for potentially trillions
of organisms from ABNJ covering 40% of the surface of the planet, is an
inefcient use of infrastructure and funding. ABS laws within national
jurisdiction have the advantage of a close contractual relationship be-
tween a user and provider where monitoring and compliance is built
into the contract obligations, which is not possible in the ABNJ context.
One option for ABNJ is to have any ‘track and trace’ system associated
with a more targeted multilateral ABS system (see section 3.2 below).
Another option is to develop a user-driven and transparent web-
based traceability platform similar to the PIP Framework’s Inuenza
Virus Traceability Mechanism that records the movements of inuenza
viruses between laboratories.
3
Fig. 2 indicates where a proposed
Table 1
Key differences between Draft Text and Tiered Approach.
Draft Text approach (November 2019) Tiered Approach
Heavy reliance on the CBD access and
benet sharing (ABS) concept as a
governance tool
Broader conservation and sustainable use
tools and integration with other ILBI
elements
Importing CBD values (fairness &
equity)
UNCLOS values driven approach (equity
& efciency)
Subject matter approach to ABS and
monitoring (in situ, ex situ, in silico,
traditional knowledge)
Activities approach to ABS and
monitoring (collection, research/
development and market engagement)
One size ts all model for benet
sharing
Benet sharing tiers based on
proportionality, equity and efciency
2
E.g. https://www.marinetrafc.com/en/ais/home/centerx:84.9/centery:
-18.3/zoom:2.
3
See https://extranet.who.int/ivtm/.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
5
Facilitated Information and Sample Sharing Hub (FISSH) could offer a
traceability system but not necessarily a ‘track and trace’ function for
compliance, but still deliver information that supports benet sharing.
This is an information hub rather than a database for collection and
storage of information, more akin to a transparency mechanism showing
movement of the materials from user to user through the use of identi-
ers. It would be up to the ILBI to determine how ABNJ identiers used
to trace the materials would be assigned – most likely through the Draft
Text’s Clearing House Mechanism (see below). The FISSH information
hub could show linked identiers assigned by databases such as acces-
sion numbers from the International Nucleotide Sequence Data Collab-
oration and digital object identiers (DOI) from literary and other
databases.
As researchers do not know what MGRs they may nd from ABNJ
until sample validation in the laboratory weeks (or even years) after
collection [18] and each water sample may contain millions of organ-
isms, the IBLI could take a bulk identier approach instead of mandating
a unique identier for individual organisms and data as currently pro-
posed in the Draft Text. The ‘bulk collection identier’ could stay with
the MGR as part of the metadata, which includes the relevant informa-
tion described in the study and provenance information necessary to
comply with the best scientic practices for publication and national
ABS regimes [19]. This bulk identier could be traced in the FISSH and
be updated with unique identiers, linked to the bulk identier, for
specic samples and sequences as database technologies improve.
4
The
FISSH could be tied with an End-user Due Diligence approach to
monitoring and benet sharing outlined in section 3.3 below. The ILBI
could require or encourage States Parties (and provide incentives for
non-state parties) to integrate the ILBI collection identication system
into their own monitoring systems for MGRs of ABNJ used within their
national jurisdictions.
3.1.3. Conservation and sharing of collected samples and data
A fundamental tenet of the Tiered Approach is to nd practical ways
of achieving the conservation and sharing of collected samples of MGRs
of ABNJ and their associated data, from which further discoveries and
knowledge generation can be made. Upon collection, the Draft Text
proposes mandatory deposit of samples and data in ‘open source’ plat-
forms. MGR conservation and scientic advances will benet from free
access to samples and associated data, but the legal and scientic
meaning and extent of ‘open’ access will vary with the individual fa-
cility/database protocols and any relevant national laws [20]. It is
important to make the distinction between mandatory requirements to
deposit samples in an ex situ facility separate to the collector’s facility for
sharing with others and requirements to share samples and data per se. A
deposit scheme would require enormous infrastructure and conservation
risks associated with single large collections compared to distributed
collections. From a scientist’s point of view, it may not be possible to
take identical or multiple samples and complications may arise from
potential of overlap of work on multiple sample sets. From a curator’s
point of view, there are signicant costs for the maintenance and storage
of physical specimens, so any mandatory deposit scheme would need to
include capacity building and associated resources (e.g. human, cost,
infrastructure, etc.) for ex situ facilities [18]. Transferring samples to ex
situ facilities in other countries may subject the materials and data to
another set of national ABS laws and reporting obligations, increasing
benet sharing and reporting burdens on the initial collector.
