Considerations on the application of the MGR Mechanism

Introduction

 

This section provides some of the considerations on the relevant entities, exempted activities and resources, the timing of the application of the new requirements, and certain conditions on research activities associated with marine genetic resources (MGRs) of areas beyond national jurisdiction (ABNJ). The MGR Mechanism had to balance various, and at times opposing, interests of the negotiating countries. The BBNJ Treaty reflect the aim to reach a consensus and universal participation to achieve conservation and sustainable use of ABNJ.

 

Which entities will need to comply with the MGR Mechanism requirements?

 

The first question that an entity that is under the jurisdiction of a Party may ask is, “would the new requirements apply to us”? Generally, the following entities that are under the jurisdiction of a Party to the BBNJ Treaty are considered relevant stakeholders:

 

  • Academic and research institutions that house scientists that:
    • engage in sample collection activities in ABNJ
    • use, store, or transfer organisms collected in ABNJ
    • generate and/or use digital sequence information on MGRs of ABNJ
  • Businesses that:
    • engage in sample collection activities in ABNJ
    • use, store, or transfer organisms collected in ABNJ
    • generate and/or use digital sequence information on MGRs of ABNJ
  • Institutions and businesses that are interested in utilizing traditional knowledge of Indigenous Peoples and local comunities
  • Databases maintained at the national and international levels
  • Repositories, including collections (e.g., natural museums) and gene banks

Ref. BBNJ Treaty Art. 11.1

Note that each Party will enact and implement necessary legislative, administrative, or policy measures at the national level. For that reason, there may be some variations to the list of the entities above. For specific information about a Party, visit the page here.

 

Are there activities that are exempt from the MGR Mechanism requirements?

 

Yes. The negotiating countries wanted to ensure that certain activities that are already regulated for a different purpose (e.g., fishing) not be entangled in the MGR Mechanism requirements. Also, there were concerns about the MGR Mechanism requirements interfering with their national security interests. To address such concerns, the following activities in areas beyond national jurisdiction (ABNJ) and resources of ABNJ are exempt, but with certain conditions:

 

  • Fishing regulated under relevant international law and fishing-related activities; or
  • Fish or other living marine resources known to have been taken in fishing and fishing-related activities from ABNJ, except where such fish or other living marine resources are regulated as utilization as part of the BBNJ Treaty.
  • A Party’s military activities, including military activities by government vessels and aircraft engaged in non-commercial service. However, each Party must adopt appropriate measures (without impairing the operations or operational capabilities of such vessels or aircraft owned or operated by it) so that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with the BBNJ Treaty.

 

Ref. BBNJ Treaty Art. 4, 10.2, and 10.3

 

For specific information about a Party, visit the page here.

 

When will the MGR Mechanism requirements become effective?

 

The trigger of the MGR Mechanism requirements may vary depending on the Party. Such potential variance is due to the option for a Party to “opt out” of certain requirements in the MGR Mechanism.

 

The requirements will become effective once the BBNJ Treaty enters into force for those entities that are under the jurisdiction of a Party to the BBNJ Treaty. Specifically, the notification and benefit-sharing requirements will become mandatory for all the collection, post-collection, and utilization activities (unless they are exempt—see above) that occur after the Treaty enters into force.

 

However, for the entities under the jurisdiction of a Party that did not opt out, the notification and benefit-sharing requirements will also apply to utilization of MGRs collected and digital sequence information generated before entry into force (each prospective Party has an option to opt out of this requirement in writing at the time of signature, ratification, approval, acceptance, or accession to the Treaty). For example, if the MGR was collected in 1950 in ABNJ, but utilized after the Treaty enters into force, then the MGR Mechanism requirements would apply. In another example, if digital sequence information associated with an MGR of ABNJ was generated in the year 2000 and utilized after the Treaty enters into force, then the MGR Mechanism requirements would apply.

 

Ref. BBNJ Treaty Art. 10.1

 

For specific information about a Party, visit the page here.

 

Are there conditions to collecting MGRs in ABNJ and/or generating and utilizing digital sequence information associated with the MGRs?

 

Yes. The following conditions apply to collecting marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) and/or generating and utilizing digital sequence information associated with the MGRs of ABNJ:

 

  • Parties to the BBNJ Treaty must promote cooperation on all activities associated with MGRs and digital sequence information.
  • No country must claim or exercise sovereignty or sovereign rights over MGRs of ABNJ. No such claim or exercise of sovereignty or sovereign rights must be recognized. 
  • Collection activities in ABNJ must be carried out with due regard for the rights and legitimate interests of coastal countries in areas within their national jurisdiction and with due regard for the interests of other countries in ABNJ, in accordance with the UN Convention on Law of the Sea. To this end, Parties must endeavor to cooperate, as appropriate, including through the operation of the Clearing-House Mechanism, with a view to implementing the BBNJ Treaty.
  • Collection in situ of MGRs of ABNJ must not constitute the legal basis for any claim to any part of the marine environment or its resources.
  • Activities with respect to MGRs and digital sequence information on MGRs of ABNJ are in the interests of all countries and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into consideration the interests and needs of developing countries.
  • Activities with respect to MGRs and digital sequence information on MGRs of ABNJ must be carried out exclusively for peaceful purposes.

 

Ref. BBNJ Treaty Art. 11.2 through 11.7

 

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