Bernard Błakiewicz* and Tomme R. Young**
* Attaché for Kiribati and Nauru, Natural Resources and Environment in the Delegation of the European Commission for the Pacific. The author is associated with the International Ocean Institute, and is a former intern of the IUCN Environmental Law Centre (ELC). The text expresses exclusively the author's opinion, and cannot in any way be considered as a view of the European Commission.
** Consultant on International and National Law and Policy.
For a variety of reasons, this paper has not been circulated prior to this publication and as such represents a preliminary analysis. The authors' and many others are engaged in ongoing work on these complex issues, through other organisations. The state of knowledge is a constantly changing phenomenon. This is nowhere so true as in the study of oceans. When the successful negotiations for the creation of a comprehensive law of the sea commenced, in 1967, there were but few remote indications of the possibility that biological resources could exist at all on the floor of the ocean beyond the continental shelf.12 Outside of the scientific community, the general perception of policy makers was that, due to lack of photosynthesis, the ocean below the first 200m of depth was an almost barren area, populated only by a few species that had evolved to descend below the region of light, and ‘fertilized’ by the carcases of some light-dwelling species. Pelagic fish species were considered to be abundant, and the stocks infinitely renewable. Taxonomy still generally recognized only two kingdoms of life (animal and plant). When the final text of the UN Convention on the Law of the Sea (UNCLOS) was adopted in 1982,13 the initial negotiations that led to the CBD14 had not yet been thought of, and all biologically-based resources (terrestrial and marine) that were not privately (or governmentally) owned were still generally thought of as commonly hel or generally available (under various, sometimes, conflicting theories).15 Genetic development, utilizing the Watson-Crick discoveries regarding DNA, was still perceived to be ‘science fiction’ by large segments of the population. Neither law nor practice separated the rights to a specimen's genetic material from the more general rights of ownership of the physical specimen. Consequently, there was no suggestion that very small inaccessible populations of highly localized/endemic species and specimens could be commercially valuable. The primary values of deep seabed (‘the Area’)16 were perceived to be geological (mining for minerals and scientific study of the deep geology).17
Perceptions and knowledge in all of these areas of ‘fact’ have changed markedly since that time. Modern taxonomy recognizes at least five, and as many as seven, different kingdoms.18 As described by Patton and Bailet, in the preceding section, discoveries of biological importance indicate an enormous variety of marine life in deep oceans.19 Biological discoveries include chemosynthetic life forms (around hydrothermal vents), cold-water/deep-water corals, and a variety of other biological phenomena with unique and potentially valuable properties.20 Many of these species are believed to be highly localized, having evolved separately at each geological structure (each seamount, hydrothermal vent, each cold seep, etc.), although even that belief is being challenged. Seamounts and ocean sediments have been discovered to be teeming with both sedentary and mobile species, ranging from the single-celled to the highly complex – again nearly all thought (but not yet shown) to be very limited in distribution through the oceans.
Genetic science today has a wide-ranging commercial application, encompassing a variety of developments in agriculture, pharmaceuticals, cosmetics, and micro-technologies.21 As further discussed below, international and national law has increasingly adopted the view that genetic material, even when found on public lands or otherwise legally obtained, should not be used for commercial purposes without permission from the source country (and others with authority from the source country), and explicit sharing of the benefits derived from that use.
Moreover, it is generally recognized that the above, relatively massive influxes of new knowledge and understanding are only the ‘tip of the iceberg’ with regard to the world's oceans. While extrapolation suggests that hundreds of hydrothermal vents may exist, for example, and has given rise to an estimate that there are over 50,000 seamounts, only a relatively small number of these have been specifically, albeit partially, studied. Work on other seabed phenomena has barely begun (a recent statement, IUCN declared that more than 90% of the ocean areas beyond national jurisdiction remains completely unexplored as of 2007). 22
At the same time, international estimates of populations of commercially fished species indicate that many of these fisheries are near complete collapse, and the complex of ecosystem factors that may contribute to either their restoration or their continued destruction is not yet well understood.23 Improvement of fishing capture technologies, combined with the lack of other sources of income have motivated the fishing industry to broaden both the range and volume of marine taking, sometimes decreasing populations of commercial and by-catch species to unsustainable levels, and causing other harmful ecosystemic impacts. As ‘new’ fisheries have been discovered and utilized, the lack of detailed study prior to utilization has caused many to be fished into threatened status in a relatively short time.24
This paper represents the authors' initial inquiry into the questions of how existing ocean law and international/national law on access to genetic resources and equitable sharing of the benefits arising from their utilization (ABS) can be integrated, to achieve the shared goal of protecting the sustainability of the biological richness of the oceanic region known in marine policy circles as ‘the Area’ – that is, the seabed (including the ocean floor, stationary biota on it, and the subsoil beneath it) beyond national jurisdiction.25 It is offered as a starting point in increasing mutual understanding between the specialized legal experts in these two largely separate fields of law. The following is a summary of some the questions being researched, identifying five areas for further consideration: (i) the question of whether there are gaps in the overall legal system for addressing marine genetic resources, (ii) the overlap between the CBD and the international marine law framework, with regard to marine biological resources, (iii) regulatory questions of genetic resources and access and benefit sharing that are generally misunderstood or misaddressed in marine discussions, (iv) issues of sovereignty and sovereign rights over the genetic resources, and (v) equity issues.
One of the most common repetitions regarding the legal relationships relating to the biological resources of the Area is the (frequently unanalyzed) statement that there is currently a ‘legal lacuna’ with regard to these matters.26 Although the use of Latin gives this statement a somewhat undeserved aura of enhanced credibility, it remains, at best, a challengeable hypothesis. If in fact there is a gap, the question that is relevant to marine genetic resources has still not been answered. One must then determine whether that gap is (i) a complete exclusion of this topic from the coverage of the UNCLOS (and the CBD), (ii) a need for clearer designation of institutional authority, or (iii) simply a lack of specific regulatory or procedural implementation. This is a highly complex question requiring study and peer review by a team of international experts. Initial study indicates three avenues of investigation.
