Model of UNCLOS useful for governance of other global commons
The negotiations and compromises that led to the development of UNCLOS were a watershed for the development of international law and could serve as a model for the development of similar regimes for the governance of other global commons, including outer space, cyberspace, and the genetic pool.
Eventually, the seabed regime may also be called on to make adjustments thrust upon it by states acting outside the authority. If the authority gains the trust of its members as an effective manager and steward of deep ocean minerals, it is possible that states may negotiate to add other deep ocean issues to the responsibilities assigned to the authority by UNCLOS and the 1994 Agreement. The subject of the management, protection and exploitation of the biodiversity of life on the deep ocean floor has gained some attention.36 While there is only limited knowledge of the scope or the fraglity of the marine life of the seabed, there have been discussions of the potential commercial value of this resource.37 The authority, charged with protecting the marine environment, must consider effects on marine life of mineral exploration and exploitation. It is conceivable that a new agreement could extend the role of the authority to the management, exploitation and protection of deep seabed biodiversity.
South countries, such as the 53 nations in the Africa Union, are advancing the way forward by legislating national laws for protecting, while at the same time sharing, biodiversity as advocated by the CDB. Such an approach delimits individual private property by affirming community rights over biodiversity, in shared jurisdiction with national governments. Another initiative among non-governmental organizations revives the international discussion that the gene pool, like the seabed, belongs to the common heritage of mankind:
the intrinsic value of the Earth's gene pool.. .precedes its utility and commercial value .... [T]he Earth's gene pool, in all its biological forms and manifestations, exists in nature and, therefore, must not be claimed as intellectual property even if purified and synthesized in the laboratory .... Therefore, the nations of the world declare the Earth's gene pool... to be a global commons, to be protected and nurtured by all peoples and further declare that genes and the products they code for, in their natural, purified or synthesized form... will not be allowed to be claimed as commercially negotiable genetic information or intellectual property by governments, commercial enterprises, other institutions or individuals.99
Only in the preliminary stages of discussion in international fora, such as the Johannesburg Summit, ten years post-Rio (August 2002), this proposed treaty renews the debates over equity in the use of "common heritage" resources. As this discourse continues, legal interpretation and political experience from UNCLOS will become relevant for clarifying key issues, especially debates over private versus community versus public property over resources necessary to sustain all human life. An international law of the seed will develop dynamically, from shared use and adjudication, as is the international law of the sea.
As a summary, the chart below offers a quick comparison of important provisions of the United Nations Convention on the Law of the Seas (UNCLOS), the Trade Related Intellectual Property Rights (TRIPs) and the Convention on Biological Diversity (CBD). As discussed above, access to the sea and seed ranges from delimitation of private property under UNCLOS to allowing full privatization under TRIPs to reaffirming national control under the CBD. The extent of the enclosure against access is most serious for TRIPs and could potentially be legalized for all seeds and plants. Sustainable use of resources is a priority for UNCLOS and the CBD but is not even mentioned in TRIPs. Similarly, while it has been left undefined, both UNCLOS and the CBD promote benefit sharing, while TRIPs does not mention it. TRIPs is also the most narrow in its approach to rights, mainly recognizing individual rights. UNCLOS is the most ambitious with its principle of the common heritage of mankind giving equal rights to all beyond the exclusive economic zones (EEZs) of 200 nautical miles. The CBD enshrines community and farmers' rights (social group rights) as privileged over individual rights for seeds and plants, which belong to the common heritage of local communities. Finally, UNCLOS employs an international authority as well as legal adjudication for governance. TRIPs relies on national enforcement, with dispute settlements to follow administrative panels' rulings that are arrived at without full disclosure or the ability to cross-examine the opponent. The CBD also relies on national enforcement' with the condition that prior informed consent must come from the communities who cultivated the plant. "National" enforcement, therefore, is modified by the proviso that local communities participate in drafting agreements about seed exchange and benefit sharing, including devising local community trusts.
The CBD follows UNCLOS in asking for benefit sharing of the uses of biodiversity. 61 Similarly, developing countries, led by China, India, and Brazil, argued that the CBD allows them access to bio-technology that would enable them to exploit their own biological resources.62 The compromise became a call for the transfer of technology and for "fair and equitable sharing of the benefits" when knowledge and resources are exchanged.63 In addition, the CBD requires prior informed consent (PIC) of the local community for access to a bio-resource, not just the central state, which could sell off vital resources for a pittance.64 All stakeholders must mutually consent.65 Materials collected before the formation of the CBD in 1992 are not covered.
Neither the CBD nor UNCLOS has fully defined benefit sharing, but discussions prioritize sharing knowledge and funds for research and development. Discussions have progressed for the CBD, where the need for exchange is more mutual: the North desires access to the biodiversity of South countries, while the South would like access to technology. Of course, all would like to share profits from any practical uses of the resources. The discussion addresses fees for access to germplasm, royalties, profit sharing (much more than the estimated zero to five percent currently offered),66 technology, and funds for development.67
It is difficult to overstate the extent to which this Convention has become more than a Treaty and has become, instead, an international state of mind. It created new international law, codifying much of what had become customary law of the sea, and established new norms in the negotiation of multilateral, international treaty agreements. For many emerging nations, it was the first major international treaty negotiation that they had ever participated in. According to former United Nations Secretary-General Javier Perez de Cuellar, the 1982 United Nations Convention on the Law of the Sea embodies the will of an overwhelming majority of nations from all parts of the world, at different levels of development, and having diverse geographical characteristics.8