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New Zealand Journal of Environmental Law |
Last Updated: 13 February 2023
41
Bioprospecting, Scientific Research and Deep Sea Resources in Areas Beyond National Jurisdiction:
A Critical Legal Analysis
Stephanie Adelle Bonney*
Improvements in technology have allowed marine scientific researchers to venture into the abyssal depths. It is only recently that marine scientific researchers have discovered that deep sea features such as hydrothermal vents, deep sea trenches, cold seeps, seamounts, and even the abyssal plains are teeming with “life”. The biological resources associated with these deep sea features have developed unique characteristics in order to survive in inhospitable environments characterised by high pressure, high temperatures, extreme toxicity, extreme salinity, high pH values, and eternal darkness. As a result of this discovery deep sea features have become the focus of bioprospecting activities. Bioprospecting involves the search for biological resources that may have commercially valuable characteristics or compounds. The current legal regime (the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity and principles of international environmental law) relating to biological resources of the deep sea in areas beyond national jurisdiction is discussed. The paper considers whether the current legal regime sufficiently regulates access to, and use of, biological resources of the deep sea and offers suggestions to remedy the deficiencies of the current regime. The potential role of marine protected areas, environmental impact assessments, benefit
*LLB (Hons), BA. This paper is an edited version of a dissertation written in partial fulfilment of the requirements of the University of Auckland for the degree of Bachelor of Laws (Hons), January 2006. I would like to acknowledge my supervisor, Dr Caroline Foster, for introducing me to this topic and for her invaluable guidance. I would also like to acknowledge the kind assistance of Jonathan Ross, Lauren Lindsay and Aditya Basrur.
sharing regimes, intellectual property rights and emerging principles of international law are examined in order to develop a solution that adequately addresses the tension between using biological resources to benefit mankind today, while protecting them for future generations. The fundamental issue is whether States are prepared to forgo the short term benefits of unregulated bioprospecting in order to avoid irreversible environmental degradation.
1. INTRODUCTION
The oceans stretch over 75 per cent1 of the surface of the Earth, holding 97 per cent of Earth’s water, and accounting for “97 percent of the planet’s living space”.2 The vastness of the oceans, combined with the difficulties associated with underwater exploration, mean that very little is known about the deep sea. However, the development of remote submersibles, and submersibles capable of transporting humans into great depths and intense pressures,3 has made the deep sea increasingly accessible. This has resulted in increased scientific research of deep sea features such as hydrothermal vents, cold seeps, deep sea trenches, seamounts, and the abyssal plains. It has been discovered that these deep sea features host biologically rich and biologically diverse ecosystems.4 The unique biological and physiological characteristics of the biological resources5 associated with these deep sea features make them attractive to both bioprospectors and marine scientific researchers. Deep sea biological resources are already being used to develop commercial products and patents have been sought in respect of inventions derived from biological resources of the deep sea.
Chapter 2 begins with a discussion of the differences between bioprospecting and marine scientific research before questioning whether the activities should
be dealt with in the same manner and under the same regime. Chapter 3 discusses the commercial applications of deep sea biological resources. Chapter 3 discusses the importance of deep sea ecosystems before considering the environmental impact of the burgeoning biotechnology industry.
This paper focuses specifically on biological resources of the deep sea in areas beyond national jurisdiction. This is justified on the basis that the location of biological resources in areas beyond national jurisdiction raises a discrete and pressing set of issues that demand international attention. This paper addresses two fundamental issues. First, how biological resources are classified under the United Nations Convention on the Law of the Sea (“UNCLOS”). Second, how the international community should regulate access to and use of biological resources.
Biological resources are currently governed by the regime of the high seas, offering the commercial community a treasure trove of resources that they are free to appropriate with minimal restriction. The issue dealt with in Chapter 4 is whether the regime relating to the regulation of the mineral resources of the international seabed area and/or the principle of the common heritage of mankind should be extended to cover biological resources.
Although the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity (analysed in Chapter 5) do not specifically deal with access to, and use of, biological resources in areas beyond national jurisdiction, they do place some obligations on States to preserve and protect biodiversity and the marine environment. However, protection and preservation of biological resources is limited by both conventions’ reliance on individual States monitoring the activities of their own nationals. In order to avoid biological resources succumbing to the tragedy of the commons, and to overcome the unwillingness of States to introduce national legislation applicable to areas beyond national jurisdiction, it is suggested that an international regime be developed.
Based on the realisation that bioprospecting provides a ready example that through the “rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale”6 and having determined that the status quo is incapable of conserving biological resources, Chapter 6 offers possible solutions. Relying on the environmental principles contained in the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity and emerging principles of international law, an international regime to manage and regulate access to, and use of, biological resources in areas beyond national jurisdiction is proffered. Finally, intellectual property rights, and their role in bioprospecting,
are briefly discussed in Chapter 7 in order to offer a potential solution for benefit sharing issues.
The issues addressed in this paper are characterised by the divergent interests of developed States, developing States and environmental concerns. Furthermore, bioprospecting presents a paradox, in that it offers great benefits to mankind while simultaneously threatening the unique ecosystems and biodiversity of the deep sea. A recurring theme is the tension between conservation and exploitation; in particular, whether States are able to look beyond their own interests and the shortterm benefits of exploitation in order to develop an international management regime capable of conserving biological resources of the deep sea for future generations.
Biological resources in areas beyond national jurisdiction currently form part of the global commons. Access to and use of these resources remains relatively unregulated. Introducing an international regime to regulate use of and access to these resources will require States to place environmental interests ahead of commercial imperatives. It will also require States to voluntarily give up some of the traditional freedoms associated with the high seas.
There currently exist many nonbinding international agreements, treaties and declarations in which States espouse environmental protectionist ideals. Reaching consensus on, and encouraging States to sign up to, a legally binding regime may prove rather more difficult than in the case of a nonbinding agreement. Nevertheless, an international regime to regulate access to and use of biological resources is the best option, short of a complete prohibition, to conserve the biodiversity of the oceans.
2. BIOPROSPECTING AND MARINE SCIENTIFIC RESEARCH
2.1 Introduction
The ability to distinguish between bioprospecting, also referred to as applied marine scientific research, and pure marine scientific research (“MSR”) is important because different obligations and duties attach to the different activities. Pure MSR is subject to the MSR regime under UNCLOS. Biopros pecting is governed by the high seas regime. This section sets out definitions of bioprospecting and pure MSR. However, it must be noted that research institutions are increasingly entering into partnerships with industry in order to fund research activities in the deep sea. This means that it can be difficult to distinguish between bioprospecting and pure MSR. Nevertheless, it is concluded that the fundamental differences in purpose between bioprospecting and pure MSR demand different degrees of regulation.
2.2 Definition of Bioprospecting
There is currently no international treaty definition of the term bioprospecting.7 However, a generally accepted definition of bioprospecting has emerged. Bioprospecting has been defined as “the exploration of biodiversity for com mercially valuable genetic and biochemical resources”;8 “the examination of biological resources (for example, plants, animals and microorganisms) for features that may be of value for commercial development”;9 and “the search among biological organisms for commercially valuable compounds, substances or genetic material”.10 For the purposes of this paper, bioprospecting is defined as the search for biological resources that may have commercially valuable characteristics or compounds.
While there is a general consensus as to the commercial element of bioprospecting, there are conflicting opinions as to whether the definition should encompass only the search and sampling stage or should extend to cover application and development of the sample.11 Arico and Salpin have identified certain activities that may fall within the definition of bioprospecting:12
A similar fourphase bioprospecting process is adopted by JabourGreen and Nicol in relation to bioprospecting for biological resources in the Antarctic for properties that may have pharmaceutical applications:13
The New Zealand Ministry of Economic Development in its review of bio prospecting in New Zealand adopted a definition of bioprospecting that included the initial sampling of biological resources as well as screening, testing and development activities “because the greatest benefit from the initial discovery is obtained at these stages”.14
Initial sampling of biological resources for the purpose of searching for valuable characteristics or compounds should be sufficient for an activity to be classified as bioprospecting. However, adoption of the broad definition of bioprospecting will ensure that activities carried out after the initial collection, such as development of a product, largescale harvesting of resources, or MSR institutions handing over biological resources to industry after the initial collection, are classified part of the bioprospecting process and subject to any future regulation of bioprospecting. For these reasons, the adoption of a broad definition of bioprospecting is preferred.
2.3 Definition of Marine Scientific Research
There are two types of MSR: pure MSR and applied MSR. Pure MSR is carried out for purely noncommercial purposes,15 and is characterised by “transparency
and openness”.16 Information relating to pure MSR is widely disseminated and the results of such research are generally published in academic journals.17 In contrast, applied MSR is carried out with a commercial purpose.18 Because of the commercial element and the desire to create a marketable and profitable product, confidentiality and proprietary rights are key, so publication of results is unlikely.19 As will be discussed in Chapter 7, patent applicants are required to disclose the details of their inventions. However, the period of time between applied MSR, discovery of a new product and application for a patent can be considerable. In comparison to pure MSR where the benefit to society is relatively immediate, the contribution of applied MSR is delayed.
