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1. Introduction
The most serious legal issue facing bioprospecting in the Global Commons, areas beyond national jurisdiction internationally recognised as the shared resources of humankind, is the lack of clear rules and guidelines. Various environmental, trade, and geographically-specific agreements currently offer incomplete, ambiguous, or conflicting provisions relating to bioprospecting activities. Consequently, there are no clear rules on ownership, access, benefit-sharing, and environmental responsibility for bioprospecting in the Global Commons. Lack of clarity and distinct gaps in the existing laws encourages bioprospecting by companies keen to exploit the fragmented legal frameworks and policies for their own commerical benefit. It also obstructs the participation of developing States in exploration and use of the rich biological resources in areas designated as the Global Commons, such as the High Seas and the Deep Seabed. This is due to the inherent financial resources and technical capacity required for scientific research in extreme marine environments as well as for commercial development of biological materials. Hence, equitable access to and sharing of benefits from bioprospecting is a critical aspect of many proposed solutions to this burgeoning international environmental law issue. definition varies in scope between countries, with some defining bioprospecting narrowly to include only the search for valuable genetic materials, whereas others encompass the development andapplication of such materials.2 Hence, the commercialisation aspects of bioprospecting and potential profitablity remain the critical impasse regarding its legal definition. In particular, where the distinction lies between Marine Scientific Research (MSR)3 and bioprospecting, as concerns any property rights arising from the intended future development of marine genetic resources discovered on scientific expeditions, is the subject of ongoing debate.
Co-Authors: Lydia Slobodian, Rmy Kinna, Alphonse Kambu and Lara Ognibene
United Nations Environment Programme- Division of Environmental Law and Conventions Environmental Law and Governance Branch P.O. Box 305521 Nairobi, Kenya Tel: +254 20 7624011,Fax: +254 20 7624300 E-Mail Address: delc@unep.org
Source: Newman, D.J. and Cragg, G.M. Political, Legal, Scientific and Financial Aspects of Marine Biodiscovery Programmes 2004, In Shotton, R. (Ed) 2005. Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries, Conference Poster Papers (15 December 2003, Queenstown) and Workshop Papers (2729 November, 2003 Dunedin), New Zealand. FAO Fish.
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Figure 2: Some existing markets for marine bio-based products demonstrating the potential commerical value that could be derived from bioprospecting
tinctions between MSR and bioprospecting remain undefined or ambiguous under applicable regimes. More broadly, there are no well-ing currents or discarding of scientific and equipment. Additionally, inadvertant movement of organisms through disrupting currents or discarding of scientific samples can lead to biological contamination. Finally, there is the usual possibility of over-exploitation in harvesting organisms in these regions and the flow on environmental impacts. Yet, this aspect is unclear due to the lack of information about ecosystems in these marine habitats. In this respect, the precautionary principle would seemingly apply to any future environmental regulations devel oped to govern bioprospecting activities in the High Seas and Antarctica are examined below, along with the legal gaps and uncertanties this exposes in the current framework.
States, often with binding obligations. The marine regions of the High Seas10 and The Area11 are broadly governed by convention law. Concurrently, Customary International Law (CIL) is another form of binding of international law. It is derived from the generally accepted practice of States, accompanied by an acknowledgement that States are acting out of a belief that such actions are required of them by law. The content of CIL can sometimes be difficult to precisely define due to its practical component, but it has an important normative role to play in developing treaties/ conventions to address emerging legal issues.Sovereign rights and duties are laws specifically governing each State, predominantly within its own borders, such as as in Territorial Waters. Yet, these rights and duties have a role to play in international law as they are also applicable to an extent regarding the EEZ as national vessels or persons in areas beyond national jurisdiction such as the High Seas. The geographical overlay of these various laws governing marine environments is depicted in Figure 4.
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the seabed. It contains certain provisions relating to the seabed, the high seas, marine scientific research, and protection of the marine environment which may be relevant to bioprospecting activities. However, these provisions do not amount to a comprehensive or unambiguous regime. Part XI of UNCLOS deals with the Area, defined as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.12 Part XI establishes a regulatory regime for resources in the Area, which it defines for the purposes of this Part as all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed13. Therefore, living marine resources are, inter alia, not covered by this regime.
