International Law and the Genetic Resources of the Deep Sea (Publications on Ocean Development)

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INTERNATIONAL LAW AND THE GENETIC RESOURCES OF THE DEEP SEA

Publications on Ocean Development Volume 56 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume.

International Law and the Genetic Resources of the Deep Sea

by DAVID KENNETH LEARY

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN 10: 90 04 15500 7 ISBN 13: 978 90 04 15500 8 © 2007 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC, Martinus Nijhoff Publishers and VSP. www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microﬁlming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

This book is dedicated to the memory of my grandparents Mrs Olive (Joyce) Patterson, Mr Raymond Patterson, Mrs Elsie Starkey, and Mr John Henry Leary

Contents Acknowledgments ............................................................................................ List of abbreviations ..........................................................................................

xi xv

Introduction ....................................................................................................

1

Chapter 1 The international signiﬁcance of deep-sea hydrothermal vents ........................

7

1.1

Introduction – shifting perceptions and shifting the conservation agenda to the deep sea .......................................................................... 1.2 The Hydrothermal Vent Ecosystem ...................................................... 1.3 The Biodiversity of the deep sea .......................................................... 1.4 What is so important about the hydrothermal vent ecosystem? Why bother? ........................................................................................ 1.5 Conclusion ............................................................................................

17 27

Chapter 2 Framework treaties and key concepts in international law ................................

29

2.1 Introduction .......................................................................................... 2.2 Foundation concepts in international environmental law and policy ... 2.3 Framework treaties .............................................................................. 2.4 Part XI of LOSC and the Part XI Agreement ........................................

29 30 34 44

7 10 13

viii

Contents

2.5 Marine scientiﬁc research under LOSC ................................................ 2.6 United Nations Convention on Biological Diversity ............................ 2.7 Customary International Law, Soft Law and other recent developments ........................................................................................ 2.8 Conclusion ............................................................................................

47 51 58 63

Chapter 3 Regional and other environmental treaties ........................................................

65

3.1 Introduction .......................................................................................... 3.2 Convention for the protection of the marine environment of the north-east Atlantic ................................................................................ 3.3 Noumea Convention ............................................................................ 3.4 The Antarctic Treaty System ................................................................ 3.5 NEAF Convention ................................................................................ 3.6 World Heritage Convention .................................................................. 3.7 Conclusion ............................................................................................

66 68 69 74 77 77

Chapter 4 The Continental Shelf Regime ..........................................................................

79

4.1 Introduction .......................................................................................... 4.2 Historical origins of the Continental Shelf Regime .............................. 4.3 The 1958 Geneva Convention on the Continental Shelf ...................... 4.4 Conclusion: Should we sever the link between sedentary species and the continental shelf ? ..........................................................................

65

79 80 88 93

Chapter 5 The Common Heritage of Mankind ..................................................................

95

5.1 Introduction – unresolved isses ............................................................ 5.2 Central elements of the the common heritage of mankind .................. 5.3 Has the world moved on? .................................................................... 5.4 Conclusion – the Common heritage of mankind and future debate ......

95 96 98 101

Chapter 6 Domestic legal regimes regulating activities at hydrothermal vent sites within national jurisdiction ............................................................................

103

6.1 6.2

Introduction .......................................................................................... Canada – The Endeavour hydrothermal vents ......................................

103 104

Contents

ix

New Zealand ........................................................................................ Portugal – Lucky Strike and Menez Gwen .......................................... Papua New Guinea .............................................................................. Lessons to be learnt from the domestic regimes ..................................

123 137 142 151

Chapter 7 The emerging deep sea biotechnology industry ................................................

155

6.3 6.4 6.5 6.6

7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8

Introduction .......................................................................................... What is bioprospecting? ...................................................................... Why are hydrothermal vents subject to bioprospecting? ...................... The process of bioprospecting for deep-sea genetic resources ............ Intellectual property rights and bioprospecting .................................... International law and patents in relation to biotechnology .................. The missing link – The CBD and patents ............................................ Conclusion ............................................................................................

155 157 158 164 170 172 174 181

Chapter 8 Marine Scientiﬁc Research ................................................................................

183

8.1 Introduction .......................................................................................... 8.2 The nature of marine scientiﬁc research involving hydrothermal vents .............................................................................. 8.3 Environmental impact of marine scientiﬁc research ............................ 8.4 Debate on regulation of marine scientiﬁc research at the law of the Sea negotiations .................................................................. 8.5 The InterRidge Code of Conduct for marine scientiﬁc research .......... 8.6 Environmental impact assessment and international environmental law ................................................................................ 8.7 Environmental impact assessment and science in Antarctica .............. 8.8 Conclusion – a model environmental impact assessment procedure for marine scientiﬁc research beyond national jurisdiction ........................

Chapter 9 The role of the International Seabed Authority .................................................. 9.1 Introduction .......................................................................................... 9.2 The environmental mandate of the International Seabed Authority .... 9.3 The emerging interest of the International Seabed Authority in Biodiversity issues ................................................................................ 9.4 The International Seabed Authority and de-facto marine protected areas ......................................................................................................

183 184 189 190 196 198 199 206

209 209 210 218 219

x

Contents 9.5

9.6 9.7

Structural impedements to effective sustainable management of deep-sea hydrothermal vents by the International Seabed Authority ............................................................................................ Do States consider the International Seabed Authority irrelevant? .... Conclusion – expansion of the International Seabed Authority mandate ..............................................................................................

Chapter 10 Elements of the future international legal regime .............................................. 10.1

220 223 224

225

Expanding mandates, modiﬁed mandates and the challenge of achieving global oceans governance .................................................. The way forward ................................................................................

225 230

Table of treaties, agreements and declarations ..................................................

231

Table of legislation ............................................................................................

233

Table of cases ....................................................................................................

235

Bibliography ......................................................................................................

237

Appendices ........................................................................................................

269

Index ..................................................................................................................

287

10.2

Acknowledgments This Book started several years ago as a brief research paper as part of my Masters of Law in international Law at the University of New South Wales and it subsequently developed into a PhD thesis at Macquarie University. Since that time many people have provided invaluable assistance and support throughout my research culimitating in publication of this book. Firstly, I must acknowledge the support and guidance of my PhD supervisor Professor Michael Jeffery Q.C. I would also like to acknowledge the support and encouragement of Professor Donna Craig of the Centre for Environmental Law at Macquarie University. I would also like to recognize the support of Associate Professor Rosemary Rayfuse of the University of New South Wales. It was Rosemary who suggested ﬁve years ago that this may be an emerging topic in international law worthy of detailed research. One thing that has impressed me throughout my research has been the willingness of the scientiﬁc community to share their invaluable knowledge and insights on this topic. During my research I have been fortunate to meet and interview scientists from many nations, diverse backgrounds and scientiﬁc disciplines. Many of these scientists have participated in interviews as a formal part of my research while others have been a more informal source of information. I am especially grateful to Professor Kim Juniper of Université du Québec á Montreal; Dr Tim McConachy and Dr Peter Nichols Australian Commonwealth Scientiﬁc and Industrial Research Organisation; Professor Malcolm Walter and Ms Carol Oliver of the Australian Centre for Astrobiology, Macquarie University; Professor Peter Berquest, Biotechnology Institute, Macquarie University; Dr Roberto Anitori, Department of Biological Sciences, Macquarie University; Professor Ricardo Santos of the Department of Oceanography at the University of the Azores; Dr Fumio Inagaki, Dr Takashi Nunoura and Dr Dhugal Lindsay at the Japan Agency for Marine-Earth Science and Technology; Professor Dr Suguru Ohta of the Ocean Research Institute, the University of Tokyo; Dr Agnieszka Adamczewska,

xii

Acknowledgments

InterRidge Ofﬁce, University of Tokyo; and Dr Cornel de Ronde and Dr Alex Malahoff, New Zealand Institute of Geological and Nuclear Sciences. Cooperation and assistance has also been extended to me by a number of individuals associated with government departments both in Australia and overseas. I’m especially grateful for comment and assistance provided by Mr Philip Burgess, Environment Australia; Mr Dick Carson and Mr Kevin Conley of Fisheries and Oceans Canada; Ms Bridget Stephenson, Oceans Policy Secretariat, New Zealand’s Ministry of the Environment; Mr Warren Player, Crown Minerals Department, New Zealand Ministry of Economic Development; Ms Patricia Pepena of the Papua New Guinea Department of Mines; and Mr Michael Lodge, formerly Legal Counsel to the International Seabed Authority. In industry I am also grateful for assistance provided by Mr David Heydon, Nautilus Minerals Niugini Limited; Ms Belinda Sawyer, Deep Ocean Expeditions; and Dr Toshihiro Hoaki of Taisei Corporation. From civil society I especially appreciated the assistance provided by Ms Kristina Gjerde of The World Conservation Union-IUCN; Dr Sabine Christiansen of the World Wide Fund for Nature;1 Ms Sabine Jessen of the Canadian Parks and Wilderness Society, and by Ms Lee Kimball. In the Division of Law at Macquarie University I would like to thank Lindsay Bates, Maggie Liston, Jacquie Williams, Sue Wards, Jenny Sheddon, Fran Chandler and Wendy Calvert, Anna Penteado and Nick Hughes. Dr Alex Low also provided support and encouragement for my research but sadly passed away before this book was published. I would also like to recognize the invaluable assistance provided by the staff of the Macquarie University Library and in particular Ms Joy Wearne. At Martinus Nijhoff I would also like to thank Annebeth Rosenbloom, Nienke van Schaverbeke and Joeri Coppejans for their assistance during all stages of the publication of this book. I also greatfully acknowledge that material previously published as Leary DK, ‘Emerging Legal Regimes regulating bioprospecting for thermophiles and hyperthermophiles of hydrothermal vents’, (2004) 6 Marine Biotechnology S351 has been included in this book with the kind permission of Springer Science and Business Media. I also greatfully acknowledge the kind permission of Macquarie University to reproduce material previously published as Leary D K, ‘Bioprospecting and the genetic resources of hydrothermal vents on the high seas. What is the existing legal position and where are we heading?’ (2004) 1(2) Macquarie Journal of International and Comparative Environmental Law 137. Finally I must acknowledge the great support, love and encouragement given to me by my family not just during my research but throughout my life, especially my mother Nanette Leary (who proof read large parts of the original manuscript for me), my father John Leary OAM, my sister Tanya Leary, my brother Richard Leary and my nephew Matthew Wilson-Leary and niece Erin Wilson-Leary. I am also grateful to Binky the rabbit for his company and conversation during my research. Finally, and by no means last I must acknowledge the great love and support given to me by my part-

1

Hereinafter WWF.

Acknowledgments

xiii

ner Leanne Mumford (who also was involved in proof reading the original manuscript on which this book is based and for putting up with me on my grumpy days). Leanne has supported me in so many ways since the day that I decided to leave my job as Legal Counsel for a not so environmentally friendly multinational to undertake this research. Without her support, encouragement and love I would never have been able to complete my research or this Book. Although many people have contributed in completing this book all errors are my own. I dedicate this book to the memory of my grandparents Mrs Olive (Joyce) Patterson, Mr Raymond Patterson, Mrs Elsie Starkey, and Mr John Henry Leary. David Leary Sydney, May 2006

List of abbreviations AAD AOI AOI Evaluation ASMA ASPA ATNIF ATS AUD$ BBC CBD CCAMLR

Australian Antarctic Division Areas of Interest Area of Interest Evaluation Antarctic Specially Managed Area Antarctic Specially Protected Area Australian Treaty Series (not yet in force) Australian Treaty Series Australian Dollars British Broadcasting Corporation. Convention on Biological Diversity Convention on the Conservation of Antarctic Marine Living Resources Canadian Department of Foreign Affairs and International Trade Canadian Department of Fisheries and Oceans Comprehensive Environmental Evaluation

CDFAIT CDFO CEE Continental Shelf Convention 1958 Convention on the Continental Shelf COP Conference of Parties CSIRO Australian Commonwealth Scientiﬁc and Industrial Research Organisation C$ Canadian Dollar DNA Deoxyribonucleic Acid DOE Deep Ocean Expeditions LLC EEC European Economic Community EEZ Exclusive Economic Zone EPA Environment Protection Authority

xvi

List of abbreviations

EU FAZAR expedition

European Union French American Zero Angle Photo Spectometer and rocks expedition FVCRP Foreign Vessel Clearance Request Process, Canada GEF Global Environment Facility GST Goods and Services Tax GNS New Zealand Institute of Geological and Nuclear Sciences ICJ International Court of Justice IEE Initial Environmental Evaluation IFREMER Institut français de recherche pour l’exploitation de la mer ILC International Law Commission ILM International Legal Materials InterRidge International initiative facilitating international and multidisciplinary research associated with mid-ocean ridges ISA International Seabed Authority ITLOS International Tribunal for the Law of the Sea IUCN International Union for the Conservation of Nature (World Conservation Union) JAMSTEC Japan Agency for Marine-Earth Science and Technology (formerly Japan Marine Science and Technology Centre) LOSB (United Nations) Law of the Sea Bulletin LOSC 1982 United Nations Convention on the Law of the Sea Madrid Protocol Protocol on Environmental Protection to the Antarctic Treaty MOMAR Monitoring the Mid-Atlantic Ridge Project MPA Marine Protected Area MSR Marine Scientiﬁc Research NASA United States National Aeronautics and Space Administration NSERCC Natural Sciences and Engineering Council of Canada NATO North Atlantic Treaty Organisation NIEO New International Economic Order NEAF Convention Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries NIWA National Institute of Water and Atmospheric Research, New Zealand NCI National Cancer Institute, USA NSWLEC New South Wales Land and Environment Court Noumea Convention Convention for the protection of the Natural Resources and Environment of the South Paciﬁc Region NZAPLUME New Zealand American plume mapping expedition NZ$ New Zealand Dollar OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic Part XI Agreement Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea PCB’s Polychlorinated biphenyls

List of abbreviations PCR pH

xvii

Polymerase chain reaction A quantative expression denoting the relative hydrogen concentration in a solution. PNG Papua New Guinea rDNA Recombinant Deoxyribonucleic Acid RECIEL Review of European Community and International Environmental Law RFMOs Regional Fisheries Management Organisations ROPOS Remotely Operated Platform for Ocean Science ROVs Remotely operated vehicles rRNA ribosomal ribonucleic acid SBSTTA Subsidiary Body on Technical and Technological Advice to the Convention on Biological Diversity Sintra Statement Ministerial Statement of Ministers meeting within the framework of the OSPAR Commission for the Protection of the Marine Environment of the North East Atlantic, 23 July, 1998 Stockholm Declaration of the UN Conference on the Human Environment, Declaration Stockholm. 5–16 June 1972 TAG Trans Atlantic Geotraverse TRIPS Agreement on Trade Related Aspects of Intellectual Property Rights UN United Nations UNESCO United Nations Educational, Scientiﬁc and Cultural Organisation UNICPLOS United Nations Informal Consultative Process on the Law of the Sea UNEP United Nations Environment Program USA United States of America WIPO World Intellectual Property Organisation World Heritage Convention for the Protection of the World Cultural and Natural Convention Heritage WSSD World Summit on Sustainable Development WTO World Trade Organisation WWF World Wide Fund for Nature

Introduction In a seminal paper submitted to the ﬁrst meeting of the Subsidiary Body on Scientiﬁc Technical and Technological Advice of the 1992 Convention on Biological Diversity,1 Glowka suggested that, given a comprehensive legal regime already exists for the mineral resources of the deep sea beyond national jurisdiction, an ‘intriguing question’ needs to be addressed as to whether a legal and institutional regime should be created for the genetic resources of the deep sea beyond national jurisdiction.2 Glowka’s paper highlighted a major lacuna in international law. Part XI of the 1982 United Nations Convention on the Law of the Sea3 and the euphemistically labelled 1994 Implementation Agreement in relation to Part XI of LOSC4 established a very detailed international regime governing exploitation and beneﬁt sharing in relation to the mineral resources of the deep sea beyond national jurisdiction, known under LOSC as the Area. However, mining in the Area appears to be many years away. Instead genetic resources appear to be the most immediately exploitable resource of the deep sea apart from ﬁsheries. Access to such resources on the high seas is unregulated as neither LOSC (and its associated Part XI Agreement) or the CBD currently have meaningful application to these newly exploited resources.5

1

2

3

4

5

United Nations Convention on Biological Diversity, opened for signature 5 June 1992, 31 ILM (1992) (entered into force 29 December 1993), herein after referred to as the CBD. Glowka’s submission to SBSTTA was published as L. Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine Scientiﬁc Research, and the Area’ (1996) 12 Ocean Yearbook 154. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 ILM 1245 (1982) (entered into force 16 November 1994), hereinafter LOSC. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, opened for signature 28 July 1994, 33 ILM 1309 (entered into force 28 July 1996), hereinafter Part XI Agreement. Above, n. 2.

2

Introduction

This book provides a response to Glowka’s ‘intriguing question’ and some associated issues. However, rather than viewing this issue primarily as a question pertaining solely to the fair and equitable utilization of the Area’s genetic resources, this book addresses a much broader issue: that is how can all human activities that have an environmental impact on deep-sea hydrothermal vent ecosystems be sustainably managed, so that this particularly unique ecosystem of international signiﬁcance is preserved for future generations? The issue of the fair and equitable utilization of the Area’s genetic resources is but one subsidiary issue that needs to be addressed in responding to this overall question. This book only considers the sustainable management of deep-sea hydrothermal vent ecosystems and not all ecosystems in the deep sea that are also subject to bioprospecting. Increasingly the deep sea, and beyond it the deep biosphere,6 are of interest to both science and industry. In addition to hydrothermal vents a range of biological communities and habitats in the deep sea including deep-sea sediments, methane seeps, and even the deepest points in the ocean such as the Mariana Trench (a depth of some 11,035 metres)7 have all been sampled with an eye to their biotechnology potential. The ‘intriguing question’ posed by Glowka applies equally to these and other components of the deep-sea ecosystem(s). However, discussion in this book is limited to consideration of the sustainable management of deep-sea hydrothermal vents and their associated biological communities. This is for a number of reasons. Firstly, as Chapter 1 outlines, this ecosystem is of particular importance in terms of the overall biodiversity of the deep sea. Similarly, although other deep-sea ecosystems show potential for future developments in biotechnology, for the time being the major focus of research and development relates to microbial life forms from deep-sea hydrothermal vents. More importantly given the range of issues raised by hydrothermal vents alone, it would be difﬁcult to undertake the detailed analysis which is justiﬁed in relation to the entire deepsea in just one Book. Although this book relates primarily to the sustainable management of deep-sea hydrothermal vents, many of the issues raised and the conclusions reached arguably are applicable to other components of the deep-sea ecosystem(s).

6

7

Living bacteria and archaea are believed to exist hundreds of metres below the sea-bed and probably to depths where thermogenic geosphere processes occur. Several research institutions are currently exploring the deep biosphere. For example see the European Union funded research project ‘DeepBug’ http://www.chm.bris.ac.uk/deepbug/index.htm accessed 1 July 2004, the Deep biosphere work of the Ocean Drilling Program http://www.odp.tamu.edu/ publications/185_IR/chap_01/c1_11.htm accessed 1 July 2004, or the Research Program for Deep-subsurface extremophiles at JAMSTEC http://www.jamstec.go.jp/jamstec-e/bio/en/ mesubex.html accessed 1 July 2004. See also Y. Tanaka et al. ‘Evidence of sub-vent biosphere: enzymatic activities in 308°C deep-sea hydrothermal systems at Suiyo Seamount, Izu-Bonin Arc, Western Paciﬁc Ocean’ (2005) 229 Earth and Planetary Science Letters 193. In March 1996 the Japan Agency for Marine-Earth Science and Technology (hereinafter JAMSTEC) successfully sampled some 3000 microbial strains from the Mariana Trench which are now stored for future research by their Bioventure Center for Extremophiles. See http://www.jamstec.go.jp/jamstec-e/bio/seaex/mariana.html, accessed 1 July 2004.

Introduction

3

Similarly, although measures to conserve hydrothermal vents raise issues associated with marine protected areas8 on the high seas and this book does contain some discussion of this subsidiary issue, consideration of mechanisms to establish high seas MPAs have been excluded from the scope of this study. This is because debate surrounding high seas MPAs is emerging as a signiﬁcant issue in international law and policy in its own right. The book commences in Chapter 1 with consideration of the nature and importance of the hydrothermal vent ecosystem. Simply put it seeks to address one fundamental question: why should we bother about the sustainable management of this particular deep-sea ecosystem? The answer presented in Chapter 1 provides the philosophical framework which governs subsequent analysis in this book. Chapter 2 then examines the existing status of hydrothermal vents and their associated biological communities under international law. Precisely what is the lacuna in the law that has been suggested? Since Glowka’s original analysis there have been a number of developments on this issue and these are also surveyed in Chapter 2. This includes consideration of a number of developments up until January 2005. Discussion in this chapter includes a brief review of core principles and concepts of international environmental law of relevance to considering hydrothermal vents, an overview of the relevant provisions of LOSC and the Part XI Agreement, as well as developments within the institutions associated with the CBD, at the United Nations Informal Consultative Process on the Law of the Sea,9 and at the United Nations General Assembly. Detailed consideration of a number of relevant developments within the institutions of the International Seabed Authority10 is deferred until Chapter 9. Chapter 3 considers the potential application of regional and other treaties that have received little attention in the literature to date. This chapter examines the extent to which existing regional and other treaties apply to deep-sea hydrothermal vents. Could any of these treaties provide mechanisms that could be used to provide for the sustainable management of hydrothermal vent sites? One issue of signiﬁcance that has been touched on brieﬂy in the existing literature is the extent to which the Continental Shelf Regime under Part VI of LOSC applies to hydrothermal vent sites on the continental shelf. The general nature of this issue is introduced in Chapter 2. A historical analysis of the origins of the Continental Shelf Regime is undertaken in Chapter 4 and examines why problems associated with the application of the Continental Shelf Regime to the hydrothermal vent ecosystem have arisen. Chapter 6 illustrates the difﬁculties the Continental Shelf Regime may pose for New Zealand. Chapter 5 brieﬂy considers the extent to which the concept of the Common Heritage of Mankind is relevant to the design of a legal regime for the sustainable management of deep-sea hydrothermal vents in areas beyond national jurisdiction.