The definition of MSR and the distinction between pure and applied MSR was a contentious issue in the development of the UNCLOS text.20 The result of this disagreement is that UNCLOS does not define pure or applied MSR.21 It is suggested in the SBSTTA Study that the MSR regime under UNCLOS applies solely to pure MSR:22
Under the United Nations Convention on the Law of the Sea, marine scientific research is primarily aimed at furthering mankind’s knowledge of the marine environment, its resources and various phenomena, and is not a vehicle for searching for natural resources for commercial purposes.
[...]
... the legal regime for marine scientific research is clearly established in the Convention. Consequently, marine scientific research relating to genetic resources falls within that regime. On the other hand, there appears to be a lacuna in the legal regime for commerciallyoriented activities, such as bioprospecting, relating to genetic resources of the deep seabed beyond national jurisdiction, including their conservation and sustainable use, because the regulation of such activities is not directly addressed.
[...]
Furthermore, it is important to bear in mind that, should the results of the research be used at any stage for commercial gains, the regime of marine scientific research would no longer apply and therefore such a research [sic] would be deemed to have been a commerciallyoriented activity, such as bioprospecting.
Therefore, it appears that applied MSR activities such as bioprospecting are not governed by the MSR regime under UNCLOS. Therefore, those undertaking applied MSR are not required in accordance with the MSR regime under UNCLOS to publish and disseminate the results of their research.23
2.4 Difficulties Associated with Distinguishing between Bioprospecting and Pure Marine Scientific Research
Because of the great cost involved in carrying out MSR,24 there is an emerging trend for public research institutions to team up with commercial entities.25 The practical result of these partnerships is that pure MSR is an increasingly rare occurrence, being replaced with, or occurring simultaneously with, applied MSR.26 Because industry is increasingly contributing financial resources to enable research activities in the deep sea to proceed, it is inevitable that the focus of research will be on developing marketable products. This focus may occur at the expense of other MSR activities that are either scientifically important or interesting but without commercial application. However, without commercial entities investing in MSR, research institutions would not have had the financial means to carry out valuable research that has contributed to scientific know ledge and understanding of the deep sea.
Where the search, collection, sampling, and gathering of biological resources is explicitly carried out by commercial entities, for the purposes of developing marketable products, the activities clearly fulfil the commercial
element of bioprospecting. However, difficulties arise where the initial stages of search, collection, sampling, and gathering of biological resources are undertaken by marine scientific research groups and then at a later date passed on to commercial entities when a commercial use becomes apparent. Does the initial pure MSR retrospectively turn into bioprospecting, or does it become bioprospecting when the commercial purpose is pursued? The distinction between pure MSR and bioprospecting becomes increasingly murky in a situation where pure MSR and bioprospecting occur simultaneously.
It has been suggested that “the distinction between marine scientific research and other commercially oriented activities, such as bioprospecting, resides solely in the purposes and intent for which the activity is undertaken”.27 However, the intent and purpose of research activities can change over time. What may have begun as pure MSR at the sampling stage may at a later date turn into bioprospecting when commercially useful compounds are discovered. Where the intent and purpose of activities in the deep sea is clearly articulated, then classifying the activities will be simple. Such statements cannot always be relied on, however, as intention is inherently subjective and may change over time. Despite the difficulties of distinguishing between pure MSR and bio prospecting, and the fact that they both produce benefits for humankind, the activities are fundamentally different and should be dealt with accordingly. Pure MSR is a “use” of the oceans and should be carried out in a sustainable manner.28 However, the contribution of pure MSR to the common body of scientific knowledge should not be discouraged by overregulation. Bioprospecting has a greater potential to degrade the environment, and utilises common goods and intellectual property rights for private gain, justifying greater regulation. While some forms of regulation, such as environmental impact assessments, could be applied to both MSR and bioprospecting activities, other solutions such as licensing fees and benefit sharing requirements should only be applicable to
bioprospectors.29
3. CONSERVING THE BIODIVERSITY OF DEEP SEA ECOSYSTEMS
3.1 Introduction
This chapter briefly discusses the characteristics of deep sea biological resources and their commercial applications. Conservation of deep sea biodiversity is
important because of its role in regulating the global climate and because of the benefits that it offers humankind. Besides any potential benefits for humankind, biodiversity of the deep sea should also be protected because of the inherent value of all living things. However, the financial benefits associated with biodiversity, coupled with the reality that bioprospecting is a feasible and financially rewarding commercial endeavour, require that action be taken to address environmental threats.
3.2 Biological Resources of the Deep Sea, their Commercial Applications and the Burgeoning Biotechnology Industry
Hydrothermal vents, cold seeps, deep sea trenches, seamounts, and the abyssal plains form the topography of the seabed and host a diverse bounty of biological resources.30 Science and industry are interested in the biological resources associated with these deep sea features,31 in particular hydrothermal vents, because of the unique characteristics they have developed enabling them to survive in inhospitable environments characterised by high pressure, high temperatures, extreme toxicity, extreme salinity, high pH values, and lack of sunlight.32 Because of these unusual characteristics the biological resources have useful commercial applications.
Commercial applications of marine biological resources include pharma ceuticals,33 cosmeceuticals,34 enzymes,35 cryoprotectants,36 agrochemicals,37
bioremediators,38 nutraceuticals,39 and fine chemicals. Marine biological resources are also being used to develop pharmaceutical products that have the potential to combat cancer,40 HIV/AIDS, inflammatory diseases, obesity, dia betes, neurological ailments, tuberculosis, malaria, osteoporosis, Alzheimer’s, cystic fibrosis, and fungal infections associated with kidney, liver, lung, and heart transplants.41 Researchers are also trying to develop artificial blood by using the haemoglobin of hydrothermal vent tubeworms.42
Science and industry have focused their activities on hydrothermal vents because they “have a biomass per unit area that is 500 to 1000 times greater than the biomass of the usual deep sea floor”,43 and host approximately 500 different species of fauna, 80 to 90 per cent of which are new to science and are only found at hydrothermal vent sites.44 The high concentration of endemic biological resources increases the likelihood that new species will be discovered leading to the development of commercial products.45 Furthermore, increasing consumer demand for “natural” pharmaceutical products is fuelling industry interest in biological resources of the deep sea.46
Bioprospecting was described in the SecretaryGeneral’s 2005 report on oceans and the law of the sea as “one of the most dynamic research areas with increasing perspectives of growth and profitability”.47 In 2003 the biotechnology industry registered a worldwide profit of approximately NZ$64.16 billion and
employed 200,000 people.48 The burgeoning biotechnology industry and the development of commercial products indicate that bioprospecting is a financially viable industry.
3.3 The Importance of Deep Sea Ecosystems and Potential Threats
Conservation is concerned with preserving the natural environment and its ecosystems. Protection of deep sea ecosystems is important on a number of levels. Scientific knowledge is still in its infancy in respect of deep sea ecosystems, and it is important that this knowledge base is increased before deep sea ecosystems are irreversibly damaged. Also, it is understood that biological diversity and deep sea ecosystems produce “a third of the oxygen that we breathe”,49 and that hydrothermal vents in particular “contribute to the cooling of the planet as a whole, to its thermal balance, and to the chemical balance of the oceans and the atmosphere”.50 It is also necessary to cautiously use biological resources today, so that future generations are equally able to utilise the resources for uses that are at present beyond scientific contemplation. The importance of preservation and protection of deep sea ecosystems also extends beyond its value to humankind. The Convention on Biological Diversity recognises that biodiversity is important in and of itself.
If largescale collection of biological resources is undertaken because of an inability to culture or synthetically produce the required organism in the laboratory, the environmental impacts may be irreversible, resulting in extinction or the entire destruction of vent ecosystems.51 Allen suggests that largescale collection would be unlikely due to difficulties and high costs associated with deep sea activities.52 However, there is evidence that large quantities of biological resources are being collected in order to isolate desired compounds. For instance, 450 kg of 3.5mmsized worms were collected from the Indian Ocean in order to get a 1 mg sample of an anticancer compound.53
Even if largescale collection is “unlikely”, there is potential for it to occur and the threat should be addressed in order to ensure sustainable use of biological resources.
Even smallscale sampling of biological resources in some areas may not be sustainable because of the popularity of the site amongst researchers.54 Some hydrothermal vent sites are already showing the effects of environmental degradation as a result of both pure and applied MSR.55 The full effects of researchers introducing light into the eternal darkness of the deep sea are not fully understood but it is believed that it causes stress to biological resources and can lead to changes in the ecosystem.56 It is also believed that the introduction of noise into the ocean environment by MSR activities may have a detrimental effect on deep sea ecosystems.57 Other threats include the removal of hydrother mal vent chimneys for geological and chemical scientific research, introduction of alien species, disturbance of vent sites during collection activities, and damage caused by the use of submersibles and research equipment.