The first avenue relates to the comprehensiveness of UNCLOS. In general, UNCLOS has attempted to address oceans as comprehensively as possible, clearly demarcating and apportioning rights and responsibilities with regard to all aspects of the world's oceans. It specifies that several ocean components are specifically within the responsibility and dominion27 of national governments. These include the waters and seabeds within territorial seas, contiguous zones and exclusive economic zones (EEZs) which countries have declared (or may declare in future, subject to particular limits set out in UNCLOS). In addition, each country has clear jurisdiction (sovereign rights) over the seabed of its ‘outer continental shelf ’ (OCS),28 including the right to exert dominion over:
mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to 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.29
Even when it regulates or asserts rights over its OCS, the State acquires no sovereign rights or jurisdiction over the water column above (‘superjacent to’) the OCS.30
The remainder of the oceans (that is the areas beyond national jurisdiction) consists primarily of three components:
The Area (seabed beyond national jurisdiction);
The water column (the liquid part of the ocean beyond national jurisdiction, and all of the non-stationary living resources within it) above the Area and above the continental shelf; and
The air space above those waters.
On the surface, it appears from this overall approach to coverage that the UNCLOS framework was expected to cover all aspects of oceans, from the centre of the earth to the outer atmosphere, including all known stationary resources attached to the Area. This rather strongly suggests that the overall system for oceans makes sense only based on the interpretation that all marine resources (including the biological resources of the Area) are apportioned among these three components.
Additional inquiry into the precise language of the Convention further substantiates the idea that the drafters intended all resources of the seafloor to be covered by the Convention. UNCLOS defines the Area as follows:
‘Area’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction;31 (emphasis added).
This conjunctive construction is usually interpreted to mean that several different components are included. In this case, the language seems to suggest that the drafters wanted to ensure that the term was as inclusive as possible. None of the included concepts is specifically or generally defined anywhere in UNCLOS, but it is suggested that ‘seabed’ and ‘ocean floor’ may have different meanings.32
This approach is substantiated to some extent by current discussions in the context of the International Seabed Authority (ISA), formally established by separate instrument within the UNCLOS framework.33 In that forum, it has been argued that the authorization of the ISA although primarily focusing on mining and minerals appears to include a broader mandate, including bio-prospecting.34 UNCLOS specifically requires the ISA to adopt ‘appropriate rules, regulations and procedures’ to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area for ‘the protection and conservation of the natural resources35 of the Area and the prevention of damage to the flora and fauna of the marine environment.’36
Dispute regarding the conclusion that this provision mandates ISA's involvement in genetic resource issues centers on the fact that the above-quoted provisions are focused only on protection of the living resources (including swimming fish and other mobile species, as well as ‘stationary living resources’ of the Area) from the harmful effects of activities in the Area37 – a term which is specially defined in UNCLOS and limited to mining and geological pursuits.38
A better view ultimately may be to recommend ISA as the responsible agency for determining ownership of seabed genetic resources, and possibly other ocean resources as well, based on the combination of:
(i) the above mandate that ISA become competent to address natural resource issues (rather than being limited to addressing the geological and non-living matter covered by the defined term ‘resources of the Area,’39 ) and
(ii) the general purpose of the ISA to serve the agency which controls the exploitation of mineral resources and sharing their benefits.
It is reasonable on this basis to conclude that ISA is intended to address matters similar to the ABS issues (access to, and sharing the benefits arising from utilization of, genetic resources) when applied to the Area.
A second avenue for inquiry relates to the nature and uses of stationary biological resources and the resources of the Area as defined in the Convention (and as known at its adoption). In general, stationary biological resources40 of the seabed appear very similar to the specifically described elements of the resources of the Area.’ That definition clearly includes a broad range of resources, virtually all that were then thought to exist in the lightless realm of the ocean floor – at the time, limited to ‘solid, liquid or gaseous mineral resources in or beneath the seabed.’41 The intent to maximize inclusiveness and to avoid gaps and overlaps is evident in the provision that specifically states that rights in the Area do not affect ‘legal status of the waters superjacent to the Area or that of the air space above those waters’42 without considering the possibility of ‘other resources of the seabed.’ Moreover, as to waters and seabed within national control, the apportionment between the water column above the continental shelf and the seabed resources, stationary biological resources are specifically a part of the latter.43
In conjunction with the comprehensive approach of UNCLOS, these two approaches seem to present a basis for concluding that the natural resources of the seabed must be within the scope of ISA's mandate. It is possible, on the basis of general principles of statutory interpretation,44 that deeper inquiry into these issues will yield a legal conclusion that UNCLOS does indeed include everything in the oceans, from subsoil to sky. Indeed, a review of the contemporary accounts and statements of the persons negotiating the Convention seems to indicate this shared intent.
The primary arguments underlying the claim of a lacuna are based on an odd fact about UNCLOS – a kind of textual schizophrenia – regarding what kind of instrument it is. Specifically, while many of UNCLOS's chapters incorporate and effectively codify very specific and detailed pre-existing law of oceans, others propose new ideas that have little background or prior practical application within the long global history of maritime and admiralty law.45 Moreover, UNCLOS defines itself as a framework instrument – that is, one that creates a basis for further legal development within its scope. The national parallel would be the creation of a law that includes many different levels of provisions:
Some provisions mentioning key issues in the form of ‘policy’ statements suggesting a wide range of possible methods by which the government may take action;
Others that specific law-style provisions, calling for government and public to take particular action – in the form of regulatory development – to achieve particular legislative outcomes; and
Others that include intensive levels of detail, in the style of regulations, as a way of communicating to regulatory agencies that the legislative body will not allow other approaches.
This kind of ‘portmanteau’ law is not uncommon, in many countries. Although all subject matters mentioned are within the scope of the instrument, some of them (the latter category) are more easily implemented than others. The fact that only a few measures are specified in detail does not prevent the government from acting to implement other measures.
