New Zealand Journal of Environmental Law
Last Updated: 14 February 2023
The Legal Status of Genetic Resources of the Deep Seabed
This article analyses the international legal framework for genetic resources in the deep seabed beyond national jurisdiction regarding marine scientific research and bioprospecting. It finds that neither the United Nations Convention on the Law of the Sea nor the United Nations Convention on Biological Diversity regulate access to and sustainable use of genetic resources in the deep seabed beyond national jurisdiction in a comprehensive manner. This is ironic because the most immediately exploitable and lucrative resources of the deep seabed are arguably its genetic resources, yet such resources fall outside the main legal regime applicable to the deep seabed. This article argues that marine scientific research and bioprospecting should be regulated in a manner that does not pose a threat to further advances of marine scientific research and protects, at the same time, the threatened deep seabed ecosystems. It briefly presents a number of potential regulatory tools, such as marine protected areas, patents and environmental impact assessments, which should be implemented into the existing international legal framework to achieve that aim. Moreover, the article recommends following three parallel pathways forward in order to diminish the outlined legal gap and regulate marine scientific research and bioprospecting regarding genetic resources of deep seabed ecosystems beyond national jurisdiction: strengthening the implementation and enforcement of existing legal instruments to protect and preserve the marine environment beyond national jurisdiction; establishing a sui generis system of patents for
*Friederike Lehmann, LLM is a research associate at the Institute for International Economic and Environmental Law at the Georg-August University in Goettingen, Germany, where she is writing a doctoral thesis. This article is an edited part of the dissertation for the LLM degree in International Environmental Law at the Macquarie University in Sydney, completed in 2007.
micro-organisms sampled beyond national jurisdiction; and following the long-term aim to negotiate a protocol or implementation agreement to the UNCLOS.
The focus of this article is the legal status of genetic resources in the deep sea- bed beyond national jurisdiction. In particular, it concentrates on analysing the regulation of access to as well as the sustainable use and conservation of such resources. Up to now, access to and the use of genetic resources in deep seabed ecosystems beyond national jurisdiction has not been regulated. The existing legal framework, including the United Nations Convention on the Law of the Sea,1 the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea2 and the United Nations Convention on Biological Diversity,3 regulates genetic resources within national jurisdiction. However, beyond national jurisdiction it only offers a comprehensive legal regime for mineral resources, governing their exploitation and benefit sharing. This is particularly regrettable because the potential relevance of the exploita- tion of mineral resources seems to be many years away, whereas the exploitation of genetic resources 4 — which is the focus of this article — is taking place today. The biotechnology industry is increasingly interested in these resources and the potential profit behind them. In light of this situation, it is crucial to precisely assess this legal gap. For this purpose, the existing international legal framework for deep seabed genetic resources will be analysed and the question whether and to what extent this legal system regulates access to and sustainable use of genetic resources in deep seabed ecosystems beyond national jurisdiction will be discussed. With regard to this analysis, the article has a narrow scope concerning human activities, as it does not address any other human activities beyond marine scientific research and bioprospecting, which take place in the deep seabed ecosystems beyond national jurisdiction.5 On the other hand, this
paper has a wide scope as it concerns deep seabed ecosystems beyond national jurisdiction in general, and is not limited to hydrothermal vent sites. Even if it is true that hydrothermal vent sites are, currently, of particular importance and interest for marine scientific research and bioprospecting, other deep seabed ecosystems also show great potential for future developments in biotechnology and science in general.6
This legal analysis is followed by a discussion, in section 3, of whether marine scientific research and bioprospecting should be regulated or not, and a brief presentation of some potential tools for such a regulation in section 4. Section 5 concludes and offers recommendations, which point to three parallel pathways forward in order to diminish the outlined legal gap.
2. THE INTERNATIONAL LEGAL FRAMEWORK FOR ACCESS TO AND SUSTAINABLE USE OF GENETIC
RESOURCES OF THE DEEP SEABED
At the international level, the primary sources of relevant international treaty law are the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity.7 Other sources of interest are international customary law and instruments produced at the 1992 UN Conference on Environment and Development (“UNCED”).8 In the following, the legal framework of the UNCLOS and the CBD in relation to genetic resources in the deep seabed will
mining, oil and gas exploration and exploitation, and tourism) are either regulated or will only be relevant in the future. This may be different for fishing and tourism: fishing is one of the most immediate threats to the deep seabed ecosystems. Nevertheless, it is partly regulated and any further discussion would be beyond the scope of this paper. Regarding tourism activities, most take place in conjunction with marine scientific research and bioprospecting and would therefore be covered by any regime that regulates such activities. For further information about other human activities in deep seabed ecosystems see Kristina M Gjerde, “Ecosystems and Biodiversity in Deep Waters and High Seas” (178, United Nations Environment Programme / The World Conservation Union, 2006).
be analysed, in general and regarding the question whether and how marine scientific research and bioprospecting are regulated in this area.
2.1 The United Nations Convention on the Law of the Sea (UNCLOS)
The UNCLOS was adopted in 1982 and entered into force on 16 November 1994. It established a comprehensive framework for the regulation of ocean space.9 As of 10 October 2007, 157 countries have signed the UNCLOS and 155 have subsequently ratified the treaty. The UNCLOS is one of the most comprehensive international law projects ever completed.10 But already in 1982, it was recognised that the Convention does not offer solutions for all traditional and future problems of the seas and oceans. In particular, its ability to deal with new emerging issues such as the sustainable management of deep seabed ecosystems is less comprehensive.11 In order to open up the possibility to deal with unpredicted issues, the drafters referred to international instruments, international organisations, and customary law.12 In addition, the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea and the established United Nations Open-ended Informal Consultative Process on the Oceans and the Law of the Sea (“UNICPOLOS”) support this process.13
The UNCLOS aims to establish “a legal order for the sea and the oceans which will facilitate international communication, and will promote the peace- ful 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”.14 Furthermore, it desires to develop the principles embodied in the UN General Assembly Resolution 2749
(XXV) of 17 December 1970, which include, inter alia, the declaration “that the area of the seabed and ocean floor and the subsoil thereof, beyond national jurisdiction, as well as its resources, are common heritage of mankind. The exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.” 15 In order to achieve its objectives, UNCLOS sets out the rights and obligations of
parties on the basis of maritime zones, delineated according to the distance from the coastline on the basis of set baselines.16 These zones divide the ocean space up into a number of different jurisdictional zones. The question whether genetic resources are regulated, and by which regime, depends, therefore, very much on their location. For the present purpose, the most important zones are the 12 nautical mile territorial sea, the 200 nautical mile exclusive economic zone (“EEZ”), the continental shelf, the High Seas, and the seabed beyond national jurisdiction on the High Seas, which is called “the Area”.17 The Area is defined in Article 1(1) UNCLOS as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. As I will demonstrate in the following, States have different rights and obligations in each jurisdictional zone.
As long as genetic resources are within national jurisdiction, the States gener- ally have sovereignty over those resources and have to take measures to preserve and protect those resources pursuant to Article 192 UNCLOS as they are part of the maritime environment.