8 9 10

Hereinafter referred to as MPAs. Hereinafter referred to as UNICPLOS. Hereinafter referred to as ISA.

4

Introduction

Chapter 6 then goes on to examine emerging legal regimes associated with hydrothermal vents located within areas of national jurisdiction. Speciﬁcally, the chapter addresses recent developments in Canada, New Zealand, Portugal and Papua New Guinea.11 The domestic legal regimes for the management of hydrothermal vent sites are examined for a number of reasons. Firstly, to date there has been little examination of the sustainable management of hydrothermal vents and other deep-sea ecosystems in the legal and policy literature. Examination of these four regimes therefore adds to the literature in relation to measures to sustainably manage deep-sea ecosystems within national jurisdiction. More importantly, examination of these domestic legal regimes is useful because the experience of these regimes provides some guidance as to factors that may need to be considered when designing an international legal regime for the sustainable management of hydrothermal vent sites beyond national jurisdiction. Chapter 7 addresses issues associated with bioprospecting at hydrothermal vents in areas beyond national jurisdiction. This chapter addresses key threshold issues such as the nature and extent of bioprospecting at hydrothermal vents. Is there in fact any commercial interest in bioprospecting? If there is, what factors need to be considered when designing a legal regime for fair and equitable sharing of beneﬁts that may arise from such bioprospecting? Chapter 8 then goes on to examine marine scientiﬁc research12 and, in particular, issues surrounding the sustainable management of the environmental impact of MSR. This chapter is based in part on interviews conducted with scientists engaged in research in relation to hydrothermal vents in Australia, New Zealand, Canada, Portugal, Japan and PNG. It considers the nature of MSR, whether MSR should be subject to regulation, and what form that regulation should take. Chapter 9 examines the question of mining at deep-sea hydrothermal vents and the potential role of the ISA in relation to the sustainable management of hydrothermal vents beyond national jurisidiction. This includes a critical analysis of the existing mandate of the ISA and considers how it has fulﬁlled that mandate since its establishment with the entry into force of Part XI of LOSC and the Part XI Agreement. This chapter seeks to address the question as to whether the ISA should be entrusted with an expanded mandate to sustainably manage activities in addition to mining. Chapter 10 draws together conclusions reached in preceding chapters and outlines elements of a proposed regime for the sustainable management of deep-sea hydrothermal vents beyond national jurisdiction. Much of the material in this book is interdisciplinary. The inclusion of a range of non legal material in this book is justiﬁed on a number of grounds. Firstly, there has been little examination of these issues in legal and policy literature. There has been some consideration in the scientiﬁc literature and hence it was useful to draw on that literature. Secondly, in order to understand the legal issues canvassed in this book, it is also necessary to understand some of the commercial and scientiﬁc issues at stake. In many respects this book is not just a book in relation to a legal problem but also canvasses issues that have an impact on science and on commerce. As Borgese has argued, in

11 12

Hereinafter referred to as PNG. Hereinafter referred to as MSR.

Introduction

5

approaching any new problem associated with the Law of the Sea one basic and simple principle should always apply, that is: If the issues under consideration are interdisciplinary, the decision-making process must be interdisciplinary.13

Hence analysis in this book draws on a range of interdisciplinary literature and the views of many non-lawyers.

13

E.M. Borgese, ‘The Process of Creating an International Ocean Regime to Protect the Ocean’s Resources’, In J.M. Van Dyke et al. (eds) Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (1993), 29.

Chapter 1 The international signiﬁcance of deep-sea hydrothermal vents 1.1 1.1.1

Introduction-shifting perceptions and shifting the conservation agenda to the deep sea

The cold dark scary abyss

I don’t know why I don’t care about the bottom of the ocean but I don’t 1

For many thousands of years, and until quite recently, humanity’s attitude to the deepsea was shaped largely by myth fuelled by ignorance. Across recorded history, across all cultures and continents, humanity has traditionally characterised the deep sea as an evil, foreboding place.2 Throughout time one word has been used to describe the deepsea more than any other. That word, “resonating with sinister energy”, is the “abyss”.3 The deep sea has been labelled the abyss, from the Greek words a, without, and byssos, bottom – a synonym for dark inﬁnities and primal chaos.4 It was unknown and unknowable, unconnected to anything remotely human.5 As Broad notes:

1

2 3 4 5

Text from a famous Cartoon about the deep sea reproduced in C.L. Van Dover, The Octopus’s Garden: Hydrothermal Vents and Other Mysteries of the Deep Sea (1996), 161. J.B. Sweeney, A pictorial history of sea monsters and other dangerous marine life, (1972). W.J. Broad, The Universe Below: Discovering the Secrets of the Deep Sea, (1997), 21. Broad, above n. 3, 21–22. Broad, above n. 3, 21.

8

Chapter One It was cold. It was dark. Worst of all, it was well known to harbour [sic] the most loathsome aspects of creation, some of which from time to time crept upward from the unilluminated depths to bedevil man [sic].6

Very few people except for a handful of very privileged scientists and an even smaller number of tourists and journalists7 have ever experienced the deep sea ﬁrst hand, or come close to any of the species that occupy its hidden realm. Until quite recently we did not know what was at the bottom of the oceans. Nor did we know what the bottom of the ocean was made of.8 In most areas, we did not even know where the bottom of the ocean actually was.9 Given our ignorance and the characterisation of the deep sea as a cold, dark, forbidding place, it is not surprising that the deep sea has not ﬁgured prominently on the conservation agenda. To date we have simply not understood or cared much about the deep sea. Therefore there have been very few legislative measures implemented for deep sea conservation either at the domestic or international levels. Where there has been interest in deep-sea conservation it has largely been species-orientated.10 Whaling, whale sanctuaries and straddling and highly migratory ﬁsh stocks being several examples.11 Few deep-sea ecosystems have received formal protection through designation as MPAs. Those areas of the deep sea that have received some level of protection, such as seamounts, have only been protected because of their close association with ﬁsh stocks exploited for food. While it is a cold and dark place, contrary to popular myth, the deep sea is a truly beautiful and amazing place. There are no sea monsters, just an amazing diversity of ingenious and adaptive life. In terms of biodiversity it is perhaps the most species rich habitat on the planet. It is the largest area of the planet that supports complex life, constituting somewhere between 78.5% and 97% of the global biosphere.12 As such the deep sea constitutes the most typical environment, and its inhabitants the typical life forms of planet earth.13 Increasingly the deep sea is under threat from human activity. As a consequence there is now an urgent need to shift the focus of the marine conservation debate from the coastal and shallow waters to the high seas and the deep sea in particular. If we are serious about the conservation of the biodiversity of our planet (which the writer optimistically believes we are) then our focus must shift to include a greater focus on the most typical habitat on planet earth, that is the deep sea. Moving the conservation debate

6 7

8 9 10

11 12 13

Broad, above n. 3, 22. One of the privileged few journalists is William Broad who has written a fantastic account of his experiences as a deep-sea journalist. See Broad, above n. 3. R. Ellis, Deep Atlantic: Life, Death, and Exploration in the Abyss, (1996), 4. Ellis, above n. 8. P.K. Probert, ‘Seamounts, sanctuaries and sustainability: moving towards deep-sea conservation.’ (1999) 9 Aquatic Conservation: Marine and Freshwater Ecosystems 601, 603. Probert, above n. 10. Broad, above n. 3, 45. J.D. Gage and P.A. Tyler, Deep-Sea Biology: A natural history of organisms at the deep-sea ﬂoor, (1991), xi.

The international signiﬁcance of deep-sea hydrothermal vents

9

to encompass conservation and sustainable management of vulnerable deep-sea habitats is arguably the most important challenge of the next few decades.14 This book focuses on one particular component of the biodiversity of the deep sea, that associated with hydrothermal vents or deep-sea submarine volcanic springs. Even though science is only really just beginning to comprehend the complexity and diversity of life in the deep sea, scientiﬁc evidence suggests that a signiﬁcant component of the diversity of life in the deep sea is to be found at hydrothermal vents. Their discovery in 1977 has rightly been labelled one of the most signiﬁcant developments in Oceanography of the 20th Century.15 However, just as we are slowly beginning to comprehend how important hydrothermal vents are in terms of the overall biodiversity of the deep sea, even at these great depths this amazing diversity of life is under threat from human activity. 1.1.2

Overview of Chapter

This chapter introduces key components of the deep-sea environment and the biodiversity of the deep sea with a particular focus on the ecosystems associated with hydrothermal vents. Although all ecosystems are in part a product of their local geology and other environmental conditions, as the ﬁrst part of this chapter outlines, the hydrothermal vent ecosystem is closely dependant on the underlying geological processes associated with plate tectonics. This is because, through chemosynthesis, the underlying geological processes quite literally provide the food upon which the ecosystem feeds and thrives. The second part of this chapter then goes on to consider the nature of the biodiversity of the deep sea generally and the unique features of hydrothermal vents within the context of the overall biodiversity of the deep sea. This section introduces the key biological features of hydrothermal vent ecosystem. In later chapters, where speciﬁc sites are examined, such as those associated with MPAs, more details are provided on the biology and ecology of those speciﬁc sites. The ﬁnal part of this chapter then presents several reasons why we should be concerned about the environmental impact of human activities on hydrothermal vent ecosystems. Why should we bother? This Chapter therefore seeks to lay the foundation for an understanding of the unique ecosystems of hydrothermal vents and their place in our emerging understanding of the biodiversity of the deep sea; one very large component of global biodiversity, which is only vaguely understood by science and to date almost totally ignored by lawyers. It is hoped that with a shift in perception, there will also arise an understanding of the need for action. How that can be achieved will then be the focus of later chapters of this book.

14 15

Probert, above n. 10. P. Dando and S.K. Juniper, Management and Conservation of Hydrothermal Vent Ecosystems, Report from an InterRidge Workshop, Sidney (Victoria), B.C. Canada 28–30 September, 2000, (2001), 2.

10

Chapter One

1.2

The Hydrothermal Vent Ecosystem

1.2.1 The relationship between plate tectonics, the formation of the mid-oceanic ridge system and hydrothermal vents The earth’s outer shell consists of a mosaic or patchwork of broad, rigid lithospheric plates. These plates lie on top of a partially molten, plastic asthenosphere that facilitates their movement.16 Although the lithospheric plates behave as rigid bodies, the boundaries of adjacent plates are dynamic and interact in three main ways: ﬁrstly, by diverging or spreading, as at mid-oceanic ridges; secondly, by converging at deep-sea trenches; thirdly, at some plate boundaries transform faults slip sideways past each other.17 New lithosphere is created at the mid-ocean ridges. The 75 000 kilometre long midoceanic ridge system arises from volcanic eruptions at diverging plate boundaries in the deep sea.18 The mid-oceanic ridges typically lie at depths of between 2000 and 3000 metres. They are the largest and most volcanically active chain of mountains on Earth, extending around the planet.19 The volcanic ridges are highest along the ridge crests, and, as newly formed lithosphere cools, subsides, and accelerates away from the ridge axis, the rugged terrain gradually tapers away to the smooth surface of the abyssal hills covered with sediment.20 This lithosphere is reabsorbed or destroyed at convergent plate boundaries, namely the subduction zones marked by deep-sea trenches. At these destructive plate margins, one lithospheric plate overrides another, with the subducted (overridden) plate sinking into the mantle.21 Hydrothermal vents are formed due to the close proximity of heat-laden magma chambers to the seaﬂoor, in conjunction with tectonic plate movement, which causes the convective circulation of dense, cold seawater through the cracked and ﬁssured upper portions of the lithosphere.22 Sea water penetrates down to the magma chamber and heats up.23 The sea water is believed to penetrate to between 1.6 and 2.4 kilometres below the sea ﬂoor.24 Heat transfers from the magma to the water.25 As the ﬂuid circulates within the crust it interacts with basaltic rock at high temperatures.26 This causes

16 17 18 19 20 21 22

23

24

25 26

M.J. Kennish, Practical Handbook of Marine Science (2001), 279. Ibid. Kennish, above n. 16, 280. Kennish, above n. 16, 279 Kennish, above n. 16, 280. Kennish, above n. 16, 279. R.A. Lutz and M.J. Kennish, ‘Ecology of Deep-Sea Hydrothermal Vent Communties.’ (1993) 6(2) Earth in Space 11, 12. P. Ré, ‘Deep-Sea Hydrothermal Vents “Oasis of the Abyss”’, In J. Beurier A. Kiss and S. Mahmoudi (eds) New Technologies and the Law of the Marine Environment, (2000), 69. S.E. Humphris et al. (eds), Seaﬂoor Hydrothermal Systems: Physical, Chemical, Biological, and Geological Interactions, (1995), 87. M.K. Tivey, ‘Hydrothermal Vent Systems.’ (1991) 34(4) Oceanus 68, 69. Ibid.

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11

clay and sulphate minerals to precipitate from the seawater resulting in a modiﬁed ﬂuid with little to no magnesium or sulphate. As temperatures increase metals, silica and sulphides are leached from the rock, resulting in a hot, acidic ﬂuid rich in silica, hydrogen, sulﬁde and metals, relative to seawater.27 Due to intense pressure on the deep ocean ﬂoor the temperature of the ﬂuid can be as high as 350°C without boiling. At such an extreme temperature the water is very buoyant and when it ﬁnds a path through the sea ﬂoor it rises rapidly to the surface of the sea ﬂoor.28 As the ﬂuid exits, it passes from the sea ﬂoor to the surrounding seawater at high velocity. The mixing of the ﬂuid with the surrounding seawater causes changes in pH and temperature and the precipitation of minerals.29 Sulphide minerals crystallise onto the volcanic rocks forming a columnar chimney-like structure on the ﬁssure.30 At the same time ﬁne grained sulphide and oxide minerals31 precipitate from the resulting solution appearing as black smoke.32 Hence these columnar chimney structures are often called “black smokers”.33 Hydrothermal vents generally form at mid-oceanic ridges, however some sites have also been identiﬁed at back-arc and fore-arc spreading centres. Back-arc spreading centres form behind island arcs where old lithosphere is subducted beneath a continental plate moving in the same direction.34 The sinking slab [sic] of lithosphere pulls on the edge of the overlying plate, splitting it open and forming a zone of extension.35 If sufﬁcient heat is generated magma wells up in this zone, providing the heat source required for the formation of hydrothermal vents.36 Hydrothermal vents have also been

27 28 29 30 31 32 33

34 35 36

Ibid. Ibid. Ibid. Ré, above n. 23. Tivey, above n. 25, 70. Ré, above n. 23, 69. Although columnar chimney black smoker forms are common, not all hydrothermal vents ﬁt this description. Apart from black smokers, complex sulphide mounds are perhaps the most impressive form of hydrothermal vent structure. These are typically huge structures, often towering metres above the adjacent ridge access. Examples include several located at the Endeavour hydrothermal vent ﬁeld on the Juan de Fuca Ridge. These are freestanding sulphide mounds 10–30 metres in diameter and up to 40 metres or more in height. One such mound, known as ‘Godzilla’ because of its height, until it collapsed towered some 45 metres above the ocean ﬂoor. These huge structures also typically have multiple black smoker chimneys projecting from them. There are several other variations in morphology and mineral composition, including white smokers, beehives, ﬂanges and massive sulphide deposits. Massive in terms of geology means material made up entirely of sulphide minerals. The term massive does not refer to the size or volume of such a deposit. As such a very small black smoker chimney can be a massive sulphide deposit. For further detailed discussion of the variations in morphology of hydrothermal vents see C.L. Van Dover, The Ecology of Deep-Sea Hydrothermal Vents (2000). Van Dover, above n. 33, 36. Van Dover, above n. 33, 36. Van Dover, above n. 33.

12

Chapter One

found associated with seamounts. This occurs wherever there is sufﬁcient heat and porosity to drive hydrothermal convection. Similarly, on occasion they have been found in the centre of plates where there are active submarine volcanoes.37 1.2.2

Location of hydrothermal vent ecosystems

To date more than 100 hydrothermal vent sites have been identiﬁed around the world.38 The most studied sites are located in the eastern Paciﬁc (principally the East Paciﬁc Rise and the Juan de Fuca, Gorda, and Explorer Ridges) and the north-central Atlantic (principally the Mid-Atlantic Ridge).39 More recently sites have been discovered at 12 sites located on the Gakkel Ridge (which runs under the Arctic Ocean from north of Greenland to Siberia)40 and at least 16 sites identiﬁed within northern waters of New Zealand’s Exclusive Economic Zone.41 Given that the mid-ocean ridges are known to circle the globe for some 75 000 kilometres, it is probably reasonable to speculate that many more, possibly thousands, of hydrothermal vent sites lie hidden below the deep sea, yet to be discovered. For example, little work has been done in the Southern Ocean close to Antarctica.42 Given the size of the ridge system associated with the Antarctic and Australian Plates, it is probably reasonable to speculate signiﬁcant hydrothermal vent sites lie on or adjacent to the boundaries of these plates. 1.2.3

Size and age of hydrothermal ﬁelds

As noted above, the formation of the various types of hydrothermal vent structures is intimately linked to the underlying geological processes. Similarly, their frequency and size are very much dependant on the underlying geological processes. Individual vent ﬁelds43 range in size from several hundred to several million square metres.44 Some, such as the Venture Hydrothermal ﬁeld on the East Paciﬁc Rise, are scattered in a linear

37 38 39 40

41 42

43

44

Van Dover, above n. 33, 37. Ré, above n. 23, 68. Van Dover, above n. 33, 26. Reuters, ‘Life, but not as we know it, on the boiling bed of a frozen ocean’, Sydney Morning Herald. Sydney, 30 November, 2001. Hereinafter EEZ. Interview Dr Cornel de Ronde, 25 November 2003. Since commencing research for this book several possible hydrothermal vent sites have been identiﬁed in Antarctica. See L. Somoza et al., ‘Evidence for hydrothermal venting and sediment volcanism discharged after recent short-lived volcanic eruptions at Deception Island, Bransﬁeld Strait, Antarctica’ (2004) 203 Marine Geology 119 and G.P. Linkhammer et al., ‘Discovery of new hydrothermal vent sites in Bransﬁeld Strait, Antarctica’ (2001) 193 Earth and Planetary Science Letters 395. The expression ‘vent ﬁeld’ is a term used to refer to a single site of hydrothermal emission surrounded by ordinary deep-sea bottom. The subterranean plumbing of different vent ﬁelds may be interconnected, thus fuelling more than one vent. See R. Hessler and V.A. Kaharl, ‘The Deep-Sea Hydrothermal Vent Community: An Overview’, in S.E. Humphris et al., Seaﬂoor Hydrothermal Systems: Physical, Chemical, Biological, and Geological Interactions (1995), 72. Van Dover, above n. 33, 56.

The international signiﬁcance of deep-sea hydrothermal vents

13

fashion along the walls of the narrow axial valley or eruptive ﬁssure.45 Whereas others, such as the Transatlantic Geotraverse,46 are several kilometres away from the neovolcanic zone.47 The geological setting also determines the life of a particular hydrothermal vent. Thus on fast-spreading ridges, cycles of volcanism mean that individual chimneys or areas can be active for only a few decades or less.48 However, radiometric dating on some currently active vents record venting for much longer periods of time. For example, research at the Main Endeavour Field indicates that individual vents can remain active in excess of 200 years.49 Entire ﬁelds can remain active for much longer periods. The TAG ﬁeld on the Mid-Atlantic Ridge, for example, appears to have been intermittently active for the past 40 000 to 50 000 years.50 One further very important physical aspect worth noting in relation to black smokers is their plumes. As hydrothermal ﬂuids exit the opening or oriﬁce of the black smoker they rise buoyantly, drawing in cold water and creating a widening column of turbulent eddies full of black hydrothermal precipitates or smoke.51 Eventually the plume rises to a level where it is carried away by ocean currents.52 These plumes play a very important role in the hydrothermal vent ecosystem, being one of several distinct microbial habitats associated with hydrothermal vents.53

1.3

The Biodiversity of the deep sea

Scientiﬁc interest in the deep sea and what lies below it can be traced back for more than 2000 years.54 However, for the period from the ancient Greeks up until the work of the Challenger Expedition in the nineteenth century, understanding of the biodiversity of the deep sea was at best patchy and largely a matter of conjecture. By the mid nineteenth century work by the likes of the Norwegian naturalist G.O. Sars suggested that the deepsea was home to more than just mythical sea monsters. Sars identiﬁed nearly 100 species of invertebrates living at depths greater than 600 metres.55 In contrast Edward Forbes proposed the concept of the “azoic zone” (i.e. depths greater than 0.6 kms) below which no life was thought to exist.56 For many years controversy raged as to who was correct, Sars or Forbes. 45 46 47 48 49 50 51 52 53

54 55 56

Van Dover, above n. 33, 57. Hereinafter referred to as TAG. Van Dover, above n. 33, 57. Ibid. Ibid. Ibid. Van Dover, above, n. 33, 99. Ibid. This is discussed in more detail below in the context of the ecology of the hydrothermal vent ecosystem. M. Deacon, Scientists and the Sea: 1650–1900: a study of marine science (1971). Gage and Tyler, above n. 13, 3. Gage and Tyler, above n. 13, 4.