Fig. 1. Key infrastructure of the Tiered Approach.
4
See e.g. https://www.ncbi.nlm.nih.gov/biosample/.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
6
However, requirements to share samples and data can still be ach-
ieved without mandatory deposit schemes and infrastructure. There are
initiatives within the scientic community for open access to genetic
resources and data upon publication
5
[21]. The FISSH proposed under
the Tiered Approach facilitates other researchers’ access to materials
and data while not requiring the original researcher to deposit dupli-
cates or sub-samples in external ex situ facilities. As with the PIP
Framework Inuenza Virus Traceability System on which it is based,
researchers can approach the institution holding the original or trans-
ferred collections to ask for a sub-sample or data for their own research.
This online system provides information on ‘In-House’ storage (e.g. in
the holder’s laboratory or a biorepository) and sharing of samples and
data, together with a real-time reporting of the movement and uses of
samples and data. FISSH can be linked to the ILBI’s proposed Clearing
House Mechanism and biobanks,
6
which could also offer a forum for
improving research institutions’ social licence to operate if they share
the materials and data. Similar to the Norwegian Marine Biobank Mar-
Bank,
7
multiple non-competing uses on the same sample are permitted
depending on sample quantity and suitability for intended use. This
would mean data is acquired on the same sample in parallel rather than
sequentially, increasing the knowledge base on MGRs exponentially.
3.2. Tier 2 ILBI scope activities concerning physical materials of ABNJ
(including contextual information)
3.2.1. Scope
All MGRs collected from ABNJ will be eventually located within
Fig. 2. Approach to benet sharing under Tier 2 – collection and storage of MGRs.
5
See e.g. https://www.nature.com/authors/editorial_policies/availability.
html.
6
See e.g. CABI: https://www.cabi.org/and also WFCC: http://www.wfcc.inf
o/guidelines/and https://www.iode.org/.
7
https://www.imr.no/marbank/en.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
7
national jurisdiction, which may cause confusion if there are different
access or use regimes for in situ, ex situ and in silico MGRs applying to the
one research activity (see section 2 above). The Draft Text’s articial
distinction between the form and location of the genetic resource does
not recognise that unlocking value of the physical material often re-
quires information about the genetic resource. To avoid the monitoring
challenges and disproportionate benet sharing and reporting re-
sponsibility on the initial researcher arising from the Draft Text’s three
distinct access regimes outlined in section 2 above, Tier 2 targets the
activities of MGR users, regardless of whether or not they relate to the
form of in situ or ex situ resources and associated information. Tier 3
recognises that there are special additional governance challenges for
managing the use of information separately from the physical resource,
which is explored in section 3.3 below.
For activities that fall within scope of benet sharing under the
Tiered Approach, it is important to make a distinction between: (1)
benet sharing that is dependent on access (i.e. the ‘ABS’ transaction of
the CBD and Nagoya Protocol), such as mandatory benets under a
multilateral system and benets from MGRs of ABNJ managed under
national bilateral ABS laws; and (2) benet sharing that is not tied to
access such as conservation of voluntary duplicate samples and a
capacity-building database. A combination of the two may also be
feasible.
3.2.2. Approaches to benet sharing that are dependent on access or
utilisation of MGRs – a ‘tied’ benet sharing system
Currently the Draft Text includes all MGRs of ABNJ in its system of
benets that arise from the access to or utilisation of MGRs of ABNJ. At
the time of writing, countries have not yet decided if the trigger will be
access and/or utilisation but if benet sharing is expected from ex situ
materials, subsequent users would also need to be captured by ABS
obligations. As discussed in Tier 1, this is a more ‘closed ABS system’ that
would require extensive infrastructure to track and trace the MGR as it
passes through the possession of subsequent users in order to require
benet sharing from the access or use of the resources.