The paradox presented by bioprospecting and MSR is that they contribute to the knowledge of humankind and lead to the development of beneficial products, while simultaneously threatening the biodiversity and unique ecosystems of the oceans. One of the key themes of this paper is the tension between conservation and sustainable use of marine biodiversity. The most effective way to preserve the biodiversity of deep sea ecosystems would be to prohibit bioprospecting, and even MSR. However, such a result is unlikely in light of the benefits that both activities offer. Therefore, a balance must be struck between use of biological resources and conservation measures regulating access to, and use of, biological resources.
4. INTERNATIONAL LAW OF THE SEA
4.1 Introduction
The key issue for consideration in this chapter is how biological resources in areas beyond national jurisdiction are classified under UNCLOS. The general consensus is that these biological resources are governed by the regime relating to the high seas and are therefore a common good (a conclusion that is disputed by many developing states who argue that biological resources are the “common heritage of mankind”). The treatment of these biological resources as a com mon good means that there is a real threat that they will become a victim of the tragedy of the commons.
The term “common heritage of mankind” is used in UNCLOS in relation to the international seabed area. The regime relating to the international seabed area is also discussed. As is the question of whether the common heritage of mankind principle applies to, or should apply to, biological resources. The complex situation that arises when a State claims a continental shelf that extends beyond the 200 nautical mile limit is analysed to determine which regime governs biological resources in this situation. This chapter concludes by considering the provisions in UNCLOS that relate to MSR and the preservation and protection of the environment, which limit to some extent States’ freedoms in respect of biological resources in areas beyond national jurisdiction.
4.2 Sources of International Law of the Sea
UNCLOS is not the sole source of the international law of the sea. Other important sources of the international law of the sea are:58
4.3 United Nations Convention on the Law of the Sea
UNCLOS came into force on 16 November 1994 and has been ratified by 149
countries.59 Although UNCLOS is a treaty and therefore applies only to the States that ratify it, many of its provisions are now considered to be international customary law, a conclusion based on State practice and on the consensus amongst parties in respect of certain provisions during the negotiation of the text.60 A rule of customary international law exists when there is evidence of State practice and opinio juris which is “the conviction that the practice is one which is either required or allowed by customary international law”.61 Customary international law of the sea is binding on all States, regardless of whether or not their actions led to the development of the law, unless of course the State is a “persistent objector”.62
The object and purpose of UNCLOS is to create:63
a legal order for the seas and oceans which will facilitate international com munication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.
The practical result of UNCLOS is that it separates the seas and oceans into seven, albeit arbitrary, zones: internal waters, territorial seas, contiguous zones, exclusive economic zones (“EEZ”), continental shelves, the high seas, and the international seabed area (“the Area”).64 Under UNCLOS, the internal seas, territorial seas, contiguous zones, EEZ, and continental shelves are governed by the national jurisdiction of the coastal State. The high seas and the Area are beyond national jurisdiction and governed in accordance with their respective regimes under UNCLOS.
The history of the freedom of the seas doctrine can be traced to the Roman
conception of the oceans as “ ‘commune omnium’, that is, common property of all”.65 Later revived by Grotius, in his 1609 publication Mare Liberum (The Free Seas),66 the freedom of the seas doctrine became a prominent rule of international customary law, before being codified in Part VII of UNCLOS. The high seas are not defined in UNCLOS, but are designated in Article 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”.67
The freedoms of the high seas are listed in Article 87(1) and include inter alia: freedom of navigation, freedom of over flight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands, freedom of fish ing, and freedom of scientific research. These freedoms are limited only by the obligations under UNCLOS to preserve and protect the environment and the requirement to exercise these freedoms “with due regard for the interests of other States”.68
A central issue is whether bioprospecting is a freedom of the high seas. This issue is highly politicised, and the divergent interests of states, industry, and environmentalists have resulted in different opinions. Technologically and/or financially rich states, motivated by commercial interests, tend to argue that bioprospecting is a high seas freedom. The reason is obvious; the regime of the high seas allows them to exploit biological resources with minimum restriction. Technologically and/or financially poor countries are more likely to argue that biological resources in areas beyond national jurisdiction are the “common heritage of mankind”.
Bioprospecting may be considered a freedom of the high seas in accord ance with the freedom to fish stated in Article 87. UNCLOS does not define the meaning of the term “fishing”, but this term has commonly been interpreted broadly to include harvestable living marine resources such as sponges, sea snails and squid.69 Alternatively, bioprospecting may be a freedom of the high seas irrespective of whether it can be classified as fishing. This is because the list of freedoms in Article 87 is not an exhaustive list of all activities that are
considered freedoms of the high seas. The inclusion of the words inter alia70 before the list of high seas freedoms in Article 87 “indicate[s] the list of specific freedoms in paragraphs 1(a) to 1(f ) is not exhaustive, and that the freedoms of the high seas may entail more than the enumerated activities”.71 Further support for this proposition is the El Salvador representative’s suggestion in discussions leading up to the adoption of the UNCLOS text: that an exhaustive list of high seas freedoms be produced, so as to avoid a wide interpretation of the freedoms of the high seas being adopted.72 States were unwilling to limit the freedoms of the high seas more than was necessary and rejected the proposal.
Churchill and Lowe suggest that “any use compatible with the status of the high seas — that is, a use which involves no claim to appropriation of parts of the high seas — should be admitted as a freedom unless it is excluded by some specific rule of law”.73 Traditional fishing activities do not involve claims to appropriate parts of the high seas. No State can claim sovereignty over fisheries on the high seas to prevent other States accessing the resources to ensure exclusive use.74 However, that does not prevent the same State from fishing, nor prevent any fish that they catch entering into their exclusive possession.75
State practice also supports the proposition that biological resources of the deep sea in areas beyond national jurisdiction are a common good accessible to all under the regime of the high seas. Sampling and collection of these bio logical resources has been undertaken in a manner that indicates that biological resources are considered a common good. However, the only States able to contribute to this practice are financially and/or technologically rich countries that have a vested interest in ensuring that biological resources remain un regulated.
(a) Tragedy of the commons
Biological resources are treated as a common good and are therefore at risk of overexploitation. Hardin coined the term “tragedy of the commons” in his wellknown 1968 essay “The Tragedy of the Commons”.76 The basic concept of tragedy of the commons is that:77
72 Ibid, 76–77.
[T]he rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another ... But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit — in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.
Indeed, Hardin recognised in 1968 that:78
[T]he oceans of the world continue to suffer from the survival of the philosophy of the commons. Maritime nations still respond automatically to the shib boleth of the ‘freedom of the seas’. Professing to believe in the ‘inexhaustible resources of the oceans’, they bring species after species of fish and whales closer to extinction.
UNCLOS does not provide a legal regime regulating access to, or use of, biological resources in areas beyond national jurisdiction. Flag state jurisdiction provides a source of jurisdiction over vessels on the high seas. States may also exercise jurisdiction over their nationals and punish them for acts that they commit on board ships (including foreignregistered ships) that are on the high seas. The problem is that no State has introduced domestic legislation regulating bioprospecting activities of ships registered in its jurisdiction, or regulating bioprospecting activities of its nationals when they are on the high seas.79 Without the guarantee that other States will introduce similar legislation it is unlikely that a State would introduce domestic legislation to ensure protection and sustainable use of biological resources:80
[T]he conservation of living resources and other forms of marine life, as well as the protection of the marine environment, depend upon the willingness of States to cooperate to develop specific rules, to implement them and to enforce them vis-à-vis their nationals. Unfortunately, all too often, due to lack of internal will
78 Ibid, 1245.
and external constraints, States have failed in their duty to conserve natural resources and to protect the environment.
Faced with the collective action problem, States will decide that it is in their best interests to allow unrestricted bioprospecting activities until an international agreement applies equally to a substantial sector of the international community (or at least other States capable of conducting bioprospecting). States will, and have, adopted this position even though it disregards longterm consequences of environmental degradation in favour of shortterm benefits.
Churchill and Lowe noted that regulation was required to combat the collective action problem that would otherwise have overwhelmed fisheries resources:81
[In] the absence of any regulation, an individual fisherman has no incentive to restrain his activities in order to prevent overfishing because there is no guarantee that other fishermen will follow his example: indeed the opposite is more likely to occur, for with one competitor removed there is more fish for those that remain. Thus, just as common land was overgrazed before the enclosure movement, so an unregulated fishery will normally lead to over fishing.