(a) Territorial sea
Within the 12 nautical miles (“NM”) territorial sea, which extends to its bed and subsoil, the coastal State has sovereignty.18 In exercising their sovereignty, coastal States have the exclusive right to regulate, authorise and conduct mar- ine scientific research and other activities relevant to genetic resources in their territorial sea.19
(b) Exclusive Economic Zone (“EEZ”)
Part V of the UNCLOS establishes rights, jurisdiction, and duties of coastal States in their EEZ. In Article 56 UNCLOS, such rights and duties are described. The coastal State has “sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, whether living or non-living, of the water superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone”.20 Within the EEZ, coastal States have jurisdiction with regard to marine scientific research and the protection and preservation
of the marine environment.21 In the EEZ, the rights in relation to the seabed and the subsoil are subject to the provisions of Part VI of the UNCLOS, which governs the continental shelf. The legal regime of the EEZ also includes very detailed provisions about how the coastal State should conserve and manage specific species.22 Article 68 UNCLOS rules that these provisions of Part V do not apply to sedentary species as defined in Article 77(4) UNCLOS. Article 72 UNCLOS provides the coastal State with rights to ensure compliance with the laws and regulations adopted by it in conformity with the UNCLOS. Genetic resources located in the 200 NM of the EEZ are either governed by the EEZ or the continental shelf regime. The EEZ regime gives the coastal State sover- eignty over their natural resources whether living or non-living.
(c) Continental shelf
The continental shelf is governed by Part VI of the UNCLOS. Pursuant to Article 76 UNCLOS, the continental shelf comprises the seabed and the sub- soil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.23 Article 77 UNCLOS sets out the rights of the coastal State over its continental shelf. It has the sovereignty over the exploration and exploitation of the natural resources. The term “natural resources” referred to in this Part is defined in Article 77(4) UNCLOS and consists of “the mineral and other non-living resources of the seabed and subsoil together with the living organism belonging to the sedentary species”. The sovereign rights described in Article 77(1) UNCLOS are exclusive to the coastal State. If the coastal State does not explore the continental shelf or exploit its natural resources, no other State may undertake these activities without the express consent of the coastal State.24 Pursuant to Article 78(1) UNCLOS these rights do not affect the legal status of the superjacent waters or of the air space above those waters. Furthermore, the exercise of these rights must not infringe or result in any unjustifiable interference with navigation or other rights and freedoms of other States as provided in the Convention.25 Genetic resources are living resources,26 therefore they are only governed by this regime if they fall under the definition of sedentary species in Article 77(4) UNCLOS and are not
located in the deep ocean floor and its ocean ridges and the subsoil thereof.27 Access to all other living marine resources falls either under the EEZ regime or beyond the 200 NM under the regime of the High Seas or the Area.28 Since gen- etic resources are only governed by the regime of the continental shelf if they fall under the definition of sedentary species, in what follows, this definition as well as related notions that are relevant in the context under consideration will be discussed.
Sedentary species are defined in Article 77(4) UNCLOS as organisms, which, at the harvestable stage, are either immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.29 A marine biologist would quickly recognise that this definition of sedentary species has little or no relationship to biological taxonomy.30 Unfortunately, the definition neglects not only biological taxonomy, it also does not take into account the relation between an organism and its ecosystem. Many of the organisms in the deep seabed ecosystems are oceanic voyagers and the entire food web is filled with chemical energy coming from the seafloor.31 The classification system of Article 77(4) UNCLOS falls far too short of the complicated relations within the food web of such organisms. Lawyers must acknowledge to scientists that the attempt to apply a sedentary species test to genetic resources in deep seabed ecosystems such as hydrothermal vents or cold seeps is unsatisfactory.32 Genetic resources are not harvested in the same sense as other living marine resources. Experts simply did not think about genetic resources from the deep seabed when they established the UNCLOS. Even if the first hydrothermal vent site was only found in 1977, they did not pay attention to the immense values of genetic resources.33
The term harvestable stage is not defined in the UNCLOS; a pure textual approach would therefore be inconclusive. Professor Bailey states that under a common-sense rule, it would be the harvestable stage in the creature’s life cycle, not the particular moment when they are captured.34 Even if this approach were accepted, it would not be very helpful because the species in question are not harvested in the same way or sense as, say, oysters or clams. It could be argued as well that an organism is harvestable at any point of its life cycle at which it can be collected for later study or exploitation. This broad view implies
that the harvestable stage may be said to occur at any point of the organism’s life cycle.35 This would be especially appropriate when the final target of the collection effort is the organism’s genetic material and the genetic material can be extracted at any point of its life cycle.36
Once the harvestable stage of an organism is determined, its mobility at that stage of its life cycle should be discussed. The question of whether an organism is mobile is as difficult as the question about its harvestable stage. The legal classification is unclear and has caused continuous disagreement between States even for well-studied species like scallops.37 For macrofaunal organisms with distinct development stages, which affect their mobility, this classification step may require in-depth study of the organism’s entire life cycle. Specifically, in deep seabed ecosystems, such as hydrothermal vent sites, cold seeps or seamounts, some macrofaunal organisms are mobile and therefore not sedentary species, others are immobile, while the mobility of some is highly controversial.38 When it comes to microbes, which are far more interesting for marine scientific research and bioprospecting, it gets a lot more complicated because we do not know enough about microbes living in deep seabed ecosystems to say whether they are mobile or immobile. The classification regarding their legal status as sedentary species is at best preliminary.39 In the end, it seems that it is the same situation as with the macrofaunal organisms; in deep seabed ecosystems one can find microbes which would fall under the definition of sedentary species and others which do not.
It is apparent from this very short examination that the sedentary species classification is not suitable for deep seabed biotic communities as they are found in deep seabed ecosystems. It seems almost certain that parts of the macro- and microfauna in these ecosystems are sedentary species and are governed by the continental shelf system. Others, which are very much a functioning element of the same ecosystem, are likely to fall outside this definition and will, therefore, not be governed by the continental shelf regime. They will rather be governed by the EEZ within the 200 NM, and beyond national jurisdiction either by the regime of the High Seas or of the Area.40 The present regime leads to a fractured regulatory approach to conservation and management of resources in deep seabed ecosystems including their genetic resources. This goes against the uniformity of an ecosystem, and moreover would be an obstacle when cre- ating an effective management and conservation system.41 It would therefore be
desirable to avoid this definition, in the potential case of an amendment of the UNCLOS.
However, the status of genetic resources in deep seabed ecosystems would only be influenced by this definition if the ecosystems at issue were located on the continental shelf outside the EEZ. Only at such a location, the definition of sedentary species would decide whether the genetic resources are governed by a State jurisdiction or not. Furthermore, if these ecosystems are located on the ocean ridges of the deep ocean floor on the continental shelf, they are also not governed by the continental shelf regime. Most hydrothermal vent sites are located in such areas. Thus, the definition concerns only a few deep seabed ecosystems. Most are located either within the 200 NM or are governed by the regime of the High Seas or of the Area. A more detailed analysis is, therefore, beyond the scope of this article.
For deep seabed genetic resources located in the Area, and those located on the extended continental shelf that do not fall under the definition of sedentary species, the next question is whether those organisms fall within the living resources regime of the High Seas in Part VII of the UNCLOS, the regime of the Area in Part XI of the UNCLOS, or neither of those regimes. In the follow- ing, the two different regimes will be discussed and then the three alternative options will be assessed.