While the authors generally feel that there is no lacuna but only a need for a framework instrument to fulfill regulatory needs in this area, we are not recommending this conclusion, which must be reached through both political and legal analyses by the Parties. As with all aspects of ABS, it is less important which choice is selected than that some choice is agreed with finality. So long as the issue remains unresolved, the fact remains that utilization of genetic resources of the seabed is already happening, yielding informational benefits as well as financial ones. The longer this situation continues without application of CBD benefit-sharing principles to those uses, the larger the share of these benefits that will be denied to less developed countries (and all countries) with an equitable right to share in those benefits.
Another issue to be addressed through the negotiations is the fact that UNCLOS (because of its focus on delimitation of rights to resource exploitation) clearly distinguishes stationary living resources from mobile ones, in some cases. A decision to appoint ISA with responsibility for seabed living resources, would create a very notable difference between their utilization and the utilization of other living resources in oceans beyond national jurisdiction.
Should the ISA jurisdiction then be found to include rights to regarding the utilization of genetic resources, it would be able to assume the role of a ‘provider’ of those genetic resources, or to represent the ‘countries providing genetic resources’ under the CBD. At this point, the situation would underscore the real lacuna which exists regarding marine genetic resources – the fact that there is no basis for asserting sovereign (or jointly sovereign) rights over the genetic resources found in mobile living resources of the oceans.
Although the term ‘living resources’ is not defined in UNCLOS, it is most often used to refer to exploitable resources (fish, etc.).46 It also appears in environmental and conservation provisions, however, in a way that suggests that it includes all biological resources of oceans.
As noted in other publications, due to current inconsistencies in patent practices, some countries allow genetic resources47 of all species (including ocean species) to be generally patented, preventing all other users from commercializing innovations involving that gene. Thus, the only way to enable benefit sharing with regard to the utilization of marine genetic resources would be to empower an entity to serve the role of country providing the resources. If this right were applicable only to stationary resources, the result would be to create a duality regarding marine living resources, allowing the single user/patenter of a mobile marine gene to act with no benefit sharing.
Similarly, since the stationary resources on a country's continental shelf are considered to be resources of the OCS, it is essential to find a way to avoid a similar impossible distinction, where one need only move to a point outside of the national OCS, collect the same species, and be free of benefit-sharing obligations. At a minimum, these principles seem to call for comprehensive management (primarily at the regional level) of all living resources of the ocean.48 This may suggest an extension of the UNCLOS provisions for the creation of regional fisheries management agencies, although the entrenched ‘fisheries focus’ of the existing bodies may suggest a need for either greater guidance to help in addressing the added mandate, or the creation of different institutions, entirely to address marine genetic resource issues.
The foregoing suggests that the biological resources of the Area (that is, those that are fixed to the seabed beyond national jurisdiction) are clearly intended to be covered by UNCLOS. It also raises the possibility that they can be included within the authority of the ISA – a body whose mandate is built around the task of finding a way to ensure that the commercial use of certain ocean resources from beyond national jurisdiction yields a benefit that is shared among all countries, based on their common rights in those areas and their resources. This option would be realized by continuing and ratifying the ISA's initial work on addressing genetic resource issues.
Another option, however, is also possible. If living resources affixed to the seabed beyond national zones (territorial sea, EEZ and OCS) are not resources of the Area, then either:
They are governed by the broader terminology ‘living resources;’ or
There is a lacuna which will require the opening of new negotiations to determine the nature of these rights.
Rather clearly, the second option is undesirable. However, even if there is no lacuna with regard to the question of responsibility for biological resources of the seabed, a different result may obtain when we focus on the separate question of rights in the ‘genetic resources’ of the seabed (and of the mobile species found in the water column), unless it is concluded that UNCLOS is intended to cover all marine resources and zones, in which case there may still be a need to develop clear rules and concepts (a subsidiary instrument under the UNCLOS framework.).
Regardless of the ultimate situs of responsibility for these resources, addressing their use and management will clearly require at minimum either the adjustment of existing mechanisms or the creation of new mechanisms, to ensure that exploitation of such resources is fair and sustainable. If they are considered to be living resources of the water column, it will be necessary to work through (and/or to expand) regional fisheries management organizations or to find new collaboration mechanisms for high-seas biodiversity. This may be significantly more challenging than attempting to endow the ISA with sufficient internal mandate and capacity to address these matters. It might also engender work addressing the use of genetic material from non-stationary resources of the water column, including the genetic material of fish, sea flora, plankton and other biological components.
On initial inquiry at least, there would seem to be some strong reasons to prefer the ISA situs. ABS is tied to many highly complex issues in areas such as seamounts, cold-water corals, hydrothermal vents, and microflora/fauna of the seabed sediments that are closely related to the mandate and competences of the ISA. It will add complexity to questions of the right to use/own/study these resources as well as many serious concerns about how activities in the water column (including fishing, shipping/pollution, military activities) may affect these resources. It is clear that the ISA was generally created to address issues of the use of stationary resources of the Area, and to ensure that those uses are not abusive and are equitably conducted.
As noted, the functioning of the Law of the Sea depends in large part on the rationale underlying that instrument in general – a rationale that seems best satisfied if those resources are considered to be part of the Area, and suggests that the problem is not a lacuna but an unfulfilled or newly arising mandate, and clarification of its status. This situation is not uncommon in other aspects of law. For example, if it suddenly became common to drive automobiles on lakes as well as on land, the legal problem created would involve (i) evaluating what additional regulatory or institutional adjustments would be needed to address the new demand, and (ii) determining whether these vehicles should be regulated as cars or boats or both.
Questions relating to the status of the biological and genetic resources of the Area are particularly important in light of new developments in the use and replication of genetic material and biochemical properties of naturally occurring (and cultivated) life-forms. Science and industry have developed increasingly specialized tools for analyzing and using these materials and properties, in ways that have proven in some cases to result in extremely high levels of industrial/commercial profit. Since 1992 (the year of the adoption of the CBD),49 it has been internationally recognized that the rights to use these special qualities of species and varieties differs markedly from the rights to obtain, use and sell or transfer physical specimens themselves.