Despite the introduction of domestic and international regulation in order to prevent overfishing and to protect fishery resources, it has been estimated that approximately 70 per cent of the world’s fish stocks are depleted, overexploited or recovering.82 In the last 10 years alone, it has been estimated that North Atlantic “commercial fish populations of cod, hake, haddock and flounder have fallen by as much as 95%”,83 with Canadian stocks of cod off the coast of Newfoundland collapsing completely.84 Given that regulation of fisheries has failed to prevent overfishing and reduction of stocks, sceptics can be forgiven for thinking that regulation of bioprospecting and MSR will not prevent deep sea biological resources becoming another victim of the tragedy of the commons.
However, fish stocks were already at critical levels when attempts to regulate them were introduced. By this stage the viability of the international fishing
industry was dependent on overfishing.85 In contrast, there is an opportunity to regulate access to, and use of, biological resources before the interests of the burgeoning biotechnology industry overwhelm environmental concerns.
(b) Possible solutions
To overcome the disincentive problem discussed above, States could introduce similar domestic legislation to create a quasiinternational regime regulating access to, and use of, biological resources. The creation of a quasiinternational regime would be easier than negotiating an international treaty and could be used as an interim measure while an international regime is being developed.Such an undertaking would be reminiscent of the Reciprocating States Regime whereby States “adopted similar national legislation, which interlocked so as to provide for comprehensive regulation of seabed mining”.86 The Reciprocating States Regime filled the legal void that existed prior to the entry into force of UNCLOS. Domestic legislation introduced under the Recipro cating States Regime required citizens and companies to seek a licence from their nation State, or one of the other States in the Reciprocating Regime, before undertaking seabed mining activities.87
A similar Reciprocating States Regime could be developed in respect of bioprospecting. The regime could require bioprospectors to obtain a licence from their nation State, the ship’s flag State, or one of the other States in the Reciprocating Regime. However, the Reciprocating Regime for seabed mining was only developed once UNCLOS discussions had begun. The catalyst for the Reciprocating Regime was the realisation that it would take a considerable period of time for UNCLOS to enter into force. In comparison, there is little international consensus as to the “rules” that should be introduced to regulate bioprospecting. Furthermore, there is no consensus amongst the international community that regulation of biological resources in areas beyond national jurisdiction is necessary. It is also questionable whether the diversion of international attention and financial resources from the development of an international treaty regime is desirable.
In circumstances where the continental shelf extends beyond the 200 nautical mile limit of the EEZ, it is necessary to consider whether the UNCLOS regime relating to the continental shelf or the high seas applies. UNCLOS permits the coastal State to exercise sovereign rights over its continental shelf for the
85 Ibid, 321.
86 Ibid, 232.
87 Ibid, 11, 233.
purposes of exploration and exploitation of its natural resources.88 Natural resources of the continental shelf include:89
living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
Biological resources that meet the sedentary species definition will be governed by the regime relating to the continental shelf. Biological resources that do not meet the sedentary species definition will be governed by the regime relating to the high seas.
The differentiation between sedentary and nonsedentary species has been criticised because it “has little or no relationship to biological taxonomy”.90 Identifying the harvestable stage or mobility of many of the biological resources associated with underwater features such as hydrothermal vents is difficult.91 One of the biggest problems with the sedentary/nonsedentary classification is that it is possible that biological organisms from the same ecosystem will be governed by different regimes.92 Any regime developed to regulate access to, or use of, biological resources in areas beyond national jurisdiction should not be limited to biological resources attached to the seabed.
The international seabed area (“the Area”) is defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”93 and is governed by Part XI of UNCLOS. Part XI of UNCLOS was developed in an era when commercial exploitation of the minerals of the seabed was believed to be a feasible and financially rewarding endeavour. As is the case with bioprospecting, there was a concern that the benefits derived from seabed mining would be limited to developed States possessing the resources to carry out mining activities.94
UNCLOS declared the resources of the Area the common heritage of mankind95 and established the International Seabed Authority (“the ISA”) to control exploration and exploitation of the resources of the Area.96 Rights to appropriate the Area’s resources can only be obtained through the ISA.97 The main concepts of the common heritage of mankind principle have been identified as “nonappropriation, international management, peaceful use and benefit sharing”.98
The resources of the Area are defined as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”.99 The regime relating to the Area does not apply to biological resources in areas beyond national jurisdiction, and the “travaux preparatoires demonstrate that the conferees rejected a broader definition of ‘resources’ of the Area that would have included living resources”.100 The present mandate of the ISA does not extend to bioprospecting or MSR that involves exploration or exploitation of biological resources.101 However, the ISA does monitor mining activities carried out in the Area to ensure that they do not cause damage to the natural resources of the Area.102
(a) Biological resources in areas beyond national jurisdiction, the mandate of the ISA and the common heritage of mankind principle
Declaring biological resources the common heritage of mankind and in corporating them into the regime for the Area would apply the concepts of international management, peaceful use, nonappropriation, and benefit sharing to the management of biological resources in areas beyond national jurisdiction. The rationale behind extending the mandate of the ISA is that utilising a pre existing institution “might be more efficient than starting over and establishing
an entirely new institution with possibly overlapping mandates”.103 The ISA, having dual governance over both mineral and biological resources of the Area, would ensure “comprehensive”, “effective”, and “coherent” control over all activities in the Area, including mining, bioprospecting and MSR.104 Such a declaration would remove biological resources from the commons reducing the risk of overexploitation. It would also address the anomaly whereby biological resources are protected by the ISA “against damage caused by mining but not against damage caused by marine scientific research or by bioprospecting”.105
However, the ISA was designed to regulate seabed mining and its structure reflects the interests of the mining industry, not biotechnology interests or the specific environmental concerns related to bioprospecting.106 The ISA’s approach to conservation matters has been criticised because it only prohibits mining in the Area when “substantial evidence indicates the risk of serious harm to the marine environment”.107 The ISA is currently required to take necessary measures to ensure that activities in the Area do not harm natural resources or the environment.108 Accordingly, the ISA requires that environmental impact assessments be carried out for proposed activities and it can prohibit mining activities if there is evidence of serious harm.109 While the environmental mandate of the ISA may require reform if it is to protect and ensure sustainable use of biological resources in areas beyond national jurisdiction, it does provide a foundation of environmental measures on which to build.
Leary asserts that benefit sharing, one of the central concepts of the common heritage of mankind principle, unduly focuses on exploiting resources so that benefits can be shared, rather than conservation, protection, preservation and sustainable use.110 However, introducing a benefit sharing regime does not prevent conservation measures such as marine protected areas being introduced. Furthermore, the ability to balance competing interests is necessary to develop a regime for the protection, preservation and sustainable use of biological
30.
107 Ibid, 160.
resources in areas beyond national jurisdiction. Securing benefits under a benefit sharing regime is the only incentive for developing States that lack resources to carry out bioprospecting activities, to cooperate in the development of an international regime.
The meaning of the common heritage of mankind principle was vigorously debated during the preparation of the text of UNCLOS and has never been clearly settled upon.111 The effectiveness of reviving a discussion that has the potential to detract attention from the desired result, namely, the protection and sustainable use of biological resources associated with deep sea features, has been questioned.112
Reforming the mandate of the ISA would be a difficult and complex task, requiring a substantial investment of time and resources. Achieving this reform is not impossible. However, the major impediment at present is the absence of an international consensus that the ISA’s mandate should be broadened and that the common heritage of mankind principle should be extended to biological resources:113
While it is clear that environmental issues and, in particular protection of biodiversity of the deepsea (including hydrothermal vents), is increasingly of interest to the ISA, it is also clear from these recent developments that the ISA (and most member states) appear to want to confine its work within its existing mandate.
Alternatively, the ISA, its structure, its responsibilities and the concepts of the common heritage of mankind principle could be used to develop a new inter national regime, specifically concerned with management of access to, and use of, biological resources in areas beyond national jurisdiction. The benefit of developing a new regime is that it would not be restricted by the interests of the mining industry and could therefore adopt a stronger environmental stance on deep sea activities. The only difficulty with this solution is that it would result in a fragmented solution to deep sea resources. Biological resources would be governed by one regime, and mineral resources by the ISA. In order to overcome difficulties associated with the effects of mining activities on biological resources, collaboration between the ISA and a new institution would be necessary. However, this may prove difficult in practice.
Assuming that the ISA can be convinced to extend its mandate to biological resources and that its structure can be overhauled, so that it better reflects environmental concerns, the creation of a comprehensive regime may be more
111 Ibid, 178.
effective in protecting biological resources. In the alternative, the creation of a new regime is a feasible option.
The Marine Scientific Regime contained in Part XIII of UNCLOS places some limitations on the freedom to conduct MSR:114
(a) marine scientific research shall be conducted exclusively for peaceful purposes;
(b) marine scientific research shall be conducted with appropriate scientific methods and means compatible with this Convention;
(c) marine scientific research shall not unjustifiably interfere with other legitimate uses of the sea compatible with this Convention and shall be duly respected in the course of such uses;
(d) marine scientific research shall be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the marine environment.