Part XI also includes several provisions which pertain to activities in the Area, which provide for capacity building to enable participation of developing States, non-discriminatory sharing of financial and other economic benefits, and laws and regulations to protect the marine environment from these activities.14 Article 1 defines activities in the Area as all activities of exploration for, and exploitation of, the resources of the Area. Elsewhere, Article 1 refers to living resources, so there is an argument that this definition of activities in the Area includes exploration for living resources. However, this provision is generally read together with Article 133 to include exploration for mineral resources only.15
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Article 136 states: The Area and its resources are the common heritage of mankind. Article 137 expands on this, whereby No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. If the biological resources which inhabit the Deep Seabed are part of the Area, then appropriation of them in the form of patenting their genetic material could violate these provisions.16 Part VII covers the High Seas, as defined as all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.17 This area is open to all States, whether coastal or land-locked18. All States may exercise freedom of the High Seas which comprises: freedom of navigation; overflight; fishing; scientific research; construction of cables, pipelines, and artificial islands; and, other installations, subject to international law and the conditions laid down by UNCLOS, and with regard for the interests of other States.19 Though harvesting of living resources on the seabed is not enumerated in this provision, it may still be included in this freedom by analogy to scientific research or fishing or an expan sive interpretation of freedom of the High Seas which understands the listed freedoms as non-exclusive. If bioprospecting is included in the freedom of the High Seas, this could pose an obstacle to international regulation. Under Part VII, States are specifically directed to cooperate with each other in the conservation and management of living resources in the High Seas, and to take measures with respect to their nationals necessary for the conservation of living resources. 20 Part XIII of UNCLOS governs MSR. This Part provides that: all States and competent international organizations have the right to conduct MSR, including in the Area; MSR shall not constitute the legal basis for any claim to any part of the marine environment; and, the results of such research must be made available by publication and dissemination.21 Based on these provisions, bioprospecting is generally not considered MSR under UNCLOS, since by its very nature it involves legal claims to parts of the marine environment, and its results are necessarily not freely available but protected by patents.22 Part XII imposes a general obligation to protect and preserve the marine environment.23 States are directed to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, particularly to ensure that pollution arising from activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights.24 States are particularly directed to monitor activities under their jurisdiction or control, or activities which they permit or engage in
to determine whether they are likely to cause significant pollution, and if so to communicate the results of these determinations. 25 Pursuant to these provisions, a State has an obligation to cooperate with other States and to monitor and regulate bioprospecting activities by its nationals or under its control to the extent that such activities are likely to pollute the marine environment or threaten living resources of the High Seas. There is an argument that patenting genetic material derived from living resources on and around the Deep Seabed as part of commercial bioprospecting violates the principle of the Common Heritage of Mankind.26 There is another argument that regulation of exploration for and harvesting of marine genetic resources in the High Seas violates the freedom of the High Seas.
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govern any harvesting and associated activities pertaining to Antarctic marine living resources.33 Antarctic marine living resources are defined as the populations of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence.34 Article II(3) provides that principles governing harvesting and associated ac-
tivities include (a) prevention of decrease in the size of any harvested population to levels below those which ensure its stable recruitment, and (c) prevention of changes or minimisation of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades.Given the small amounts of material normally harvested in bioprospecting, the first principle
is probably not implicated. Though introduction of light, noise, or pollution through bioprospecting activities could lead to changes in the marine ecosystem, these changes are not likely to be irreversible given the short duration of exposure during an expedition. The Antarctic Treaty provides for [f]reedom of scientific investigation in Antarctic and dissemination of scientific observations and results from such investigation.35 Bioprospecting probably
does not fall under these provisions because of its inherently proprietary component. The Antarctic Treaty further states that while it does not constitute a renunciation of previously asserted claims to sovereignty in Antarctica, no new claims to territorial sovereignty shall be asserted while it is in force. 36 Apart from the requirement for environmental impact assessment and prior notification of bioprospecting expeditions, the Antarctic
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Figure 5: Map of the global areas of the High Seas and Exclusive Economic Zones (EEZ)
Treaty System, the name given to this collective body of international law governing the Antarctic, creates no clear obligations or rights with respect to bioprospecting.
the benefits arising out of the use of genetic resourse as well to facilitate transfer of technologies that use genetic resources, particularly to developing countries.41 Technology transfer should be consistent with IP rights, but Parties should cooperate to ensure that IP rights do not run counter to the objectives of the CBD.42The Nagoya Protocol further provides for technology transfer to developing country Parties to enable access to genetic resources. 43 The Nagoya Protocol in its article 10 also directs Parties to consider the need for and modalities of a global multilateral benefitsharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent.44 It states that the benefits shared through the mechanism shall be used to support the conservation and sustainable use of biological diversity and its components. Such a mechanism could provide the needed framework to address benefit-sharing of genetic resources in the global commons.