14

Chapter One

The Challenger Expedition from 1872 to 1876 settled this debate. An expedition of truly monumental proportions covering 69,000 nautical miles, it hauled samples from the ocean ﬂoor at 240 different locations.57 After nearly 3 1/2 years at sea and a 34 volume report it established that the deep sea was not a zone of zero life.58 However the extent of species diversity in the deep sea was still unclear. From the work of the Challenger expedition up until the late 1960s it was believed that the deep sea was only occupied by a small number of specialised species.59 Work by Howard Sanders and Robert Hessler in the 1960s conﬁrmed that, contrary to previous understanding, there was an increasing diversity of life the greater the depth of the ocean.60 In a controversial publication they argued that the diversity of life in the deepsea globally was probably in the vicinity of 10 million species.61 As one scientist has noted, probably “more than enough species to rival the celebrated diversity of tropical rainforests”.62 Over the last 40 years Sanders and Hesslers’ estimation has remained controversial. Some have argued that species diversity is unlikely to exceed half a million.63 Others have argued that species diversity is in fact far greater than Sanders and Hesslers’ estimate.64 While it is now clear that it is a species rich environment, we simply do not yet know enough about the deep sea to know the full extent of its species diversity. This is due in large part to the fact that less than 0.001% of the deep-sea ﬂoor has been subject to biological investigation.65 As one scientist has suggested: the state of our knowledge about what’s down there is about what we would know of terrestrial creatures if we studied them by dropping grappling hooks from hot air balloons at night, bringing up only policemen [sic] and postmen [sic].66

While we now know that the deep sea is species rich many of these species are spread out amongst the vast expanse of the soft sediments of the sea ﬂoor.67 In contrast to the sparsely populated soft-sediments of other areas of the deep sea, hydrothermal vents have been found to be literally teeming with life.68 They host one of the highest levels

57

58 59 60 61 62 63 64

65

66

67 68

H.L. Burstyn, ‘Big science in Victorian Britain. The Challenger Expedition (1872–6) and its Report (1881–95)’ in M. Deacon, T. Rice and C. Summerhayes, (eds) Understanding the Oceans. A century of ocean exploration (2001), 50. Gage and Tyler, above n. 13, 6. Van Dover, above, n. 33, 8. Ibid. Ibid. Ibid. G.C. Poore and G.D. Wilson, ‘Marine species richness’ (1993) 361 Nature 597. J.F. Grassle and N.J. Maciolek, ‘Deep-sea species richness: regional and local diversity estimates from quantitative bottom samples’ (1992) 139 American Naturalist 313. M.C. Baker et al., ‘An environmental perspective’ In WWF/IUCN, The Status of natural resources on the high seas (2001), 5. C.L. Dybas, ‘The deep-sea ﬂoor rivals rain forests in diversity of life’ (1996) 26 Smithsonian 96, 100. A.J. Butler et al., A Review of the Biodiversity of the Deep Sea (2001), 11. Van Dover, above n. 33, 19.

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15

of animal abundance on Earth.69 It is hardly surprising therefore that terms such as “oases of the abyss”,70 the “Oceanic Gardens of Eden”,71 and “biological islands”72 have all been applied to describe these amazing deep-sea communities. Hydrothermal vents have been shown to exhibit a unique range of habitat diversity with species so adapted to their particular niches that they are not paralleled at other sites on the planet.73 They support amazingly diverse and rich ecosystems with high levels of biodiversity and high levels of endemism. Of the approximately 500 species discovered around hydrothermal vents to date, it is believed that somewhere between 80%74 to 90%75 are endemic to hydrothermal vents and new to science.76 Three phyla dominate and constitute 92% of the species identiﬁed: molluscs (34%), anthropods (35%) and annelids (23%).77 In addition 32 octopus and ﬁsh species have also been observed in and around hydrothermal vents.78 Individual species include giant clams, mussels, the giant tube worm (Riftia pachyptila), brachyuran crabs, galatheid crabs, turrid gastropods, limpets, polychaetes, pink bythitid vent ﬁsh,79 barnacles, brittle stars, sea stars, anemones, sponges, soft corals,80 hairy snails (Alviniconcha hessleri),81 and jellyﬁsh.82 While the total number of new species discovered is high, at individual vent sites local species diversity is typically low with dominance by a few species at each site.83 Over 75% of vent species occur at only one site.84 This endemism may mean that species are restricted to individual vent sites. What limited information that is available also suggests that different biogeographic hydrothermal provinces exist between vents. Different oceans such as the Atlantic and Paciﬁc support quite different biological communities. For example, vent sites in the Atlantic Ocean are characterised by an abundance of shrimp whereas those in the Paciﬁc are dominated by vestimentiferan tubeworms. Very few species have been found in more than one ocean.85 69 70 71

72 73 74 75 76 77

78 79

80 81 82 83 84 85

Baker et al, above n. 65, 18. Ré, above n. 23, 70. C.H. Allen, ‘Protecting the Oceanic Gardens of Eden: International Law Issues in Deep Sea Vent Resources Conservation and Management’ (2001) 13 Georgetown International Environmental Law Review 563. Baker et al., above n. 65, 18. Baker et al., above n. 65, 18. Dando and Juniper, above n. 15, 2. Baker et al., above n. 65, 16. Baker et al., above n. 65, 16. V. Tunnicliffe, A.G. McArthur and D. McHugh, ‘A biogeographical perspective of the deepsea hydrothermal vent fauna’ (1998) 34 Advances in Marine Biology 355, 364. Baker et al., above n. 65, 16. R.A. Lutz and M.J. Kennish, ‘Ecology of deep-sea hydrothermal vent communities: A review’ (1993) 31(3) Reviews of Geophysics 211, 211–214. Lutz and Kennish, above n. 79, 221–223. Lutz and Kennish, above n. 79, 227. R.D. Ballard, The Eternal Darkness: A Personal History of Deep-Sea Exploration, (2000), 184. Butler et al., above n. 67, 5. Butler et al., above n. 67, 5. Baker, above n. 65, 18.

16

Chapter One

The discovery of so many species raised the question of how it was possible for all this life to survive. As one of the scientists involved in the initial discoveries noted: From the moment we ﬁrst saw a bed of gigantic, living clams in 1977, one obvious question engaged everyone’s mind: How can these creatures ﬂourish at such depths, in an environment totally devoid of sunlight? To ﬁnd out, researchers needed to trace the food chain from top to bottom, back to the primary producers. On the earth’s surface, the primary producers are photosynthesizing plants and microbes. Using solar energy to set off a chain of chemical reactions, they convert carbon dioxide and other nutrients into the organic molecules in living tissues. But what was the ultimate energy source in the deep, dark abyss, and what were the nutrients.86

What scientists have subsequently conﬁrmed is that the food chain of the hydrothermal vent ecosystem is based upon chemosynthetic microbial processes rather than photosynthesis.87 In essence, the geological and geochemical processes responsible for forming the mid-oceanic ridges and hydrothermal vents also provide the food upon which the associated ecosystem thrives. Microbes thrive in the extremes of heat, pressure, and the unusual chemistry of the hydrothermal vents. These microbial forms of life oxidise sulphides, together with other chemicals released from hydrothermal vents such as hydrogen, iron or manganese.88 These microbes thus serve as the base of the hydrothermal vent food chain.89 In addition to supporting an amazing diversity of life, it is also worth noting that hydrothermal vent sites host one of the highest levels of microbial diversity on earth.90 Around hydrothermal vents major habitat distinctions within vent ﬁelds are made on the basis of oxygen availability (i.e. aerobic or anaerobic), temperature and mien (i.e. microorganisms suspended in the water column or microorganisms attached to rocks, sediment, animals etc.).91 In terms of temperature, microbes can be categorised depending upon the temperature of the location in which they are found. These categories are

86 87

88 89

90

91

Ballard, above n. 82, 178. J.A. Baross and S.E. Hoffman, ‘Submarine Hydrothermal Vents and Associated Gradient environments as sites for the origin and evolution of life’ (1986) 2 Naval Research Reviews 2, 6. Baross and Hoffman, above n. 87. Many of these microbes have formed symbiotic relationships with several other species. In fact most species associated with hydrothermal vents gain sustenance from these microbes in one form or another. Examples of such species include the tubeworms and some species of clams and mussels. Tube worms, which have no eyes, mouth or digestive tract, rely on these symbiotic bacteria to survive. They absorb oxygen and other inorganic compounds from the water, which the microbes living inside them use to absorb compounds for chemosynthesis. Tube worms are often therefore found in the area just above vent openings clustering in thickets to direct the exiting ﬂuids past the tips of their tubes. Both tube worms and giant clams have been found to contain high amounts of hemoglobin, the oxygen-binding molecule also found in human and other mammals’ blood. See Ballard, above n. 82, 182 and Baross and Hoffman, above n. 87. Canada, Department of Fisheries and Oceans Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001), 5. Van Dover, n. 33, 122.

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17

superthermophilic (ie temperatures greater than 115°C), hyperthermophilic (80–115°C), thermophilic (50–80°C), mesothermophilic (10–50°C) and psychrophilic (i.e. less than 10°C).92 Superthermophiles, hyperthermophiles and thermophiles are of intense interest because of the potential they offer for developments in biotechnology.93 Black smokers are also known to generate plumes which provide an additional distinctive microbial habitat.94

1.4 1.4.1

What is so important about the hydrothermal vent ecosystem? Why bother?

The need to justify the sustainable management of hydrothermal vents

Before a proposal for an international legal regime for the sustainable management of deep-sea hydrothermal vents can be developed it is ﬁrst necessary to justify why such a regime is needed in the ﬁrst place. As one commentator has noted: hyperthermophiles are not likely to generate the passionate lobbying support enjoyed by charismatic mega-vertebrates, like whales or elephants95

Why then should we bother? The most detailed publication to date that has considered this question originated from a workshop organised jointly by scientists working in areas associated with hydrothermal vents, environmental non-governmental organisations such as WWF and representatives of the Canadian government.96 In this publication a raison d’etre or rationale for the preservation of hydrothermal vent ecosystems is presented, adopting the analytical tools of environmental economics. In theory environmental economics is useful in assisting to identify efﬁcient [sic] natural-resource management options for sustainable development.97 It has been argued that environmental economics acts as an

92 93 94

95

96 97

Ibid. The nature of the biotechnology interest in these microbes is discussed in Chapter 7. Plumes are important as zones of chemical reaction between vent ﬂuids and seawater, as habitat and resources for microorganisms zooplankton, and they also have a role to play in dispersal stages of vent biota. In addition, variations in vent chemistry are known to impact on the nature of particular microbial communities. For detailed discussion of different microbial communities see Van Dover above n. 33, 122. P.S. Sochaczewski and J. Hyvarinen, ‘Down Deep: Environmentalists Fight to Protect The Fantastic Microscopic Creatures That Dwell on the Ocean’s Bottom’ (1996) 7 The Environmental Magazine 15, 20. See Dando and Juniper, above n. 15, 4–5. The foundation of such an approach is allocating an economic value to physical and biological resources. The total economic value of a resource is said to consist of its use value and nonuse value. Use values are further broken down into the direct use value, the indirect use value and the option use (potential use) value. See M. Munasinghe, ‘Biodiversity Protection Policy: Environmental Valuation and Distribution Issues’ (1992) 21(3) Ambio 227, 228.

18

Chapter One

essential bridge between more traditional [sic] techniques of decision making and what is said to be an “emerging more environmentally sensitive [sic] approach”.98 The use of environmental economics as an analytical tool has been subject to considerable criticism. Borgese has suggested that applying the language and the logic of environmental economics is “bizarre”.99 Environmental economics struggles to quantify and monetarize the value of environmental goods and services and force them into the market system. It is therefore not an appropriate analytical tool to utilise in the context of oceans management.100 Accordingly it has been suggested that problems of ocean management should be approached not from an economic viewpoint but rather from an ethical one.101 Borgese argues: it would be difﬁcult indeed not to recognise that the world ocean, covering 70% of our planet and over 90% of the biosphere, is an essential part of our life support system. In the light of the magnitude of this fact, monetary considerations appear puny. All we can appeal to is our ethical obligation to conserve our life support system.102

However, it is possible to reconcile both approaches when considering why we should provide for the sustainable management of hydrothermal vents sites. It is true that these sites have an economic value, but they also have an intrinsic value that extends beyond their mere economic value, which is not easily quantiﬁed. Adopting a much more holistic approach beyond that of environmental economics, it is possible to argue that the need for a regime for the sustainable development of hydrothermal vents beyond national jurisdiction is justiﬁed on three main grounds: ﬁrstly, their importance in terms of advancing important scientiﬁc and philosophical debates; secondly, the potential economic value of the resources associated with hydrothermal vents; and ﬁnally, the importance of hydrothermal vents in terms of the conservation of biodiversity, which it is argued should be regarded as the primary reason for implementing measures for their sustainable management. This later reason is the most signiﬁcant because emerging threats to these ecosystems have already been identiﬁed, albeit they are currently vaguely quantiﬁed. Each of these justiﬁcations is considered below. 1.4.2 Hydrothermal vents and two ‘big questions’: The origin of life and the search for life elsewhere in the universe Hydrothermal vents have been of immense interest to a range of different scientiﬁc disciplines since their discovery. The nature of scientiﬁc research is considered in more detail in Chapter 8. However, one of the most interesting scientiﬁc developments to have arisen as a consequence of the discovery of hydrothermal vent ecosystems is their impact on the scientiﬁc debate as to the origin of life on earth, and the search for life elsewhere in the universe.

98 99

100 101 102

Munasinghe, above n. 97. E.M. Borgese, ‘The economics of the common heritage’ (2000) 43 Ocean & Coastal Management 763, 771. Borgese, above n. 99. Borgese, above n. 99. Borgese, above n. 99, 772.

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19

The question of how life ﬁrst started on earth is perhaps one of the greatest unanswered questions of all times. Countless philosophers, theologians and scientists have considered this over time. The likes of Aristole, Thomas Aquinas, Descartes, Francis Bacon, Charles Darwin, to mention but a few, have all in one way or another considered this great unanswered question.103 This debate is by no means concluded. The great unanswered question still remains unanswered, but the discovery of the hydrothermal vent ecosystem, driven as it is by chemosynthetic micro-organisms, has given rise to a new theory as to how life originated on earth. That is that life on earth could very well have originated and evolved in association with hydrothermal vents in the primeval ocean during the early Archaean period (approximately 4,000 million years ago).104 In some respects that theory draws on the earlier work by the likes of Charles Darwin, Alexander Oparin and J.B.S. Haldane.105 In the Origin of the Species 106 Charles Darwin posited the notion that all species are descended from common parents and that differences in individual species arose through the processes of natural selection. In that context Darwin in part illustrates his hypothesis by means of a diagram adopting the metaphor of a tree.107 He ﬁrst uses it to represent the divergence of variants within a species, showing successively more difference in a single lineage and splitting into multiple lineages, some of which will become new species.108 Later, he expands the tree metaphor, explaining that: limbs divided into great branches . . . were themselves once, when the tree was small, budding twigs; and this connection of the former and present buds by ramifying branches may well represent the classiﬁcation of all extinct and living species in groups subordinate.109

Darwin’s metaphor of a tree suggests that all life on earth had a common ancestor. As Darwin observed: I believe that animals have descended from at most only four or ﬁve progenitors, and plants from an equal or lesser number. Analogy would lead me one step further, namely, to the belief that all animals and plants have descended from some one prototype . . . all living things have much in common, in their chemical structure, and their laws of growth and reproduction. We see this even in so triﬂing a circumstance as that the same person often similarly affects plants and animals; or that the poison secreted by the gall-ﬂy produces monstrous growths on the wild rose or oak-tree. Therefore I should infer from analogy that

103

104 105

106

107

108 109

For a detailed discussion and overview of the contribution of these and other great thinkers see I. Fry, The Emergence of Life on Earth: A Historical and Scientifc Overview (2000). Baross and Hoffman, above n. 87. Discussion of this issue below in large part draws on the summary of this theory and subsequent developments provided in R. Ellis, Aquagenesis. The Origin and Evolution of Life in the Sea (2001), 9–16. C. Darwin, On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life (1901). W.F. Doolittle, ‘Phylogenetic Classiﬁcation and the Universal Tree’, http://cas.bellarmine.edu/ tietjen/Ecology/phylogenetic_classiﬁcation_and_.htm accessed 3 April 2003. Ibid. Ibid.

20

Chapter One probably all the organic beings which have ever lived on this earth have descended from some one primordial form, into which life was ﬁrst breathed.110

The Origin of the Species was a controversial publication and Darwin’s theories were subject to intense criticism. Despite the controversial nature of Darwin’s assertions towards the middle of the twentieth century the question of the origin of life had become a legitimate scientiﬁc discourse worthy of further research.111 The most signiﬁcant subsequent development was what is now known as the Oparin-Haldane hypothesis. Both Alexander I. Oparin and J.B.S. Haldane, working independently of each other, claimed “that a necessary step on the way to life was the abundant synthesis of organic compounds on the primordial Earth” and they set out a hypothesis as to “the geophysical conditions on the ancient Earth and the constituents of the early atmosphere that made this synthesis possible”.112 The discovery of the hydrothermal vent ecosystem driven by chemosynthesis has given rise to a new theory as to the origin of life, which implies that an environment much like that found in hydrothermal vents was responsible for the origin of life on earth. In some respects this theory draws upon the intellectual legacy of Darwin, Oparin and Haldane. The hydrothermal vent hypothesis has been put forward by John Baross and Sarah Hoffman.113 Baross and Hoffman formulate the question as to the origin of life in the following terms: what environments could provide all of the physical and chemical conditions for the sequence of reactions leading to organic compounds, self replicating and information-carrying macromolecules, and eventually organisms and ecosystems.114

They go on to propose that: life developed and evolved in a primeval shallow ocean in association with the multiplicity of gradients resulting from the interactions between variables now known to have been important during the early Archaean: the tectonism associated with seaﬂoor spreading, the resultant hydrothermal alteration of newly-emplaced oceanic crust, and the composition of the ocean and atmosphere of the early Earth.115

If this theory is correct then life on earth originated in an environment very similar to that found at deep-sea hydrothermal vents today. It is unlikely that we will ever know if this hypothesis is correct or not. It has been criticised by other scientists such as Miller and Bada,116 who reject the hypothesis outright. However, the hypothesis is consistent with other evidence. Three particular areas are worthy of note: work by microbiologists in relation to position of thermophiles found in hydrothermal vents within the ‘universal tree of life’; recent work by

110 111 112 113 114 115 116

Darwin, above n. 106, 371–372. Fry, above n. 103, 6. Fry, above n. 103, 65. Baross and Hoffman, above n. 87. Baross and Hoffman, above n. 87, 3. Ibid. S.L. Miller and J.L. Bada, ‘Submarine hot springs and the origin of life’(1988) 334 Nature 609.

The international signiﬁcance of deep-sea hydrothermal vents

21

geologists working in the Pilbara region of Western Australia; and more recently emerging evidence as to the origin of the genetic code Deoxyribonucleic Acid or DNA. Until 1977 scientists divided life on earth into two primary kingdoms; the Prokaryotes and the Eukaryotes. In a seminal paper ﬁrst published in 1977 Woese and Fox117 proposed a radical restructuring of this fundamental phylogeny of life. Based on detailed comparisons of 16S and 18S ribosomal ribonucleic acid or rRNA sequences, the two primary kingdoms were partitioned into three discrete domains, named as the Eukaryotes, the Eubacteria and the Archaebacteria.118 Subsequent work by Woese119 revised this system of nomenclature and it is now suggested that all life on earth could be broken into three main domains: the Archaea, Bacteria and Eucarya.120 Comparison of the ribonucleic acid or RNA sequences has led to the discovery of some interesting patterns. If it is accepted that all forms of life had one common ancestor as Darwin alluded to, then bacteria and archaea appear to be the closest to this common ancestor of all life. The heat-loving bacteria and archaea, the hyperthermophiles, appear to be nearest to the common ancestor of all life on earth.121 This tends to suggest that hydrothermal systems may have been a cradle for early biosphere evolution.122 The most primitive thermophiles are all chemosynthetic organisms that use hydrogen and sulphur in their metabolism.123 Modern hydrothermal vents may therefore serve as refuges for close relatives of ancient forms of life.124 This assumes, however, that there are only three branches of the tree, and that what we are seeing is the base of this tree, and not merely the base of the limb of a much bigger tree, the rest of which is now extinct. Indeed the structure of the tree of life may be far more complicated than can be conﬁrmed at this stage.125 However, support for the idea of the origin of life in an environment similar to modern hydrothermal vents is also slowly emerging from the geological record, although the evidence is by no means conclusive. In 2000 Rasmussen reported the discovery of pyritic ﬁlaments contained in a 3,235 million year old deep-sea volcanogenic massive sulphide deposit from the Pilbara Craton, Western Australia.126 These pyritic ﬁlaments

117

118

119

120 121

122 123 124 125

126

C.R. Woese and G.E. Fox, ‘Phylogenetic structure of the prokaryotic domain: the primary kingdoms’ (1977) 91 Proceedings of the National Academy of Science 1810. D.A. Cowan, ‘Hyperthermophilic enzymes: biochemistry and biotechnology’ in L.M. Parson and C.L. Walker, et al. (eds) Hydrothermal Vents and Processes (1995), 351–352. C.R. Woese, O. Kandler and M.L. Wheelis, ‘Towards a natural system of organisms: proposals for the domains Archaea, Bacteria and Eucarya’ (1990) 87 Proceedings of the National Academy of Science 4576. D.A. Cowan, above n. 118, 352. J.D. Farmer, ‘Hydrothermal Systems: Doorways to Early Biosphere Evolution.’ (2000) 7 GSA Today 1. Ibid. Ibid. Ibid. For discussion on this see Doolittle, above n. 107 and W. Martin, ‘Mosaic bacterial chromosomes: a challenge en route to a tree of genomes’ (1999) 21(2) BioEssays 99. B. Rassmussen, ‘Filamentous microfossils in a 3,235-million-year-old volcanogenic massive sulphide deposit’ (2000) 405 Nature 676.