(a) The living resources regime of the High Seas in Part VII of the UNCLOS Part VII of the Convention deals with the High Seas. The High Seas are defined as all parts of the sea, which are not included in the EEZ, in the territorial sea or in the internal waters of the State, or in the archipelagic waters of an archipel- agic State.42 Generally, the High Seas regime deals with living marine resources, which only includes traditionally harvested species and certain sedentary species. Microbes, such as vent bacteria and archaea, are not directly addressed.43 Non- living resources are mainly addressed by the regime of the Area. The High Seas are reserved for peaceful purposes, no State can claim sovereignty over the High Seas and every State has the right to sail ships flying their flag on the High Seas.44 Every State is allowed to exercise the freedoms of the High Seas outlined in Article 87 UNCLOS. These freedoms must be exercised by all States with due regard for the interests of other States in their exercise of the freedom
of the High Seas, and for the rights under the Convention with respect to the activities in the Area.45 For the purpose of this paper, the High Seas freedom of marine scientific research, subject to the continental shelf regime and the provisions for the preservation and protection of the marine environment, and the High Seas freedom of fishing are most relevant. But these freedoms are not exhaustive and could arguably include activities such as collection and sampling of genetic resources and organisms.46 Under the regime of the High Seas, genetic resources in deep seabed ecosystems would be openly available for all to access and sample, only subject to measures for the conservation of living resources in Articles 116–119 UNCLOS and the protection of the marine environment in Part XII of the UNCLOS.47
(b) The regime of the Area in Part XI of the UNCLOS
Provisions regulating activities in the Area are outlined in Part XI of the UNCLOS and the Part XI Agreement. Article 1(1) UNCLOS defines the Area as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. The Area and its resources fall under the “Common Heritage of Mankind” principle. The Convention does not define this concept. The resources of the Area include pursuant to Article 133 UNCLOS “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. According to this definition, living marine resources are not included. Article 137 UNCLOS provides that no State may claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor may any State or private entity appropriate any part of the Area or its resources, except as provided by the Convention. Activities in the Area are all activities of exploration for, and exploitation of, the resources of the Area.48 These activities are, according to Articles 137(2) and 1(2) UNCLOS, under the jurisdiction of the International Seabed Authority (“ISA”).49 They shall be carried out for
the common benefit of all mankind and exclusively for peaceful purposes.50 In addition, the ISA shall adopt appropriate rules, regulations and procedures to prevent, inter alia, the damage to the flora and fauna of the marine environment caused by these activities.51 The Authority has to develop rules to implement the deep seabed mining regime established by Part XI of the Convention. Until today, the ISA has prepared and approved regulations for prospecting and exploration for polymetallic nodules and prepared regulations for prospect- ing and exploration of polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area. Under the regime of the Area, genetic resources would not be freely accessible; instead, they would be governed by the Common Heritage of Mankind principle. If genetic resources were resources of the Area pursuant to Article 133 UNCLOS, activities such as marine scientific research and bioprospecting would be activities under Article 1(3) UNCLOS and would therefore fall under the jurisdiction of the ISA. However, the current mandate of the ISA does not extend to activities associated with marine scientific research or bioprospecting for genetic resources.52
(c) Legal classification of deep seabed genetic resources
In the following, it will be discussed whether genetic resources of deep seabed ecosystems beyond national jurisdiction should be governed by the regime of the High Seas, the regime of the Area, or neither of these regimes. The legal classification of deep seabed genetic resources within the Area is a fundamental challenge to the UNCLOS.53 Within the regimes of the UNCLOS, there are two main conflicting claims with respect to access to genetic and living resources of deep seabed ecosystems on or under the seabed within the Area.
First, industrial countries, biotechnology-interested entities and access- minded marine scientists state that access to these resources falls within the High Seas freedoms under Part VII UNCLOS. From this point of view, the resources can be collected and captured by any private or government entity according to the freedom of the High Seas. The activities would only be restricted with regard to the interests of third States and the conservational and environmental provisions in Parts VII and XII.
biodiversity, and many provisions have been introduced to protect and preserve the marine environment against effects of the mining activities in the Area. However, it is regrettable that these important provisions include many inconsistencies and it is questionable how these provisions will be implemented in practice. Moreover, these provisions are only applicable to activities related to mineral resources in the Area and it is very unlikely that the ISA will work beyond its existing mandate.
Second, developing countries, in contrast, claim that the living and genetic resources of the seabed in the Area should be treated as the Common Heritage of Mankind. Consequently, all benefits should be shared equally within the international community.
A third position argues that all access and conservation issues fall outside of the existing legal framework, and that customary law or new international agreements have to be developed in order to close the legal gap.54
In order to clarify the legal situation, the legal status of deep seabed genetic re- sources beyond national jurisdiction has to be analysed. Such legal assessment and classification necessarily starts with the text of the Convention. According to Article 31 of the Vienna Convention on the Law of Treaties55 the text must be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms in their context and in the light of their object and purpose.
The following can be said in favour of the regime of the High Seas freedoms. The chapeau of Article 87 UNCLOS provides that the High Seas are open to all States, whether coastal or landlocked. It establishes the “universal use principle”. The freedoms in Article 87 UNCLOS include the freedoms of fishing and marine scientific research. The Convention does not define the terms “fishing” or “marine scientific research”. The phrase “inter alia” in the chapeau of Article 87 UNCLOS and the broad interpretation of the terms “fish” and “fishing” arguably provide a good-faith argument, which leads to the conclusion that activities, such as the collection of deep seabed microbes, could be classified as a freedom of the High Seas,56 even though States might not have thought about microbes when they ratified the Convention.
With regard to the opinion that supports an extended interpretation of the regime of the Area, Articles 133 and 136 UNCLOS are of importance. Article 136 UNCLOS provides that the Area and its resources fall within the Part XI “Common Heritage of Mankind” regime of the UNCLOS. However, Article 133(a) UNCLOS limits the definition of the “resources” of the Area to mineral resources. In contrast to the definition of Article 77(4) UNCLOS, this definition is clear. Therefore, a textual approach leads to the conclusion that no living marine resources fall within the scope of the Common Heritage of Mankind regime.57
As mentioned before, the Vienna Convention requires further analysis, which goes beyond the text. The treaty’s context, object and purpose should be examined. In what follows, the arguments in favour of the several positions
outlined above will be assessed; this will lead to the conclusion that there are better arguments in favour of the application of the High Seas freedoms to living marine resources rather than in favour of an expansive interpretation of the Common Heritage of Mankind regime.
Some support for the expansive interpretation of the Part XI regime of the Area can be found in the Preamble of the Convention. It recognises, for example, the desirability of an “equitable and efficient utilisation” of sea resources and acknowledges that the Convention “will contribute to the realisation of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries”. By including mineral resources of the Area within the Common Heritage of Mankind regime, the UNCLOS certainly does that.58 A second argument in favour of the regime of the Area is related to the fact that the Preamble of the Convention cites the 1970 Declaration of Principles resolution by the UN General Assembly. This 1970 Declaration of Principles extends the Common Heritage of Mankind concept to a broader meaning of resources than Articles 133 and 136 UNCLOS.59 Nevertheless, it does not define which resources fall within the concept of Common Heritage of Mankind. It can only be speculated that proponents of this principle had no limitation in mind. However, it has to be borne in mind that the 1970 UN Declaration of Principles is only a recommendation and not a binding or enforceable law.60 A third argument in favour of the extended application of the regime of the Area is that the Common Heritage of Mankind is now a peremptory norm under international law,61 which cannot be derogated by a treaty.62 This position can be supported by Article 311(6) UNCLOS, which states “that there shall be no amendments to the basic principles relating to the common heritage of man- kind set forth in Article 136 ...”. Nevertheless, such an interpretation of Article 311(6) UNCLOS is questionable because the UNCLOS III conferees adopted the current version of Article 311(6) UNCLOS after they had rejected a proposal by Chile to label the Common Heritage of Mankind principle a peremptory norm.63 In addition, the Part XI Agreement scaled back the original regime of the Area of the UNCLOS. The widespread support for, and the ratification of, the Part XI Agreement provide evidence that the majority of the States do not believe that the Common Heritage of Mankind regime is a peremptory norm.64
(1998), at 117.