These principles have been criticised by Brown for their overly general nature, uncertain definition, lack of meaning and subjective nature.115 However, they are an attempt to place some limits on MSR without overregulating the activity.116 A balance must be struck between recognising that MSR is a “use” of the oceans and encouraging science to undertake environmentally friendly MSR. It is necessary to encourage MSR because of the important role it plays contributing to humankind’s knowledge of the oceans, and in particular unique ecosystems associated with the deep sea.117 The better the processes and ecosystems associated with deep sea features are understood, the more effec tive attempts will be at protecting the resources and ensuring sustainable use of them. Requiring MSR teams to carry out environmental impact reports may be one way in which MSR activities can be examined before they are undertaken so as to minimise any detrimental environmental impacts.
Part XII places duties and obligations on States to protect and preserve the environment. UNCLOS is recognised as the most comprehensive statement of
117 Ibid, 417.
States’ environmental obligations in respect of protection and preservation of marine biological resources.118
A general obligation, to protect and preserve the environment, is set out in Article 193.119 Article 193 is proactive in nature and requires that States take necessary measures to preserve and protect the environment.120 The obligation is enforced by the requirement that measures taken to prevent, control and reduce marine pollution “shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”.121 It is now widely accepted that obligations and duties in respect of preservation and protection of the marine environment in UNCLOS are a codification of international customary law.122 The environmental obligations under UNCLOS “may have consequences on the ability to undertake bioprospecting activities in the deep seabed”.123 States are also required to take measures to prevent pollution of the marine environment, defined as:124
[T]he introduction by man, directly or indirectly, of substances or energy into the marine environment, ... which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
Therefore, States are required to take measures to prevent or reduce light and noise pollution caused by bioprospecting and MSR activities.125 Emerging principles of environmental international law, such as the precautionary principle,126 support and build upon the requirements in UNCLOS to preserve and protect the marine environment and to minimise pollution:127
Although Agenda 21 cannot amend the 1982 UNCLOS, and is not binding on states, it can be taken into account when interpreting or implementing the Convention and it has had the effect of legitimising and encouraging legal developments based on these new perspectives.
UNCLOS also requires that States take all necessary measures to prevent pollution of the marine environment resulting from the introduction of alien species that may cause harmful effects to the environment.128 This obligation is relevant because there is a risk that bioprospecting and MSR activities will introduce harmful alien species to deep sea ecosystems.
The provisions in section two of Part VII, the regime relating to the high seas, relate to the conservation and management of the living resources of the high seas. Article 117 places obligations and duties on States to ensure that their nationals do not overexploit living resources and Article 118 requires States to cooperate in the management and conservation of living resources. Article 119 requires that States only harvest living resources of the high seas in a sustainable manner, that they agree to total allowable catch figures, and that they take into account the effects of harvesting of a particular living resource on associated or dependent species.
These sections were clearly developed in order to ensure conservation and management of high seas fisheries. However, proposed text submitted by El Salvador, the United States of America, and the Informal Group of Juridical Experts that specifically referred to fisheries resources were rejected in favour of the term “living resources”.129 Although there are those that argue that Articles 117–119 apply only to fisheries resources, and not to biological resources,130 the use of the broad term “living resources” can be interpreted to mean “more than just fish”.131 Allen argues that the reference to living resources in the EEZ provisions of UNCLOS supports a broad interpretation of living resources because most States would argue that living resources, in the context of the EEZ, includes all the biological resources.132 If this is the case, Articles 117– 119 provide some guidance for States to manage biological resources of the high seas. However, it is unlikely that these general obligations are a sufficient mechanism to protect and ensure sustainable use of biological resources. Over exploitation and collapse of fish stocks are evidence of the inability of these provisions to conserve high seas living resources.133
342, 362.
5. THE CONVENTION ON BIOLOGICAL DIVERSITY
5.1 Introduction
This chapter discusses the provisions of the Convention on Biological Diversity (the CBD) and the extent to which they apply to biological resources in areas beyond national jurisdiction. It is proposed that the scope of the CBD be expanded so that the provisions relating to access to genetic resources, transfer of technologies, technical and scientific cooperation, funding, and handling of biotechnology apply to these biological resources. Because the CBD relies on States developing national laws to implement its objectives, comprehensive and coordinated international management of these biological resources is only possible through the development of an international institution. The ISA, or a new institution designed specifically to regulate such biological resources, could fill this role. The institution could use the principles of the CBD as a basis for setting up and managing marine protected areas, for standardising the requirements of environmental impact assessments, managing access to biological resources, overseeing a benefit sharing regime, and generally ensuring that biological resources in areas beyond national jurisdiction are used in a sustainable manner.
5.2 The Convention
The CBD was signed at the 1992 Earth Summit in Rio de Janeiro and came into force on 29 December 1993 and now has 188 States parties.134 The central objectives of the CBD are:
The overarching philosophy of the CBD is that biological diversity has an in nate value irrespective of the benefits and advantages it offers humankind. The CBD utilises the precautionary principle, stating “that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat”.137 The principle of intergenerational equity138 also appears in the CBD, as States parties are “determined to conserve and sustainably use biological diversity for the benefit of present and future generations”.139
In order to achieve consensus from many parties with divergent interests the text of the CBD is of a general and vague nature. Nevertheless, the import ance of the CBD is that it focuses international attention on the importance of conservation and sustainable use of biological resources:140 The CBD is:141
Article 3 sets out the responsibility of States parties “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. Article 3 codifies customary international law142 and requires States to prevent damage and to adopt a precautionary approach in respect of activities that they have control or jurisdiction over.143 Article 3 reflects the text of Principle 21 of the Stockholm Declaration144 and is the first international convention to incorpor ate the precautionary principle “into the operational part of its text rather than merely the preambular section”.145
in no worse condition than it was received”. P W Birnie and A E Boyle, International Law and the Environment, 2nd ed (Oxford University Press, New York, 2002) 89.
141 Ibid, 571.
University Press, Cambridge, 2003) 517.
The jurisdiction of the CBD is governed by Article 4 and applies:146
(a) In the case of components of biological diversity, in areas within the limits of its national jurisdiction; and
(b) In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.
The jurisdiction of the CBD is limited in respect of areas beyond national jurisdiction, to activities and processes that may have environmental impacts on the environment. The components of biological diversity situated in areas beyond the limits of national jurisdiction are not subject to the CBD:147
It follows that activities undertaken in the High Seas or the Area, including navigation, scientific research, bioprospecting, exploration, exploitation, dumping and tourism, fall within the scope of the CBD if they are carried out under the control or jurisdiction of a CBD party. In theses areas, flag State Parties are required to cooperate directly, or through competent international organisations, for the conservation and sustainable use of biodiversity. It is assumed that these processes and activities should only be regulated to the extent that they have, or are likely to have, a significant adverse impact on the conservation and sustainable use of biodiversity.
This means that the provisions of the CBD relating to access to genetic resources, transfer of technologies, technical and scientific cooperation, funding, and handling of biotechnology are limited to areas within national jurisdiction.148 States parties to the CBD can take steps to regulate activities or processes over which they have control. Although the CBD does not impose obligations on States parties in respect of the components of biological diversity,149 Article 5 does require that States parties cooperate in the conservation and sustainable use of biological diversity in areas beyond national jurisdiction.150
Article 8(a) of the CBD requires States parties to “[e]stablish a system of protected areas or areas where special measures need to be taken to conserve biological diversity”. Marine protected areas are an important tool that can
19. See also Oceans and the law of the Sea: Report of the Secretary-General, Fiftyninth session of the General Assembly, UN Doc A/59/62 (4 March 2005) para 256, 65.
be used to set aside biologically important areas of the high seas to protect them from environmental degradation from overexploitation of biological resources. However, it is estimated that only one per cent of the world’s oceans are currently designated as marine protected areas, most of which are located within national jurisdiction.151 Marine protected areas are “a practical modality of the precautionary and preventative approaches” and should be adopted to prohibit bioprospecting activities in certain areas. Marine protected areas protect biological resources from human interference and enable comparisons to be made between protected areas and areas subject to bioprospecting. This will enable scientists to determine the effects of bioprospecting on the environment.
The Conference of Parties (“the COP”) to the CBD at their seventh meeting noted that the lack of marine protected areas beyond national jurisdiction was of particular concern because marine biodiversity in areas beyond national jurisdiction is increasingly threatened. The COP called for:152
States in favour of preserving freedoms of the high seas argue that marine protected areas should only be used as a last resort when other measures prove inadequate in protecting and preserving biological diversity of the oceans.153 However, the protection and preservation of the marine environment seems more important than preserving the liberty of States to conduct activities on the high seas. The main difficulty associated with marine protected areas beyond national jurisdiction is the necessary reliance at present on States parties to monitor their own nationals.154 This problem could be solved through the creation of an international body to regulate marine protected areas.