22

Chapter One

have been interpreted by Rasmussen as the fossil remains of thread-like micro-organisms. The implication is that these were chemotrophic hyperthermophiles which lived at or near 100°C.127 The discovery of these probable microfossils suggests that a chemotrophic deep-sea hydrothermal biosphere thrived over 3,235 million years ago, some 2,700 years earlier than previously known.128 This does lend circumstantial support to the argument that steps in the early history of life took place around hydrothermal systems.129 Finally it is worth noting that some evidence suggests that the genetic code or DNA may have originated in a high pressure environment such as that associated with hydrothermal vents.130 1.4.3

Hydrothermal vents and the search for life in outer space

At least since the time of the ancient Greeks, inquiring minds have wondered whether we are alone in the universe, and since that time the question has been a frequent companion to science and philosophy.131

Like the origin of life the search for life beyond earth is a philosophical and scientiﬁc question that humanity has considered for millennia. Current scientiﬁc thinking suggests that the search for signs of life in outer space should concentrate, not on the search for radio waves from space or UFO’s, but instead on the search for traces of thermophilic micro-organisms on Mars. This strategy is premised on the assumption that hydrothermal systems similar to those found on earth may also have at one time existed on Mars. On earth thermophilic microorganisms have been found not only in hydrothermal vent sites on the deep-sea ﬂoor and those in shallower waters, but also in terrestrial biotopes such as sulphur containing solfaratic ﬁelds (i.e. soil, mud holes and surface waters heated by volcanic exhalations from magma chambers).132 There is increasing evidence of the presence of water on Mars during its history and possibly still today.133 Locating possible sites for hyperthermophiles therefore involves identifying sites which indicate both an aqueous environment and volcanic heat sources such as hydrothermal vents. This is what NASA is looking for in the Mars Exploration Rover Mission currently exploring Mars.134

127 128 129 130

131

132

133

134

E. Nisbet, ‘The realms of Archaean life’ (2000) 405 Nature 625. Rassmussen, above n. 126, 679. Nisbet, above n. 127, 626. M.D. Giulio, ‘The Ocean abysses witnessed the origin of the genetic code’ (2005) 346 Gene 7. S.J. Dick, The biological Universe: The Twentieth-Century Extraterrestrial Life Debate and the Limits of Science (1996), I. K.O. Stetter, ‘Hyperthermophilc Organisms’ in G. Horneck and C. Baumstark-Khan (eds) Astrobiology: The Quest for the Conditions of Life, (2002), 170–171. See for example R.A. Kerr, ‘Making a Splash with a hint of Mars Water’ (2000) 288 Science 2295 and M.C. Malin and K.S. Edgett ‘Evidence for Recent Groundwater Seepage and Surface on Mars’, (2000) 288 Science 2330. See NASA web site http://www.nasa.gov/vision/universe/solarsystem/mer_main.html, accessed 30 May 2006.

The international signiﬁcance of deep-sea hydrothermal vents

23

Mars is not the only planet that is currently being investigated for signs of life. It has been suggested that active hydrothermal vent systems exist on Jupiter’s Moon Io and Mar’s Moon Europa. Images sent back to earth by the Galileo spaceship clearly show active volcanoes and possibly hot springs on Io.135 1.4.4

Signiﬁcance of cosmic proportion

the map of life’s early evolution grows ever more detailed as new terrains are inked in…the map is still medieval in aspect, with large blank areas marked ‘Terra incognita’, or ‘Here be cannibals. And we still know little about the far edge of the world of life- where did it come from.136

No one yet knows what the result of ongoing research into the origin of life or the search for life in outer space may be. However, the potential that hydrothermal vent species, in particular bacteria and archaea, have in assisting us to answer either of these great scientiﬁc questions means that hydrothermal vents, and the microbes that inhabit them are potentially organisms of purely cosmic importance. The implications for humanity in discovering how life began or indeed that there is life on other planets would be profound.137 If current scientiﬁc research leads to an answer to either of these ‘big questions’, the discovery and research into the microbial life that inhabits hydrothermal vents may well have led to these discoveries. A truly grand achievement for such an unpretentious and minute form of life! Given the signiﬁcance to all of humanity of solving these great unanswered questions this, of itself, quite apart from any other reasons, provides strong justiﬁcation for a strict application of the precautionary principle which would dictate that all human intervention in these ecosystems proceeds with care. 1.4.5 Potential Economic value of hydrothermal vent resources: tourism and geothermal energy Given the extreme environment in which hydrothermal vents are found, it is perhaps surprising that there could possibly be interest in the exploitation of hydrothermal vents for commercial purposes. Extreme pressure, extreme temperatures, total darkness and the sheer logistical difﬁculties of getting to individual vent sites would suggest that hydrothermal vents would not be a prime target of trade and commerce. Such an assumption is incorrect. Hydrothermal vents present a huge potential (and in some cases an actuality) for exploitation for commercial purposes. Four main commercial activities are worth noting. These are bioprospecting, deep-sea mining, deep-sea adventure tourism, and geothermal energy.

135

136 137

For further details see NASA web sites http://science.nasa.gov/newhome/headlines/ ast30sep99_1.htm and http://antwrp.gsfc.nasa.gov/apod/ap970818.html accessed 10 October, 2002. Nisbet, above n. 127, 626. For detailed discussion of both the scientiﬁc signiﬁcance and the philosophical signiﬁcance of answering either of these questions see for example P. Davies, The Fifth Miracle. The Search for the Origin of Life, (1998).

24

Chapter One

The nature and extent of bioprospecting at hydrothermal vents and developments in biotechnology are canvassed in detail in Chapter 7. Deep-sea mining is discussed in part in Chapters 6 and 9, and accordingly discussion of both these activities is best left until then. Of far less economic signiﬁcance is the emerging market for deep-sea tourism. The deep sea would not typically be regarded as a prime holiday destination. For those tourists jaded by the world’s other travel destinations until recently the only remaining frontier destinations were the Antarctic138 and Space.139 However, the deep sea now appears to be a new and emerging adventure tourist destination. Deep Ocean Expeditions LLC140 currently appears to be the main company actively involved in deep-sea tourism, although that company does not like to call its customers tourists but instead “expedition participants”.141 DOE is a company incorporated in the Isle of Man.142 It was established in 1998 by Australian adventurer Mike McDowell, who has been active in a range of adventure tourist expeditions including the ﬁrst tourist expeditions to the North Pole using Russian nuclear icebreakers, expeditions to the Antarctic continent and space travel.143 DOE was the ﬁrst company to develop a new form of tourism which it calls “Adventure Diving”. Since its establishment in 1998 the company has taken tourists or expedition participants on dives to depths as shallow as 300 feet and as deep as 17,000 feet (about half the greatest depth in the ocean).144 These dives have been to a range of different locations including the wreck of the RMS Titanic in the Atlantic Ocean and the wreck of the German battleship Bismarck off the Irish Coast. DOE has also been involved with the ﬁlming of several impressive documentaries in the deep sea, including the innovative high deﬁnition 3D production in relation to the wreck of the Titanic, Ghosts of the Abyss, directed by James Cameron, as well as several other documentaries produced by the BBC and the Discovery Channel. DOE and James Cameron also recently produced an IMAX documentary on hydrothermal vents, “Volcanoes of the Deep Sea” which involved co-operation with inter alia scientists associated with Macquarie University and the Australian Centre for Astrobiology.145

138

139

140 141

142 143

144 145

Antarctica arguably can no longer be regarded as such given the number of tourists who visit Antarctica each year. For example, in the 2001–2002 season in excess of 11,000 tourists set foot on Antarctica. See International Association of Antarctica Tour Operators web site http://www.iaato.org/tourismstatistics/index.html accessed 16 April 2003. American businessman Dennis Tito became the ﬁrst paying space tourist in April, 2001 with his visit to the International Space Station as part of a Russian mission. Hereinafter DOE. See Deep Oceans Expeditions web site http://www.deepoceanexpeditions.com accessed 23 December 2004. Interview, Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, 5 December 2003. Deep Oceans Expeditions web site http://www.deepoceanexpeditions.com accessed 23 December 2004. Ibid. Interview, Carol Oliver, Australian Centre for Astrobiology, 11 February 2004 and personal correspondence, Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, on ﬁle with author.

The international signiﬁcance of deep-sea hydrothermal vents

25

To date more than 40 people have been taken to deep-sea hydrothermal vents on expeditions organised by DOE.146 Sites visited include hydrothermal vents in the Azores (such as Lucky Strike and Menez Gwen), Mid-Atlantic ocean sites such as Logatchev and sites in the Paciﬁc Ocean such as 9 degrees North and 29 degrees North.147 Participants in these expeditions have included nationals from the USA, Denmark, the United Kingdom, Germany, New Zealand and Costa Rica. One of the Australian participants of note was the author Thomas Keneally who took part in the expedition to 9 Degrees North from 31 August to 12 September 2003.148 The tours are not cheap. The average cost to participants is approximately US$20,000 to US$35,000 per person depending on the destination. This amount typically includes accommodation in hotels on shore, accommodation and meals on the vessel while in the ocean, a dive in a submersible to an active hydrothermal vent site, educational lectures by leading scientists and deep-ocean experts while on board the vessel, and a souvenir videotape of the dive. For those who do not wish to dive to hydrothermal vents the typical cost is approximately US$4,000.149 Signiﬁcantly DOE lists its mission as involving three core principles: to offer unique expeditions for the adventurer; to educate people about the world’s deep oceans; and to help support scientiﬁc research. On face value it appears DOE conducts its expeditions consistent with these core principles. Education of participants and the wider public is at the core of DOE’s activities. Examination of the impressive series of lectures and videos shown to participants on each cruise clearly shows the educational nature of the expeditions.150 Similarly the production of documentaries by the likes of James Cameron for the BBC and the Discovery Channel can only enhance the understanding of the unique environment of the deep sea by the wider community. More signiﬁcantly these expeditions are integrated into existing scientiﬁc research expeditions carried out by the PP Shirshov Institute of Oceanology, Russian Academy of Sciences. The expeditions organised by DOE utilise the Research Vessel R/V Akademik Keldysh and the Mir submersibles. In turn these expeditions provide an extra source of funding for Russian Scientists to carry out their research. This is signiﬁcant in terms of the environmental impact of deep-sea tourism. As these tourist dives are integrated into scientiﬁc research dives this means that the environmental impact of such activities is indistinguishable from that of MSR. Given the clear educational value of these expeditions and, more importantly, the fact that there would appear to be no environmental impact separate from that of MSR, regulation of these activities does not appear to merit consideration at this stage. Provided MSR is

146

147 148

149 150

Interview, Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, 5 December 2003. DOE has also taken more than 100 people to the wreck of the RMS Titanic. Interview, Belinda Sawyer, Operations Manager, Deep Ocean Expedition, 5 December 2003. Deep Oceans Expeditions web site http://www.deepoceanexpeditions.com accessed 23 December 2004. Interview, Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, 5 December 2003. For a detailed description of the educational component of these expeditions see the account of one participant on DOE’s web site site http://www.deepoceanexpeditions.com accessed 23 December 2004.

26

Chapter One

regulated appropriately (and this is the subject of detailed discussion in Chapter 8), no regulation of the emerging deep-sea tourism is warranted at this time. Accordingly a detailed consideration of possible options for regulating deep-sea tourism will be excluded from further consideration in this book. If the nature of deep-sea tourism changes this issue may warrant re-examination at a later date. A further theoretical, but as yet unrealised economic value associated with hydrothermal vents is their potential use for generating hydrogen fuel.151 So far there is no evidence to suggest that this is anything other than a theoretical possibility and accordingly this potential economic activity is also excluded from further consideration in this book. 1.4.6

Primary Justiﬁcation – Conservation of biodiversity

Notwithstanding the value of hydrothermal vents to science and philosophy and their economic value, the most important reason for caring about what happens at hydrothermal vents is the need to conserve and sustainably manage biodiversity. The conservation of biological diversity on earth per se, quite apart from any beneﬁts this may bring to humanity, has been recognised as a desirable objective in its own right. This is a fundamental principle underlying the CBD, which recognises the intrinsic value of biological diversity.152 The recognition of the intrinsic value of biological diversity is signiﬁcant because it may be seen as acknowledging the inherent right of all components of biodiversity to exist independent of their value to humankind.153 Although the conservation of biodiversity is also explicitly recognised as the common concern of humankind by the CBD.154 As the deep sea constitutes the most typical habitat on earth and is where literally millions of species live,155 we do need to take steps to conserve the biological diversity of this habitat, particularly where speciﬁc threats have been identiﬁed. Despite the environment in which these species are found, and notwithstanding the logistical difﬁculties for humans in accessing them, hydrothermal vent ecosystems and their associated and dependent species are under threat from human activity. The published literature has identiﬁed in general terms the main known threats to hydrothermal vents and their dependant ecosystems. The threats to hydrothermal vent ecosystems that have been identiﬁed are: MSR; bioprospecting for genetic resources; deep seabed mining; and deep-sea tourism.156

151

152

153 154

155

156

Y.V. Bubis and Z.N. Molochnikov et al., ‘Hydrogen Fuel Production in the Ocean using the Energy of “Black Smokers” (1993) 11 Marine Georesources and Geotechnology 259. L. Glowka and F. Burhenne-Guilmin et al., A Guide to the Convention on Biological Diversity, (1994), 9. Glowka and Burhenne-Guilmin above n. 152. See discussion in relation to the distinction between this concept and the common heritage of mankind in Chapter 5. J.D. Gage and P.A. Tyler, Deep-Sea Biology: A natural history of organisms at the deep-sea ﬂoor (1991). Dando and Juniper, above n. 15, 6–8.

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27

Two further threats that have been noted but not considered in any detail are the impacts of pollution and the introduction of alien invasive species on deep-sea habitats.157 Review of the existing scientiﬁc, legal and policy literature during research for this book could not identify any detailed consideration of the scale and nature of these threats. For the foreseeable future though MSR, mining, and bioprosecting seem to be the most signiﬁcant activities that may impact on hydrothermal vents,158 even though these threats are to date largely vaguely understood and quantiﬁed. Further detailed scientiﬁc research on the nature of these threats is clearly warranted. Despite the lack of detailed information about these threats, we should be concerned about the loss of species in the deep sea and at hydrothermal vents just as much as in any other region or habitat on earth. Given the greater proportion of the earth’s species diversity that is found in the deep sea, our concern for species of the deep sea arguably should be just as great, if not greater, than other regions of the planet. With an emerging awareness that such threats do exist, the agreed objectives of biodiversity conservation and the intrinsic right of such species to exist recognised by the CBD, and adopting a precautionary approach,159 a shift in the focus of our efforts to the deep sea and hydrothermal vent ecosystems in particular is justiﬁed. In many respects the battle to shift the focus of the conservation debate to the deepsea is a new frontier that brings with it many new challenges. Extremes of depth, pressure and darkness mean that this is an area of the planet that few people understand and of which even fewer have ﬁrst hand experience. As such it poses unique difﬁculties for legal regulation.

1.5

Conclusion

It does appear that there is some conﬂict between conservation of the biodiversity of hydrothermal vents and some of the other reasons for bothering about the deep sea and hydrothermal vents in particular. How can we take advantage of the growth in scientiﬁc knowledge that hydrothermal vents offer while ensuring that this important scientiﬁc research does not destroy the very ecosystem from which that knowledge may potentially come? Likewise how can we sustainably use the genetic and mineral wealth of hydrothermal vents? How international law should respond to these issues and the interests of the different stakeholders involved is at the core of this book. Before turning to these central issues Chapter 2 considers the existing status of hydrothermal vents and their sustainable management under international law.

157 158

159

Dando and Juniper, above n. 15. L. Glowka, ‘Testing the Waters: Establishing the Legal Basis to Conserve and Sustainably Use Hydrothermal Vents and Their Biological Communities” (1999) 8(2) InterRidge News. For discussion of the precautionary approach and or principal see Chapter 2.

Chapter 2 Framework treaties and key concepts in international law 2.1

Introduction

This chapter examines core aspects of international law that apply to hydrothermal vents and their associated ecosystems. It begins with an examination of key concepts that are relevant to assessing the effectiveness of the existing law and any needed reforms. These concepts are sustainable development, the related concept of intergenerational equity, the precautionary principle and the ecosystem approach. The chapter then goes on to consider the extent to which existing international law can provide for the sustainable management of deep-sea hydrothermal vents. In particular it examines the core global treaties LOSC and the CBD. The chapter will then go on to examine recent developments on this issue within the context of both the work of the Subsidiary Body on Technical and Technological Advice to the CBD1 and the Conference of Parties2 of the CBD. The chapter then concludes with an examination of the ongoing work of UNICPLOS and relevant resolutions of the United Nations General Assembly. Parallel developments within the ISA are canvassed in Chapter 9.

1 2

Hereinafter SBSTTA. Hereinafter COP.

30

Chapter Two

2.2 2.2.1

Foundation concepts in international environmental law and policy Stockholm and beyond

International environmental law is a modern construct. The key event often referred to as the beginning of international environmental law is the 1972 Stockholm Conference on Environment and Development. The Stockholm Conference was attended by 114 states as well as a large number of international institutions and non-governmental observers.3 The key outcomes of the Stockholm Conference were three non-binding instruments including a resolution on institutional and ﬁnancial arrangements, the Stockholm Declaration4 containing 26 Principles, and an Action Plan containing 109 recommendations.5 Of these outcomes the Stockholm Declaration is by far the most signiﬁcant. Although it did not speciﬁcally use the term sustainable development, it is widely regarded as laying the groundwork for its subsequent acceptance as a core principle of international environmental law and policy.6 The most widely accepted deﬁnition of sustainable development is that contained in the Brundtland Report.7 That is: development that meets the needs of the present without compromising the ability of future generations to meet their own needs.8

The signiﬁcance of the Brundtland Report and in particular its articulation of the concept of sustainable development went far beyond merely introducing a new concept into international discourse. As Sands notes the Bruntland Report: focused world attention on population, food security, the loss of species and genetic resources, energy, industry, and human settlements, recognizing that these are connected and cannot be treated in isolation from each other. On international co-operation and institutional reform the focus included the role of the international economy, managing global commons, the relationship between peace, security, development and the environment and institutional and legal change.9

The Brundtland Report then went on to make recommendations in respect of each of these matters identifying key challenges for the development of international law in areas in and beyond national jurisdiction. Thus not only did the Bruntland Report provide a widely acceptable deﬁnition of sustainable development, it also mapped out the road to achieve it. Following this road map sustainable development has been a core concept at the centre of subsequent developments in international law and policy, including the outcomes of the 1992

3

4

5 6 7 8 9

P. Sands, Principles of international environmental law: Frameworks standards and implementation, (1995), 34. Declaration of the UN Conference on the Human Environment, Stockholm. 5–16 June 1972, UN Doc. A/CONF/.48/14/REV.1 (1972). Sands, above n. 3. D. Hunter, J. Salzman and D. Zaelke, International Environmental Law and Policy, (2002), 177. World Commission on Environment and Development, Our Common Future, (1987). World Commission on Environment and Development, above n. 5, 43. Sands, above n. 3, 46.