The differences between the ownership of a physical specimen and the right to use its DNA or other genetic material, however, are sometimes difficult to explain. One analogy often used is the commercial sale of music. One may own a CD, tape, or even sheet music for a particular song, but have no right to make and sell copies, or even to record and sell someone else singing/playing it. The right of ownership of the physical item is distinct from the right of commercial use (or some other uses) of its underlying information. It is similarly believed that, in the CBD, the use of the genetic material within natural and cultivated specimens is distinct from the ownership of the physical specimen itself.50
In the case of genetic resources, there is an additional problem of course. Unlike a song or other intellectual property, genetic resources come from nature or from community development. This means that they are widely dispersed and no single individual may claim to be their creator or discoverer – the normal source on which the IPR holder derives his right to exclude all others from commercial use of the resource. Specimens from terrestrial areas are usually found in the ownership or control of thousands or millions of individuals, and very few species exist that have only one country of origin. In the case of ocean resources, it is likely that many species are distributed across many national territorial seas, EEZs and OCSs, as well as in international waters and the Area. There is a major unresolved legal inequity in claiming that any single individual may patent a gene held by large numbers of countries or individuals on the basis of gaining permission of only one (or of obtaining a sample from one, without specifically obtaining permission to use its genetic resources).
As described in many other articles and chapters,51 the CBD's provisions do not provide any adequate basis for determining the practical differences between genetic resources (the right to utilize DNA and other genetic material) and biological resources (the physical ownership of specimens). Some of these practical problems include a number of problematic facts, including the following, which are of greatest interest with regard to the genetic resources of the Area:52
First and most important, is the fact that there is objectively no difference between ‘collecting genetic resources’ and other harvesting activities, known by terms such as ‘fishing,’ and ‘marine scientific research.’ The only determinant of whether the action is ‘bio-prospecting’ (an informal term often used to describe the collection of species to screen them for biochemical properties or genetic characteristics of interest) is the intent of the collector. And many collectors' only intent is to collect for purposes of subsequent transfer. In order to determine whether these persons are obtaining ‘genetic’ resources, it is necessary to find out who ultimately receives the material they collect, and the use to which it is put.
Relatively small samples are often sufficient for initial research, and in some cases the ability to reproduce the genetic material (either biologically or synthetically) eliminates the need for ongoing harvesting of specimens from the ‘country of origin’53 when the time comes for commercial use and production. As a consequence, there is a significant continuing awareness that in many cases samples are removed from the country of origin without official notice or permission, and the concern that the person or company taking the sample will thereby avoid his responsibilities to (a) pay for the access to genetic resources (the right to physically collect the material) or (b) provide the country of origin with an equitable share in the benefits arising from commercial utilization of that material.54
By contrast, in some cases (particularly with regard to marine resources), it may not be possible or costeffective to reproduce the source materials, either biologically or chemically. In these instances, a right of access (often assumed to be a right to collect a small number of samples from each available species within a particular genus or class) may be used (or abused) to collect very large amounts of material, leading to environmental problems, and potentially extinctions of local populations or entire species. Where a variety or species is highly endemic, improper or excessive collection may contribute to its extinction in the wild.
Most genetic resources although often somewhat localized, are not limited in range to a single country, community, or other jurisdictional area. This can mean that a collector will obtain a right of ‘access’ at relatively low cost, from one country, community or authority, on the basis of which it might locate (‘hit’) a specimen whose genetic/biochemical properties can be commercially utilized. For commercialization, the company may attempt to locate the same species in another country or in an area beyond jurisdiction, to avoid the sharing of benefits with the original source country. This problem arises out of two sources. First, the current system gives the equitable rights (to a share of benefits) only to the country which is the source of the material used by the commercial developer. Until the practical interpretation of this concept is clarified, it remains a source of potential abuses and inequity. Second, the international provisions relating to genetic resources called upon all governments to adopt regulatory measures regarding access and benefit sharing (implying full global coverage). If this had happened, then, as to (non-Antarctic) terrestrial species and varieties, opportunities for abuse would be substantially diminished, since the user would be required to provide compensation at all events. Where marine species are involved, however, ABS arrangements can be defeated wherever a specimen of the species is located in the high seas. Hence, coverage issues must be addressed.
In some cases, resources may be collected under a special agreement based on the fact that the user is involved in research, rather than commercialization. Thereafter, through post-access transfers, the material or its extracted genetic information may come into the hands of an entity that will commercially exploit it. In many cases, the source country's only way of knowing this would be through voluntary disclosure by the original research entity.
There is very little that most source countries or communities can do to protect their rights over genetic resources. It might be possible, (with access to highly specialized and costly equipment) to determine where genetic material has been a source of a new innovation. In those cases, it may be possible to pinpoint the species (or possibly even the subspecies or variety) involved. However, the costs of the necessary tests, and the need to apply them across a wide range of products appear prohibitive at present. Moreover, these tests are almost certainly not sufficiently refined to identify the specific locale from which the material is collected.
Although many problems with the basic concept of ABS remain unresolved, the international community has clearly recognized the rights of source countries relating to the genetic resources found within their jurisdiction, where they ‘exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.’55 These rights are recognized to be equitable in nature – that is, they must be based on concepts of ultimate fairness (compensation for former contribution, pseudo-contractual behaviour, etc.) rather than solely on strictly defined regulatory law. The concept of equity, however, is not a voluntary matter. It is an essential required component of every legal system in the world, and can be (often is) supported by specific principles that are adopted in law.
As noted above, it is neither possible nor useful to apply the concept of ‘genetic resources’ to specimen collection practices, because it will be generally impossible to identify and observe all relevant activities to which such practices apply.
Moreover, there are already concepts of conservation law (sustainable use, natural resource management, integrated biodiversity planning56 and the ‘ecosystem approach)’57 that are expressly designed to integrate all uses of an ecosystem, with the goal of controlling harmful practices and avoiding over-harvesting and other sustainability dangers.58 There is a significant overlap both substantively and politically between the relevant sections of the two conventions,59 suggesting an obligation under international law to find a method by which both may be implemented in an integrated or consistent manner.60
ABS is, according to its terms and intentions, a mechanism for addressing the financial and other beneficial imbalances that arise where:
Companies from developed countries possess significant technology and capital. As such, they can develop products and earn significant profits from genetic resources of a given species without using that species in bulk. That is, they can obtain profits from the resources of other countries, without any compensation to those other countries (without even purchasing large quantities of specimens), which remain responsible internationally for the conservation and preservation of those resources in situ;
Researchers can obtain information of potential value and application from such genetic resources, without providing or sharing it with the country of origin; and
Countries of origin do not have the opportunity to join in the value addition chain, nor to increase capacity, because the resources are simply taken (or a very small amount of them purchased) and used somewhere else, resulting only in a product that may be marketed to the country at a high purchase price.