A more targeted ABS framework using an ‘open but facilitated’ ac-
cess multilateral system may be one option for an efcient means of
achieving both equity and scientic advancement. Fig. 3 illustrates an
example approach under an ABNJ Benet Sharing System (ABySS) and
Open Multilateral Mechanism that targets ABS to those MGRs in a
dened geographical area (such as hydrothermal vents that only cover
50 km
2
of the sea oor). This example of dening scope was chosen
because the high concentration of biodiversity in these areas has sig-
nicant potential for commercial applications and/or economic returns,
and for conservation and scientic advancement [22]. This targeted
‘tied system’ of ABS could include a registration process for collection of
MGRs in ABNJ hydrothermal vents that integrates ABS with MGR con-
servation objectives.
8
Exceptions could be made for certain ABySS materials to remain
outside of the registration and multilateral system and fall under na-
tional bilateral ABS laws, if there were practical or strategic consider-
ations, as agreed by the ILBI decision making body.
9
All other ABNJ
materials not within the ABySS system would also fall under national
bilateral ABS laws. The ILBI could encourage State Parties to incorporate
collection identiers within their monitoring systems and encourage
MGR users to share some benets in accordance with the ILBI from
MGRs of ABNJ used within their jurisdictions (if origin can be estab-
lished, such as through the FISSH in Tier 1). Complementary incentive
mechanisms identied in 3.2.4 below could have a strong role in
encouraging stakeholders to participate in the ILBI benet sharing
regimes.
Any targeted benet sharing system that is tied to access would need
to ensure that there is not a disproportionate responsibility for benet
sharing on the initial researcher collecting the materials rather than
downstream users, as may be the case in the Draft Text’s current
approach (see section 2.3). This could involve a tiered approach to
triggering obligations depending on whether it is a depositing activity or
a subsequent use activity. For example:
The depositor of ABySS materials could choose;
(a) immediate access without restrictions to genetic materials,
sequence data, research data and other information for other
researchers with no further benet sharing obligations; or
(b) dened short exclusivity period (e.g. for publication or patent
application) subject to upfront payment to a fund (e.g. an ILBI
benet sharing fund) and periodic reporting requirements to the
ILBI [17]
10
;
A recipient of ABySS materials could choose from a range of benet
sharing and reporting options that become more onerous if they
restrict access to the result of their research or products ‘derived
from’ or ‘based on’ ABySS materials.
The wording of these options would need careful legal and scientic
consideration to avoid loopholes for benet sharing.
While the ABySS example is raised in this paper as one way of nding
a compromise between those countries seeking a share of monetary
benets from MGRs of ABNJ and those seeking unrestricted access to the
same resources, there are clear challenges for multilateral benet-
sharing models tied to access. First, existing multilateral funds such as
under the ITPGRFA and PIP Frameworks have poor records of effec-
tiveness, equity and transparency. Second, there are signicant chal-
lenges for dening the scope of resources to be included in a targeted
multilateral system. For example, after years of governance challenges
with a dened list of genetic resources within scope, the ITPGRFA’s
Governing Body continues to debate a proposed amendment to the
treaty’s scope to move from an ‘opt in’ system based on the list to an ‘opt
out’ system where all plant genetic resources for food and agriculture
are within scope, subject to Party declarations for exclusions [24]. Third,
some of the challenges with a mandatory deposit of duplicate samples
identied in Tier 1 remain. For example, even if the ABySS only includes
samples collected under the Tier 1 registration system from hydrother-
mal vents (less than 1 10
5
% instead of 40% of the surface area of the
planet), one water sample may still contain millions of target or
non-target living entities that may require tracing and inclusion in the
multilateral system. Finally, having both multilateral and national ABS
systems that potentially apply to the same MGRs found within and
beyond national jurisdiction could create loopholes unless the purpose
and scope of the multilateral system is clearly dened and adopted by
user countries. Ideally, the globe could start again with a ‘Whole Global
Ecosystem Multilateral Benet Sharing Mechanism’ instead of separate
CBD/Nagoya Protocol and BBNJ treaties that articially carve up sub-
ject matter scope based on jurisdictional areas. Such a system is beyond
the scope of this article.
3.2.3. Approaches to benet sharing that is not dependent on access or
utilisation of MGRs – an ‘untied’ benet sharing system
One of the most valuable outcomes of any biodiscovery research is
greater knowledge of biodiversity [25]. This outcome is not dependent
on tying a benet sharing mechanism to access through a track and trace
system. Instead, the proposed simple FISSH system in Tier 1 could
provide information about the location and uses of MGRs of ABNJ as a
valuable transparency tool for decreasing overlap between research
8
See the UN General Assembly’s call for States to take urgent action to
protect biodiversity in hydrothermal vents from harmful activities [23].