More generally, the structure of the Convention, and its placement of the limited Common Heritage of Mankind regime in Part XI of the UNCLOS, which does not contain any direct provision for the conservation and management of living marine resources, argues in favour of a broad construction of the High Seas freedoms. In contrast to the regime of the Area, the High Seas regime in Part VII of the UNCLOS provides in Articles 116–119 UNCLOS a framework for access, conservation, and management of living marine resources beyond national jurisdiction. This legal framework is inadequate but at least existent.65 The stretch of the definition of resources in Article 136 UNCLOS to encompass living marine resources and sedentary species would place those species under a regime that does not offer any provisions for their conservation and management. This could run counter to the preambular goal of efficient utilisation and conservation of marine living resources.66 A second argument, made by Churchill and Lowe, is that the High Seas freedoms cannot be exhaustively listed because new technology is constantly developing; Article 87 UNCLOS lists only examples.67 Disputes as to whether a High Seas activity has the status of a High Seas freedom should be resolved by the principle that any activity compatible with the status of the High Seas should be admitted as a freedom, unless the use interferes unreasonably with the rights of others on the High Seas or it is excluded by some specific rule of law.68 With regard to this argument, it has been stated that the collection of living marine resources by marine scientists or even by bioprospectors within the Area or the surrounding waters of the High Seas falls within the freedom to fish, or marine scientific research, or an unspecific mixture of those High Seas freedoms.69 This freedom would embrace the freedom to capture, study and use the living marine re- sources beyond any national jurisdiction, including their genetic resources. The problem with such a “new” High Seas freedom is that deep seabed genetic resources are actually found in the Area and not in the High Seas, and activities in the Area are generally governed by the ISA and not by the regime of the High Seas freedom.
Some further arguments against the expansive interpretation of the Common Heritage of Mankind regime highlight the problem that deep seabed genetic resources do not fit either of these regimes. Firstly, the UNCLOS III conferees rejected a broader definition of “resources” of the Area that would have included living resources.70 Secondly, one of the main arguments to support the extension
of the Common Heritage of Mankind regime to the seabed’s mineral resources was their “exhaustibility”. This argument is obviously not valid for living marine resources, including genetic resources.71 Thirdly, in contrast to mining sites, the collection of marine living resources does not require any exclusive claim on an area.72 Fourthly, the expansion of the Common Heritage of Mankind concept to resources other than minerals is in opposition to the long tradition of broad High Seas freedoms. Only the voluntary action by States could limit the scope of those freedoms and produce a binding norm.73 A final argument for the position that living marine resources do not fall under the regime of the Area is that, until now, no nation has restricted the rights of its vessels or individuals to sample genetic resources from deep seabed ecosystems on the grounds that the resources were governed by the Common Heritage of Mankind regime.74 No State or non-governmental organisation has ever protested or objected to the collecting activities of marine scientists or bioprospectors as a violation of international law, and these activities have been taking place for more than twenty-five years and are continuing to take place.
In conclusion, it can be said that the textual, contextual, and structural arguments are in contra of an expansive interpretation of the Common Heritage of Mankind regime, and that the better arguments can be found in favour of the application of the High Seas freedoms to living marine resources, in particular to the use of genetic resources in deep seabed ecosystems. However, neither of these regimes seems to be appropriate for the sustainable management of genetic resources from deep seabed ecosystems beyond national jurisdiction.
The existence of a legal regime for the access to and the sustainable use of genetic resources in deep seabed ecosystems is increasingly important since the interest of science and industry is rising rapidly. Marine scientists and bioprospectors collect organisms from deep seabed ecosystems mainly for their potentially useful traits that can be put to productive use through extraction and application of the organism’s genetic code and the biochemical process it regulates.75 As has been demonstrated above, there is no regime that directly governs access to and exploration and exploitation of genetic resources pro- vided by the UNCLOS. The Convention does not distinguish between marine living resources and their genetic material within the Area. The UNCLOS uses
the term “living marine resources” only in the fisheries or conservation sense including the Area’s fish and invertebrate communities. It could be argued that this term is broad enough to include free living and symbiotic micro-organisms in the Area. Consequently, their genetic material might be included as a subset and freely accessible as part of the High Seas regime.76
But there are several arguments against this interpretation. First, the acqui- sition and subsequent use of these genetic resources is different from fishing with respect to the technique, equipment, and nature. Second, unlike fish, the microbial genetic resources of the Area are not harvested for consumptive uses; they are sampled. In addition, they have to be isolated and cultured before they can be studied. Further research and investment are necessary before any economic value can be achieved. Finally, if adequate technical, financial and human resources are available, both the microbes and their genetic material may be reproduced, and then the Area’s microbial genetic resources are not finite like fisheries.77
The UNCLOS therefore does not regulate access to and exploration and exploitation of deep seabed genetic resources and further studies are necessary to consider different possible legal regimes for the Area’s genetic resources. This would be consistent with the UNCLOS because the drafters acknowledged that the final document could not, and did not, address all known, and much less the unknown, ocean-related legal issues.78 To address these issues the Preamble to the Convention provides that the rules and principles of general international law will continue to govern matters that are not regulated by the Convention. In addition, Article 311 UNCLOS provides that other treaties are still valid as along as they are compatible with the Convention.
Part XIII of the UNCLOS, together with marine scientific research-related provisions in different jurisdictional zones, establishes the principles, rights, and obligations with respect to marine scientific research activities. The analysis of the regime is important as the UNCLOS offers a regime for marine scientific research that has to be taken into account when the sustainable management of marine scientific research and bioprospecting with regard to genetic resources in deep seabed ecosystems beyond national jurisdiction is desired.
Part XIII of the UNCLOS offers a balanced regime for the conduct of marine scientific research. On the one side, it tries to encompass the wishes
of developing countries, as some claim that marine scientific research is an exclusive right of a few industrial nations, with the engagement of States when marine scientific research activities are taking place in their coastal waters or on their continental shelf. On the other side, the UNCLOS encourages researchers because marine scientific research is of general interest. It is, in particular, important in the deep seabed ecosystems beyond national juris- diction because it increases our knowledge about geological and evolutionary process, fosters the improvement of the conditions for humans on the planet, supports the development of environmental impact assessment and protection measures for mining regulations, and can support the ISA in its obligation regarding Article 145 UNCLOS.79 Marine scientific research is characterised by openness, data or sample collecting, publication and dissemination of those results. These principles support human scientific knowledge and can therefore benefit mankind.80
Beyond national jurisdiction, marine scientific research regarding genetic resources primarily takes place at hydrothermal vent sites and other deep seabed ecosystems. In waters beyond national jurisdiction, marine scientific research is recognised as a High Seas freedom; in other words, the right to access is granted.81 However, this right is restricted by Article 240 UNCLOS, which requires, inter alia, that marine scientific research is conducted with purely peaceful purposes and that it complies with all regulations for the protection and preservation of the marine environment adopted in conformity with the UNCLOS.
Part XII of the UNCLOS includes some framework regulations to protect and preserve the marine environment. Article 192 UNCLOS introduces the general obligation on States to protect and preserve the marine environment. The implementation is left mainly to States and the international community.82 Article 194 UNCLOS obliges States to prevent, reduce, and control pollution of the marine environment and ensure that any caused pollution does not pollute areas beyond their jurisdiction. With regard to the deep seabed Articles 208 and 209 UNCLOS are of special interest. Article 208 UNCLOS requires coastal States to adopt laws and regulate to prevent, reduce, and control pollution of the marine environment arising from, or in conjunction with, seabed activities subject to their jurisdiction, as well as establish global and regional rules, standards, and recommended practices and procedures through competent international organisations. Article 209 UNCLOS concerns pollution in the deep seabed beyond national jurisdiction and provides that international
rules, regulations, and procedures shall be established in accordance with Part XI of the UNCLOS to prevent, reduce, and control pollution of the marine environment from activities in the Area. It requires individual States to adopt laws to regulate pollution from their vessels, installations, structures, and other devices flying their flag.83 These provisions shall be adopted on an international level by the ISA84 and the national rules should not have a lower standard. This framework for the protection and preservation of the marine environment puts a general obligation on marine scientific research not to pollute the marine environment, and in particular, the deep seabed ecosystems. Moreover, it allows States to restrict the freedom of marine scientific research in order to protect and preserve the marine environment.