Moreover, although frequently spoken of as ‘creating a right that might be inconsistent with the so-called ‘high-seas freedoms’61 or with provisions relating to marine scientific research,62 the ABS concept can do neither. ABS does not create any right to enter property, to take resources or to take any other action. It is simply a framework for enabling/requiring equitable sharing of benefits arising from utilization of genetic resources – that is, the data, discoveries, properties and/or profits that accrue to entities that use genetic resources.
Once comfortable with the conception of ABS as the development of a commercial mechanism, whose purpose is to promote equity in transactions, it is relatively easy to see what sectoral issues are relevant in this context. Clearly, long discussions of the controls on the various actions of fishermen, researchers and others in ocean zones beyond national jurisdiction are not appropriately conducted under the heading of ‘genetic resources.’ No matter what reasons underlie the activities of one who is taking living resources out of the ocean, those activities must be addressed under principles such as the ecosystem approach and sustainable use. However, for purposes of benefit sharing, there are two linked concepts that must be addressed by the governance system for oceans – sovereignty and equity.
The most important question that must be addressed in order to enable the application of the ABS to marine resources is the question of sovereignty over those resources. The benefit-sharing principles of CBD Article 15.7 are based on the concept of national sovereignty over genetic resources.63 Although each CBD party has a recognized governmental system which includes institutions responsible for oversight of natural resources, it has still been difficult, in the 15 years since the CBD's adoption, for countries to identify the particular agencies that will oversee the exercise of that sovereignty and the standards and requirements applicable to this process.
Given that, as noted above, UNCLOS does not clearly state how rights relating to living resources of the Area are to be overseen, it will be a much more complicated process to identify and mandate the responsible agency, create standards and requirements controlling its exercise of sovereignty (i.e., the minimum requirements that must be satisfied in the “mutually agreed terms” by which genetic resource utilization and benefit sharing are to be governed), and the manner in which benefits received via the benefit-sharing element of the transaction shall be used. Other questions, regarding the management of the area (controls on collection processes, and other non-ABS matters) will also need to be collated with the new sovereignty issues.
As in every other sector, discussion of ABS in the marine sector inevitably leads to the question of how the concept of ‘equitable sharing of the benefits from utilization of genetic resources’ applies (or can apply) to marine resources. In the Area, there are clear mandates and relevant legal principles, which, although still in need of study, offer a potential basis and guidance for addressing genetic resource issues, whether those issues are eventually given into the mandate of the ISA or some other body.
Additionally, of course, marine genetic resources will share the same problems found in all ABS legislation and negotiations – the difficulties in determining the source of the resources. Remembering that every coastal state has jurisdiction or dominion over swimming resources (out to 200 miles) and over seabed resources (out to up to 500 miles), and that the ocean is remarkably difficult to penetrate with surveillance of any sort, there is a great potential difficulty in pinpointing the specific source of any resource. Moreover, with more than 90% of the ocean area/volume unstudied, it will be nearly impossible to attribute the source based on determinations that it is endemic to a particular area.64
Most important, however, is the underlying purpose of the CBD. ABS is only one of three primary pillars on which the CBD is built – conservation of biological diversity, sustainable use of biological resources, and ABS – which are intended to be mutually supporting. Indeed, one of the most important points on which many contending negotiators can agree is that, if ABS were intended solely as a commercial measure, it would be discarded as unwieldy, unprofitable and ineffective. It is precisely because of its underlying social and environmental objectives that ABS continues to be negotiated, and it is those objectives, as applied to the oceans, that should guide ABS implementation through UNCLOS.
First, some key aspects of the concept of equitable sharing of benefits from the Area are well and specifically established in UNCLOS. It specifically notes, for example, that ‘activities in the Area shall... be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status.’65 In furtherance of this basic mandate, the Convention calls on the International Seabed Authority (ISA) to:
‘Provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis;’66
‘Consider and approve... the rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area... taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status;’67 and
‘Decide upon the equitable sharing of financial and other economic benefits derived from activities in the Area, consistent with this Convention and the rules, regulations and procedures of the Authority’... ‘taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status.’68
The Convention also calls for review and reconsideration of the ‘international regime of the Area’ both on a periodic basis,69 and more intensively 15 years after the first resource contract by the Authority begins to be implemented.70 The latter specifically targets the equitable benefit-sharing objective. Both provisions specifically envision that practices, procedures, rules and other documents may be revised by the Assembly as a result of these reviews.
Second, virtually all countries that are Parties to UNCLOS have already formally committed to application of the concept of equitable benefit sharing to genetic resources. Of the 153 States Parties to UNCLOS at this writing, all but three71 are also Contracting Parties to the Convention on Biological Diversity. They have thus committed not only to the overall objective of ‘the fair and equitable sharing of the benefits arising out of the utilization of genetic resources,’72 but also to the principle of broader responsibility, which extends this objective beyond national jurisdiction:
In connection with their ‘responsibility 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;’73 and
In the case of ‘processes and activities, ... carried out under [a Party's] jurisdiction or control, the provisions of this Convention apply... within the area of its national jurisdiction or beyond the limits of national jurisdiction.’
Most important, Article 5 of the CBD requires the parties to engage in appropriate cooperation, ‘directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction..., for the conservation and sustainable use of biological diversity.’ These provisions were all specifically created with full knowledge of the existence of the Law of the Sea, and with a specific mandate to ‘implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.’