9
See the similar proposed ‘opt-out’ approach under the Plant Treaty dis-
cussed below.
10
Note the scientic community’s movement against any embargo on
sequence data [21].
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
8
efforts and improving coordination and cooperation. Once MGRs and
data are accessible through this system, people throughout the globe
could use them to address environmental, economic and societal needs,
providing local solutions to local problems with local benets. The
FISSH could be combined with the Capacity Building database to match
users of samples and data with researchers seeking to bring new research
capacities back to their national contexts (see 3.1 above).
Figs. 2–6 indicate the range of benet sharing outcomes that are not
tied to the activity of accessing physical materials including: country
incentives to contribute to the benet sharing database (section 3.1) or
ILBI conservation objectives (section 2.1); market based, scientic
prestige and private sector incentives to share the benets of MGR
research and commercial applications (section 3.3); and private or
public direct contributions to a possible benet sharing fund.
3.2.4. Innovative approaches to promoting benet sharing – end user Due
Diligence approach
An alternative to a ‘track and trace’ system from access to nal use/
product is an End-user Due Diligence approach to monitoring and
benet sharing. This requires motivation for the end user of a product to
share benets and report uses of MGRs of ABNJ and associated infor-
mation or traditional and local knowledge either through ‘stick’ or
‘carrot’ measures. One option for ‘stick’ measures could be for the ILBI to
require a CBD checkpoint
11
alert for products containing a unique
identier that is associated with species linked to ABNJ bulk collection
identier under the FISSH system for traceability (see section 3.1). To
clear the checkpoint, the onus would be on the user to demonstrate
benet sharing or disprove that their product relates to those in a
collection identier.
Fig. 3. Approach to benet sharing under Tier 2 - use and transfer activities of the physical sample and associated information.
11
E.g. patent, export or research ofces.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
9
‘Carrot’ measures could include a range of options. Market-based
incentives could harness consumer demand for more transparency and
sustainability along value chains. Initiatives like the Union for Ethical
BioTrade’s verication and certication programs for biodiversity-
based ingredients promote compliance with legal requirements on
ABS, establish broader voluntary measures for benet sharing along
supply chains, and allow companies to communicate on their commit-
ments, efforts and achievements.
12
Scientic ‘Prestige Economy’ in-
centives could include an ILBI system of ‘trusted ABNJ researchers’ if
they proactively engage with ILBI benet sharing (e.g. the Tier 1 Ca-
pacity Building database) or include ABS metadata (e.g. country of
origin) in databases to assist with traceability. Such engagement could
be in return for certain privileges (e.g. more streamlined procedures for
docking in foreign ports) or a condition of a research grant process.
Private sector mechanisms include options similar to the Global
Biosafety Compact, which is a private contract between its members
(private companies, public research facilities and governments) regu-
lating for example their stewardship obligations in relation to biodi-
versity [27]. Engaging these companies directly in benet sharing
through a similar compact that improves their social licence to operate
could be a valuable benet sharing option. Finally, ILBI benet sharing
could be tied to specic Sustainable Development Goals (SDGs) to
achieve Agenda 2030,
13
giving countries an opportunity to showcase
their commitment to SDG’s through their Voluntary National Reviews.
3.3. Tier 3 ILBI scope activities using DSI separately from the physical
sample
ABS forums continue to debate whether it is possible or practical to
regulate genetic information used separately from the physical sample
Fig. 4. Approach to benet sharing under Tier 3 – use of information separate from the physical sample.
12
https://www.ethicalbiotrade.org.