Marine protected areas will place limitations on long cherished freedoms of the high seas, which will prove to be a reasonably large obstacle to their creation. Furthermore, designating areas of the deep sea beyond national
jurisdiction “off limits” may be opposed on the basis that this is preventing the discovery of biological organisms and development of novel products that may be beneficial to humankind. However, the protection of some areas of the deep sea through the use of marine protected areas would not preclude discoveries being made in other areas.
Article 14 of the CBD requires States parties to introduce “procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity”. The requirement to carry out environmental impact assessments should be encour aged, as should the development of universal standards for environmental impact assessments.155
A study of the relationship between the CBD and UNCLOS with regard to the conservation and sustainable use of genetic resources on the deep seabed was requested at the Jakarta Conference in 1995. This study was finally published in 2003 and noted that UNCLOS and the CBD are “mutually supportive in encouraging an ecosystem approach requiring the protection of marine habitats and marine resources”.156 The 2003 study concluded that there are three possible options for the development of a regime for biological resources in areas beyond national jurisdiction:157
The SBSTTA study found that UNCLOS and the CBD do not provide a legal regime governing access to, or use of, biological resources in areas beyond national jurisdiction.158 As previously discussed, maintaining the status quo is inadequate, as under the regime of the high seas biological resources risk over exploitation.
The desirability of extending the ISA’s mandate is also discussed above. The SBSTTA study noted that extending the mandate of the ISA and application of
the regime of the CBD are not mutually exclusive. Favouring the extension of the mandate of the ISA, the SBSTTA study envisaged using the principles and concepts of the CBD, such as sustainable development and the precautionary approach, to support the management role of the ISA.159
The SBSTTA study has been criticised for failing to include the role of intellectual property rights and marine protected areas in its list of options for the development of an international regime for biological resources in areas beyond national jurisdiction.160 It appears that the SBSTTA relegated marine protected areas to a supporting role in the development of a regime, to be used only when all other options are exhausted. This paper recommends that marine protected areas play a prominent role in the development of a regime for biological resources. It is desirable to prohibit commercial exploitation in designated areas of the oceans to preserve deep sea biological resources and their unique ecosystems for future generations. The importance of intellectual property rights is discussed in Chapter 8.
Another criticism of the report is that its scope is limited to biological resources attached to the ocean floor.161 The problem with this approach is that ecosystems of the deep sea contain biological resources that are attached to the sea floor, and biological resources that are not. A solution based on protecting only biological resources attached to the seabed is contrary to the “ecosystem approach”. Such a solution would result in a similarly fragmented approach to regulation that was previously discussed in relation to sedentary and non sedentary species of the continental shelf.162 The status quo will continue to apply to resources that are not attached to the seabed, while resources that are attached to the seabed will be governed under a different regime.
Despite the failings of the report, Decision VII/5, adopted by the COP to the Convention on Biological Diversity at their seventh meeting, illustrates that issues relating to biological resources of deep sea features are being seriously contemplated in the international arena. The COP stated that they were:163
Concerned about the serious threats to ... biological diversity, [and stressed] the need for rapid action to address these threats on the basis of the precautionary approach and the ecosystem approach, in marine areas beyond the limits of national jurisdiction, in particular areas with seamounts, hydrothermal vents, and coldwater corals, [and] other vulnerable ecosystems and certain other underwater features, resulting from processes and activities in such areas.
Decision VII/5 adopted “operational objectives”, which were developed to promote the conservation and sustainable use of biological resources in areas beyond national jurisdiction. The following two activities were suggested as a means to achieving this goal:164
(a) To identify threats to biological diversity in areas beyond the limits of national jurisdiction, in particular areas with seamounts, hydrothermal vents, and coldwater corals, and certain other underwater features.
(b) To urgently take the necessary shortterm, mediumterm and long term measures to eliminate/avoid destructive practices, consistent with international law, on [a] scientific basis, including the application of precaution, for example, consideration on a case by case basis, of interim prohibition of destructive practices adversely impacting the marine biological diversity associated with marine areas beyond the limits of national jurisdiction, in particular areas with seamounts, hydrothermal vents, and coldwater corals, other valuable ecosystems and certain other underwater features.
The interest that the COP to the CBD have shown in protecting biodiversity of marine areas beyond the limits of national jurisdiction responds to a pressing need in international law. However, the first suggested activity is redundant because threats to biological diversity have already been identified. Furthermore, the operational objective contributes to the rhetoric surrounding the issue of biological resources in areas beyond national jurisdiction but does not place obli gations on States parties to carry out, or refrain from, any particular activities.
164 Ibid, 146.
6. EMERGING PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW AND
6.1 Introduction
This chapter identifies eight emerging principles of international environmental law that should be central in the development and operation of an international regime to regulate access to, and use of, biological resources in areas beyond national jurisdiction. These emerging principles can also be used to aid the interpretation of UNCLOS, and many of them are reflected in the text of the CBD.
Principles emerging from the 1972 Stockholm Declaration, the 1982 World Charter for Nature, the 1992 Rio Declaration, Agenda 21, and the Johannesburg Declaration on Sustainable Development have given rise to important and influential international environmental principles.165 Unlike treaties, these “soft law” declarations were not created with the intention of developing binding legal rights or obligations.166 However, they have enabled States to collectively develop guiding principles for environmental protection and management in an environment where divergent interests make consensus on legally binding instruments difficult.167 Furthermore, these environmental principles provide a basis on which customary international law may develop and crystallise.168
The environmental principles contained in these declarations are increasingly referred to. For instance, General Assembly Resolution 58/240169 endorsed the ecosystem approach and the precautionary principle in calling for ways to manage the risks posed to biological resources. The International Court of Justice has also relied upon these general principles of environmental law, and although the court only produces nonbinding advisory opinions, or decisions that are only binding on the parties to the case, their decisions “[contribute] to the progressive development of international law”.170
University Press, New York, 2002) 24, 26.
6.2 Suggestions
This paper suggests that the status quo is unable to adequately protect biological resources. Despite obligations in UNCLOS and the CBD to preserve and protect the marine environment and biodiversity, neither treaty expressly governs access to, or use of, biological resources in areas beyond national jurisdiction. The status quo is not acceptable because it effectively “cedes [biological resources] to large transnational companies because of the expense of exploitation”.171 Furthermore, reliance on flag State and/or domestic jurisdiction to ensure pro tection of biological resources is unlikely to be successful. Nongovernmental organisations such as InterRidge172 are in the process of developing codes of conduct for its members.173 However, InterRidge’s code of conduct will apply only to its members and only to activities at hydrothermal vents.174 While vol untary monitoring of activities in the deep sea is a helpful contribution, it is not a sufficient solution to the problem.
The best way to protect and preserve biological resources is to prohibit bioprospecting. However, prohibition places environmental considerations ahead of the benefits that will accrue to humankind (or at least to the States and organisations capable of carrying out bioprospecting activities), and such a suggestion is unlikely to receive widespread support.
The next best solution is the extension of the mandate of the ISA, or in the alternative the development of a new treaty, and the creation of a new international institution. It is proposed that the ISA or a new institution be responsible for overseeing the management of biological resources in areas beyond national jurisdiction. Either institution would:
342, 368.
Furthermore, if a new institution were developed, cooperation with the ISA would be necessary to ensure that mining activities do not damage deep sea features or their ecosystems.
It is also suggested that the following principles of international en vironmental law be applied to the development and operation of a regime to govern access to, and use of, biological resources in areas beyond national jurisdiction.
The obligation placed on States to cooperate in international environmental matters is evident in UNCLOS,175 and the CBD.176 This obligation is supported by Principle 24 of the Stockholm Declaration and Principle 27 of the Rio Declaration which call for international cooperation in order to address environmental issues. Cooperation is essential in developing a regime to manage biological resources and will be crucial in ensuring that this management is effective.
States have a duty to ensure that activities carried out in areas beyond national jurisdiction over which they have control and/or jurisdiction as a flag State, or because they are carried out by their nationals, do not damage the environment.177 This principle requires that States consider the effects that activities, such as bioprospecting or MSR, carried out by its nationals, or by ships registered in its territory, have on the environment.178 It prevents States from ignoring activities that are potentially threatening, or which are causing
actual environmental damage. The International Court of Justice has recognised that this principle “is now part of the corpus of international law relating to the environment”.179
The principle of prevention requires that measures are taken to prevent the recurrence of environmental damage caused by activities known to have detrimental effects on the environment.180 Prevention is important because en vironmental harm can be irreversible. However, the effects of activities in the deep sea are not fully understood. Hence, while prevention is necessary, it is not in itself sufficient to prevent degradation of biological resources.