The UN General Assembly has specifically noted the CBD's role in the protection and management of marine resources and vulnerable marine ecosystems. Its recent resolution on oceans and law of the sea specifically ‘welcomes the work of the Convention on Biological Diversity... in their development of strategies and programmes for the implementation of an integrated ecosystem-based approach to management; and urges [it] to cooperate [with other institutions] in the development of practical guidance in this regard.’74 It went on to note the important role that the scientific and technical work of the CBD is playing with regard to marine and coastal biodiversity.
There is another important legal point to be examined with regard to any decision to include the stationary biological and genetic resources of the Area within the mandate of the ISA. UNCLOS is nearly unique among natural-resource related conventions in providing a clear mechanism for obtaining formal determinations regarding these matters – the Seabed Disputes Chamber.75 This body has clear authority to decide matters relating to ‘the interpretation or application of this Part and the Annexes relating thereto’ as well as ‘acts of the Authority alleged to be in excess of jurisdiction.’76 Although this body's decisions must occur on the basis of specific cases,77 it may provide advisory opinions, if requested by the Authority itself.78 As such, the Seabed Disputes Chamber could inevitably be the proving ground of ultimate decisions regarding whether and how the biological resources of the Area are governed.
12 A few limited indicators had been publicized. Hydrothermal vents had been identified years earlier, in the Red Sea (discussed in Gianni, M., 2004, High Seas Bottom Fisheries and Their Impact on the Biodiversity of Vulnerable Deep-Sea Ecosystems: Summary Findings, Kuala Lumpur: IUCN, WWF, NRDC, at 4); however their biological significance had yet to be discovered or fully investigated. Limited research had indicated the existence of ‘submerged islands’ in deeper ocean areas with biological properties of interests (see H.H. Hess, 1946, ‘Drowned Ancient Islands of the Pacific Basin,’ 244 American Journal of Science 772).
13 United Nations Convention on the Law of the Sea, 10 December 1982, 21 ILM 1261, entry into force 16 November 1994.
14 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, entry into force on 29 December 1993.
15 The pre-UNCLOS literature contains a welter of descriptions, using terms such as ‘common property,’ ‘things common to all,’ ‘common heritage’ and ‘free access’ in a variety of different ways. It should be noted that within the specialized area of maritime/marine law, none of these terms bears the definition and usage that it is accorded in most other areas of law. ‘Common property’ is often not used to describe any type of legally recognized property interests or any property-based legal regime; ‘common heritage’ frequently does not encompass either equitable heritability or preservation; and ‘free access’ is used in a way that suggests that it is synonymous with ‘unrestricted exploitation,’ rather than availability for permitted use. These usages continue today, and pose a major obstacle to integration of marine law with other legal systems, including those that address conservation issues at the national level. Discussions of the use of this terminology by UNCLOS and in its deliberations can be found in Colombos, J., 1968, The International Law of the Sea, 6th Ed. reprinted, London: Longmans Green & Co. Ltd, at 65; or Churchill, R.R. and A.V. Lowe, 1999, The Law of the Sea, 3rd Ed., Manchester University Press, at 204; or Beslar, K., 1998, The Concept of the Common Heritage of Mankind in International Law, The Hague: Martinus Nijhoff Publishers. Further discussion of the use of these terms in other context can be found in a wide range of books and articles, including, e.g., Brownlie, I., 1990, Principles of Public International Law, 4th Ed., Oxford University Press.
16 As this paper is expected to be circulated to lawyers in two expert areas that have up to now been very separate (biodiversity law under the CBD, and marine law under UNCLOS and other instruments), it is necessary either to avoid using specialized terminology or to explain it. Accordingly, it is necessary to note that, in marine law circles (particularly those focused on UNCLOS), as further discussed below, ‘the Area’ is a term of art, referring to the sea-bed and ocean floor and subsoil beyond the ‘outer continental shelf ’ (OCS) (or beyond the EEZ or territorial sea, as to countries that have not declared an OCS) and the resources in, on or under it). UNCLOS, Art. 1.1(1).
17 The possibility that the ‘manganese nodules’ on the seabed beyond national jurisdiction might be extracted for commercial and other use was one of the primary motivating factors behind the intensive negotiations of UNCLOS, Articles 133–191, later more completely enumerated in the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, GA Res. 48/623, 28 July 1994, entry into force 28 July 1996 (the ‘Part XI Agreement’), and the meetings and activities of the International Seabed Authority (ISA) created thereunder.
18 A generally accepted list of kingdoms is Monera, Protista, Plantae, Animalia and Fungi. Other experts list seven kingdoms, as follows: Archaebacteria, Eubacteria, Protozoa, Chromista, Plantae, Eumycota and Animalia. A relatively simple analysis of the current thinking on the longer list of taxonomic kingdoms can be found online at http://www.mycolog.com/CHAP1.htm#kingdoms
19 For further reading see Dziak, J. and H.P Johnson, 2002, ‘Stirring the Oceanic Incubator,’ 296 Science 1406 at 1406; Ré, P., 2000, ‘Deep-Sea Hydrothermal Vents: ‘Oases of the Abyss',’ in: Beurier, J.P., A. Kiss and S. Mahmoudi, (Eds), New Technologies and Law of the Marine Environment, The Hague: Kluwer Law International, 67 at 67 [hereafter Oases of the Abyss]; and van Dover, C.L., 2000, The Ecology of Deep-sea Hydrothermal Vents, Princeton, NJ: Princeton University Press, Table 2, after Korn, H., S. Friedrich and U. Feit, 2003, Deep Sea Genetic Resources in the Context of the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea, Bonn: Bundesamt für Naturschutz, at 36.
20 As discussed in the IOI paper (Chapter 2) in this book.
21 Analysis of these developments and their relevance to legal and trade issues can be found on The ABS Project website, at www/iucn.org/themes/law/abs01.html
22 See Hesse, R., April–July 2006, ‘UN Update,’ in Go Between, Issue 110 (UN Non-governmental Liaison Service) quoting Kristina Gjerde, IUCN Policy Officer, Oceans and Marine issues. Although no scientific expert can confidently confirm such broad statements regarding the extent of the oceans that are unstudied, a 1991 meeting of oceanographic experts, when asked to guess what proportion of the oceans had been studied as of that date, settled on a ‘guesstimate’ of between one/one-thousandth (0.1%) and one/ten-thousandth (0.01%). See Theide, J. and K.J. Hsü, 1992, ‘The Future of Ocean Resources,’ in: Theide, J. and K.J. Hsü, (Eds), Use and Misuse of the Seafloor, New York, NY: Wiley.