These regulations concern only marine scientific research. Are these pro- visions also applicable to bioprospecting? It is often difficult to distinguish between marine scientific research and bioprospecting. In the absence of an internationally agreed definition of the terms “marine scientific research” and “bioprospecting” various attempts to define these terms have been made.85 In practice, deep seabed research activities are very expensive and risky and are therefore most commonly combined with bioprospecting. Researchers come primarily from universities and government agencies but work at the same time for biotechnology companies.86 Companies enter into agreements with universities and scientific research institutions to pay for samples of organisms collected from the sea. Until now, no private bioprospecting in deep seabed ecosystems is known.87 Consequently, deep seabed research activities can be classified as marine scientific research, as bioprospecting, or as exploring and exploiting living or non-living resources. The classification varies with the intent and with the nature of the activity. The uncertainty of the classifications of the research activities can have immense consequences not only with regard to the environmental protection provisions. Article 256 UNCLOS, for example, provides freedom to conduct marine scientific research in the Area. Mineral resource prospecting, exploration, and exploitation in the Area, in contrast, are controlled by the ISA.88 The classification of the activity in the Area decides, therefore, which regime is applicable, and determines which rights and obligations are attached to the activity. If an activity is classified
88 UNCLOS, Annex III, Articles 2–3.
as marine scientific research, the findings made by States and international organisations have to be published, and the results and analysis of research shall be disseminated through the ISA or other international channels in the Area.89 Information gained through activities classified as bioprospecting, exploring, or exploiting activities are generally proprietary and kept confidential. As States could not agree on any definition of marine scientific research, there is no such definition in the UNCLOS. In addition, the term bioprospecting is not even mentioned. In consideration of the highlighted importance of the distinction, the absence of any definition is problematic.
Article 246 UNCLOS provides a distinction between research carried out for “peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind” (pure) and research “having a direct significance for the exploration and exploitation of natural resources” (applied). This distinction, which is part of the regime within national jurisdiction, could contribute to the clarification of the status of the different activities beyond national jurisdiction, and, therefore, help to reduce the potential conflicts with- in the scientific community with respect to observation and sampling.90 But since it was decided that activities of “direct significance for exploration and exploitation” are marine scientific research as well, there have been attempts to solve the difficulties with other means. Some argue the classification should be made according to the intent of the researcher.91 Others say this would be against the objective evaluation demanded by the law of the sea.92 And others again say that it is of direct significance to exploration and exploitation when the results of the research have their own intrinsic value and are not only of significance for further measures.93 In addition to the reasons outlined above, it is very difficult to draw a clear line between pure and applied research because of the period of time between the collection and the commercialisation.94 In coastal zones, States tend to classify most research activities not as marine scientific research. It is likely that this will also be the case in the Area, with the result that sample collection activities at deep seabed ecosystems will be
classified as bioprospecting, or exploration and exploitation, and not as marine scientific research.95
Even if these activities are practically the same for the marine environment, legally they are not. Marine scientific research beyond national jurisdiction is a High Seas freedom, which underlies some obligations provided by the UNCLOS. However, there is no agreement in the international community over whether these regulations include bioprospecting.
The UNCLOS regulates many parts of and activities in the oceans. However, marine scientific research and bioprospecting related to genetic resources in deep seabed ecosystems are mainly unregulated. Genetic resources in the Area are not regulated. Marine scientific research is a freedom of the High Seas and bioprospecting is not even mentioned in the UNCLOS. In as far as one could say that marine scientific research and bioprospecting related to genetic resources in deep seabed ecosystems is regulated, this regulation is very fragmented. In particular, many definitions are unclear and cause legal uncertainties.
2.2 The Convention on Biological Diversity (CBD)
The provisions of the UNCLOS and the Part XI Agreement must also be read in conjunction with the provisions of the CBD. The CBD is a compre- hensive agreement, which tries to address all aspects of biological diversity, including genetic resources, species, and ecosystems. The CBD is designed to “enhance and complement existing international arrangements, including UNCLOS, for the conservation of biological diversity and sustainable use of its components”.96 Components of biological diversity include genetic resources with actual or potential value for humanity.97 The CBD adopts in its Preamble the precautionary approach98 and the ecosystem approach.99
The CBD has three main objectives: the conservation of biological diver- sity; the sustainable use of its components; and the fair and equitable sharing
of the benefits arising out of the utilisation of genetic resources. The CBD establishes a framework of general flexible obligations aimed at implementing these objectives. It has to be kept in mind that the CBD is a framework treaty, which sets out overall goals and policies and general obligations only with respect to biodiversity conservation and which provides a limited structure for technical and financial co-operation. The responsibility for achieving its goals is left to the individual State parties.100 Issues surrounding the application of the CBD to deep seabed ecosystems and the harmonisation of the CBD with the UNCLOS are best analysed through two overlapping approaches.101 The first approach analyses issues regarding the application of the CBD to marine scientific research and bioprospecting in deep seabed ecosystems beyond national jurisdiction according to its three objectives (“ecosystem approach”). The second approach follows the zonal approach of the UNCLOS (“zonal approach”).
Regarding the first objective of the CBD, to conserve biodiversity, Article 2 CBD is important for genetic resources in deep seabed ecosystems. Article 2 CBD broadly defines biodiversity as “variability among living resources from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems”. Conservation requires inventory as well as periodic monitoring of the components of biodiversity.102 Pursuant to Articles 8 and 9 CBD actions to conserve the biodiversity shall include as far as possible and appropriate in-suit and ex-suit conservation means. Most of the deep seabed ecosystems are unique ecosystems since they vary in genesis, extent, and community composition. Scientists have only just started to assess the biodiversity in these ecosystems; moreover, it is estimated that a very high percentage of these organisms are endemic. Until a more complete inventory of these species is complete this endemism, together with the precautionary principle of the CBD, requires adopting a conservative approach to living marine resources in deep seabed ecosystems.103 Furthermore, the genetic diversity within microbial species is largely unknown. In-suit and ex- suit conservation measures are needed. In addition, collected data and genetic material for scientific purposes are often incomplete and badly managed. Marine
scientists are already aware of the importance of conservation initiatives. The aim must be the full implementation of data- and sample-sharing programmes, such as the model of InterRidge104 with regard to hydrothermal vent sites. The result of better access to vent resource banks and cultured micro-organisms for scientists could help reduce uncontrolled collecting and bioprospecting activities, and thus better conserve biodiversity.105
The second objective of the CBD is to promote the sustainable use of the components of biodiversity. It contemplates that those resources, which are not threatened or endangered, are subject to use. The CBD is not a preservationist regime. It suggests that marine scientific research and other collecting activities at deep seabed ecosystems should be sustainable. The question is just how we are to know what to consider as sustainable in an ecosystem we hardly know. On the one hand, it is necessary to survey consumptive and non-consumptive uses of deep seabed ecosystems to evaluate their impacts. On the other hand, technology is not developed in a manner that unsustainable harvest and threats to the whole ecosystem can be avoided. In consequence, parties to the Convention must evaluate the effect of the precautionary principle of the CBD’s Preamble. They need to determine whether the lack of scientific certainty justifies postponing measures to avoid or minimise possible threats to the biological diversity.106
The purpose of the third objective of the CBD, to achieve fair and equitable access to and benefit sharing of the components of the biological diversity, was to reverse what some called a new colonialism by developed countries based on biological resources “plundered” from developing countries. One of the paramount principles of the CBD is that every State has the sovereign right to exploit its own resources, pursuant to their own environmental policies. Article 15 CBD now provides a mechanism for the source State to obtain an equitable share of the benefits from their genetic resources, and therefore underlines this principle and purpose. To achieve fairness and equity, the CBD provides scientific and technical co-operation, access to genetic resources, and the transfer of technologies.107
The third objective of the CBD is of particular importance in relation to the previously mentioned linkage between traditional marine scientific research by public academic institutions and private biotechnology interests, and the increasing possibility of commercial application of marine scientific findings. To protect their genetic resources, many coastal States will enact legislation
