Sample from dead ocean-going whale washed ashore on Spanish coast - Nagoya?

Background: A researcher in Germany is using a material sample that Spanish researchers took from a deep-sea whale that washed up on the Spanish coast for comparative studies. Does the German researcher need a certificate under the EU ABS Regulation?

The primary view in the AGCT workshop on the Nagoya Protocol was: The Nagoya Protocol (more correctly the EU ABS Regulation) applies, since the sample in Spain was taken from the whale been taken is.

This is questionable because the Nagoya Protocol applies to genetic resources, over which States exercise sovereign rights that fall within the scope of Article 15 of the Convention (Nagoya Protocol), as opposed to the broader scope of Article 4 of the Convention. This is also reflected in Article 1 of the Nagoya Protocol, which also refers to the objective of ensuring that a genetic resource a right falls under. It literally states: “... taking into account all rights to these resources...”. This means that the Nagoya Protocol does not apply to the entire area of ​​jurisdiction under Article 4 of the Convention, such as activities taking place in marine areas outside national jurisdiction. Rather, benefit-sharing is only required if the benefit arises from the use of a genetic resource that the contracting party (Spain) has made available as a resource under its own law (Article 5, paragraph 1, Article 15 of the Nagoya Protocol).

For the investigation in Germany it would depend on whether Spain had a exercises sovereign rights. Neither the Nagoya Protocol nor the EU ABS Regulation define what is meant by the "sovereign right of a State." The guidance document on the EU ABS Regulation (OJ EU C13/1 of 12 January 2021) is also incomplete. At best, it contains an example of a fish that was initially not native to the EU but subsequently became established in the EU. This example is of little help for a stranded whale, because it is understandable that the legal system extends to something that has become established here. Whether the sovereign right of a State extends to washed-up material is rather questionable. In Spain, too, the whale may have been ownerless and, at least outside the 12-mile zone, was not subject to the sovereign law of a State. Whether the State's right of appropriation arose upon washing up would have to be examined. If not, it would not be subject to the Nagoya Protocol for this reason. The mere fact that the sample was taken in Spain is therefore irrelevant. What is required is that the state's sovereignty extends to it. This can also be justified conceptually with the purpose of benefit-sharing. The aim is to allow the benefit to flow back to those who possess a genetic resource, i.e., who have rights to it, in order to raise public awareness of the economic value of ecosystems and biodiversity among them as well (preamble to the Nagoya Protocol). Why benefit-sharing should flow to Spain, even though the whale originally came from international waters not covered by the Nagoya Protocol, is not clear.

Conclusion: The question cannot be answered without examining international/Spanish law.