13
https://www.un.org/sustainabledevelopment/development-agenda/.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
10
such as DSI [15]. Negotiators have not yet agreed whether to include ‘in
silico’ (undened) MGRs in the ILBI but the Draft Text proposes their
access to be ‘facilitated’ (also undened). The Tiered Approach avoids
the intractable debate over categorising the meaning and scope of ‘in
silico’ (the subject matter approach to ABS) and instead focuses on the
activity of using MGR information (including DSI) separately from the
physical sample. The Laird and Wynberg 2018 fact-nding study for the
CBD [12] observed that the terminology and meaning of DSI varies
across international and national policy processes as well as across the
scientic community and databases. They found that DSI ‘permeates
nearly every branch of the life sciences and modern biology today’ (at
9). In practice, commercial research strategies are relying less on
collection of physical samples and more on DSI. On the other hand,
academic groups continue to have an interest in physical sample col-
lections because they provide information that the DSI alone cannot,
including epigenetic modications, transcription patterns and
interactions between organisms and their environment. The study sug-
gests that interests in unique organisms from extreme environments, for
example, may increase alongside digital technologies. For these reasons,
the Tiered Approach recognises that DSI will also fall under Tier 2, but
this section argues that using the information separately to the physical
resource requires a different approach to meeting ABS objectives.
There are signicant challenges for monitoring information (e.g.
DSI) that is separate to the physical material for the purpose of benet
sharing. For example, a researcher’s computer program (e.g. a Basic
Local Alignment Search Tool) may access (scan) millions of sequences
for patterns or information they are looking for in order to create a
research outcome. Tracing the origin of each of these sequences is
impractical (even if a unique identier could be attached to the meta-
data), as is knowing which parts have contributed to the outcome so that
the ILBI could enforce benet sharing. The FISSH system (Tier 1) could
go so far as recording when a MGR user enters DSI into a database in
Fig. 5. Approach to benet sharing under Tier 4 – access and use of Traditional of Local Knowledge within ILBI scope.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
11
return for an accession number (e.g. from the International Nucleotide
Sequence Data Collaboration) but not record each movement after
leaving open access databases. There are initiatives for connecting the
multitude of databases
14
into a decentralised network of databases,
which could improve the efciency of this system, but there may be
difcult technical, management and legal questions around interoper-
ability and copyright infringement [26]. The End User Due Diligence
approach to promoting benet sharing explained in Tier 2 could apply to
DSI used separately from the physical material, without requiring each
movement to be tracked. The ‘stick’ options such as checkpoints and
‘carrot’ options that improve companies or research institution’s social
licence to operate could provide motivation for users to share benets
and report uses of DSI concerning MGRs of ABNJ in a nal product.
3.4. Tier 4 access and use of traditional and local knowledge
The Tiered Approach moves away from treating traditional knowl-
edge as a static body of knowledge that is characterised as belonging in
the past, and towards recognition that it is a dynamic system of
knowledge, culture and ways of life that are constantly changing. It
recognises that there is a growing and diverse body of national and local
laws and protocols that build frameworks around how people can access
and use traditional and local knowledge associated with genetic re-
sources and share the benets from its use, primarily through prior
informed consent and mutually agreed terms. The Tiered Approach
recognises that there can be no ‘one size ts all approach’ to these ac-
tivities under the ILBI because the knowledge is not an abstract thing
that can be traded, but rather is embedded in diverse cultural systems
and contexts.
Potential users of MGRs within national jurisdiction may have
challenges for identifying the knowledge holders with whom to
Fig. 6. Approach to benet sharing under Tier 5 – conservation of MGRs within ABNJ.
14
E.g. http://www.pimrisportal.org/global-marine.
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
12
negotiate for the access and use of their knowledge. The Tiered
Approach suggests extending the mandate of the proposed ILBI Scien-
tic and Technical Body to include other knowledge systems including
traditional and local knowledge. Indigenous Peoples and Local Com-
munities could provide their expertise to nd solutions for respectfully
and efciently incorporating traditional and local knowledge into the
ILBI framework and infrastructure. For example, they could consider a
system of traditional knowledge identiers (similar to the collection
identiers in Tier 1) that links with the traceability mechanism (FISSH).
They could develop a system for resolving how potential users would
address situations where several Indigenous Peoples or Local Commu-
nities, possibly in different countries, hold the same or similar tradi-
tional knowledge associated to MGR. They could also explore how
traditional and local knowledge could be incorporated into the End-User
Due Diligence system under the Tiered Approach, including exploring
motivations for engaging with benet sharing (‘carrot options’) such as
market-based incentives for researchers and the private sector.
3.5. Tier 5 conservation of MGRs in ABNJ
Part II of the Draft Text focuses on extractive activities (and sus-
tainable use) relating to MGRs of ABNJ but overlooks other conservation
considerations of MGR use in ABNJ (see section 2.1 above). These
considerations include the unexplored effects on the genome of MGRs in
ABNJ from the use of genetically engineered organisms and aquaculture
selective breeding in the High Seas [28], or even alien biological
contamination from the dumping of returning space equipment in ABNJ
[29].