The precautionary principle181 places a responsibility on States to ensure that activities within their jurisdiction or control do not cause environmental damage, even if the effects are not fully understood by the scientific community. The precautionary principle requires that States anticipate possible environmental effects that may arise from activities within their jurisdiction or control and act to control environmental risks even when it is not certain that the threat will eventuate.182 Furthermore, the precautionary principle shifts the burden of proof and will require the proponents of deep sea activities to demonstrate that the activities will not cause environmental harm. Previously, those opposed to activities were required to show that the activity would affect the environment. Scientific doubt worked in favour of those wishing to undertake activities.183
The precautionary principle first appeared in the Rio Declaration,184 was reaffirmed in Agenda 21,185 and is increasingly being considered as embodying
(Oxford University Press, Oxford, 2002) 17, 75.
a principle of international customary law.186 The International Tribunal for the Law of the Sea has also relied upon the precautionary principle. In the Southern Bluefin Tuna Case,187 the precautionary principle was relied upon to order that experimental fishing programmes be abandoned, because there was scientific uncertainty as to the success of conservation measures that had been undertaken.188
The precautionary principle should be applied to activities utilising or affecting biological resources in order to prevent irreversible harm to deep sea ecosystems. As previously mentioned, there is a lack of scientific certainty as to the effects of noise and light pollution on the deep sea environment. The principle of precaution is necessary to ensure that the international community is proactive in addressing threats to deep sea ecosystems, rather than merely reacting once ecosystems are destroyed and certain biological resources are extinct.
The principle of sustainable development has four central elements:189
The principle of sustainable development, declared in the Stockholm Declaration,191 the Rio Declaration,192 Agenda 21,193 and the Johannesburg Declaration,194 is essential in ensuring that the shortterm benefits of exploit ing biological resources do not lead to loss of biodiversity and environmental degradation. However, it is suggested that the principle of intergenerational equity receive greater emphasis in the development of a regime to protect biological resources than the economic and developmental interests that are embedded in the principle of sustainable use.
The ecosystem approach195 will ensure that the impact of bioprospecting and MSR on entire ecosystems is taken into account. Such an approach will avoid the fragmented regulatory regime that is evident in the continental shelf regime and the sedentary species definition and avoid the pitfalls of developing a regime that only applies to some of the biological resources of an ecosystem. Arbitrary distinctions between biological resources attached to the seabed, and those that are not, should be avoided in favour of a comprehensive regime.
Environmental impact assessments (“EIAs”) provide a tool by which States can measure activities against emerging principles of international law, such as prevention, precaution and sustainable use. EIA should be an integral part of any regime that is introduced to regulate bioprospecting in areas beyond national jurisdiction. EIA should also be used by States to ensure that activities within their control or jurisdiction do not cause environmental damage to areas beyond national jurisdiction. The SBSTTA report recognised that requiring EIAs to be carried out prior to undertaking bioprospecting activities in the deep sea would be particularly useful in managing access to biological resources.196 Article 206 in Part XII of UNCLOS, relating to the protection and pres ervation of the marine environment, requires States to carry out publicly available assessments of the potential effects of activities that may cause pollution or harmful changes to the environment.197 However, for EIA to be
effective, standardised requirements should be developed and an objective body introduced to oversee the EIA process.
In Request for Examination of the Situation198 New Zealand sought orders from the International Court of Justice that it was illegal for France to carry out nuclear testing in the Pacific without first carrying out an EIA. The majority found that it did not have jurisdiction to hear the dispute; however, Justice Weeramantry produced a detailed judgment in which he recognised the importance of EIA:199
When a matter is brought before ... [the Court] which raises serious environ mental issues of global importance, and a prima facie case is made out of the possibility of environmental damage, the Court is entitled to take into account the Environmental Impact Assessment principle in determining its preliminary approach.
Paragraph 11 of the World Charter for Nature provides a useful framework that could be adopted to carry out environmental impact assessments and to determine whether bioprospecting or MSR activities should be permitted:
Activities which might have an impact on nature shall be controlled, and the best available technologies that minimise significant risks to nature or other adverse effects shall be used; in particular:
(a) Activities which are likely to cause irreversible damage to nature shall be avoided;
(b) Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;
(c) Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimise potential adverse effects.
The environmental impact assessment procedure developed for proposed activities in Antarctica also provides a useful framework that could be adopted
for biological resources of the deep sea.200 Activities carried out in Antarctica that will have less than a minor or transitory impact on the environment remain unrestricted.201 For activities that may have more than a minor or transitory impact on the environment, an Initial Environmental Evaluation containing a description of the activity, its purpose, location, duration and intensity is required.202 If this evaluation determines that the activity will have no more than a minor or transitory impact, it may be carried out subject to monitoring of its impacts.203 For activities that have more than a minor or transitory effect, a Comprehensive Environmental Evaluation is required.204 This public document requires detailed analysis of the proposed activities, and the potential environmental impacts.205 Most importantly, the Antarctic Treaty Consultative Parties are vested with the authority to determine whether activities in Antarctica can proceed or not. It is suggested a similar power be vested in the ISA or a new institution in respect of activities in areas beyond national jurisdiction.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Introduction
This chapter briefly discusses the international regime of intellectual property rights and its application to biological resources. The ethical issues surrounding the grant of intellectual property rights over living resources are acknowledged. While it may be desirable to prevent intellectual property rights over bio logical resources or for inventions derived from biological resources, financial imperatives mean that it is unlikely that the international community would agree to this prohibition. Without the guarantee of exclusivity, industry would not invest in research activities and beneficial discoveries would not be made. However, it is possible to attach conditions to the grant of intellectual property rights to ensure benefit sharing.
7.2 Patents
The World Intellectual Property Organization (WIPO) has 183 member States206 and “is an international organisation dedicated to promoting the use and protection of works of the human spirit”.207 The Agreement on TradeRelated Aspects of Intellectual Property Rights of the World Trade Organization (TRIPS) states that “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”.208 A successful patent applicant gains an exclusive right to prohibit a third party from making, using, selling or importing the patented product, or a product produced through the use of a patented process.209 A patent grants the patent owner exclusive rights for a maximum of twenty years.210 The patent owner is able to assign the patent to another party or to enter into licensing agreements.211
TRIPS permits States, but does not require them, to refuse patents in order to protect ordre public, morality, the life or health of humans, animals or plants, and to protect the environment.212 Article 27(3) of TRIPS permits States to exclude diagnostic, therapeutic or surgical methods for the treatment of humans or animals, plants, animals as well as biological processes from patentability. However, microorganisms and microbiological processes cannot be excluded from the grant of patents.213
The conditions imposed on patent applicants are that they must disclose details of the invention in sufficient detail so that a person reasonably skilled in the particular art could carry out the invention.214 The main justification for the patent system is that it encourages new inventions and provides incentives for the disclosure of scientific and technical knowledge, and thus discourages trade secrets.215 It is also argued that the disclosure of information directly benefits society because it contributes to the general body of scientific and technical knowledge and may lead to the development of new inventions.216
In order to qualify for a patent, the subject matter must involve an inventive step. An inventive step “requires a significant element of human intervention”217 and creates an entirely new product or process that cannot be found in nature.218 In comparison, a discovery, which is not patentable, merely involves identifying something that already exists in nature.
Diamond v Chakrabarty219 is an influential intellectual property case involving a patent application for a genetically engineered bacterium that had potential bioremediation uses because of its ability to break down crude oil. The Court held that the bacterium was patentable because:220
[T]he patentee [had] produced a new bacterium with markedly different charac teristics from any found in nature and one having the potential for significant utility. His discovery [was] not nature’s handiwork, but his own; accordingly it is patentable subject matter ...
The Court also stated “that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and humanmade inventions”.221
On the basis of this decision, biological resources can be patented, so long as they involve an inventive step and are not mere discoveries.222 Alternatively, specific uses or processes involving biological resources can be patented. In this way biological resources can indirectly be the subject of a patent.223 As mentioned above, biological resources associated with deep sea features have been the subject of patent applications.
The other concern associated with protecting intellectual property rights is the exclusiveness of the rights granted to the patent holder. Patent holders are not obliged to share benefits and may:224
use intellectual property rights to limit the production and availability of
218 Ibid, 24, 35.
219 [1980] USSC 119; 447 US 303 (1980).
220 Diamond v Chakrabarty, [1980] USSC 119; 447 US 303 (1980) 310.
221 Ibid, 313.
innovations based on deep seabed genetic resources, in order to make profits or discourage the conduct of research for improvement of the innovation.
The main justification for granting intellectual property rights over inventions derived from biological resources is that, without the guarantee of exclusivity so as to generate financial returns off substantial investments, there would be no incentive to investigate and develop novel products that benefit humankind.225 This is a particularly powerful consideration in the pharmaceutical sector where the chances of isolating a commercial drug are estimated to be 1 in 250,000 and where development takes between ten and fifteen years and costs millions of dollars.226 Furthermore, intellectual property rights have provided biotechnology firms an incentive to contribute funds to marine scientific research activities in areas such as hydrothermal vents. Without these financial contributions, marine research would be hampered because research institutions would be unable to meet the large costs involved with undertaking deep sea marine research. Despite ethical concerns associated with granting property rights over living resources, it is unlikely that the international community would agree to pro hibit patenting of biological resources.