Framework treaties and key concepts in international law

31

United Nations Conference on Environment and Development in Rio de Janeiro10 (such as the Rio Declaration)11 and development of treaties such as the CBD. 2.2.2

Intergenerational equity

A key principle of international law closely allied with sustainable development is the notion of intergenerational equity.12 In essence the principle of intergenerational equity is a principle of fairness that requires “that present generations not leave future generations worse off by the choices we make today regarding the environment”.13 In implementing the principle of intergenerational equity the current generation must ensure that it uses natural resources sustainably and avoids irresponsible environmental damage.14 This principle would suggest therefore that hydrothermal vent ecosystems should be sustainably managed so that they remain for future generations. 2.2.3

The Precautionary Principle

The Precautionary Principle is another principle of direct relevance to examining regulation of human activities at hydrothermal vents and considering proposals for reform to international law. The most widely accepted forumaltion of the Precautionary Principle is that contained in Principle 15 of the Rio Declaration.15 Principle 15 of the Rio Declaration provides: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientiﬁc certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.16

The Precautionary Principle is reﬂected in numerous examples of State Practice, international treaties and other sources of international and domestic law.17 It has been

10 11

12

13 14 15 16 17

Hereinafter referred to as the Rio Earth Summit. Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 UN Doc. A/CONF 151/26. Hereinafter referred to as the Rio Declaration. The principle of intergenerational equity is widely reﬂected in international law in treaties such as the CBD and in instruments such as the Stockholm Declaration. Hunter, Salzman and Zaelke, above n. 6, 398. Ibid. Hunter, Salzman and Zaelke, above n. 6, 406. Principle 15 Rio Declaration. For a detailed review of examples of incorporation of the precautionary principle in international legal instruments see J. Cameron and J. Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’ (1991) 14(1) Boston College International & Comparative Law Review 1 and de Sadeleer N., Environmental Principles. From Political Slogans to Legal Rules, (2005), 94–139. In a domestic law context see also the recent very detailed consideration of the Precautionary Principle by His Honour Chief Justice Preston of the New South Wales Land and Environment Court in Testra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133. This decision is arguably one of the most detailed judicial considerations of the scope and nature of the Precautionary Principle to date.

32

Chapter Two

suggested that given the widespread adoption of the Precuationary Principle it may well be regarded as having crtystalised into customary international law, although this is not universally accepted.18 The exact nature of the Precautionary Principle is widely contested and a detailed review of the adademic discourse on this issue is beyond the scope of this chapter. Nonetheless it is worth noting that many commentators accept that “the Precautionary Principle acts to shift the burden of proof necessary for triggering policy responses from those who support prohibiting or reducing a potentially offending activity to those who want to continue the activity”.19 However, precaution deﬁned as involving a reversal of the onus of proof has been subject to considerable criticism.20 Depending on the context in which the Precautionary Principle is being considered it has been suggested that it may be more appropriate for the Precautionary Principle to be considered as setting the standard of proof required rather than reversing the onus of proof.21 Regardless of the precise characterisation of the Precautionary Principle it is clear that it is a Principal of great signiﬁcance in international environmental law and policy discourse, and is of particular relevance to considering gaps in law and policy and in identifying needed reforms. 2.2.4

The Ecosystem Approach

Finally, before considering the operation of substantive treaties it is worth commenting brieﬂy on the signiﬁcance of the ecosystem approach for dealing with environmental issues. The ecosystem approach is not a legal principle as such. Instead it has been argued that the: ecosystem approach is a method for sustaining or restoring natural systems and their functions and values. It is goal driven, and it is based on a collaboratively developed vision of desired future conditions that integrates ecological, economic, and social factors. It is applied within a geographic framework deﬁned primarily by ecological boundaries. The goal of the ecosystem approach is to restore and sustain the health, productivity, and biological diversity of ecosystems and the overall quality of life through a natural resource management approach that is fully integrated with social and economic goals.22

18

19 20

21 22

Ibid. The status of the Precautionary Principle as Customary international law is hotly debated. International tribunals such as the International Tribunal for the Law of the Sea although from time to time considering the Precautionary Principle have so far refrained from determining whether the Precautionary Principle is a principal of Customary international law or not. See for example the decision of the International Tribunal for the Law of the Sea in the Southern Blueﬁn Tuna Cases (New Zealand v Japan; Australia v Japan (Provisional Measures), ITLOS Cases No. 3 and 4, 27 August 1999. D. Hunter, J. Salzman and D. Zaelke, above n. 6. J. Peel, The Precautionary Principle in Practice. Environmental Decision-Making and Scientiﬁc Uncertainty, (2005), 155. Ibid. US Department of Commerce, The Ecosystem Approach: Healthy Ecosystems and Sustainable Economies, (1995) available from https://www.denix.osd.mil/denix/Public/ES-Programs/ Conservation/Ecosystem/ecosystem1.html#approach accessed 9 November 2005.

Framework treaties and key concepts in international law

33

The ecosystem approach has been widely adopted in a range of contexts and in numerous legal instruments. One of the most signiﬁcant endorsements of the ecosystem approach was by the COP to the CBD. In 2000 decision V/6 the COP of the CBD deﬁned and endorsed the ecosystem approach in the context of the CBD in the following terms: 1. The ecosystem approach is a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way. Thus, the application of the ecosystem approach will help to reach a balance of the three objectives of the Convention: conservation; sustainable use; and the fair and equitable sharing of the beneﬁts arising out of the utilization of genetic resources. 2. An ecosystem approach is based on the application of appropriate scientiﬁc methodologies focused on levels of biological organization, which encompass the essential structure, processes, functions and interactions among organisms and their environment. It recognizes that humans, with their cultural diversity, are an integral component of many ecosystems. 3. This focus on structure, processes, functions and interactions is consistent with the deﬁnition of “ecosystem” provided in Article 2 of the Convention on Biological Diversity: ‘Ecosystem’ means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.” This deﬁnition does not specify any particular spatial unit or scale, in contrast to the Convention deﬁnition of “habitat”. Thus, the term “ecosystem” does not, necessarily, correspond to the terms “biome” or “ecological zone”, but can refer to any functioning unit at any scale. Indeed, the scale of analysis and action should be determined by the problem being addressed. It could, for example, be a grain of soil, a pond, a forest, a biome or the entire biosphere. 4. The ecosystem approach requires adaptive management to deal with the complex and dynamic nature of ecosystems and the absence of complete knowledge or understanding of their functioning. Ecosystem processes are often non-linear, and the outcome of such processes often shows time-lags. The result is discontinuities, leading to surprise and uncertainty. Management must be adaptive in order to be able to respond to such uncertainties and contain elements of “learning-by-doing” or research feedback. Measures may need to be taken even when some cause-and-effect relationships are not yet fully established scientiﬁcally. 5. The ecosystem approach does not preclude other management and conservation approaches, such as biosphere reserves, protected areas, and single-species conservation programmes, as well as other approaches carried out under existing national policy and legislative frameworks, but could, rather, integrate all these approaches and other methodologies to deal with complex situations. There is no single way to implement the ecosystem approach, as it depends on local, provincial, national, regional or global conditions. Indeed, there are many ways in which ecosystem approaches may be used as the framework for delivering the objectives of the Convention in practice.23

Having now brieﬂy examined core principles and concepts of relevance to the existing law that applies to hydrothermal vents and possible reforms to the law, the following discussion now turns to consider the operation of the key treaties the LOSC and the CBD. 23

CBD COP Decision V/6, available from http://www.biodiv.org/decisions/?m=cop-05 accessed 9 November 2005.

34

Chapter Two

2.3 2.3.1

Framework treaties

United Nations Convention on the Law of the Sea and hydrothermal vents

LOSC establishes a comprehensive framework for the regulation of ocean space.24 Apart from the CBD, LOSC is one of the most widely ratiﬁed treaties in the history of international law. As at 28 April 2006, 157 countries have signed LOSC. Of these countries 149 have subsequently ratiﬁed the treaty. While some countries have signed, but not yet ratiﬁed the treaty, pursuant to Article 18 of the 1969 Vienna Convention on the Law of Treaties,25 pending ratiﬁcation by these countries they are under an obligation to refrain from acts which would defeat its object and purpose. The regime established by LOSC and the Part XI Agreement governs, inter alia, the limits of national jurisdiction over ocean space, access to the seas, navigation, protection of the marine environment, exploitation of living resources and conservation, MSR, sea-bed mining, exploitation of non-living resources, and the settlement of disputes.26 In many respects LOSC has rightly been called a “comprehensive constitution for the oceans”.27 While this may have been true in 1982, today its ability to deal with new emerging issues such as the sustainable management of the deep sea and hydrothermal vents in particular is less comprehensive. Hydrothermal vents and their dependant ecosystems, although known to exist as early as 1977, were not considered during LOSC’s negotiations.28 As such, in examining the applicability of LOSC we must recognise that what we are trying to do is to make the law of another era ﬁt the needs of today. While to some extent the provisions of LOSC are ﬂexible and can be stretched in part to meet the needs of today, they are far from elastic enough. 2.3.2

Jurisdictional zones of the oceans under LOSC

LOSC divides ocean space up into a number of jurisdictional zones. For present purposes the most signiﬁcant zones are the 12 nautical mile territorial sea, the 200 nautical mile EEZ, the continental shelf, the high seas and that portion of the sea-bed beyond national jurisdiction on the high seas known as the Area.29 Coastal States possess

24

25

26 27

28 29

B. Zuleta, Special Representative of the Secretary-General to the Third United Nation Conference on the Law of the Sea, in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea (1983). Convention on the Law of Treaties, opened for signature 23 May 1969, 8 ILM (1969), 679 (in force 27 January 1980). B. Zuleta, above n. 24, XXIV. T.T. Koh, President of the Third United Nations Conference on the Law of the Sea, in United Nations, above n. 24, xxxiii. As distinct from their associated mineral resources. The Area is deﬁned in Article 1(1) as the sea-bed and ocean ﬂoor and subsoil thereof, beyond the limits of national jurisdiction. The legal status of the Area is discussed in more detail below in the context of considering the deep-sea mining regime established under LOSC and the Part XI Agreement.

Framework treaties and key concepts in international law

35

sovereignty to regulate all access to and exploitation of all living and non living resources located within the territorial sea and seabed.30 Similarly in exercise of their sovereignty, coastal States have the exclusive right to regulate, authorize and conduct MSR in their territorial sea.31 Part V of LOSC establishes the regime of the EEZ. The rights of the coastal state within its EEZ are as follows: (a) sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed 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; (b) jurisdiction as provided for in the relevant provisions of [LOSC] with regard to: (i) the establishment and use of artiﬁcial islands, installations and structures; (ii) marine scientiﬁc research; (iii) the protection and preservation of the marine environment (c) other rights and duties provided for in [LOSC].32

Rights in relation to the seabed and subsoil are subject to the provisions of Part VI of LOSC, which sets out the Continental Shelf Regime. Similarly the rights of the coastal State are also subject to the freedoms of navigation and overﬂight, and recognised rights in relation to the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to those freedoms.33 The speciﬁc legal regime of the EEZ established by Part V also includes very detailed provisions as to the coastal States’ rights and duties to conserve and manage speciﬁc species.34 It is signiﬁcant to note, however, that pursuant to Article 68 the provisions of Part V do not apply to the so called sedentary species. The importance of this distinction is discussed in more detail below. In exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the EEZ the coastal State may “take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity” with LOSC.35 2.3.3

The Continental Shelf Regime

Part VI of LOSC establishes the legal regime of the Continental Shelf. Under Article 76 the continental shelf is deﬁned in relation to the coastal state as: the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the

30 31 32 33 34 35

LOSC, Article 2. LOSC, Article 245. LOSC, Article 56. LOSC, Article 58(1). Speciﬁcally Articles 61, 62, 63, 64, 65, 66, 67 and 68. LOSC, Article 72.

36

Chapter Two territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.36

The continental margin comprises the submerged prolongation of the landmass of the coastal State, including the seabed and subsoil of the shelf, the continental slope and the continental rise. It does not include the deep ocean ﬂoor with its oceanic ridges or the subsoil thereof.37 Pursuant to Article 77(1) the coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf.38 The term ‘natural resources’ as used in Part VI consists of the “mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to the sedentary species,” that is, “organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.”39 These rights are exclusive to the coastal State. If the coastal State does not explore the continental shelf or exploit its ‘natural resources’ no other State or person may do so without the express consent of the coastal State.40 Similarly under Article 81 of LOSC, the coastal State has the exclusive right to authorise and regulate drilling on the continental shelf for all purposes.41 However, the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.42 Similarly, under Article 78(2), the exercise of the rights of the coastal State must not infringe or result in unjustiﬁable interference with navigation and other rights and freedoms of other States provided for under LOSC. 2.2.4

The high seas

Part VIII contains the provisions dealing speciﬁcally with the high seas. The high seas for the purposes of LOSC are regarded as: all parts of the sea that are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.43

They are reserved for peaceful purposes,44 and no State may validly purport to subject any part of the high seas to its sovereignty.45 Every State (both coastal and land-locked) has the right to sail ships ﬂying its ﬂag on the high seas.46 LOSC speciﬁcally recognises

36 37 38 39 40 41 42 43 44 45 46

LOSC, Article 76(1). LOSC, Article 76(3). LOSC, Article 77(1). LOSC, Article 77(4). LOSC, Article 77(2). LOSC, Article 81. LOSC, Article 78(1). LOSC, Article 86. LOSC, Article 88. LOSC, Article 89. LOSC, Article 90.

Framework treaties and key concepts in international law

37

the traditional notion of freedom of the high seas which may be exercised by all States whether coastal or land-locked.47 Without limiting what may be regarded as an exercise of the freedom of the high seas, Article 87 states that it includes: freedom of navigation; freedom of overﬂight; freedom to lay submarine cables and pipelines (subject to Part VI); freedom to construct artiﬁcial islands and other installations permitted under international law (subject to Part VI); freedom of ﬁshing (subject to Parts VI and XIII); and freedom of scientiﬁc research (subject to Parts VI and XIII). These freedoms must be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, other rights under LOSC and with respect to activities in the Area.48 2.3.5

LOSC Part XII – Protection and Preservation of the Marine Environment

Under Article 192 of LOSC States have accepted the general “obligation to protect and preserve the marine environment.”49 This general obligation is a separate discrete obligation from the more detailed obligations dealing with speciﬁc issues contained in other provisions of LOSC.50 Some guidance on how the general obligation under Article 192 is to be implemented is provided by Article 197 which states: States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organization [sic], in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account regional features.51

LOSC therefore leaves the means of implementation of the general obligation under Article 192 to be formulated at a later date. This is a reﬂection of the fact that LOSC is essentially a framework convention stating general principles and obligations, leaving the expansion and implementation of these general obligations to the development of other treaties, with particular emphasis placed on their development and implementation on a regional basis. It is at the regional level that this general obligation has principally been expanded and implemented. Additional provisions deal with aspects of the protection of the marine environment in speciﬁc jurisdictional zones. Quite clearly any hydrothermal vent sites that lie within a coastal State’s territorial sea would be governed by any particular measures introduced by individual coastal State’s within their territorial sea. A number of State’s have implemented measures that apply to hydrothermal vent sites within their territorial waters and or EEZ. These are examined in Chapter 6.

47 48 49 50

51

LOSC, Article 87. See LOSC Article 87(2). LOSC, Article 192. For example, those dealing speciﬁcally with pollution in the marine environment under Articles 207–212 or those dealing with the environmental impact of deep-sea mining contained within Article 145 and Annex III of LOSC. LOSC, Article 197.

38

Chapter Two

The position within the EEZ and the area governed by the Continental Shelf Regime is more complicated. As noted above under Article 56(b)(iii), the coastal State has jurisdiction within the EEZ with regard to the protection and preservation of the marine environment. Pursuant to Article 61 of LOSC the coastal State is also speciﬁcally authorised to determine the allowable catch of the living resources in its EEZ. Article 61 is supplemented by a number of other provisions of Part V, which also establish different regimes for the exploitation and conservation of living marine resources depending upon whether or not they fall within particular scientiﬁc categories. Thus speciﬁc provision is made for highly migratory species,52 which are governed by Article 64, Marine Mammals, which are governed by Article 65, Anadromous stocks, which are governed by Article 66, and Catadromous species governed by Article 67. However, as noted earlier, Article 68 speciﬁcally excludes the provisions of Part V from applying to sedentary species. This therefore raises the question as to whether species associated with hydrothermal vents are sedentary species, in which case the provisions of Part VI, establishing the Continental shelf Regime might apply. 2.3.6

Are hydrothermal vent species sedentary species?

The extent to which the coastal State can regulate activities at hydrothermal vents on its continental shelf is unclear. Pursuant to Article 77(1) of LOSC, the coastal State has ‘sovereign rights’ to explore and exploit the ‘natural resources’ of the continental shelf. The term ‘natural resources’, as used in Part VI, is deﬁned in Article 77(4) of LOSC as the “mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to the sedentary species.” The literature to date53 has established the difﬁculty in attempting to bring species associated with hydrothermal vents within the deﬁnition of sedentary species contained in Article 77(4). As Allen notes, the deﬁnition of sedentary species “has little or no relationship to biological taxonomy”54 and working out whether hydrothermal vent species fall within the deﬁnition of sedentary species presents a number of problems. Firstly, there are clearly difﬁculties in identifying the harvestable stage of many hydrothermal vent species. Indeed, most species such as microbes are not collected in a way that can be regarded as harvesting.55 More problematic, though, is the requirement that such species be either immobile on or under the seabed, or unable to move except in constant physical contact with the seabed or the subsoil. Some species found at hydrothermal vent sites arguably fall within this requirement (for example molluscs and gastropods and possibly tubeworms), while others such as ﬁsh and octopus species, are clearly

52 53

54 55

Being particular species listed in Annex 1 to LOSC, e.g. Blueﬁn tuna. The most detailed consideration to date being C.H. Allen, ‘Protecting the Oceanic Gardens of Eden: International Law Issues in Deep Sea Vent Resources Conservation and Management’ (2001) 13 Georgetown International Environmental Law Review 563 and H. Korn, S. Friedrich and U. Feit, Deep Sea Genetic Resources in the Context of the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea (2003). Allen, above n. 53, 621. Allen, above n. 53, 622–623.

Framework treaties and key concepts in international law

39

capable of movement through the water without being in constant physical contact with the seabed, and therefore, clearly fall outside the deﬁnition.56 Given the different miens in which microbes are found, some, such as those found in hydrothermal plumes, arguably fall outside the deﬁnition of sedentary species, while others, such as those under the seabed, may arguably fall within the deﬁnition, if immobile at the harvestable stage. Therefore, within one ecosystem around an individual vent ﬁeld there will be both macrofauna and microfauna that meet the test for sedentary species and therefore fall within the Continental Shelf Regime, as well as macrofauna and microfauna that will not fulﬁl the deﬁnition of sedentary species and which therefore fall outside the Continental Shelf Regime.57 Korn et al.58 have suggested that since many species fall outside the sedentary species deﬁnition this leads to a “fractured regulatory approach regarding management and conservation” of hydrothermal vents and their associated biological resources. Does the failure of some macrofauna and microfauna to fall within the deﬁnition of sedentary species really matter? Is the consequence as signiﬁcant as Korn et al. and Allen’s detailed analysis suggest? If the particular macrofauna or microfauna cannot be regarded as falling within the deﬁnition of sedentary species, but they are located within the coastal State’s EEZ then the coastal State nonetheless has both the sovereign right to explore, exploit, conserve and manage such macrofauna or microfauna as ‘natural resources’ under Article 56(1)(a) of LOSC, as well as the jurisdiction to take measures to protect and preserve such living resources as part of the marine environment under Article 56(1)(iii). That is, if such species are found within the EEZ and are not sedentary species then the EEZ regime applies. If the particular macrofauna or microfauna do fall within the deﬁnition of sedentary species, and are located within the coastal State’s EEZ and its continental shelf then the coastal State has the sovereign right to explore and exploit such natural resources under Article 77. The rights are expressed as sovereign rights. Such sovereign rights would include the right to prohibit any form of exploitation and or the right to make exploitation for any purpose subject to or conditional on compliance with measures to protect and preserve individual vent sites or to minimise the environmental impact of such activities. Although such measures are not speciﬁcally mentioned they would arguably constitute a legitimate exercise of sovereign rights with respect to such resources. The practical effect, therefore, would be that a State could take the same measures within the area of its continental shelf as it could within the EEZ. However, the distinction between sedentary species and non-sedentary species might matter where a hydrothermal vent site is found outside the EEZ but on the continental shelf. That is where a State claims a continental shelf that extends beyond the limit of the EEZ. However, by operation of Article 76(3) of LOSC, hydrothermal vent sites associated with the mid ocean ridges fall outside the scope of the Continental Shelf Regime. This is because Article 76(3) speciﬁcally excludes oceanic ridges of the deep ocean ﬂoor

56 57 58

Allen, above n. 53, 625–628. Allen, above n. 53, 627– 628. Korn et al., above n. 53, 40.