23 See, e.g., FAO, Agriculture and Fisheries Status Report, 2002. ‘The global situation of the main marine fish stocks for which assessment information is available follows the general trend observed in previous years. Overall, as fishing pressure continues to increase, the number of underexploited and moderately exploited fisheries resources continues to decline slightly, the number of fully exploited stocks remains relatively stable and the number of overexploited, depleted and recovering stocks is increasing slightly.’ As a continuing trend rather than an explainable aberration, this decrease in the number of underexploited fisheries and an increase in the number that are overexploited, raises troubling questions.
24 The most commonly cited example of this is Orange Roughy (discussed in the previous chapter), whose long lifespans and regeneration periods could not keep up with catch levels, after that fishery was discovered and began to be exploited.
25 See note 16, above.
26 Glowka, L., 1999, ‘Testing the Water: Establishing the Legal Basis to Conserve and Sustainably Use Hydrothermal Vents and Their Biological Communities,’ 8 Interidge News 1 at 1.
27 Although the dominion of each state in these areas is well established, the question of which UNCLOS areas are ‘within national jurisdiction’ is somewhat unclear, since UNCLOS does not use the term ‘jurisdiction’ in its geographic context, with regard to any of these categories. It is undisputed that the ‘territorial sea’ is within national jurisdiction (at least to the extent of the UNCLOS descriptions and measures). Similarly, each country's rights in its continental shelf appear to be jurisdictional. As to the other areas (within the EEZ), however, the argument for ‘jurisdiction’ in the legal sense (as opposed to dominion granted to the country through the international instrument) is not precise. Under UNCLOS, a state has certain sovereign rights in its EEZ, relating to the exploration, exploitation, conservation and management of the natural resources in that zone, including the living resources, as well as the water, seabed and subsoil. The state has the right to govern questions regarding the establishment of artificial islands, installations and structures, and marine scientific research. Analysis of whether these rights constitute ‘jurisdiction’ for the purposes of other international instruments (such as CITES Articles I(e), III.5 and IV.6, and the Basel Convention, which apply specific rules regarding certain aspects of ‘areas outside of national jurisdiction’) continues to be controversial and unresolved after more than 30 years of discussions.
28 A country that has not delimited the boundaries of its continental shelf, or issued any proclamation regarding it, however, will not have lost any of its sovereign rights over it. See ‘North Sea Continental Shelf cases,’  International Court Reports 3 at 23.
29 UNCLOS, Article 77.4.
30 UNCLOS, Article 78.
31 UNCLOS, Article 1, para 1(1).
32 This question of interpretation necessarily requires a deeper level of research and analysis of national and international laws and principles and their historic application and interpretation, before a final conclusion can be attempted.
33 Part XI Agreement, supra. Adopted at the same time as UNCLOS, the Part XI Agreement entered into force two years later. See also, Declaration on the Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, G. A. Res. 2749 (XXV), 25th Session, Supp. No, U.N. Doc. A/8028 (1970), reprinted in (1971) 10 ILM 220. ISA is responsible for organizing and controlling activities in the international seabed area beyond the limits of national jurisdiction, and in particular, it is responsible for administering the ‘resources in the Area’ – a term that is specially defined in UNCLOS to mean only ‘all solid, liquid or gaseous mineral resources in situ on or beneath the seabed, including polymetallic nodules (UNCLOS Art. 133(a)).
34 Scovazzi, T., ‘The Concept of Common Heritage of Mankind and the Resources of the Seabed Beyond the Limits of National Jurisdiction’ presented to the 10th Session of the ISBA Assembly, through an ‘Expert Panel on Future Directions’ on 26 May 2006.
35 The phrase ‘natural resources’ is generally used within UNCLOS to refer broadly to living things.
36 Article 145 (chapeau and clause b) provides that: Necessary measures shall be taken in accordance with this Convention with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities. To this end the Authority shall adopt appropriate rules, regulations and procedures for inter alia... (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment..
38 Article 1.1(3): ‘activities in the Area’ means all activities of exploration for, and exploitation of, the resources of the Area.
39 UNCLOS article 133(a): the term ‘resources,’ when used in reference to the Area, means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.
40 ‘Sedentary resources of the seabed’ are defined in UNCLOS Article 77.4 as ‘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.’ This definition is provided in the context of defining the rights of a country in its outer continental shelf, however, there are clearly living resources in the Area (seabed beyond the outermost limits of national OCSs) that would meet this description.
41 Articles 133 and 136. The provisions of UNCLOS in Part XI (and the related 1994 Agreement) generally govern activities related to exploration and exploitation of mineral resources.
42 UNCLOS, Art. 135.
43 UNCLOS, Arts. 68 and 77.4.
44 Incorporated into international law under the Vienna Convention on the Law of Treaties, which describes the process and analysis for determining the meaning and construction of international instruments (Vienna Convention on the Law of Treaties, 1969, Articles 31–33 (and Art. 1, para. 3(a)). See also, Statutes of the International Court of Justice Art. 38, para. 1b.
45 Concepts of common law applicable to the oceans and those who sail, fish and otherwise use them date even back to the 14th century (see Colombos, supra note 18, at 12), and are in some cases (such as laws of salvage, and those governing piracy and other maritime crimes) very specific. Marine conservation, especially beyond national jurisdiction, is of relatively new origins, and those provisions that do exist have not been intensively tested in legal practice.
46 See, for example, UNCLOS, Art. 61, which grants each state, within its EEZ, ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters 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, such as the production of energy from the water, currents and winds;’ and Art. 1, which includes in the definition of pollution actions which cause ‘harm to living resources and marine life’ (emphasis added).
47 Other aspects of the distinction between biological resources and genetic resources are discussed in later sections of this chapter.