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No claims of territorial sovereignty in the High Seas and the Deep Seabed, and no new claims in Antarctica will be recognized. 52 States may be required to facilitate participation by developing countries in exploration of genetic resources in the Global Commons.53 Certain provisions support sharing of benefits of bioprospecting, but there are no firm obligations regarding areas beyond national juridisction. CBD provides for transfer of technology, including biotechnology, in pursuance of its general objective of benefitsharing.54 Both the UNCLOS and the Antarctic Treaty mandate direct sharing of results of scientific research, though it is not clear that this includes bioprospecting.55 There are potential conflicts between the various international regimes. The UNCLOS principle of CHM and the CBD objective of equitable benefit sharing of genetic resources potentially conflict with the UNCLOS principle of freedom of the High Seas and TRIPS patentability requirements. In Antarctica, the Antarctic Treaty and UNCLOS principles of encouraging and freely sharing scientific research potentially conflict with the TRIPS objectives of protection of intellectual property rights, particularly where private funding is necessary to adequately support scientific research. Additionally, the lack of clarity and distinct gaps regarding the aforementioned international legal frameworks could actually encourage private companies to conduct bioprospecting whilst there is sufficient scope for them to exploit marine genetic resources on the High Seas and in Antarctica with little or no regulation. Compounding this impact is that the exisitng legal conflicts and gaps are a major impediment to developing laws and policies for the equitable sharing of benefits of the Global Commons and securing access and participation by developing countries. Hence, there is an urgent need to assess the fragmentation and lack of clarity underpinning international laws and concepts relating to bioprospecting in the Global Commons. as it is an obstacle to further scientific research and informed conservation in these poorly understood areas of the world.
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standpoints, what is clear is that if the status quo is maintained, the fragmentation and lack of clarity regarding the laws outlined will create further problems for the institutional and legal frameworks governing bioprospecting in the Global Commons. From 1995 when the issue of bioprospecting was first raised at the UN General Assembly, the international community has taken important steps to convene stakeholders to seek some clarification regarding bioprospecting in the Global Commons. Since then, there have been significant deliberations by those involved in the development of proposed solutions to the current lack of clarity on these issues. In 2004, Parties to the CBD agreed to conduct studies and research on the status of, trends, and threats to, genetic resources in areas beyond national jurisdiction, as well as regions within Parties national jurisdiction where activities could have a significant impact on marine ecosystems.56 During the same year, the UN General Assembly resolved at its 59th session to form an Ad Hoc Open-ended Informal Working Group to investigate issues and undertake research into the sustainable use and conservation of marine genetic resources in zones beyond national jurisdiction.57 As a result of these ongoing efforts, several propositions have been posited regarding possible methods of achieving clarification of laws and strengthened governance in relation to bioprospecting in Global Commons. The most appropriate solution would be a clear, concise and comprehensive framework or set of guidelines for bioprospecting in the Global Commons, specifically the High Seas and Antarctica. Any such regime should address the conservation, ABS, and intellectual property protection issues detailed above in this brief. Importantly, it should also incorporate capacity building mechanisms to enable developing country participation in management and exploration of the commons, specifically the commercial development of marine biological resources. Any proposed legal framework could be modelled on the UNCLOS system for regulation of mineral exploration in the Area. It could include a multilateral benefit-sharing mechanism, such as the Nagoya Protocol58 to the CBD on ABS and traditional knowledge which sets out obligations for States in regards to genetic resources, and should also take into account the basic principles set out in the voluntary Bonn Guidelines 59 to the CBD. Other crucial issues highlighted by experts that should be considered as part of any way forward towards strenthening laws governing bioprospecting in the Global Commons, include:
scheme whereby a percentage of profits from the commercial development of marine genetic resources is used to assist in technology transfer to developing States and address issues relating to Mechanisms for collecting, storing and disseminating data from bioprospecting in the public domain so that all States can easily access and exchange MSR information; and, Creating an over-arching institution to oversee the implementation of international laws regulating bioprospecting in the High Seas and Antarctica in order to strengthen governance through a framework for compliance and enforcement. UNEP, through the Division of Environmental Law and Conventions (DELC), is engaged in activities aimed at improving Internatonal Environmental Governance (IEG). A key project within the IEG program seeks to strengthen governance of the Global Commons. DELC views bioprospecting in the Commons, specifically in the High Seas and Antartica, as a significant legal issue that needs to be urgently addressed, and hence discussed, by States as a priority in the follow up to Rio+20 in particular regarding biodiversity in areas beyond national jurisdiction.