40

Chapter Two

from the Continental Shelf Regime. Nonetheless, the issue may arise where a hydrothermal vent is not associated with the mid ocean ridge system but is located on a coastal State’s continental shelf. Such sites occur on New Zealand’s continental shelf. The implications of this for New Zealand are discussed in Chapter 6. 2.3.7

LOSC and marine pollution-Light and noise pollution in the deep sea

The most comprehensive provisions of LOSC dealing with protection of the marine environment are those relating to pollution. Article 1(4) of LOSC deﬁnes “pollution of the marine environment” as: the introduction by man [sic], directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including ﬁshing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.59

While this deﬁnition obviously includes more typical types of pollution such as oil, polychlorinated biphenyls or PCBs, and heavy metals (such as lead, mercury and cadmium),60 the deﬁnition has a potentially wider scope of operation. The reference to ‘energy’ could be read to cover all forms of energy including noise61 and light. This provision of LOSC is based on an earlier version prepared by the Joint Group of Experts on the Scientiﬁc Aspects of Marine Environmental Protection.62 The original deﬁnition referred only to the introduction of substances but the term ‘energy’ was added later following concerns about thermal pollution.63 A wide interpretation of the term ‘energy’ to include noise and light pollution would be consistent with Article 31(1) of the Vienna Convention on the Law of Treaties64 which provides that: a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to terms of the treaty in their context and in the light of its object and purpose.65

Energy could therefore arguably be interpreted as including light and noise energy. The use of the expression “results or is likely to result” in the deﬁnition in Article 1(4) indicates that the ‘deleterious effects’ need not have manifested themselves yet, but can reasonably be expected to occur.66 Even in the absence of full scientiﬁc certainty as to whether ‘deleterious effects’ have occurred or are about to occur, there is a need to act

59 60 61

62 63 64 65

66

LOSC, Article 1(4). R.R. Churchill and A.V. Lowe, The Law of the Sea (1999), 331. H.M. Dotinga and A.G. Oude Elferink, ‘Acoustic Pollution in the Oceans: The Search for Legal Standards’ (2000) 31 Ocean Development & International Law 151, 158. Dotinga and Oude Elferink, above n. 61. Dotinga and Oude Elferink, above n. 61, 158. Dotinga and Oude Elferink, above n. 61. Convention on the Law of Treaties, opened for signature 23 May 1969, 8 ILM (1969) 671, (entered into force 27 January 1980). Dotinga and Oude Elferink, above n. 61, 159.

Framework treaties and key concepts in international law

41

with caution and not delay preventative action where the circumstances require such.67 Such an interpretation is consistent with the Precautionary Principle. One of the unique environmental impacts of human activities in the deep sea is the introduction of light. There is evidence that the introduction of light may result in ‘deleterious effects’ that harm the living resources of the deep sea. For example, there is evidence that the introduction of light to the deep-sea environment may lead to blindness in species of shrimp associated with hydrothermal vents whose eyes are adapted to the total darkness of the deep sea.68 Light is introduced into the deep-sea environment by scientists carrying out research in the deep sea, by bioprospecting and in the course of deep-sea tourism. Although deep-sea mining has not yet commenced, it is reasonable to expect that the introduction of light energy into the deep-sea environment will also have an environmental impact. Likewise, although little is known about the impact of noise pollution in the deep-sea environment, and on hydrothermal vent ecosystems in particular, it is conceivable that there may be some impact. Pending further scientiﬁc research to clarify this a precautionary approach should be adopted. So far there have been no steps taken speciﬁcally to implement measures to regulate the introduction of light or noise into the deep-sea environment. However, the use of the term ‘energy’ in Article 1(4) does appear to provide a legal basis for the adoption of such regulation at some future date. In addition to LOSC, it should be noted that the deﬁnition in Article 1(4) has been incorporated verbatim into many other international and regional instruments dealing with the protection of the marine environment.69 These include the OSPAR Convention,70 the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area,71 the 1992 Convention of the same name72 and most of the framework treaties adopted under the United Nations Environment Programme73 the Regional Seas Program (including some protocols dealing with speciﬁc sources of marine pollution).74 It would, therefore, appear that, at both an international and a regional level, there is existing law that provides a framework to implement measures to protect hydrothermal vent ecosystems from the possible environmental impacts of light and noise pollution.

67 68 69 70

71

72

73 74

Dotinga and Oude Elferink, above n. 61, 159. P.J. Herring et al., ‘Are vent shrimps blinded by science?’ (1998) 398 Nature 116. Dotinga and Oude Elferink, above n. 59, 159. Convention for the Protection of the Marine Environment of the North-East Atlantic, opened for signature 22 September 1992, 32 ILM (1992) (entered into force 25 March 1998). Convention on the Protection of the Marine Environment of the Baltic Sea Area, opened for signature 19 February 1974, 13 ILM (1974) (entered into force 5 October 1976). Convention on the Protection of the Marine Environment of the Baltic Sea Area, done at Helsinki, 9 April 1992, 22 LOSB 54 (1993) 155 (entered into force 17 January 2000). Hereinafter UNEP. Dotinga and Oude Elferink, above n. 61, 159.

42

Chapter Two

2.3.8

LOSC and other sources of marine pollution

LOSC contains a number of other provisions of relevance to pollution other than noise and light pollution. A general obligation is contained in Article 194 (1) under which States are obliged to take, either individually or jointly as appropriate: all measures consistent with [LOSC] that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities.75

Article 194(2) also requires States to take: all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with [LOSC]76

However, pursuant to Article 194(4), in implementing those measures States are required to refrain from unjustiﬁable interference with activities carried out by other States in the exercise of their rights and duties under LOSC. Pursuant to Article 194(3) the measures which States are obliged to adopt under Part XII are deﬁned quite widely to deal with all sources of pollution of the marine environment. Without limiting the measures that can lawfully be adopted under Part XII, Article 194(3) deﬁnes such measures as including those designed to minimise: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (b) pollution by vessels, particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment and manning [sic] of vessels; (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the sea-bed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning [sic] of such installations or devices; (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning [sic] of such installations or devices.77

Part XII also contains speciﬁc provisions to deal with the main known sources of marine pollution. Thus Article 207 obliges States to adopt laws and regulations to prevent and control pollution of the marine environment from land based sources. Article 210 deals with pollution caused by ocean dumping. Article 211 deals with pollution

75 76 77

LOSC, Article 194(1). LOSC, Article 194(2) LOSC, Article 194(3).

Framework treaties and key concepts in international law

43

from vessels and Article 212 covers pollution from or through the atmosphere. To a large extent these obligations have been implemented through a combination of general multilateral, regional and bilateral treaties.78 2.3.9

Pollution of the sea-bed

LOSC also speciﬁcally addresses the issue of pollution of the seabed. Different regimes apply depending on whether the pollution occurs within areas of national jurisdiction or within the Area. Article 208(1) deals with pollution from seabed activities in areas subject to national jurisdiction. Coastal States are required to: adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artiﬁcial islands, installations and structures under their jurisdiction79

Article 208(2), similarly provides that States are required to take other measures as may be necessary to prevent, reduce and control such pollution. Article 208(3) requires those laws to be no less effective than international rules, standards and recommended practices and procedures. Articles 208(4) and 208(5) contemplate that these rules, regulations and procedures shall be developed through appropriate international and regional organisations. LOSC does not provide a deﬁnition of what is meant by ‘seabed activities’. Traditionally this expression has been associated with activities such as deliberate or operational pollution associated with the exploration for and exploitation of oil and gas in the territorial sea and on the continental shelf. Such deliberate pollution may be caused by such things as chemicals used in drilling, or the discharge of sewerage and other waste from such operations.80 It also includes accidental pollution from mining operations such as ruptured pipelines or collisions of vessels and mining installations.81 While not explicitly stated in the text of LOSC, there appears to be no reason why such a deﬁnition could not also extend to cover pollution possibly associated with other activities such as MSR, bioprospecting, and deep-sea tourism. Such an interpretation seems valid when Article 208 is considered in light of Part II and Part V of LOSC, which, as noted above, provide speciﬁcally for sovereignty over the territorial sea. In exercise of their sovereignty some States have implemented measures consistent with these obligations. Some of these measures relevant to hydrothermal vents are considered in Chapter 6. 2.3.10

Pollution of the sea-bed from Activities beyond national jurisdiction

Importantly Part XII also speciﬁcally addresses pollution in the deep seabed in areas beyond national jurisdiction. Thus Article 209(1) of LOSC provides:

78 79 80 81

For an overview of these treaties see Churchill and Lowe, above n. 60. LOSC, article 208(1). Churchill and Lowe, above n. 60, 371. Ibid.

44

Chapter Two International rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area. Such rules, regulations and procedures shall be re-examined from time to time as necessary.82

Likewise individual States are also required to: adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, structures and other devices ﬂying their ﬂag or of their registry or operating under their authority as the case may be. The requirements of such laws and regulation shall be no less effective than the international rules, regulations and procedures referred to in paragraph 1.83

The mechanism as to how these rules, regulations and procedures are to be adopted is speciﬁcally addressed in Article 145 of LOSC. Article 145 requires the ISA to adopt rules, regulations and procedures, inter alia, for the prevention, reduction and control of pollution in the deep seabed beyond national jurisdiction. So far the ISA has partially addressed the issue of pollution in its Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area84 and in its ongoing work in relation to draft regulations for prospecting and exploration for hydrothermal polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area. These regulations are examined in detail in Chapter 9 in the context of considering the desirability of expanding the mandate of the ISA.

2.4 2.4.1

Part XI of LOSC and the Part XI Agreement

Enclosure of the oceans

By the late 1960s there was much interest in the potential for commercial exploitation of the mineral resources of the deep sea beyond national jurisdiction, especially manganese nodules. However, there was considerable disagreement within the international community as to their legal status. Developing states in particular were concerned that only the wealthier developed states had the capacity to carry out deep seabed mining. Many developing states, then in the process of developing their own terrestrial mineral resources, were also concerned about the potential impact of deep-sea mining on the world markets for such minerals. Debate essentially focussed on three possible interpretations of their legal status. The ﬁrst such interpretation centred on the notion of sovereign rights to the resources of the continental shelf ﬁrst asserted by the United States of America85 in the Truman Proclamation of 1945.86 A second interpretation of the law, 82 83 84

85 86

LOSC, Article 209(1). LOSC, Article 209(2). International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, UN Doc ISBA/6/A/18, adopted by the Assembly of the ISA on 13th July 2000. Hereinafter USA. The Truman Proclamation on the Continental Shelf, 1945, 4 Whiteman 756.

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as it stood at that time,87 was that rights to the continental shelf did not extend as far as claimed by many nations, but were conﬁned to areas corresponding roughly to the geological continental shelf.88 As such the abyssal plains of the sea ﬂoor were res communis, i.e. the area and its resources could be used by any State but no State could appropriate or claim exclusive title or other rights to the area.89 A third interpretation suggested that the deep seabed should be treated as res nullius. As such, title to areas of the seabed could have been gained by their occupation through use by mining States.90 2.4.2

Creation of the International Seabed Authority

It took nearly thirty years of negotiations and a false start with the original provisions of Part XI of LOSC, but the legal uncertainty concerning the mineral resources of the high seas was resolved with the entry into force on 28 July, 1996 of the deep-sea mining regime established pursuant to Part XI of LOSC, as amended by the subsequent 1994 Part XI Agreement, which now regulates exploitation of the mineral resources of the Area. As at 28 April 2006 123 States have ratiﬁed or otherwise acceded to the Part XI Agreement. Pursuant to Article 136 of LOSC, the Area and its resources are declared the common heritage of mankind [sic].91 In addition, under Article 137, all claims or exercise of sovereignty or sovereign rights over any part of the Area or its resources are prohibited. All rights in the mineral resources of the Area are vested in mankind [sic] as a whole. Article 138 provides that the general conduct of all States in relation to the Area must be in accordance with the provisions of Part XI, “the principles embodied in the Charter of the United Nations and other rules of international law in the interests of maintaining peace and security and promoting international co-operation and mutual understanding.”92 Article 140 also requires that such activities be carried out for the “beneﬁt of mankind [sic]”,93 while Article 141 requires the Area to be used exclusively for peaceful purposes. However, neither Part XI nor any rights granted or exercised pursuant to Part XI shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters.94

87

88 89 90 91 92 93 94

Principally the Convention on the Continental Shelf, opened for signature 29 April, 1958, 499 UNTS 311 (entered into force 10 June, 1964); the Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April, 1958, 516 UNTS 205 (entered into force 10 September, 1964); and Convention on the High Seas, opened for signature 29 April, 1958, 450 UNTS 11 (entered into force 30 September, 1962). See H.B. Heim, ‘Exploring the Last Frontiers for Mineral Resources: A Comparison of International Law Regarding the Deep Seabed, Outer Space, and Antarctica’ (1990) 23 Vanderbilt Journal of Transnational Law 819. Churchill and Lowe, above n. 60, 225. Ibid. Ibid. LOSC, Article 136. LOSC, Article 138 LOSC, Article 140. LOSC, Article 135.

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A novel feature of Part XI is that it created a speciﬁc entity with responsibility for regulating activities associated with deep-sea mining in the Area, namely the ISA.95 All parties to LOSC are ipso facto members of the ISA.96 LOSC speciﬁcally provides that the ISA is the organization through which State Parties shall “organize and control activities in the Area, particularly with a view to administering the resources of the Area.”97 At ﬁrst glance this would tend to suggest that the ISA has a very wide mandate, almost the total ability to regulate all activities on the deep-sea ﬂoor beyond national jurisdiction. In a recent report to the Assembly98 of the ISA the Secretary-General of the ISA asserts that the ISA has a broad “regulatory role with respect to the protection and preservation of the marine environment (including its biodiversity) in the Area generally.”99 Is the ISA effectively a deep-sea Environmental Protection Authority?100 Can it regulate bioprospecting, MSR and deep-sea tourism? The simple answer is no. The ISA is neither a deep-sea EPA nor does it currently have competence in relation to activities (other than mining and to a limited extent pollution) that have been identiﬁed as constituting threats to hydrothermal vent ecosystems. This is because the expression ‘activities in the Area’ used so liberally in many provisions of Part XI101 is very narrowly deﬁned in Part 1, Article 1(3) to mean “all activities of exploration for, and exploitation of, the resources of the Area.”102 More signiﬁcantly, ‘resources’ are deﬁned under Article 133(a) of LOSC as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”.103 Facilitating commercial mining of deep-sea mineral resources is the primary objective of the ISA. Speciﬁcally this objective is stated in Article 150 of LOSC, which provides: Activities in the Area shall, as speciﬁcally provided for in this part, be carried out in such a manner as to foster healthy development of the world economy and balanced growth of international trade, and to promote international cooperation for the over-all development of all countries, especially developing States, and with a view to ensuring:

95 96 97 98 99

100 101

102 103

LOSC, Article 156. LOSC, Article 156(2). LOSC, Article 157(1). The Assembly is one of the principle organs of the ISA. Its role is discussed in Chapter 9. See International Seabed Authority, Report of the Secretary-General of the International Seabed Authority under Article 166. Paragraph 4 of the United Nations Convention of the Law of the Sea, 7 June, 2002, UN Doc. ISBA/8/A/5, 12. Hereinafter referred to as EPA. These provisions include the requirement that activities in the Area be conducted for the beneﬁt of mankind [sic] under Article 140(1); the requirement of equitable sharing of ﬁnancial and other economic beneﬁts derived from activities in the Area under Article 140(2); and provisions dealing with transfer of technology and scientiﬁc knowledge under Article 144(1)(a). LOSC, Article 1(3). LOSC, Article 133(a).

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(a) the development of the resources of the Area; (b) orderly, safe and rational management of the resources of the Area, including the efﬁcient conduct of activities in the Area and, in accordance with sound principles of conservation, the avoidance of unnecessary waste; (c) the expansion of opportunities for participation in such activities consistent in particular with article 144 and 148; (d) participation in revenues by the Authority and the transfer of technology to the Enterprise and developing States as provided for in this Convention; (e) increased availability of the minerals derived from the Area as needed in conjunction with minerals derived from other sources, to ensure supplies to consumers of such minerals; (f) the promotion of just and stable prices remunerative to producers and fair to consumers for minerals derived both from the Area and from other sources, and the promotion of long-term equilibrium between supply and demand; (g) the enhancement of opportunities for all State Parties, irrespective of their social and economic systems or geographical location, to participate in the development of the resources of the Area and the prevention of monopolization of activities in the Area; (h) the protection of developing countries from adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected mineral, or in the volume of exports of the mineral, to the extent that such reduction is caused by activities in the Area, as provided by Article 151; (i) the development of the common heritage for the beneﬁt of mankind as a whole; and (j) conditions of access to markets for the imports of minerals produced from the resources of the Area and for the imports of commodities produced from such minerals shall not be more favourable than the most favourable applied to imports from other sources.

Until such time as a wider mandate is conferred on the ISA, the ISA may only regulate activities associated with the exploration for, and exploitation of, the mineral resources of the Area. As Glowka104 has pointed out, the ISA’s current mandate does not extend to activities associated with either bioprospecting for genetic resources or deep-sea tourism. Its mandate with respect to pollution is again limited to pollution associated with activities of exploration for, and exploitation of, the mineral resources of the Area. The ISA’s mandate to regulate mining and its track record to date is considered in detail in Chapter 9.

2.5 2.5.1

Marine scientiﬁc research under LOSC

LOSC Part XIII

The relevant provisions of LOSC dealing with MSR are contained in Part XIII. Under Article 238 all States, irrespective of their geographical location, and competent international organizations have the right to conduct MSR subject to the rights and duties of other States under LOSC.105 Such research shall be conducted exclusively for peaceful

104

105

L. Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine Scientiﬁc Research, and the Area.’ (1996) 12 Ocean Yearbook 154. LOSC, Article 238.

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purposes.106 Under Article 241 MSR shall not constitute the legal basis for any claim to any part of the marine environment or its resources.107 It must be conducted with appropriate scientiﬁc methods and means compatible with LOSC.108 It must not unjustiﬁably interfere with other legitimate uses of the sea compatible with LOSC.109 Consistent with other provisions of LOSC the extent to which conduct of MSR is or can potentially be regulated is determined by where it is carried out. Under Article 245 coastal States have the sovereign and exclusive right to regulate, authorise and conduct MSR in their territorial sea.110 MSR within the territorial sea can only be conducted with the express consent of, and under conditions imposed by, the coastal State.111 The requirement for consent is supplemented by the provisions of LOSC dealing with innocent passage of ships through the territorial sea. Although under both LOSC112 and customary international law, ships of all States have the right of innocent passage through the territorial sea, passage ceases to be innocent if the particular ship carries out research or survey activities.113 Article 246 of LOSC also recognises that the coastal State has the right to regulate, authorise and conduct MSR in its EEZ and on its continental shelf. However, there is some ambiguity as to the precise legal position with respect to MSR in the waters above the continental shelf and beyond the EEZ. Article 246 of LOSC speaks of the coastal State’s right with respect to MSR on the continental shelf (i.e. arguably on the seabed of the continental shelf),114 whereas Article 257 recognises the right of States and international organisations to conduct MSR “in the water column beyond the limits of the exclusive economic zone”.115 It is unclear what the signiﬁcance is of this distinction. Does this mean, for example, that MSR in relation to hydrothermal vent sites on the continental shelf beyond the EEZ will require coastal State consent where that research relates to the vent chimney, but coastal State approval is not required for research in relation to the plume that rises above the chimney in the water column above? Such an interpretation appears to be supported by Article 246(5). This provision recognises that the coastal State, may at its discretion withhold consent to conduct MSR within the EEZ or on the continental shelf if a particular research project is inter alia: of direct signiﬁcance for the exploration and exploitation of natural resources, whether

106 107 108 109 110

111 112 113

114 115

LOSC, Article 240(a). LOSC, Article 241. LOSC, Article 240(b). LOSC, Article 240(c) LOSC, Article 245. In addition LOSC Article 21(1)(g) speciﬁcally recognises the right of the coastal State to adopt laws and regulations in relation to MSR and hydrographic surveys. LOSC, Article 245. Speciﬁcally LOSC Article 17. By virtue of LOSC Article 19(2)(j). It is also worth noting that under LOSC Article 20, unless consent for MSR has been given all submarines and other underwater vehicles exercising the right of innocent passage are required to navigate on the surface and to show their ﬂag. This would apply to submarines and ROVs carrying out research on hydrothermal vents. Churchill and Lowe, above n. 60, 407. LOSC, Article 257.

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living or non-living;116 or involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment.117 This tends to suggest a distinction between applied research (which potentially impinges upon the interests of coastal States in exercising their sovereign rights over their natural resources), and pure research. 118 This may be true for most of the existing resources that could potentially be exploited at the time that LOSC was negotiated, but is an artiﬁcial distinction, which arguably leads to a fractured regulatory regime (similar to that previously considered in relation to sedentary species) where newly exploitable resources such as bacteria and archaea are concerned. To the extent that MSR is regulated within the EEZ and on the continental shelf, in addition to the right to grant or withhold consent the coastal State is entitled to be informed, at least six months prior to such research commencing of: the nature and objectives of the project;119 the method and means to be used, including name, tonnage, type and class of vessels and a description of scientiﬁc equipment;120 the precise geographical areas in which the project is to be conducted;121 the expected date of ﬁrst appearance and ﬁnal departure of the research vessels, or deployment of the equipment and its removal;122 the name of the sponsoring institution, its director, and the person in charge of the project;123 and the extent to which it is considered that the coastal State should be able to participate or to be represented in the project.124 In addition, Article 249 recognises a number of rights of the coastal State with respect to such research including: the right to participate in the research including the right to place representatives or observers on research vessels;125 the right to be provided with preliminary reports and ﬁnal results of such research;126 the right to be supplied with access to data and samples in relation to such research;127 the right to request an assessment or assistance in assessment of such data samples;128 the right to be informed of any major change in the research program;129 and the right to require that scientiﬁc research installations or equipment be removed once research is completed.130 Once the information required by Article 249 has been supplied, under Article 252 the coastal State is deemed to have given its consent if, after six months it has not withheld its consent under Article 248; if the information given regarding the nature

116 117 118 119 120 121 122 123 124 125 126 127 128 129 130

LOSC, Article 246(5)(a). LOSC, Article 246(5)(b). Churchill and Lowe, above n. 60, 405. LOSC, Article 248(a). LOSC, Article 248(b). LOSC, Article 248(c). LOSC, Article 248(d). LOSC, Article 248(e). LOSC, Article 248(f). LOSC, Article 249(1)(a). LOSC, Article 249(1)(b). LOSC, Article 249(1)(c). LOSC, Article 249(1)(d). LOSC, Article 249(1)(f). LOSC, Article 249(1)(g).