48 See, for example, UNCLOS Articles 117, 118, 192, 193, 194.4, 194.5 and 311.3.
49 Rio de Janeiro, 1992. The CBD entered into force only 16 months later.
50 CBD, Arts. 1 (third primary objective), 2, and 15, and significant work under the CBD's crosscutting theme on ‘access and benefit-sharing’ or ‘ABS’. Information on the CBD can be found on its website at www.biodiv.org/default.aspx.
51 See e.g., discussions of this issue in chapter 1 (paras 1.2 et seq.) of Cabrera Medaglia and Lopez Silva (book 1 of the ABS Series), chapter 4 of Tvedt and Young, (Book 2 of this series, and in many other parts of this series.
52 Many important issues, including the rights of indigenous peoples (and persons living traditional lifestyles) to the knowledge and practices that they have developed. These issues are less relevant to the Area, but may have significance, including with regard to the genetic material in non-stationary living marine resources.
53 Since the CBD is focused on national implementation, it uses the term ‘country of origin’ or ‘country providing genetic resources’ (CBD Articles 2 and 15, et passim). Given the overall application of the convention to all global areas including those outside of national jurisdiction (Art. 4(b)), this term could include the entire body of countries who share some type of common rights over the oceans and especially seabed resources beyond national jurisdiction.
55 CBD, Art. 2.
56 This phrase refers to a concept created under the CBD (Art. 7), calling for the creation of a National (or Regional) Biodiversity Strategy and Action Plan (NBSAP or RBSAP) for each country.
57 Principles and practices for these concepts have been well established in many different sectors. The size and largely unexplored/unstudied nature of the ocean areas beyond national jurisdiction, causes these principles to remain somewhat undeveloped in that sector. For an excellent introduction to the recently adopted CBD's Sustainable Use Principles, and its Guidelines for Application of the Ecosystem Approach, see Dickson, B. et al., 2003, ‘Comparing the Ecosystem Approach with sustainable use,’ published as an IUCN Information paper at CBD SBSTTA-9 (available online at www.iucn.org/themes/pbia/wl/docs/biodiversity/sbstta9/info%20papers/eas_su_info_final.doc).
58 How these principles can be applied within the current UNCLOS framework poses a greater concern than any that arises with regard to ABS. The relevant UNCLOS provision regarding the integrated management of marine commercial activities in the water column with biodiversity concerns of the seabed is the statement that ‘[t]hese freedoms shall 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 also with due regard for the rights under this Convention with respect to activities in [not ‘resources of ’] the Area’ (UNCLOS, Art. 87.2, emphasis added). The provisions governing the Area are specifically limited in that they may not ‘affect the legal status of the waters superjacent to the Area or that of the air space above those waters.’ UNCLOS, Art. 135. The Convention further adjures States Parties to act within the Area ‘in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law ... and promoting international cooperation and mutual understanding.’ UNCLOS, Art. 138. Numerous rules call upon States to ensure that their activities in the Area do not damage the activities of others in the Area, and to ensure that they do not harm living resources or the marine environment. See UNCLOS, Articles 139, 142.1, 145 and 147.1. The only specific provision relating to other marine activities again calls upon those conducting them not to act with reasonable regard for activities in the Area. UNCLOS, Art. 147.3, emphasis added. Given the lack of any provisions regarding the genetic material from free swimming ‘living resources’ in the water column, this lack of direct mandate to consider the impacts of fishing on genetic material may be a far more difficult and important lacuna in ocean governance, with potentially far-reaching impacts both in terms of hindering the recovery of high-seas fish stocks, and in the destruction of possibly valuable genetic material before it can even be collected for study. Far more than any concerns over the legal rights to use genetic resources of the Area, this issue is both important and in need of direct international mandate. It remains critically obvious, that activities in the water column are wreaking havoc to an important resource of the area – the seamounts. Although there are strictures within the Convention about protecting ecosystems (UNCLOS, Articles 192, 197 and 235.1), those limitations appear to place unnecessary scientific burdens of proving harm, on any attempt to curtail harmful activities.
59 As of 12 March, 2007, 190 States have acceded to or ratified the CBD (see www.biodiv.org/world/parties.asp) and UNCLOS was binding 153 States (see UNCLOS website at: www.un.org/Dept/los). Many of the States that are Parties to the CBD but not to UNCLOS are not coastal states. The USA is not a party to either Convention.
60 See Young, T.R., 2004, ‘Inter-Convention ‘Synergies’ and International Cooperation,’ in: Promoting CITES-CBD Cooperation and Synergy, Putbus: Bundesamt für Naturschutz, International Academy for Nature Conservation.
61 UNCLOS, Article 87, as elucidated in Part VII (Arts 86–115).
62 Art. 143 and Part XIII (Arts 238–265).
63 Specifically recognized in CBD, Art. 15.1.
64 In recent publications, it has been pointed out that many species found attached to hydrothermal vents (temporary areas near the ocean floor that are superheated by vents from deep in the earth's core) are found at more than one such vent. Since these species are not found in normal ocean temperatures, it is not known how they have migrated among vents. However, this suggests that it may not be easy to assert that a given vent specimen is endemic to the vent at which it was found.
65 UNCLOS, Art. 140.1
66 UNCLOS, Art. 140.2.
67 UNCLOS, Arts. 160.2(f )(i) and 162.2(o)(i).
68 UNCLOS, Art. 160.2(g).
69 UNCLOS, Art. 154.
70 UNCLOS, Art. 155.
71 Brunei-Darussalam, Iraq and Somalia. As discussed in many publications the USA is not a party to either instrument.
72 CBD, Art. 1.
73 CBD, Art. 3.
74 United Nations General Assembly, UNGA 58th Session, 18th November 2003, UN Doc. A/58/L.19.para 50.
75 UNCLOS, Arts. 186–191.
76 UNCLOS, Art. 187(a) and (b)(ii).
77 I.e., it is not allowed to sit on the question of whether a rule is within the scope of the Authority's jurisdiction, except where raised in regard to a specific application of that rule.
78 UNCLOS, Arts. 189 and 191.
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