How Is the Law of the Sea Coping with New Ocean Resources?

By Scovazzi, Tullio | Proceedings of the Annual Meeting-American Society of International Law, Annual 2013 | Go to article overview

How Is the Law of the Sea Coping with New Ocean Resources?


Scovazzi, Tullio, Proceedings of the Annual Meeting-American Society of International Law


This panel was convened at 1:30 pm, Thursday, April 4, by its moderator, Maria Gavouneli of the University of Athens, who introduced the panelists: David Balton of the Office of the Assistant Secretary for Oceans and Fisheries, U.S. State Department; Kristina Maria Gjerde of the International Union for Conservation of Nature; Michael Lodge of the International Seabed Authority; and Tullio Scovazzi of the University of Milano-Bicocca. *

OPEN QUESTIONS ON THE EXPLOITATION OF GENETIC RESOURCES IN AREAS BEYOND NATIONAL JURISDICTION

By Tullio Scovazzi ([dagger])

New challenges are facing states as regards genetic resources in areas beyond national jurisdiction. The deep seabed is not a desert, despite extreme conditions of bitter cold, utter darkness, and intense pressure. It is the habitat of diverse forms of life associated with typical features such as hydrothermal vents, cold water seeps, seamounts, and deep-water coral reefs. In particular, the deep seabed supports biological communities that present unique genetic characteristics. For instance, some animal communities live in the complete absence of sunlight where warm water gushes from tectonically active areas (so-called hydrothermal vents). Several species of microorganisms, fish, crustaceans, polychaetes, echinoderms, coelenterates, and mollusks have been found in hydrothermal vent areas. Many of them are new to science. These communities, which do not depend on photosynthesis for their survival, rely instead on chemosynthesis--the ability of specially adapted micro-organisms to synthesize organic compounds from the hydrothermal fluid of the vents. The ability of some deep-seabed organisms to survive extreme temperatures (thermophiles and hyperthermofiles), high pressure (barophiles), and other extreme conditions (extremophiles) makes their genes of great interest to science and industry.

While prospects remain uncertain for commercial mining in the deep seabed falling under the innovative regime of "the common heritage of mankind" (the Area), (1) the exploitation of commercially valuable genetic resources may soon become a promising activity taking place beyond the limits of national jurisdiction. However, only a few states and private entities have access to the financial means and sophisticated technologies needed to reach the deep seabed.

But which international regime applies to genetic resources in areas beyond national jurisdiction? In fact, neither the UNCLOS nor the 1992 Convention on Biological Diversity (CBD) provides any specific legal framework in this regard.

In 2006 the subject of the international regime for the genetic resources in the deep seabed was discussed within the Ad Hoc Open-Ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction (the Working Group). (2) Opposing views were put forward by the states concerned. Some states took the position that the UNCLOS principle of the common heritage of mankind and the mandate of the International Seabed Authority should be extended to cover genetic resources as well. Other states relied on the UNCLOS principle of freedom of the high seas, which would imply a right of freedom of access to, and unrestricted exploitation of, deep-seabed genetic resources.

The Working Group held two other meetings, in 2008 and 2010. Again, the same differing views were expressed as regards the regime to be applied to marine genetic resources.

This profound disagreement on the international regime of genetic resources is somewhat unexpected. In fact, both positions operate from the same starting point, namely that the UNCLOS is "the legal framework for all activities in the oceans and seas, including in respect of genetic resources beyond areas of national jurisdiction," as it is frequently repeated by states and confirmed in the resolutions on "Oceans and the Law of the Sea" that are adopted yearly by the UN General Assembly. …

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