Leary suggests that problems with benefit sharing could be overcome by requiring patent owners to contribute to a central fund in situations where their patent is obtained through the use of biological or genetic resources.227 The problem with linking benefit sharing and payment to the grant of intellectual property rights is that not all bioprospecting activities will result in the develop ment of a marketable product or intellectual property rights. Despite the lack of a marketable product the bioprospecting activities still involve the exploitation of biological resources. An alternative is for a new international institution, or the ISA, to require bioprospectors to pay licensing fees into a central fund before their activities are carried out.
8. CONCLUSIONS
The biological resources of the deep sea are invaluable. They require protection and preservation. As has been discussed, the status quo does not provide a regime governing access to, or use of, biological resources in areas beyond national jurisdiction. While environmental protection provisions in UNCLOS and the CBD obligate States to introduce national legislation concerned with protecting the environment and biodiversity in areas beyond national jurisdiction, lack of incentive and the collective action problem have prevented States from achieving this outcome.
The biotechnology industry is already utilising marine biological resources and it is predicted that the industry will increasingly look to the deep sea to provide new and unique organisms to produce products for human consumption. While a complete prohibition would be the most effective way to conserve these resources, it is necessary to balance environmental concerns and commercial imperatives in order to encourage cooperation amongst an international community characterised by divergent interests. In order to persuade States that they should voluntarily relinquish traditional freedoms it is necessary to develop an international management regime that allows States to use biological resources in a sustainable manner and which promotes benefit sharing. However, environmental values should be a paramount consideration in any such regime.
While recognising that there are those who assert that biological resources in areas beyond national jurisdiction are the common heritage of mankind, this paper concludes that they are a common good regulated by the regime of the high seas under UNCLOS. Because bioprospecting is a freedom of the high seas and because these resources are a common good they risk becoming a victim of the tragedy of the commons. In contrast to fisheries resources, the international community has an opportunity to introduce regulation before the interests of the biotechnology industry become more important than environmental concerns.
It is suggested that the regime relating to the international seabed area be applied to biological resources. This would involve extending the mandate of the ISA and declaring biological resources the common heritage of mankind. The result is that bioprospectors would not be permitted to appropriate biological resources in areas beyond national jurisdiction without prior approval of the ISA. Extending the ISA’s mandate would be the most efficient solution because the institution is already in existence and it would avoid the creation of a fragmented regulatory regime whereby mineral resources and biological resources are governed under separate regimes. However, the ISA and the international community are hesitant to alter the ISA’s mandate. In the alternative, the creation of a new treaty and new international institution could oversee the management of biological resources in areas beyond national jurisdiction.
Principles of environmental protection and preservation sourced from UNCLOS and the CBD combined with emerging principles of international law should form the foundation of any regime adopted to manage biological resources. The “soft law” principles, together with the requirement to carry out environmental impact assessments and the establishment of marine protected areas, will enable biological resources to be used now whilst preserving them for future generations.
This approach addresses the tension between conservation and use of biological resources. Furthermore, it attempts to limit environmental degra dation while permitting regulated exploitation so that humankind may reap the benefits of bioprospecting and MSR. Combined with a benefit sharing regime and intellectual property rights, the suggested regime attempts to balance the divergent interests of developed States, developing States, and environ mentalists.
Scientists recognise that very little is known about the deep sea and its unique ecosystems. Indeed, the effects of noise and light pollution in the deep sea are only just becoming apparent. While it is understood that marine biological resources play an important role in regulating the global climate, it is possible that the importance of these resources is greater than science can presently comprehend. The international community has an opportunity to act collectively to prevent deep sea biological resources in areas beyond national jurisdiction succumbing to the tragedy of the commons. The depletion of fish stocks indicates that the resources of the sea are exhaustible and that they must be used in a sustainable manner. Nonappropriation, international management, peaceful use, and benefit sharing are suggested as the means by which biological resources of the deep sea in areas beyond national jurisdiction can be used today, but conserved for tomorrow. All that remains is for States to reassess their values and to place environmental protection ahead of anthropocentric ideals.
APPENDIX ONE: TOPOGRAPHICAL FEATURES OF THE DEEP SEA
The oceans can be divided into two distinct sections: the water column, known as the pelagic zone, and the seabed, or the benthic zone.228 The water column can be further divided into four sections. First, the light zone (epipelagic zone) extends from the surface of the ocean to a depth of approximately 200 metres.229 Secondly, the twilight zone (mesopelagic zone) covers the depth of the ocean
from 200 to 1000 metres.230 Thirdly, the dark zone (bathypelagic zone) extends from 1000 metres to 4000 metres. Finally, the abyssopelagic zone, which is the depth from 4000 metres to the bottom reaches of the deep seabed.231
Only the upper reaches of the ocean, the area comprising the epipelagic zone, are reached by natural light.232 Photosynthesis, “the process by which plants use the sun’s energy, water, and carbon dioxide to produce organic material and oxygen”,233 occurs only within the epipelagic zone.234 From 200 metres downwards, photosynthesis does not occur because the ocean is devoid of natural light, and its inhabitants ensconced in eternal darkness.235
Benthic Zone / The Seabed
200 m
1000 m
4000 m
Figure 1. Ocean Zones
A. Hydrothermal Vents
The midocean ridge system forms “the most extensive mountain chain on Earth”,236 extending a 65,000kilometre237 chain of “active volcanoes”238 around the ocean floor. Hydrothermal vents are created at divergent tectonic plates:239
when seawater seeps down through cracks into the ocean crust. Where it comes into contact with hot basaltic lava (near 1000°C/1800°F), there is a violent exchange of minerals and heat. Superheated water,240 enriched in sulfur, iron, copper, zinc, and other metals, returns to the seafloor. On contact with the near freezing seawater a variety of minerals precipitate rapidly out of the solution, building up tall, chimney like structures.
The temperature of the water emanating from hydrothermal vents ranges from 25°C to 400°C.241 The organisms that live and reproduce in such extreme environments are called extremophiles.242
Hydrothermal vents host approximately 500 different species of fauna, 80 to 90 per cent of which are new to science and are only found at hydrothermal vent sites.243 Furthermore, “[o]ver 75% of vent species occur only at one site”.244
Deep sea hydrothermal vents are found in the bathypelagic ocean zone.245 Therefore, biological resources of hydrothermal vents depend on chemo synthesis, a “process by which organisms use heat, water, chemicals, such as hydrogen sulfide, to create organic matter”246 in order to generate energy and sustain life.247
B. Deep Sea Trenches
Deep sea trenches are the result of subduction of tectonic plates.248 Subduction occurs where two tectonic plates collide, and the crust is pushed down into the interior of the Earth, destroying the crust and forming a trench.249 Fiftysix per cent of species present in deep sea trenches are endemic to trenches and 95 per cent are endemic to a particular trench.250
C. Cold Seeps
Cold seeps occur where water, oil, or gas leak through the sediments of the ocean floor.251 Despite extremities of pressure and toxicity diverse biological resources are associated with cold seeps252 with “[t]he large majority of seep fauna ... endemic to the seep ecosystem and even to single seep sites”.253
D. Seamounts
Seamounts are extinct underwater volcanoes.254 Seamounts, described as “bio logical hotspots”, host a diverse biological community of crustaceans, corals, molluscs, sea urchins, brittle stars, starfish, worms and sponges.255 As with other underwater features, seamount fauna is endemic to single seamounts, or to those in close proximity to one another, and may have biotechnology uses.256
E. Abyssal Plains
Sediments from the upper regions of the ocean fall to the seabed, covering the oceanic crust, forming the abyssal plains, one of the flattest places on Earth.257 The abyssal plains, previously thought of as the deserts of the oceans,
257 Duxbury et al, supra note 226, at 109. See also Ellen J Prager, supra note 233, at 163.
Continental Shelf may extend further than 200 nautical mile limit but maximum
limit governed by Artcle 76
Deep Seabed
Continental Shelf extends at least
to 200 nautical mile limit
Continental shelf A2
Continental Shelf
The Area A1
commences from edge of
High Seas
miles
12
nautical miles
24
nautical
Exclusive Economic Zone
200 nautical miles
Internal Waters
Territorial Sea
Contiguous Zone
support an ecosystem that “comprise[s] one of the largest species pools on the planet, potentially rivalling even tropical rainforests in terms of total species numbers”.258 The biological resources of the abyssal plains are less concentrated259 than at hydrothermal vents which explains why the latter receives more attention than the abyssal plains.
Continental Self may extend further than 200 nautical mile limit but maximum
limit governed by Article 76
Deep Sea Bed
Figure 2. Maritime Zones Created by UNCLOS
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