ENDNOTES
1. 2. UNEP/CBD/COP/5/INF/7. For example, the New Zealand Biodiversity Strategy defines bioprospecting as the search among biological organisms for commercially valuable compounds, substances or genetic material. The South African Biodiversity Act defines bioprospecting as any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application. Under Art 241 of UNCLOS, any part of marine environment and its resources discovered through MSR cannot be subject to a claim for legal title, such as an intellectual property right. See generally, Niehaus, F., Bertoldo, C., Khler, M., & Antranikian, G. Extremophiles as a source of novel enzymes for industrial application 1999 51(6) Applied Microbiology and Biotechnology 711; Salameh, M., & Wiegel, J. Liapses from Extremophiles and Potential for Industrial Applications 2007 61 Advances in Applied Microbiology 253. Ibid. Leroux, N., & Mbengue, M.M. Deep-Sea Marine Bioprospecting Under UNCLOS and the CBD (available at: http://www.gmat.unsw.edu.au/ablos/ ABLOS10Folder/S3P1-P.pdf) citing, Leary, D.K. Interational Law and the Genetic Resources of the Deep Sea (2007) Martinus Nijhoff Publishers; Leiden, Netherlands, at 157-158. See Figure 4 for an explanation of this term. Millennium Ecosystem Assessment, Current States & Trends, Ch. 10, 18 (2005). Millennium Ecosystem Assessment, Current States & Trends, Ch. 10, 18 (2005). See Figure 4 for an explanation of this term. See Figure 4 for an explanation of this term. Art. 1.1(1) UNCLOS. Art. 133(a) UNCLOS. Arts. 140, 145, 148, 209 UNCLOS. E.g., Convention on Biological Diversity Subsidiary Body on Scientific, Technical and Technological Advice, Study of the Relationship between the
3.
4.
5. 6.
Clarification of the legal definition of bioprospecting, especially Establishing a Global Common Fund as part of any ABS
in relation to MSR;
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16.
17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.
39. 40. 41. 42. 43. 44. 45. 46. 47. 48.
49. 50.
Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with Regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/ INF/3/Rev.1, para. 34-36 (2003). This issue has been debated by the UN Informal Consultative Process on the Law of the Sea, with delegates in favor of regulation of bioprospecting arguing that deep seabed biodiversity is inextricably related to the environment of the Area and therefore part of the common heritage of mankind, and delegates opposed arguing that living resources are excluded from the regime of the Area entirely, and covered instead by the freedom of the High Seas according to which they cannot be regulated. Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its eighth meeting, UN Doc. A/62/169 (2007). Art. 86 UNCLOS. Art. 87.1 UNCLOS. Art. 87 UNCLOS. Arts. 117, 118 UNCLOS. Arts. 238, 241, 244, 256 UNCLOS. Ibid at para. 39. Art. 192 UNCLOS. Art. 194 UNCLOS. Arts. 204.2, 206 UNCLOS. Arts. 204.2, 206 UNCLOS. Art. VII(5) Antarctic Treaty. Art. 3(2)(c) Madrid Protocol. Art. 8(2) Madrid Protocol. Art. 3(2)(d) Madrid Protocol. Art. 3(4) Madrid Protocol. Art. 3(1)Madrid Protocol. Art. II(3) CCAMLR. Ibid. Arts. II, III(1)(c) Anatarctic Treaty. Art. IV Antarctic Treaty. Art. 5 CBD. Arts. 7, 8, 14 CBD. Reference to the precautionary principle in the preamble of the Convention supports an argument that these provisions should apply in cases where there is uncertainty about the possibility of significant adverse impact, such as the case of bioprospecting. E.g. Convention on Biological Diversity Subsidiary Body on Scientific, Technical and Technological Advice, Study of the Relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with Regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, para. 81-82 (2003). In 2003, the CBD COP invited States to identify activities and processes under their jurisdiction or control which may have a significant adverse impact on deep seabed ecosystems. Decision VII/5 para. 56. Art. 1 CBD. Art. 15(2) CBD. Art. 16 CBD. Arts. 16(2), 16(5) CBD. Art. 23 Nagoya Protocol. Art. 10 Nagoya Protocol. Art. 27(1) Nagoya Protocol. Art. 27(3)(b) TRIPS. Art. 27(1) TRIPS. World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 19th Session, Geneva, July 18 to 22, 2011, Draft Objectives and Principles Relating to Intellectual Property and Genetic Resources, WIPO/ GRTKF/IC/19/6 Annex. Draft Objective 2, Option 5 states: Ensure that no patents on life and life forms are granted for genetic resources and associated traditional knowledge, because they do not comply with the requirements of novelty and inventive step. Other options would allow patenting of genetic resources only if they are novel or inventive in light of associated traditional knowledge. Arts. 117, 118, 192 UNCLOS; Art. 3 Madrid Protocol; Art. 5 CBD. Arts. 204, 206 UNCLOS; Art. 3 Annex 1 Madrid Protocol; Arts. 7, 8, 14 CBD.
Art. 194 UNCLOS; Art. 3 Madrid Protocol; Art. 8, 14 CBD. Arts. 89, 137 UNCLOS; Art. IV Antarctic Treaty. Art. 15(2) CBD; Art. 23 Nagoya Protocol. Arts. 1, 16 CBD. Art. 143 UNCLOS; Art. III(1) Antarctic Treaty. Arico, S., and Salpin, C. Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects UNU-IAS Report, 2005, p.8. 57. Ibid. 58. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the CBD, adopted in Nagoya, Japan in 2010 (not yet in force). 59. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits to the CBD, adopted in Bonn, Germany in 2002.
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