MARINE GENETIC RESOURCE EXPLOITATION LAW: INTERNATIONAL GOVERNANCE, ACCESS, BENEFIT-SHARING AND LEGAL LIABILITY

INTRODUCTION

Marine Genetic Resource Exploitation Law concerns the legal regulation of collecting, researching, utilising, commercialising and protecting genetic materials obtained from marine organisms. These resources include microorganisms, bacteria, algae, marine fungi, corals, sponges, fish and other marine species containing genetic material with potential pharmaceutical, industrial, agricultural and biotechnological applications.

Marine genetic resources are increasingly valuable for developing antibiotics, anticancer compounds, enzymes, vaccines, cosmetics and other biotechnology products. Their commercial exploitation raises important questions concerning ownership, access permissions, environmental protection, intellectual property rights, biodiversity conservation and equitable sharing of benefits.

There is no single worldwide statute governing every aspect of marine genetic resource exploitation. The principal legal framework consists of the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), the Nagoya Protocol and the Agreement on Biodiversity Beyond National Jurisdiction (BBNJ Agreement).

1. INTERNATIONAL LEGAL FRAMEWORK

A. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982

UNCLOS establishes the legal framework governing marine resources and ocean jurisdiction.

Important provisions include:

Article 56: Coastal-state sovereign rights over natural resources in the exclusive economic zone.

Article 77: Sovereign rights concerning natural resources of the continental shelf.

Article 87: Freedom of the high seas, subject to international law.

Article 136: Common heritage of mankind concerning the international seabed Area.

Article 137: Legal status and restrictions concerning the resources of the international seabed Area.

Article 192: General obligation to protect and preserve the marine environment.

Article 194: Measures to prevent, reduce and control marine pollution.

A critical distinction exists between marine genetic resources in national maritime zones and those in areas beyond national jurisdiction. Different access and benefit-sharing rules apply.

B. CONVENTION ON BIOLOGICAL DIVERSITY, 1992

The CBD establishes three fundamental objectives:

Conservation of biological diversity.

Sustainable use of biological resources.

Fair and equitable sharing of benefits arising from genetic-resource utilisation.

Article 15 recognises national sovereignty over genetic resources and establishes access and benefit-sharing principles. Article 8(j) addresses relevant traditional knowledge, subject to its conditions.

C. NAGOYA PROTOCOL, 2010

The Nagoya Protocol establishes an international framework for access to genetic resources and fair benefit-sharing. Its principal requirements include:

Prior informed consent where applicable.

Mutually agreed terms.

Compliance with domestic access legislation.

Benefit-sharing arrangements.

Monitoring of genetic-resource utilisation.

Its application to marine genetic resources depends on the location of collection, applicable jurisdiction and relevant international obligations.

D. BBNJ AGREEMENT

The BBNJ Agreement addresses marine biodiversity in areas beyond national jurisdiction, including marine genetic resources and associated digital sequence information.

It establishes mechanisms concerning notification, benefit-sharing, capacity-building, marine technology transfer and environmental protection. Its implementation is particularly significant for commercial marine biotechnology research conducted in international waters.

2. ACCESS AND EXPLOITATION LICENSING REQUIREMENTS

Marine genetic resource exploitation should be governed by a transparent authorisation system.

A. Collection Permits

Researchers and commercial organisations must obtain applicable permissions before collecting marine organisms within national jurisdiction or protected marine areas.

B. Environmental Assessment

Projects must evaluate potential ecological damage, biodiversity loss, habitat destruction and risks arising from large-scale biological sampling.

C. Research Authorisation

Scientific expeditions should disclose collection locations, species, sampling quantities, research objectives and intended commercial applications.

D. Benefit-Sharing Agreements

Where applicable, agreements should establish monetary and non-monetary benefits, including royalties, research collaboration, technology transfer, scientific training and access to research results.

E. Traceability and Reporting

Organisations should maintain records of collected specimens, genetic sequences, research transfers, commercial applications and downstream users.

3. INTELLECTUAL PROPERTY AND COMMERCIAL EXPLOITATION

Marine genetic resources may generate valuable patents and commercial biotechnology products. However, collecting a naturally occurring organism does not automatically establish ownership of its genetic characteristics.

Patent protection generally concerns qualifying inventions rather than mere discoveries of naturally occurring biological materials. Patent applicants must satisfy the applicable requirements of novelty, inventive step and industrial applicability.

Commercial users must also comply with relevant access and benefit-sharing obligations. Patent ownership does not automatically eliminate contractual or statutory benefit-sharing responsibilities.

4. INDIAN LEGAL AND REGULATORY FRAMEWORK

India regulates access to marine biological resources through the following legislation:

Biological Diversity Act, 2002: Governs access to biological resources, research, commercial utilisation and benefit-sharing.

Biological Diversity (Amendment) Act, 2023: Introduced amendments to the regulatory and compliance framework.

Biological Diversity Rules, 2024: Provide implementing procedures under the amended legislation.

Biological Diversity (Amendment) Rules, 2025: Further amended the implementing framework, effective from 1 November 2025.

Environment (Protection) Act, 1986: Provides environmental protection and regulatory powers.