107 CBD, Articles 16 & 19.
requiring “prior informed consent” and “mutually agreed terms” including benefit sharing. This will exceed the consent regime for marine scientific research provided by Articles 245, 246, and 252 of the UNCLOS.108 In particu- lar, Article 252 UNCLOS does not appear to meet the “prior informed consent” requirement established by the CBD. These measures will only be applicable within the coastal zones or on the continental shelves. In the Area, no such regime exists for living resources; thus, direct measures such as new agreements or voluntary management by the community of scientists and bioprospectors would be desirable.109
The zonal approach distinguishes the applicability of CBD provisions by area. This approach provides nations with sovereign rights over genetic resources within national jurisdiction. Within national jurisdiction the provisions of the CBD are applicable to the components of biological diversity and the processes and activities that may affect biological diversity. However, the distinction between components on the one hand, and processes and activities on the other hand, is not defined in the CBD.110 Components of biological diversity can be plants, animals, microbial organisms, their genetic material and surrounding ecosystem. Articles referring to those components apply within the limits of each party’s national jurisdiction. Marine “activities” are limited to those activities that might have an adverse effect on the biological diversity; this presumably includes, inter alia, marine scientific research, prospecting, exploration and exploitation. The CBD does not refer directly to those activities. It is the UNCLOS that governs access to coastal States’ waters for marine scientific research or marine living resources collection.
Beyond national jurisdiction, in contrast, the State parties may only regulate the processes and activities of their own nationals, where the party has jurisdiction or control over the process or activity, to achieve the objectives of the CBD.111 In addition, Article 3 CBD recognises that States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause any damage to the environment of other States or to areas beyond the limits of national jurisdiction. Thus, Articles 3 and 4 of the CBD leave it to the State parties to implement measures to regulate activities and processes of their nationals beyond national jurisdiction. Pursuant to the UNCLOS, States
have exclusive jurisdiction, outside national waters, over activities of vessels under their flag. An expansive interpretation of Article 4(b) CBD allows the statement that “activities and processes” funded by a government or supported by a licence and carried out under the “control” of a State, fall automatically under the State’s control. This broad interpretation could enable States, in the case of government-funded research activities, to claim property rights over marine living resource findings in the Area, ignoring the Common Heritage of Mankind principle.112 Moreover, States with very extended views of their jurisdiction over vessels on the High Seas may find themselves facing similarly broad interpretations of the jurisdictional reach of the CBD in waters beyond national jurisdiction.113 But until now no State has implemented measures specifically to regulate activities of their nationals in deep seabed ecosystems.
Even if the first two objectives of the CBD should be taken into account when marine scientific research and bioprospecting take place beyond national jurisdiction, under the existing provisions of the CBD, access to and use of genetic resources of the oceans and the deep seabed beyond national jurisdic- tion is totally unregulated.114
2.3 Relationship Between the UNCLOS and the CBD
As set out above, the two conventions provide a complementary but still incomplete regime concerning access to and conservation of resources of deep seabed ecosystems. Both conventions require nations to co-operate to conserve living marine resources and preserve free marine scientific research regard- ing those resources beyond national jurisdiction.115 Although complementary, there are conflicts between the two conventions in the context of deep seabed ecosystems. Neither of the two conventions directly addresses access to genetic resources on the High Seas or in the Area.116 This opens the door to potential disputes over the application and interpretation of the two conventions and their priorities in case of conflict; in particular, because there are some major differences between the two conventions.
First, the two conventions adopt different approaches to conservation and management and support different decision-making processes, which may undermine integrated management. Second, in contrast to the UNCLOS, which is only concerned with conservation at the level of species or particular
stocks, the CBD seeks to conserve the diversity of genetic resources. The CBD advocates an ecosystem approach to conservation, while the UNCLOS does not mandate such an approach. Moreover, the CBD incorporates the precaution- ary principle, which is not existent in the UNCLOS. Finally, the CBD requires “prior informed consent” and “mutually agreed terms” where researchers apply for the collection of samples in the coastal State’s waters or continental shelf. These requirements are likely to complicate what would otherwise be a more marine scientific friendly regime under the UNCLOS.117
In case of conflict over the rights and obligations of parties to the two con- ventions, the rules codified in the Vienna Convention provide guidance for their resolution. According to Article 26 of the Vienna Convention, which is the pacta sunt verdad norm, every party to both conventions has to perform its obligations under both in good faith. Article 31(1) Vienna Convention determines that in cases of ambiguity, the terms have to be interpreted in good faith. In case of conflict, it provides the subsidiarity of an earlier treaty, when the treaty is not to be considered as incompatible with the earlier treaty.118 Regarding the UNCLOS and the CBD with respect to their application to living resources of the High Seas and the deep seabed, it has been concluded that in a case of conflict the UNCLOS takes precedence over the CBD.119 This position finds support in Article 22 CBD and Article 311(2) UNCLOS. Article 22 CBD provides that the CBD should be implemented consistently with the rights and obligations of States under the law of the sea. Article 311(2) UNCLOS guarantees the application of other compatible treaties as long as they do not modify the rights and obligations of the parties to the UNCLOS.
2.4 Provisional Results
The analysis of the existing legal framework for the sustainable management of genetic resources in deep seabed ecosystems demonstrates that access to and sustainable use of genetic resources beyond national jurisdiction is mainly unregulated. In particular, marine scientific research and bioprospecting related to genetic resources in deep seabed ecosystems beyond national jurisdiction is regulated neither under the UNCLOS nor under the CBD. As Glowka has noted, this is ironic because the most immediately exploitable and lucrative resources of the deep sea are arguably its genetic resources, yet such resources
fall outside the main legal regime applicable to the deep sea, the UNCLOS and the CBD.120
This legal gap regarding genetic resources in the deep seabed ecosystems has been noted as well by the Secretariat of the CBD. The Secretariat noted that, as Article 15 CBD, the provision for fair and equal benefit sharing, does not apply to areas beyond national jurisdiction and, given that it is unclear whether, or how, the UNCLOS, or the Common Heritage principle, applies to the gen- etic resources of the deep seabed, there needs to be an in-depth study on how to best address the use of these resources.121 As set out above, beyond national jurisdiction, the CBD only applies to “processes and activities”; therefore, the UNCLOS is the principal instrument. The regime of the Area does not extend to non-mineral resources and does not mention genetic resources. As a result it is not clear whether and how the UNCLOS applies to the genetic resources in the Area.122 The most plausible interpretation is that genetic resources are freely accessible and appropriable by anyone who collects them. Accordingly, genetic resources found outside national jurisdiction can be considered as unregulated resources. In the opinion of the Subsidiary Body on Scientific, Technical and Technological Advice (“SBSTTA”), this situation has arisen more by accident than because it was planned.123 The potential value of mar- ine genetic resources and their importance in benefit-sharing issues were not anticipated in the UNCLOS negotiations. Consequently, the situation begs for an analysis of whether this approach is correct for these resources and what can be done to protect these genetic resources. Should marine scientific research and bioprospecting regarding access to and sustainable use of genetic resources in the deep seabed beyond national jurisdiction be regulated, and if so, to what extent?