The ILBI’s Draft Text relies on ABS to promote technology/knowl-
edge transfer and capacity building through soft obligations that only
‘encourage’ benets to be used to ‘contribute to the conservation and
sustainable use of marine biological diversity of ABNJ’ (draft article 11
(4)). The ILBI could make this obligation mandatory and formally
recognise that conservation and sustainable use of MGRs, (particularly
access, use and transfer) are inextricably linked to the Environmental
Impact Assessment, Area Based Management Tools and Capacity
Building/Technology Transfer elements of the ILBI package and create
more direct links between the elements to support conservation. Other
MGR conservation objectives could include: promoting and sharing
biodiversity surveys; promoting incentives for countries and commu-
nities to conserve marine biodiversity of ABNJ such as through national
climate change mitigation, biosecurity and biosafety strategies; and
protecting and restoring the genetic diversity of ABNJ marine entities,
including vulnerable species.
One example of a conservation aspect that is missing from the ILBI
negotiations concerns the regulating the risks of harm caused by the
effect of living modied organisms (LMOs) on their wild-type counter-
parts. The CBD’s Cartagena Protocol on Biosafety to the Convention on
Biological Diversity 2000 (Protocol) [30] is an international framework
for the safe movement and handling of movements of LMOs between
countries. This biosafety framework includes a consent procedure be-
tween governments prior to LMO movements and detailed risk assess-
ment, precautionary decision making, risk management and emergency
management frameworks.
15
Signicantly, it excludes from scope any
movement of LMOs from the territory of a Party to ABNJ [31] and is
silent about the use of LMOs in ABNJ. While the ILBI’s Draft Text has
drawn on the CBD and Nagoya Protocol provisions that promote the
sharing of technologies and MGRs, it is silent on biosafety issues in
ABNJ. The Environmental Impact Assessment provisions of the Draft
Text do not cover the consent, decision making and emergency
management measures necessary to ll the gap in global biosafety in
accordance with the Protocol. During the preparatory work leading up
to the IGC, there was no mention of implementation gaps for managing
the negative effects of genetic technology transfer.
16
The International
Council of Environmental Law was the rst to raise biosafety as an issue
for consideration during the second negotiating session for the ILBI
17
but
the issue remains neglected to date.
Any future agreement ‘regarding intentional transboundary move-
ments of LMOs’ must be consistent with and ‘not result in a lower level of
protection than that provided for by the Protocol’ (article 14(1)). This
means that if the ILBI was to strengthen the conservation objectives of
MGR governance by protecting the genetic diversity of MGRs in ABNJ, it
would need to ll the global gap in biosafety governance with a consent
mechanism for intentional movements and notication mechanism for
unintentional movements of LMOs from ABNJ to national jurisdiction
(and vice versa). It would also require the establishment of a body
capable of giving and receiving consent or notication, and duties for
information sharing, environmental impact assessment, precautionary
decision-making, emergency management measures, monitoring and
review and liability and redress measures.
4. Conclusion
The paradox of current approaches to ABS for genetic resources
within national jurisdiction is that by seeking to promote benet sharing
from the utilisation of genetic resources, the regulatory and monitoring
tools establish access requirements and restrictions which are so com-
plex that they discourage research and projects seeking to generate in-
formation and other benets. Yet seeking benet sharing in a mandatory
‘open access’ approach also creates a paradox: it breaks the chain of
custody that is necessary for tracing access to benet sharing and would
require enclosing users in an extensive monitoring system that contra-
dicts the freedom of open access.
The Draft Text’s separate access regimes based on whether MGRs are
in situ (‘notication’), ex situ (‘free and open’) or in silico (‘facilitated’)
are likely to lead to unnecessary complexity and confusion for users and
those implementing the monitoring systems, particularly as the same
research activity is likely to use all three forms of MGRs. The Tiered
Approach proposes a different approach to access: triggering obligations
based on activities of collection, research and development and market
engagement, rather than the form and location of MGRs. It also embeds
best scientic practices and protects traditional and local knowledge,
while ensuring coherence with national ABS laws and promoting benet
sharing to foster conservation and sustainable use of marine
biodiversity.