Wildlife (Protection) Act, 1972: Protects specified marine wildlife and associated habitats.

Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976: Establishes India's maritime jurisdiction.

The National Biodiversity Authority (NBA), State Biodiversity Boards and Biodiversity Management Committees perform relevant regulatory and biodiversity-governance functions.

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5. IMPORTANT JUDICIAL DECISIONS AND CASE LAWS

There is no established body of judgments directly deciding commercial exploitation of marine genetic resources under the BBNJ Agreement. The following decisions establish relevant principles of biodiversity access, environmental protection and marine-resource governance.

1. Divya Pharmacy v. Union of India, 2018 SCC OnLine Utt 1035 (DIRECT ANALOGOUS AUTHORITY)

The Uttarakhand High Court examined fair and equitable benefit-sharing obligations under the Biological Diversity Act, 2002. It upheld the State Biodiversity Board's authority to impose applicable benefit-sharing obligations on an Indian company commercially utilising biological resources. The decision is important for marine genetic resource exploitation because it explains the relationship between commercial utilisation, statutory access regulation and equitable benefit-sharing.

2. S. Jagannath v. Union of India, (1997) 2 SCC 87 (ANALOGOUS AUTHORITY)

The Supreme Court of India considered the environmental consequences of intensive shrimp aquaculture in ecologically fragile coastal areas. It applied the precautionary principle and polluter-pays principle. Its reasoning is relevant to marine genetic resource collection where commercial activities threaten coastal ecosystems and marine biodiversity.

3. South China Sea Arbitration (Philippines v. China), PCA Case No. 2013-19, Award (2016) (ANALOGOUS AUTHORITY)

The arbitral tribunal examined marine environmental obligations under UNCLOS, including environmental damage to coral reefs and protection of marine ecosystems. It emphasised the importance of environmental obligations in maritime activities. This decision is relevant to marine genetic sampling and biotechnology expeditions that may damage fragile marine habitats.

4. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports 2014 (ANALOGOUS AUTHORITY)

The International Court of Justice examined whether Japan's whaling programme qualified as scientific research under the International Convention for the Regulation of Whaling. The Court evaluated whether the programme's design and implementation were reasonable in relation to its stated objectives. Its principles are relevant when evaluating scientific justifications for marine biological-resource collection.

5. MOX Plant Case (Ireland v. United Kingdom), ITLOS, Provisional Measures, Order of 3 December 2001 (ANALOGOUS AUTHORITY)

The International Tribunal for the Law of the Sea considered environmental risks associated with the operation of the MOX nuclear facility and the potential impact on the marine environment. The proceedings highlighted cooperation, information exchange and precaution in marine environmental protection. These principles are relevant to cross-border marine biotechnology activities.

6. Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010 (ANALOGOUS AUTHORITY)

The International Court of Justice examined environmental impact assessment and procedural cooperation obligations in relation to potentially harmful industrial activities. The judgment recognised the importance of conducting environmental impact assessments where proposed activities risk significant adverse transboundary effects. Its principles are relevant to large-scale marine bioprospecting projects.

7. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS Case No. 21 (2015) (ANALOGOUS AUTHORITY)

The International Tribunal for the Law of the Sea examined flag-state responsibilities concerning illegal, unreported and unregulated fishing. It discussed due diligence obligations and the responsibility of states to exercise effective control over vessels. These principles are relevant to marine genetic collection expeditions operating under national flags.

6. REGULATORY ENFORCEMENT AND LEGAL LIABILITY

Violations of applicable marine genetic resource regulations may result in:

Cancellation or suspension of collection permits.

Financial penalties under applicable biodiversity legislation.

Environmental restoration and compensation obligations.

Seizure of illegally collected biological materials.

Restrictions on unauthorised commercial utilisation.

Civil liability for environmental damage.

Criminal prosecution where statutory offences are established.

International responsibility for breaches of applicable treaty obligations.

7. FUTURE LEGAL DEVELOPMENTS

Future legislation should establish stronger controls over digital sequence information, commercial patent applications, offshore genetic sampling, private biotechnology expeditions and international transfers of marine biological materials.

The BBNJ Agreement is particularly significant because it entered into force on 17 January 2026. It establishes an international framework for sharing monetary and non-monetary benefits arising from marine genetic resources and associated digital sequence information from areas beyond national jurisdiction. Its obligations apply to its parties according to the Agreement.

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CONCLUSION

Marine Genetic Resource Exploitation Law is an important area of international environmental law and biotechnology governance. Its purpose is to balance scientific innovation and commercial development with marine biodiversity conservation, national sovereignty and equitable benefit-sharing.

UNCLOS, the CBD, the Nagoya Protocol and the BBNJ Agreement provide the principal international foundations. Indian biodiversity legislation adds domestic access and benefit-sharing requirements. Judicial decisions such as Divya Pharmacy, S. Jagannath and the South China Sea Arbitration provide important principles concerning commercial utilisation, environmental responsibility and marine conservation.

An effective legal framework must ensure transparent collection permissions, environmental assessments, genetic-resource traceability, fair benefit-sharing and accountability for ecological damage.