3. SHOULD MARINE SCIENTIFIC RESEARCH AND BIOPROSPECTING BE REGULATED?
In order to evaluate the question whether marine scientific research and bio- prospecting regarding access to and sustainable use of genetic resources in the deep seabed beyond national jurisdiction should be regulated, and if so, to what extent, the value of the deep seabed ecosystem should be recalled. In earlier days, it was assumed that open ocean species were inexhaustible and
that human beings could not diminish their numbers. The enormous area of the open ocean beyond the 200 nautical mile limit and beyond national jurisdiction, which comprises more than 50 per cent of the Earth’s surface, was regarded as wilderness and the deep seabed environments were thought to be empty expanses hostile to life.124 The last few decades have proven the absolute opposite in both aspects. Today, scientists fear that the decline in species numbers and diversity is altering the composition of entire ecological communities and food webs, including mid-ocean and deep seabed commu- nities depending on the rain of organic debris from the water above.125 And deep seabed environments are considered to have been the very cradle for life on Earth and to be the largest reservoir of biodiversity on the planet. However, the deep seabed is still poorly studied and understood. Ninety per cent of the ocean is unexplored and only 0.0001 per cent of the deep seafloor has been subject to biological investigations.126 We know more about the surface of the moon than the bottom of the deep oceans. Scientists continue to discover new and unique species on every cruise, and sometimes even new ecosystems. About 50 per cent of animals collected from areas deeper than 3000 metres are species new to science. It is recognised that the deep seabed is featuring a wide variety of existing geological and biological extremes. The great variety of the deep seabed habitats hosts an amazing array of unique ecosystems and species found nowhere else. These include hydrothermal vents, cold seeps, seamounts, deep- sea trenches, reef-forming corals, and submarine canyons. With this diversity of features and habitats it is no surprise that the seabed is thought to support 98 per cent of all marine species, and that more species live in the deep seabed than in all other marine environments combined.127
The same advanced technology that enables scientists to explore and better understand the depth of the oceans also enhances the ability to exploit open oceans and deep seabed resources. Deep-sea fishing, energy development, marine scientific research, and bioprospecting are already taking place at depths of 2000 metres or more. In correlation with pollution, shipping, military activities, and climate change, these human activities threaten marine ecosys- tems and biodiversity.128 Deep seabed environments are extremely valuable and at the same time threatened by many different human activities. On the one hand, some of the most immediate threats to deep seabed ecosystems, in particular to hydrothermal vents, are marine scientific research and bioprospecting. On
the other hand, marine scientific research and bioprospecting are essential to advance our knowledge about these ecosystems and improve human welfare. Moreover, the environmental impact of such activities is still unclear. Ironi- cally, potentially threatening research is needed to determine the environmental impact of such activities and to decide whether regulation is required and if so what form it should take.
For these reasons, it may be regarded as questionable whether any burden should be put on this research through any regulatory tools. This question was already discussed during the negotiations for the UNCLOS. The main argument against such regulation was that too much regulation and a bloated international bureaucracy would pose a real threat to further advances in marine scientific research.129 These arguments are most probably equally valid today. Yet, from the author’s perspective, these arguments do not count as arguments against any regulation whatsoever. They just call for caution to approach the issue of regulation in the right way. This would mean that marine scientific research and bioprospecting is to be regulated in a manner that allows research to enrich our knowledge in the necessary way but at the same time protect vulnerable ecosystems in the deep seabed threatened by such research.
When creating framework regulations for marine scientific research and bioprospecting, a number of important aspects should be taken into account. Firstly, marine scientific research and bioprospecting have to be defined. In particular, different types of marine scientific research should be differentiated according to whether the main focus of the research activities in question is on the improvement of our knowledge or whether research is conducted exclusively for commercial reasons. Secondly, it is enormously important to involve the scientific community in the creation and implementation of any regime in order to improve the effectiveness of such a regime. If the regulation is perceived as the imposition of an unnecessary burden on their work by the scientific community then such a regime is likely to encounter stiff opposition and is unlikely to be effective.130
The answer to the question posed above is that marine scientific research and bioprospecting related to deep seabed genetic resources should be regulated in a manner that takes the interest of the scientific community into account, does not pose a threat to further advances of marine scientific research, and protects, at the same time, the threatened deep seabed ecosystems.
4. THREE POTENTIAL REGULATORY TOOLS
In order to regulate marine scientific research and bioprospecting regarding access to and sustainable use of genetic resources in the deep seabed beyond national jurisdiction, different regulatory tools could be considered. In the following, three ideas to achieve such a balanced regulation will briefly be discussed: (i) marine protected areas; (ii) intellectual property rights; and (iii) environmental impact assessments.
4.1 Marine Protected Areas
One of the potential tools to regulate access to and use of deep seabed genetic resources is marine protected areas (“MPAs”). One advantage of MPAs is that whole ecosystems, such as hydrothermal vents, cold seeps and seamounts, can be managed instead of merely single species or certain types of mineral resources. Through the restriction and prohibition of uses within the MPAs, they provide for the protection of resources even when clear impacts cannot be identified or when it is not certain what type of use would be sustainable.131 As deep seabed ecosystems are threatened from marine scientific research and bioprospecting on the High Seas and in the Area, and these areas are, as has been seen above, mainly unregulated, a global network of MPAs on the High Seas would be a very powerful tool to regulate such activities. Regarding the role of MPAs beyond national jurisdiction for the sustainable management of deep seabed genetic resources with regard to marine scientific research and bioprospecting, the crucial question is how such MPAs can be established on the High Seas to sustainably manage deep seabed genetic resources.
Internationally, the establishment would be possible under UNCLOS.132 The problem is the absence of globally agreed criteria, management guidelines, and enforcement protocols. This may hinder the establishment of comprehensive, effective, and representative networks of MPAs beyond national jurisdiction.133 On a regional basis, MPAs can already be established by the collective action
of several willing States in conformity with the UNCLOS. This willingness seems to be growing constantly.134 In addition, there are some regional legal regimes, such as the OSPAR Convention,135 the Protocol to the Mediterranean
132 UNCLOS, Articles 192, 194 (5), 162(2)(x), 197, & 117–118.
Convention,136 and the Madrid Protocol,137 which have already established a number of MPAs beyond national jurisdiction and can be used as examples, guidelines, or models to create a network of MPAs beyond national jurisdiction. These regional legal regimes outline detailed criteria and mechanisms for how such areas can be elected and managed through the co-operation of different States. Well planned, managed, and funded MPAs have the potential to be an effective tool for managing marine scientific research and bioprospecting beyond national jurisdiction and, at the same time, protecting vulnerable deep seabed ecosystems. However, it should be stressed that the criteria for the selection, establishment, and management of MPAs should be globally agreed upon in order to increase the global acceptance of these areas and thereby increase their effectiveness. These criteria should be developed in accordance with the outlined regional models and should be introduced into the UNCLOS.