The Draft text’s one-size-ts-all benet sharing and monitoring sys-
tem creates a disproportionate responsibility on upstream users of
MGRs, especially on those conducting basic research, without direct
gains for conservation and equitable use of marine biodiversity.
Attempting to include all MGRs of ABNJ in this kind of closed ABS
system (with benet sharing tied to access) will require enormous
nancial resources and monitoring infrastructure in the hope of
distributing benets from commercial applications. These commercial
outcomes are likely to be overestimated [32] but even if they come to
fruition, there are signicant technical and legal challenges in moni-
toring and proving the origin of MGRs or data on which they are based,
particularly if information is used separately from the physical resource.
The Tiered Approach promotes benet sharing and conservation
initiatives that are not necessarily dependent on the ABS transaction, in
other words, tied directly to accessing the MGRs. A range of benets and
conservation outcomes can be achieved at each stage of the ‘use’
15
It also has a supplementary agreement, the Nagoya-Kuala Lumpur Supple-
mentary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety
2010 that addresses response measures, liability and redress that might arise
from the trans-border movement of LMOs.
16
https://www.un.org/depts/los/biodiversity/prepcom.htm.
17
https://enb.iisd.org/oceans/bbnj/igc2/1apr.html#collapse4 (see the Daily
Report for 1 April 2019).
F. Humphries et al.
Marine Policy xxx (xxxx) xxx
13
continuum whether or not benet sharing is directly tied to access: from
exploration and collection (Tier 1); to use and subsequent access of
physical materials (Tier 2); to access and use of information separate
from the physical materials (Tier 3); to access and use of traditional and
local knowledge (Tier 4); to conservation of MGRs in ABNJ (Tier 5).
Where countries would like to include an ABS element into its broader
governance framework that does tie benet sharing to access, a more
targeted multilateral system could simultaneously achieve some benet
sharing and facilitate open access and conservation outcomes depending
on its agreed scope and purpose, but it will still have governance and
monitoring challenges faced by other ABS frameworks.
The ILBI is under negotiation in a world far removed from the one
that created the original ABS concept as a solution to conserve and
sustainably use genetic resources. Developments in technologies for
discovering, collecting, using, storing and sharing genetic resources and
associated information are continuing to push the boundaries of the
current models of ABS. Instead of focusing on ABS as the sole approach
to MGR governance in ABNJ, negotiators have a rare opportunity to
implement the UNCLOS vision for an ‘equitable and efcient’ utilisation
of MGRs and protection of the marine environment through a range of
MGR governance options, including ABS, that are more suited to ABNJ’s
unique environmental and geo-political conditions.
Credit for icons
Icons from ‘The Noun Prjoect’: Bell by Vectors Point, Carrot vege-
tables by CHARIE Tristan, Computer by ArmOkay, Shake hand by Wing,
Drug by adindar, Coral by Nook Fulloption, Label by AB Designs.
Declaration of competing interest
The ideas and content from this article formed the basis of the In-
ternational Council of Environmental Law’s Information Paper of March
25, 2019 and August 30, 2019 that were written by the rst two authors
and distributed publicly to delegates for the third negotiating session of
the proposed UNCLOS implementing agreement on the conservation and
sustainable use of marine biodiversity in areas beyond national juris-
diction. The Tiered Approach concept was also presented to the ‘One
Ocean’ Symposium on August 24, 2019 in New York for feedback from
delegates.
Marcel Jaspars is founder of, shareholder of, and consultant for
‘GyreOx Ltd’ which uses marine and terrestrial enzymes for the rapid
production of complex molecules to target protein-protein interactions
involved in disease.
CRediT authorship contribution statement
Fran Humphries: Conceptualization, Writing - original draft,
Writing - review & editing. Hiroko Muraki Gottlieb: Conceptualiza-
tion, Writing - review & editing. Sarah Laird: Conceptualization,
Writing - review & editing. Rachel Wynberg: Conceptualization,
Writing - review & editing. Charles Lawson: Conceptualization,
Writing - review & editing. Michelle Rourke: Conceptualization,
Writing - review & editing. Morten Walløe Tvedt: Writing - review &
editing. Maria Julia Oliva: Writing - review & editing. Marcel Jaspars:
Conceptualization, Writing - review & editing.
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