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and objectives of the project does not conform to the manifestly evident facts; if supplementary information is required under Article 248 or 249, or outstanding obligations exist with respect to previous MSR. Under Article 253 the coastal State may suspend or order the cessation of MSR within its EEZ or on its continental shelf if the research is not being conducted in accordance with the information provided under Article 248, or in the event of failure to comply with conditions of approval imposed under Article 249. 2.5.2

Marine Scientiﬁc Research on the High Seas and in the Area

The right to carry out MSR on the high seas is expressly recognised as a High Seas freedom under Article 87(1)(f ) of LOSC. All states have the right to conduct MSR in the water column beyond the limits of the EEZ.131 Such research must be conducted in accordance with the general principles outlined above. Under Article 257 all States and competent international organisations also have the right to conduct MSR in the Area, provided such research is conducted in conformity with the provisions of Part XI of LOSC. This right is also recognised by the ﬁrst part of Article 143(3). Article 143(3) of LOSC requires State parties to promote international co-operation in MSR in the Area including, inter alia, by effectively disseminating the results of research and analysis. Pursuant to Article 143, MSR in the Area shall be carried out exclusively for peaceful purposes and for the beneﬁt of mankind [sic] as a whole. In addition to the rights of States and international organisations to carry out research under Article 257, under Article 143(2) the ISA is entitled to carry out MSR in the Area and in relation to its resources,132 and the ISA may enter into contracts for that purpose. Where research moves on to the stage of prospecting and exploring for mineral resources such applied research would be subject to the approval and control of the ISA.133 This is because such activity would clearly fall within the deﬁnition of “activities in the Area” contained in Article 1(3). However, if such applied research did not relate to the mineral resources of the Area, for example, bioprospecting for genetic resources in the Area, it would not be subject to control by the ISA. This has important implications with respect to regulation of the environmental impact of MSR in the Area. As noted earlier in this chapter, under Article 240(d) the ISA clearly has the competence to implement measures to regulate MSR associated with the exploitation of mineral resources of the Area. However, this authority appears not to extend to other forms of MSR or bioprospecting that may be carried out in conjunction with such research. The possible exception to this is where such research interferes with “activities in the Area”, that is to the extent of interference with activities for the exploration for, and exploitation of the mineral resources of the Area. 2.5.3

Marine scientiﬁc research and associated tourism

There is no speciﬁc provision of LOSC that regulates tourism per se. However, like all other activities in the ocean, the extent to which it can be regulated depends in large part

131 132 133

LOSC, Article 256. As that term is deﬁned in Article 133(a) of LOSC. Churchill and Lowe, above n. 60, 404.

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on where such activities occur. Clearly it would be within the competence of the coastal State to regulate tourism activities within its territorial sea. Examples where this has occurred are discussed in Chapter 6. The coastal State would also be entitled to regulate tourism within its EEZ to the extent such regulation relates to protection and preservation of the marine environment. Interesting questions are raised by the overlap between tourism and MSR. If a research vessel is carrying out MSR within the territorial sea or within the EEZ, that research is subject to the provisions of Articles 245 and 246 of LOSC discussed above. Does the presence of fee paying tourists on board such a research vessel convert otherwise pure research into some form of commercial enterprise? What impact does this have on the legal rights to carry out MSR and the rights of the coastal State to regulate activities within its EEZ and or on its Continental shelf ? This is a difﬁcult issue to express a conclusive opinion on. As noted in Chapter 1, so far the limited number of tourist dives that have occurred appear primarily to be associated with MSR cruises. Funds obtained from paying passengers are used as a supplemental source of funding for such research. Perhaps in those circumstances it would be fair to conclude that limited tourism such as this does not impact upon the right to carry out MSR. But this position is by no means clear. The position of tourism on the continental shelf is perhaps somewhat clearer because such activities would generally occur in the water column above the continental shelf, and do not involve any exploration for or expropriation of the mineral resources of the continental shelf. However, what if deep-sea tourists were to take a mineral sample from a hydrothermal vent as a souvenir of their dive? Would that involve expropriation of mineral resources of the continental shelf and therefore require the consent of the relevant coastal State in accordance with the coastal State’s rights under the Continental Shelf Regime? This is unclear. While the position within the EEZ or on the continental shelf is not clear, tourism on the high seas is totally permissible and unregulated by LOSC. The exception to this would be where tourism has the potential to impact on or interfere with “activities in the Area”, as that term is used in Part XI. Arguably, given the ISA’s mandate to regulate activities in the Area, the ISA possibly has competence to regulate deep-sea tourism to the extent that that is reasonably necessary to prevent interference with “activities in the Area”, that is to the extent of interference with activities for the exploration for, and exploitation of the mineral resources of the Area.

2.6 2.6.1

United Nations Convention on Biological Diversity

Overview of the CBD

The provisions of LOSC and the Part XI Agreement must also be read in conjunction with the provisions of the CBD.134 The CBD has three main objectives: the conservation of biological diversity, the sustainable use of its components and the fair and equitable

134

Article 22 of the CBD makes clear that in the event of conﬂict between the provisions of the CBD and LOSC, LOSC prevails.

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sharing of the beneﬁts arising out of the utilisation of genetic resources. It establishes a framework of general ﬂexible obligations aimed at implementing these objectives.135 These obligations are subject to several very signiﬁcant qualiﬁcations. Firstly, the CBD is a framework treaty. It sets out overall goals, policies and general obligations only with respect to biodiversity conservation, and provides a limited structure for technical and ﬁnancial cooperation. Responsibility for achieving its goals is left to the individual State parties. This is reinforced by Article 3 of the CBD, which recognises that States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Obligations under the CBD are subject to, and therefore secondary to each State’s sovereign right to exploit their own resources and set their own environmental policies. Of even more signiﬁcance is the limitation imposed by Article 4. The coastal State is obliged to implement its obligations under the CBD in its inland waters, territorial sea, contiguous zone, within its EEZ and parts of its continental shelf.136 However, beyond national jurisdiction the State parties may only regulate the activities of their own nationals to achieve the objectives of the CBD. So far no State has implemented measures speciﬁcally regulating activities of their nationals at hydrothermal vents on the high seas. Thus, under the existing provisions of the CBD, access to and use of the genetic resources of the oceans and the deep sea beyond national jurisdiction is totally unregulated. As Glowka has noted this is ironic because the most immediately exploitable and lucrative resources of the deep sea are arguably its genetic resources, yet such resources fall outside of the main legal regime applicable to the deep sea, the deep-sea mining regime under Part XI of LOSC, and the main treaty dealing with biodiversity conservation, the CBD.137

135

136

137

These include obligations to create plans, strategies, or programs for conservation and sustainable use of biodiversity (Article 6). States must also identify and monitor components of biodiversity important for its conservation and sustainable use, and identify processes and categories of activities that have, or are likely to have, signiﬁcant adverse impacts on the conservation and sustainable use of biodiversity (Article 7). States also have an obligation to take various steps to regulate activities that threaten biodiversity, including through measures such as establishing a system of protected areas to conserve biodiversity (Articles 8, 9, 10 and 11). Article 15 of the CBD is of particular relevance to bioprospecting and deals with access to genetic materials, including a requirement that access shall be on mutually agreed terms and subject to prior informed consent. The implementation of these provisions has been further clariﬁed following the adoption of the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Beneﬁts Arising out of their Utilisation. For discussion of the Bonn Guidelines see M.I. Jeffery, ‘Bioprospecting: Access to Genetic Resources and Beneﬁt Sharing under the Convention on Biodiversity and the Bonn Guidelines’ (2002) 6 Singapore Journal of International and Comparative Law 747. A.C. de Fontaubert, D.R. Downes and T.S. Agardy, ‘Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats’ (1998) X(3) Georgetown International Environmental Law Review 753. Glowka, above n. 104.

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Despite this signiﬁcant lacuna in the law, until recently this issue has been subject to only scant consideration by the main organs of the CBD. The most important meetings that have considered the genetic resources of the deep sea so far are the meetings of the COP in Jakarta in November 1995 and 2004 and the meeting of the SBSTTA in Montreal in March 2003. 2.6.2

Jakarta 1995

At the Jakarta meeting in 1995 the COP agreed on a program of action for implementing the CBD with respect to marine and coastal biodiversity, now known as the Jakarta Mandate on Marine and Coastal Biological Diversity.138 More signiﬁcantly though, in paragraph 12 of Decision II/10 adopted at the COP meeting in Jakarta in 1995, the COP requested the Executive Secretary of the CBD, in conjunction with the United Nations Ofﬁce for Ocean Affairs and the Law of the Sea, to: undertake a 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, with a view to enabling the Subsidiary Body on Scientiﬁc, Technical and Technological Advice to address at future meetings, as appropriate, the scientiﬁc, technical, and technological issues relating to bioprospecting of genetic resources on the deep seabed139

The study requested by COP II/10 took nearly 8 years to be prepared and was ﬁnally published in February 2003. Prior to the report’s preparation a preliminary assessment of the areas that might be considered in the ﬁnal study was published in an unofﬁcial report in 1996. In some respects this preliminary assessment reﬂects the ultimate conclusions and recommendations of the study requested by COP II/10 released in 2003. In particular, the preliminary assessment concurred with Glowka’s assessment noted above, recognising that the genetic resources of the deep seabed are “unregulated resources”.140 However, given the lack of information on the commercial potential of deep-sea genetic resources, the preliminary assessment concluded that the knowledge base on which to make informed and appropriate decisions about how this area might be controlled was then almost non-existent.141 Despite this obvious and signiﬁcant absence of a knowledge base, the preliminary report suggested several ‘foreseeable scenarios’ as to how bioprospecting in relation to these resources could develop. These are:

138

139 140

141

de Fontaubert and Downes, above n. 136. Consistent with the Jakarta Mandate several states, including Canada, Portugal and Papua New Guinea, have begun to design and implement measures regulating access to particular hydrothermal vent sites within their territorial sea and EEZ. These regimes are discussed in detail in Chapter 6. COP Decision II/10, para 2, UNEP/CBD/COP2/19. Convention on Biological Diversity, Subsidiary Body on Scientiﬁc, Technical and Technological Advice, Bioprospecting of Genetic Resources of the Deep-sea-Bed, Note by the Secretariat, UN Doc UNEP/CBD/SBSTTA/2/15, 24 July 1996. Ibid.

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Chapter Two (a) leaving marine genetic resources unregulated and freely available to those who spend the resources to collect them; (b) bringing them within the regime governing the Area and the [International Sea-bed Authority’s] authority; (c) bringing them within the CBD regime; and (d) establishing an entirely new regime to deal with these special and new resources142

These ‘foreseeable scenarios’, with the exception of the last one, were ultimately endorsed by the ﬁnal study released in 2003.143 2.6.3

The SBSTTA Study on the Relationship between LOSC and the CBD

The SBSTTA study released in early 2003 conﬁrmed the existence of a lacuna in the law with respect to the genetic resources of the deep sea as ﬁrst identiﬁed by Glowka. The study concluded that there are three options available for a regime for the management of activities relating to genetic resources beyond national jurisdiction. They are: maintaining the status quo; application of the regime under Part XI of LOSC, currently limited to the management of mineral resources; and application of the regime of conservation and sustainable use of genetic resources under the CBD. The SBSTTA study noted that the last two of these options are not mutually exclusive and could be integrated. The SBSTTA study also noted two additional options for regulation that were not examined in detail or referred to in the study’s conclusion and recommendations. These are the potential role of MPAs on the high seas, and intellectual property rights as incentives for beneﬁt sharing and sustainable use of deep-sea genetic resources. It is unclear from the report why these alternatives were ruled out without further consideration. It seems inappropriate for a study of options to rule out two possible options without detailed consideration. This is especially so given the wealth of literature and interest in both options. MPAs on the high seas especially has been the subject of detailed consideration at a number of recent international forums.144 The SBSTTA study stops short of endorsing any one option, but it appears from the tone of the report that it supports an expanded mandate for the ISA as a preferred option. There are, of course, immediately obvious beneﬁts associated with such an option. Clearly expanding the mandate of an existing international institution might be more efﬁcient than starting over and establishing an entirely new institution with possibly overlapping mandates. Although it has only been operational for 10 years, the ISA has accumulated a considerable level of expertise and data on the deep-sea environment. However, signiﬁcant issues would need to be considered before proceeding with such an option. Some, but by no means all of these issues, include: 142 143

144

Ibid. These options have also been proposed by Dosoo Jang, Accessing Marine Genetic Resources Under the Law of the Sea Convention and the Convention on Biological Diversity, Doctor of Philosophy in Marine Studies Thesis, University of Delaware, 2000 and by Korn et al. above n. 53. See for example K. Gjerde and C. Breide, Towards a Strategy for High Seas Marine Protected Areas: Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas (2003) and discussion below.

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(1) To what extent will there need to be changes to the ISA’s existing structure? This issue is considered in detail in Chapter 9. (2) To what extent will the principles embodied in the CBD and the principles of international environmental law more generally be reﬂected in any amended structure? (3) How will the proposed regime deal with the question of beneﬁt sharing? (4) Should the genetic resources of the deep sea be regarded as the common heritage of mankind [sic]? This issue is addressed in Chapter 5. (5) Finally, to what extent would a new regime attempt to distinguish between MSR and bioprospecting? Is it even feasible to attempt such a distinction in law when at times it is almost impossible to distinguish the two in practice? These and many more issues will need to be addressed in the future if such a proposal is to be advanced. However, this presupposes such an option is desirable and the ISA, and in particular member states, are willing to consider an expanded mandate for the ISA in the ﬁrst place. These issues are canvassed further in Chapter 9. 2.6.4

Repeating the Mistake of the Sedentary Species Deﬁnition?

It should also be noted that the SBSTTA study contained an important qualiﬁcation in the following terms: that the study’s recommendations addresses only the biological resources attached to the ocean ﬂoor and not the free swimming ﬁsh above, which fall within the regime of ﬁsheries on the high seas, covered by Articles 116–119 of the Convention, as well as by the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995) Fish Stocks Agreement) where appropriate.145

COP Decision II/10, which authorised the preparation of the study, made no mention of resources ‘attached to the ocean ﬂoor’. It refers only to the “genetic resources on the deep seabed.” Is there any difference between genetic resources ‘on’ or ‘attached to’ the deep seabed? Perhaps, as the later parts of the above extract suggests, not if the intention is merely to exclude ﬁsheries. It may be that this particular statement was included to allay any concerns that this report has any relevance to high seas ﬁsheries, a contentious issue. However, there will be a signiﬁcant defect in any future regime if it only applies to the resources ‘attached to the ocean ﬂoor’. A regime along those lines would exclude integral components of the hydrothermal vent ecosystem. For example, it would exclude the genetic resources associated with microbes found in the hydrothermal plume. Likewise microbes that have formed symbiotic relationships with other species not necessarily attached to the seabed such as shrimp, crabs etc would also be

145

Convention on Biological Diversity, Subsidiary Body on Scientiﬁc, Technical and Technological Advice (2003) Marine and Coastal Biodiversity: Review, Further Elaboration and Reﬁnement of the Programme of Work. 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/8/1.

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excluded. It seems a somewhat arbitrary distinction that fails to take account of the entire ecosystem, of which those resources attached to the seabed form only part. It is inconsistent with an ecosystem based approach, and is reminiscent of the complex sedentary species deﬁnition under the Continental Shelf Regime discussed above. 2.6.5 SBSTTA Meeting Montreal, March 2003 and COP VII, and Kuala Lumpur, March 2004 The SBSTTA study was presented for consideration at the eighth meeting of the SBSTTA in Montreal from 10–14 March, 2003. The subsequent debate in relation to the report at the Montreal meeting revealed further signiﬁcant differences of opinion between States on this issue. For example, Brazil, Argentina, Colombia and Peru and several other developing states objected to the competence of both the SBSTTA and the CBD to deal with issues related to the deep seabed beyond national jurisdiction.146 In contrast the European Union, Greece and the Seychelles stated their position that these issues fell within the CBD’s mandate under Articles 3 and 4. In addition, they noted that the SBSTTA was competent to deal with its scientiﬁc aspects under Decision II/10 on marine and coastal diversity.147 Canada objected to a recommendation encouraging Parties to start working through the ISA on issues related to conservation and sustainable use of genetic resources, as this may, according to Canada, prejudice the outcome of more considered deliberations.148 In the end the impasse was resolved by calling for further study of the issue. The Montreal meeting made three main recommendations to the COP. These recommendations were as follows: 1. That the Executive Secretary, in consultation with Parties and other Governments and in collaboration with relevant international organisations,149 compile and synthesise information on the status and trends of deep seabed genetic resources and on methods to identify, assess and monitor genetic resources of the deep seabed in areas beyond the limits of national jurisdiction. This is to include identiﬁcation of threats to such genetic resources and the means for their protection, with a view to addressing processes and activities under article 4(b) of the CBD, and to report on progress thereon to the SBSTTA, which will prepare recommendations for the consideration of the COP at its eighth meeting. 2. Invite the UN General Assembly to call upon relevant organisations150 to review issues relating to the conservation and sustainable use of genetic resources of the deep seabed

146

147 148 149

150

Earth Negotiations Bulletin, ‘Summary of the Eighth Session of the Subsidiary Body on Scientiﬁc, Technical and Technological Advice of the Convention on Biological Diversity 10–14 March 2003’, 9(252) Earth Negotiations Bulletin. Ibid. Ibid. Namely the United Nations Division for Ocean Affairs and the Law of the Sea, UNEP, the International Seabed Authority and the Intergovernmental Oceanographic Commission of the United Nations Educational, Cultural and Scientiﬁc Organization. Speciﬁcally the UNEP, the International Maritime Organisation, the International Seabed Authority, the Intergovernmental Oceanographic Commission of the United Nations

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beyond the limits of national jurisdiction and make appropriate recommendations to the General Assembly regarding appropriate actions. 3. Invite Parties and other States to identify activities and processes under their jurisdiction or control which may have signiﬁcant adverse impacts on deep seabed ecosystems and species beyond the limits of national jurisdiction, in order to comply with article 3 of the CBD.151

The recommendations of the SBSTTA outlined above were considered at the seventh meeting of the COP in Kuala Lumpur, Malaysia in March 2004. At that meeting the COP considered hydrothermal vents in the context of its review of the programme of work on marine and coastal biodiversity. Hydrothermal vents were considered in two parts of its ongoing work. Firstly, in examining the issue of MPAs beyond national jurisdiction in COP Decision VII/5, the COP agreed that: there is an urgent need for international cooperation and action to improve conservation and sustainable use of biodiversity in marine areas beyond the limits of national jurisdiction, including the establishment of further marine protected areas consistent with international law, and based on scientiﬁc information, including areas such as seamounts, hydrothermal vents, cold-water corals and other vulnerable ecosystems.152

The COP endorsed no further action other than working with other international bodies to identify ways to establish MPAs beyond national jurisdiction within the framework of LOSC.153 The major problem with pursuing this option though is that no mechanism currently exists for the creation of MPAs on the High Seas.154

151

152

153

154

Educational, Scientiﬁc and Cultural Organization, the International Hydrographic Organisation, the World Meteorological Organisation, the Secretariat of the Convention on Biological Diversity, and the United Nations Division for Ocean Affairs and the Law of the Sea. Convention on Biological Diversity, Conference of the Parties, Report of the Subsidiary Body on Scientiﬁc, Technical and Technological Advice on the work of its eight meeting. UN Doc UNEP/CBD/COP/7/3, 90. CBD COP Decision VII/5, para 30, available from http://www.biodiv.org/convention/cops. asp# accessed 15 July, 2004. The complete text of this section of Decision COP VII/5 states that the COP “Recognizes that the law of the sea provides a legal framework for regulating activities in marine areas beyond national jurisdiction and requests the Executive Secretary to urgently collaborate with the Secretary-General of the United Nations and relevant international and regional bodies in accordance with their mandates and their rules of procedure on the report called for in General Assembly resolution 58/240, paragraph 52, and to support any work of the General Assembly in identifying appropriate mechanisms for the future establishment and effective management of marine protected areas beyond national jurisdiction.” See COP Decision VII/5, para 31, available from http://www.biodiv.org/convention/cops.asp# accessed 15 July, 2004. For detailed discussion of the current state of international law as it relates to MPAs on the High seas see Gjerde and Breide above n 144 and R. Warner, Marine Protected Areas Beyond National Jurisdiction: Existing Legal Principles and a Future International Law Framework (2001).