4.2 Intellectual Property Rights
Intellectual property rights (“IPRs”) on and access rights to genetic resources found in deep seabed ecosystems can be regarded as features that have great potential to contribute to the regulation of marine scientific research and bioprospecting in deep seabed ecosystems beyond national jurisdiction. This is especially interesting because in recent years a number of patents have been granted in relation to inventions based on marine organisms. Moreover, bioprospectors are aiming to patent their findings in order to financially benefit from their work and investments. For patents regarding micro-organisms the TRIPS Agreement138 and the Budapest Treaty139 are the most relevant international treaties. These regulations and the granting of patents, related to genetic resources sampled beyond national jurisdiction, have to be consistent with the UNCLOS and, to a limited extent, with the CBD.140 Patents related
to genetic resources of deep seabed ecosystems exhibit major advantages, in particular, if granting them is subject to specific conditions, such as the dis- closure of origin. A patent would then advocate marine scientific research in general, and secondly, it could allow the regulation of access to and benefit sharing of genetic resources beyond national jurisdiction because granting a patent is essentially a sovereign act of a State, regardless of where the original genetic resource is obtained.141
With regard to this idea, the Regulations of the Budapest Treaty should be amended in a manner that makes the disclosure of origin a requirement for the deposit of a micro-organism in an internationally recognised depository.142 Such disclosure would thereby become a precondition for granting a patent. Furthermore, the compliance with environmental standards, access rules and benefit-sharing arrangements should be considered as prerequisites for granting such a patent. This would be a tremendously helpful means to govern genetic resources from deep seabed ecosystems beyond national jurisdiction. The implementation of the amended Regulations of the Budapest Treaty into national law would be a way to govern genetic resources from deep seabed ecosystems beyond national jurisdiction. It would support the objectives of the CBD and would, in my opinion, not run counter to the principles and provisions of the UNCLOS.
In addition, it would be possible to introduce a royalty for the use of gen- etic resources originated from areas of the global common. An international institution suitable to manage such royalties as a global trust fund could be either the ISA143 or the Global Environmental Facility (“GEF”).
4.3 Environmental Impact Assessments
Last but not least, environmental impact assessments (“EIAs”) on marine scientific research and bioprospecting projects could be a tool that should be introduced as an environmental standard in management plans of MPAs beyond national jurisdiction and that should be part of the precondition of granting patents related to genetic resources sampled beyond national jurisdiction. This would be a way to enforce EIA requirements also beyond national jurisdiction.
Community & International Environmental Law Review 12; and Leary, International Law and the Genetic Resources of the Deep Sea, supra note 130, Chapter 7.
Even if the full impact of activities such as marine scientific research and bioprospecting is not yet known, it is already apparent that these activities have adverse impacts on deep seabed ecosystems. Therefore, EIAs are desirable in the context of these activities. Article 8 of the Madrid Protocol in conjunction with Annex I are a good model for future provisions outlining international standards of EIAs for marine scientific research and bioprospecting beyond national jurisdiction. Such an international standard could be introduced in the UNCLOS and would then have to be implemented by national law.
A detailed legal discussion of these three regulatory tools — marine protected areas, intellectual property rights, and environmental impact assessments — and an in-depth-analysis of potential ways to implement these instruments into the existing legal framework in order to diminish the described legal gap is beyond the scope of this article but merits further attention and research.
5. CONCLUSION AND RECOMMENDATIONS
The deep seabed is an area that is and will remain uncharted waters to most people. It is an area that is “out of sight”. Nevertheless, it is a lot closer to us than we think. It is part of the ecosystem on which we all depend. Human activities in the deep seabed involve exactly the same core legal issues as else- where on our planet. The main objective in this context is to assess how we can manage human activities sustainably with the overall goal to conserve bio- diversity. When new threats to any ecosystem appear, as is currently the case, they need to be addressed by the international community in order to conserve the biodiversity of such ecosystems.
This article demonstrates that there is a legal gap in the international envi- ronmental treaty system, and that neither the UNCLOS nor the CBD regulate marine scientific research or bioprospecting with regard to genetic resources in deep seabed ecosystems beyond national jurisdiction in an appropriate manner, which would protect unique and vulnerable ecosystems against emerging threats of marine scientific research and bioprospecting.
Following these findings, the article goes on to discuss whether marine scientific research and bioprospecting should be regulated at all, and if so, which tools in regional and national law could be utilised to narrow this gap and sustainably manage marine scientific research and bioprospecting con- cerning genetic resources beyond national jurisdiction. It concludes that marine scientific research and bioprospecting related to deep seabed genetic resources should in fact be regulated, but in a manner that takes the interest of the scientific community into account, does not pose a threat to further advances of marine scientific research, and, at the same time, protects the threatened deep seabed
ecosystems. Furthermore, the article shows that, inter alia, marine protected areas, intellectual property rights, and environmental impact assessments are valuable tools for the regulation of marine scientific research and bioprospecting regarding genetic resources beyond national jurisdiction.
In light of these conclusions, the article recommends taking three parallel pathways forward in order to make progress in terms of managing genetic resources in the deep seabed beyond national jurisdiction.
First, the existing legal instruments, which already have many provisions in place that ask States to protect and preserve the marine environment beyond national jurisdiction and call for co-operation among States to do so, have to be implemented, enforced, and strengthened. These provisions encompass also any impacts resulting from marine scientific research and bioprospecting.
Secondly, a sui generis system of patents for micro-organisms sampled beyond national jurisdiction should be established. The Regulations to the Budapest Treaty should introduce the requirement of the disclosure of origin, followed by an amendment to national patent law to introduce disclosure of origin as a prerequisite for granting a patent. This information would enable national patent law to make granting a patent related to genetic resources of deep seabed ecosystems beyond national jurisdiction subject to certain conditions, such as the payment of a royalty into a global trust fund or the proof that the sample was taken in a sustainable manner and in accordance with international and national law. A global trust fund could act as the financial institution for the collection and equitable sharing of the royalty payments and for investing the money in order to conserve biodiversity beyond national jurisdiction.
The third pathway, which the international community should follow, is the long-term aim to negotiate a protocol or implementation agreement to the UNCLOS.144 Such an international agreement would have to include internationally agreed standards for all the aforementioned tools. In this
context, it should be recalled that a key factor for successful negotiations and implementation of any future regime is the involvement of all stakeholders.
Whether it will be possible to follow these suggested pathways will depend very much on the political will of the nation States and the extent of co-operation among the international community. As previously mentioned, the opinions of different nations are very distinct regarding the question at issue. Nevertheless, since 2006 there have been significant developments at the international level regarding the sustainable management of genetic resources of deep seabed ecosystems beyond national jurisdiction, and also concerning marine scientific research and bioprospecting. With regard to these issues, the Ad hoc Open- ended Informal Working Group to Study the Issues Relating to the Conser- vation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction held under the General Assembly of the United Nations in February 2006, the meeting of the States Parties to the UNCLOS in June 2006, and the Conference of the Parties to the CBD in March 2006 were of particular importance. At all these meetings, questions regarding the regulation of marine scientific research and bioprospecting and the sustainable use and conservation of genetic resources of deep seabed ecosystems were discussed. Currently, this topic seems to have attracted more attention than ever before; for instance, the United Nations Informal Consultative Process for the Oceans and the Law of the Sea held its eighth meeting in New York, 25–29 June 2007, and discussed this topic as well. Even if an agreement on the issues under consideration is not yet in sight, the constant discussion and the constant requirement for more information and studies shed more and more light on the issue at stake and suggest that the international community is looking for solutions.
In light of these recent developments one can hope that awareness of the problem will finally result in agreement among the international community, which includes the three outlined paths, and that scientific evidence will convince reluctant States of the necessity to agree on regulatory measures in order to sustainably manage genetic resources of deep seabed ecosystems and regulate marine scientific research and bioprospecting. Furthermore, it is hoped that many like-minded States will act during the long negotiation period within their national and regional legal systems in order to establish MPAs beyond national jurisdiction, EIA procedures, and amend their national legal systems with respect to patent law.