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The second and more detailed consideration by the COP related to an agenda item headed ‘Conservation and sustainable use of deep seabed genetic resources beyond national jurisdiction: issues arising from the study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea’. The COP resolved to request: the Executive Secretary, in consultation with Parties and other Governments and the International Seabed Authority, and in collaboration with international organizations, such as the United Nations Division for Ocean Affairs and the Law of the Sea, the United Nations Environment Programme, and the InterGovernmental Oceanographic Commission of the United Nations Educational, Cultural and Scientiﬁc Organization, if appropriate, to compile information on the methods for the identiﬁcation, assessment and monitoring of genetic resources of the seabed and ocean ﬂoor and subsoil thereof, in areas beyond the limits of national jurisdiction; compile and synthesize information on their status and trends including identiﬁcation of threats to such genetic resources and the technical options for their protection; and report on the progress made to the Subsidiary Body on Scientiﬁc, Technical and Technological Advice.155

The COP also invited the Parties: to raise their concerns regarding the issue of conservation and sustainable use of genetic resources of the deep seabed beyond limits of national jurisdiction at the next meeting of the General Assembly and [and invited] the General Assembly to further coordinate work relating to conservation and sustainable use of genetic resources of the deep seabed beyond the limits of national jurisdiction.156

Finally the COP invited: Parties and other States to identify activities and processes under their jurisdiction or control which may have signiﬁcant adverse impact on deep seabed ecosystems and species beyond the limits of national jurisdiction, in order to address Article 3 of the Convention.157

2.7

Customary International Law, Soft Law and other recent developments

2.7.1

Principles and aspirational statements

In theory a number of principles of Customary International Law also apply to hydrothermal vents in areas beyond national jurisdiction. Many of these principles have been restated or expanded in both LOSC and in the CBD. For example many of the high seas freedoms, such as freedom of ﬁshing and freedom of marine scientiﬁc research recognised by Customary International Law have been explicitly recognised by LOSC.

155

156

157

CBD COP Decision VII/5, para 54, available from http://www.biodiv.org/convention/cops. asp# accessed 15 July, 2004. CBD COP Decision VII/5, para 55, available from http://www.biodiv.org/convention/cops. asp# accessed 15 July, 2004. CBD COP Decision VII/5, para 56, available from http://www.biodiv.org/convention/cops. asp# accessed 15 July, 2004.

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However, for present purposes detailed discussion of these principles is not warranted, as none of these principles provide a clear basis for the sustainable management of human activities at hydrothermal vents beyond national jurisdiction beyond those also recognised by the treaties examined above. While consideration of Customary International Law principles does not appear to add further to consideration of these issues, several developments in Soft Law and other recent developments are worth noting. The term soft law is generally taken to mean nonbinding statements or declarations by members of the international community. Although non-binding, these statements have played an important role by pointing to the likely future direction of formally binding obligations, and by informally establishing acceptable international norms of behaviour.158 Many of these principles have subsequently been incorporated in treaties and are important both as a source of law and in interpreting and understanding some of the provisions of these treaties. The main instruments setting out key soft law principles are the Stockholm Declaration,159 the Rio Declaration,160 and Agenda 21.161 Chapter 17 of Agenda 21 speciﬁcally relates to the sustainable management of the oceans and in particular addresses issues such as the protection and restoration of endangered marine species and the preservation of habitats and other ecologically sensitive areas on the high seas.162 Subsequent to the Rio meeting, in 2002 the World Summit on Sustainable Development163 agreed to a range of objectives of relevance to the conservation of marine biodiversity. Of these three time bound objectives in relation to marine biodiversity are worth noting. They are: (1) the establishment of a representative network of MPAs by 2012; (2) restoration of ﬁsheries to maximum sustainable yields by 2015; and (3) bringing about a signiﬁcant drop in the rate of species extinction by 2010.164 Pursuant to the Plan of Implementation endorsed at the WSSD165 measures were also endorsed as possible ways these objectives could be achieved. For present purposes the most signiﬁcant provisions of the WSSD Plan of Implementation are those contained in paragraph 32, sub-paragraphs (a) to (d) which call on States to: In accordance with chapter 17 of Agenda 21, promote the conservation and management of the oceans through actions at all levels, giving due regard to the relevant international instruments to:

158 159

160

161

162 163 164 165

Sands, above n. 3, 103. Declaration of the UN Conference on the Human Environment, Stockholm. 5–16 June, 1972, UN Doc. A/CONF/.48/14/REV.1 (1972). Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 UN Doc. A/CONF 151/26. Report of the UN Conference on Environment and Development, UN Doc. A/CONF.151/ 26/REV.1. Gjerde and Breide, above n. 144, 93. Hereinafter WSSD. Ibid. Plan of Implementation of the World Summit on Sustainable Development, Annex to United Nations, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002, UN Doc No. A/CONF.199/20.

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Chapter Two (a) Maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including areas within and beyond national jurisdiction; (b) Implement the work programme arising from the Jakarta Mandate on the Conservation and Sustainable Use of Marine and Coastal Biodiversity of the Convention on Biological Diversity, including through the urgent mobilization of ﬁnancial resources and technological assistance and the development of human and institutional capacity, particularly in developing countries; (c) Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive ﬁshing practices, the establishment of marine protected areas consistent with international law and based on scientiﬁc information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods, proper coastal land use and watershed planning and the integration of marine and coastal areas management into key sectors; (d) Develop national, regional and international programmes for halting the loss of marine biodiversity, including in coral reefs and wetlands.166

Although legally non-binding these aspects of the Plan of Implementation do provide guidance for the future progressive development of international law. 2.7.2

United Nations General Assembly resolutions and the UNICPLOS process

Subsequent to the WSSD the United Nations General Assembly, in its annual resolution on Oceans and the Law of the Sea in 2002, called on States to implement the provisions of Part XII of LOSC dealing with the marine environment,167 endorsed the WSSD Plan of Implementation168 and encouraged relevant international organisations169 and regional and sub-regional ﬁsheries organisations to: consider urgently ways to integrate and improve, on a scientiﬁc basis, the management of risks to marine biodiversity of seamounts and certain other underwater features within the framework of [LOSC].170

The ‘other underwater features’ referred to in Resolution 57/141 include hydrothermal vents. In addition Resolution 57/141 also reiterated: the importance of the ongoing elaboration by the [ISA] pursuant to article 145 of [LOSC], of rules, regulations and procedures to ensure the effective protection of the marine environment, the protection and conservation of the natural resources of the Area and the 166

167 168 169

170

Plan of Implementation of the World Summit on Sustainable Development, Annex to United Nations, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002, UN Doc No. A/CONF.199/20, para 32(a)–(d). UN General Assembly Resolution 57/141 UN Doc. A/RES/57/141, para 41. UN General Assembly Resolution 57/141 UN Doc. A/RES/57/141, paras 7 and 8. The international organisations referred to in Resolution 57/141 are the Food and Agriculture Organisation of the United Nations, the International Hydrographic Organization, the International Maritime Organisation, the ISA, UNEP, the World Meteorological Organisaton, the secretariat of the Convention on Biological Diversity and the United Nations Secretariat (Division for Ocean Affairs and the Law of the Sea). UN General Assembly Resolution 57/141 UN Doc. A/RES/57/141, para 56.

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prevention of damage to its ﬂora and fauna from harmful effects that may arise from activities in the Area.171

The progress of the ISA in this work is considered in Chapter 9. More recently hydrothermal vents have been subject to consideration during the work of UNICPLOS at its ﬁfth meeting in New York from 7 to 11 June 2004. At this meeting UNICPLOS organised its discussions around the theme of “new sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction.”172 Issues canvassed under this theme included hydrothermal vents.173 The meeting received presentations from a number of experts including, inter alia, experts in relation to hydrothermal vents including Professor Peter Rona from the Institute of Marine and Coastal Sciences at Rutgers University and Professor Kim Juniper from the University of Quebec, and the Secreatary-General of the ISAAmbassador Nandan. The meeting also saw the IMAX ﬁlm on hydrothermal vents “Volcanoes of the Deep Sea” referred to in Chapter 1 in the context of deep-sea tourism.174 After lengthy discussion, including taking note of recent developments at the ISA and COP VII of the CBD, UNCIPLOS made a number of recommendations to the General Assembly of the United Nations. Although the recommendations of UNICPLOS also related to other aspects of the theme of its work, several of these recommendations relate speciﬁcally to hydrothermal vents. These were recommendations 5, 6(a) and (b), and 7(a) and (b). Recommendation 5 stated: Noting the call in the Plan of Implementation of the World Summit on Sustainable Development to maintain the productivity and biodiversity of important and vulnerable, marine and coastal areas both within and beyond national jurisdiction, it was proposed that the General Assembly: (a) Welcome decision VII/5 adopted at the seventh meeting of the Conference of the Parties to the Convention on Biological Diversity; and (b) Also welcome decision VII/28 adopted at the seventh meeting of the Conference of the Parties to the Convention on Biological Diversity suggesting that the Ad-Hoc OpenEnded Working Group on Protected Areas explore options for cooperation to promote the establishment of marine protected areas beyond national jurisdiction, consistent with international law, including the United Nations Convention on the Law of the Sea, and on the basis of the best available scientiﬁc information, and encourage the participation of oceans experts in the Working Group.175

171 172

173

174

175

UN General Assembly Resolution 57/141 UN Doc. A/RES/57/141, para 16. Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/122. For full details of the issues canvassed see Report on the Work of the United Nations Openended Infomal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/122. Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/122. Recommendation 5, Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/122, 2–3.

62

Chapter Two In part Recommendation 6 provides: It was proposed that the General Assembly: (a) Urge States, either by themselves or through regional ﬁsheries management organisations, where these are competent to do so, to consider on a case-by-case basis and where justiﬁed on a scientiﬁc basis, including the application of precaution, the interim prohibition of destructive practices by vessels under their jurisdiction that have an adverse impact on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold-water corals located beyond national jurisdiction. (b) Encourage regional ﬁsheries management organisations with a mandate to regulate bottom ﬁsheries to urgently address the impact of deep sea bottom trawling on vulnerable marine ecosystems in accordance with international law.176

Finally Recommendation 7 provided: It was proposed that the General Assembly: (a) Welcome progress on and encourage the work of the International Seabed Authority relating to the regulations for prospecting and exploration for polymetallic sulphides and cobalt-rich crusts in the Area and procedures to ensure the effective protection of the marine environment, the protection and conservation of the natural resources of the Area and the prevention of damage to its ﬂora and fauna from harmful effects that may arise from activities in the Area; and (b) Encourage States, individually or in collaboration with each other or with relevant international organisations and bodies, to improve their understanding and knowledge of the deep sea in areas beyond national jurisdiction by increasing their marine scientiﬁc research activities in accordance with the Convention.177

The Recommendations from the ﬁfth meeting of UNICPLOS were subsequently considered by the UN General Assembly in the course of its consideration of developments in the Law of the Sea at its 59th session. At this meeting the General Assembly passed a resolution to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction. Speciﬁcally the Ad Hoc Working Group has been established: (a) To survey the past and present activities of the United Nations and other relevant international organizations with regard to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction; (b) To examine the scientiﬁc, technical, economic, legal, environmental, socio-economic and other aspects of these issues; (c) To identify key issues and questions where more detailed background studies would facilitate consideration by States of these isssues;

176

177

Recommendation 6(a)–(b), Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/ 122, 3. Recommendation 7, Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ﬁfth meeting, UN Doc. A/59/122, 3–4.

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(d) To indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction178

The work of this Working Group will include consideration of issues relating to hydrothermal vents.

2.8

Conclusion

This chapter has examined the extent to which LOSC and the CBD provide for the sustainable management of hydrothermal vents and has shown that there appears to be signiﬁcant gaps in the existing law, particularly in areas beyond national jurisdiction. The ability of States to sustainably manage activities on the continental shelf is also unclear. While LOSC has detailed provisions dealing with pollution, pollution does not currently appear to be a major threat to hydrothermal vent ecosystems. On the other hand activities such as MSR, bioprospecting and tourism are unregulated. As we shall see in Chapter 9 the regulation of mining by the ISA to date has also been far from adequate. Recent developments within forums such as the CBD, UNICPLOS and the UN General Assembly show that the sustainable management of human activities in the deep sea, including at hydrothermal vents, is increasingly a matter of international concern. With an understanding of the general nature of the legal issues to be addressed, it is useful to now consider how these issues can be addressed. The CBD and LOSC are not the only treaties that are of relevance in considering how we may provide for the sustainable management of hydrothermal vents. A number of other treaties merit consideration and are considered in Chapter 3. While there is clearly a signiﬁcant gap that exists in international law, there is increasing evidence of an emerging consensus within the international community that there is a need for more effective measures to provide for the sustainable management of the biodiversity of the high seas and the deep sea beyond national jurisidiction. Until very recently there was little interest in the need for action but in 2004 there was a ﬂurry of activity within forums such as those associated with the CBD, UNICPLOS and the ISA.179 The abyss had been ignored except for its mineral and ﬁsheries resources until very recently. Now the deep sea, including hydrothermal vents, is rapidly moving onto the international legal and policy agenda.

178 179

UN General Assembly Resolution 59/24 UN Doc. A/RES/59/24, para 73. The developments at the ISA are canvassed in detail in Chapter 9.

Chapter 3 Regional and other environmental treaties 3.1

Introduction

Chapter 2 considered the extent to which activities at hydrothermal vents are subject to regulation under both LOSC and the CBD. While signiﬁcant gaps exist under both these treaties, this chapter considers a number of other treaties that arguably apply to hydrothermal vents and that might provide useful framework regimes to assist in the conservation of the biodiversity of hydrothermal vents and the sustainable use of their resources. Exploring a role for these mechanisms is consistent with existing international law and it is consistent with the WSSD Plan of Implementation to the extent that it calls for co-operation within existing regional organisations. The following discussion highlights a number of possible sources that to date have not been closely examined. The purpose of the discussion is not to conclusively nominate a preferred option, but rather to suggest some additional sources of law and institutions that merit further examination. These were not considered in the SBSTTA study discussed in Chapter 2 or discussed in detail in any of the literature to date.1

1

There was limited discussion on the potential role of regional organisations, at least in the context of high seas MPAs at the IUCN, WWF WCPA Experts Workshop on High Seas Marine Protected Areas held in Malaga Spain in January 2003 in which the writer participated. See K. Gjerde and C. Breide, Towards a Strategy for High Seas Marine Protected Areas:

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Chapter Three

Six additional sources of law would appear to merit further consideration. They are: the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic;2 the 1986 Convention for the Protection of the Natural Resources and Environment of the South Paciﬁc Region;3 the 1980 Convention on the Conservation of Antarctic Marine Living Resources;4 the 1991 Protocol on Environmental Protection to the Antarctic Treaty;5 the 1980 Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries;6 and the 1972 Convention for the Protection of the World Cultural and Natural Heritage.7

3.2

Convention for the protection of the marine environment of the north-east Atlantic

There are at least four known hydrothermal vent ﬁelds in the OSPAR maritime area.8 These are the Menez Gwen, Lucky Strike, Saldanha and Rainbow vent ﬁelds.9 Under Article 2(1)(a) of the OSPAR Convention contracting parties are obliged to: take all possible steps to prevent and eliminate pollution and take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected.

2

3

4

5

6

7

8

9

Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas (2003). Convention for the Protection of the Marine Environment of the North-East Atlantic, opened for signature 22 September 1992, 32 ILM (1992) (entered into force 25 March 1998), hereinafter OSPAR Convention. Convention for the Protection of the Natural Resources and Environment of the South Paciﬁc Region, opened for signature 24 November, 1986, (1990) ATS 31 (entered into force 22 August 1990), hereinafter Noumea Convention. Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 19 ILM (1980) (entered into force 7 April 1982), hereinafter CCAMLR. Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM (1991) (entered into force 14 January 1998), hereinafter the Madrid Protocol. Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries, opened for signature 18 November 1980, Cmnd. 8474 297, (entered into force 17 March 1982), hereinafter the NEAF Convention. Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 11 ILM (1972) 1358, (entered into force 17 December 1975), hereinafter World Heritage Convention. Under Article 1 the OSPAR Convention applies to a signiﬁcant portion of the Maritime area of the North East Atlantic and Arctic Oceans, including the internal waters and the territorial seas of the Contracting Parties. It also applies to the sea beyond and adjacent to the territorial sea under the jurisdiction of the coastal State to the extent recognised by international law, and to the high seas, including the bed of all those waters and its sub-soil within certain deﬁned limits. S. Gubbay et al., The Offshore Directory, Review of a selection of habitats, communities and species of the north-east Atlantic (2002).

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To this end, under Article 2(1)(b) contracting parties are obliged, individually and jointly, to adopt programs and measures and to harmonise their policies and strategies. In that context the parties are also obliged to apply the Precautionary Principle and the polluter pays principle. Annex V of the OSPAR Convention, deals speciﬁcally with the protection and conservation of the ecosystems and biological diversity (deﬁned in similar terms to the CBD) of the maritime areas to which the OSPAR Convention applies. Annex V and the accompanying Sintra Statement,10 provide a strategy for implementation of Annex V, including provisions requiring an assessment of the species and habitats that may need protection, as well as human activities that are likely to have an adverse effect on such species and habitats.11 Following the Sintra Statement the parties to OSPAR have committed to promoting: the establishment of a network of marine protected areas to ensure the sustainable use and protection and conservation of marine biological diversity and ecosystems.12

Work is now being carried out by parties to the OSPAR Convention and other interested parties such as WWF to design mechanisms to implement these obligations. The most signiﬁcant of these is development of an overall framework for MPAs within the context of the OSPAR Convention.13 Possible MPA candidate sites within the maritime area of the OSPAR Convention that have been identiﬁed so far include the Lucky Strike14 and Rainbow ﬁelds.15 Could measures be adopted under these provisions to regulate activities at hydrothermal vents such as bioprospecting MSR, mining and tourism? Arguably yes, given that it has been suggested such activities pose a threat to the hydrothermal vent ecosystem. A range of activities including bioprospecting at these hydrothermal vent sites could be regulated in the context of a system of MPAs. The obvious problem with any such measures, however, will be that they could not apply to nationals of non State parties to the OSPAR Convention on the high seas.

10

11 12 13

14

15

Sintra Statement, Ministerial Statement of Ministers meeting within the framework of the OSPAR Commission for the Protection of the Marine Environment of the North East Atlantic, 23 July, 1998, reproduced at http://www.ospar.org/eng/html/welcome.html last accessed 2 June 2006. Gubbay, above n. 9. Above n. 10. D.K. Leary, ‘Recent developments in international law relating to activities around hydrothermal vent ecosystems’ (2001) 10(2) InterRidge News 23. S. Christiansen, ‘Lucky Strike-A potential MPA, WWF North-East Atlantic Program brieﬁng note available from http://www.ngo.grida.no/wwfneap/overview/overset.htm accessed 30 May 2003. S. Christiansen and K. Gjerde, ‘Rainbow-A Potential MPA’, WWF North-East Atlantic Program brieﬁng note available at http://www.ngo.grida.no/wwfneap/overview/overset.htm accessed 30 May 2003.

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Chapter Three

3.3

Noumea Convention

The Noumea Convention aims to contribute to the care and responsible management of the special hydrological, geological and ecological characteristics of the South Paciﬁc Region. It also recognises the threats to the marine and coastal environment, their ecological equilibrium, resources and legitimate uses posed by pollution and by the insufﬁcient integration of an environmental dimension [sic] into the development process.16 Within the Convention Area,17 PNG, New Zealand, Fiji, Solomon Islands and Tonga, are all at various stages of considering development of resources (especially mineral resources) associated with hydrothermal vents within their territorial sea and/or EEZ. Two of these nations, New Zealand and PNG, have already granted exploration licences in relation to such mineral resources.18 Under the Noumea Convention the State parties have assumed a number of signiﬁcant obligations which arguably provide the legal basis for action to conserve, sustainably manage and use the resources of hydrothermal vent ﬁelds found within the Convention Area. At a general level under Article 4 of the Noumea Convention the parties are obliged to endeavour to conclude bilateral or multilateral agreements, including regional or sub-regional agreements, for the protection, development and management of the marine and coastal environments of the Convention Area. Similarly, under Article 5 the parties are obliged, either individually or jointly, to take all appropriate measures in conformity with international law and the provisions of the Noumea Convention to prevent, reduce and control pollution of the Convention Area, from any source, and to ensure sound environmental management and development of natural resources. Article 8 speciﬁcally addresses pollution from seabed activities, obliging all parties to take: all appropriate measures to prevent, reduce and control pollution in the Convention Area, resulting directly or indirectly from exploration and exploitation of the sea-bed and its subsoil.

The provisions of Article 8 are re-enforced by Article 13, which obliges parties to take:

16 17

18

Noumea Convention, Preamble. Article 2 of the Noumea Convention deﬁnes the Convention Area as the 200 nautical mile zones established in accordance with international law (i.e. the EEZ) of American Samoa, Australia (East Coast and Islands eastward including Macquarie Island), Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia and Dependencies, New Zealand, Niue, Northern Mariana Islands, Palau, PNG, Pitcairn Islands, Toeklau, Tonga, Tuvalu, Vanuatu, Wallis and Futuna and Western Samoa. The Convention Area also extends to include the areas of the high seas which are enclosed from all sides by the 200 nautical mile EEZs of these States. This is a large area of the ocean. These developments are canvassed in detail in Chapter 6.

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all appropriate measures to prevent, reduce, and control environmental damage in the Convention Area, in particular coastal erosion caused by coastal engineering, mining activities, sand removal, land reclamation and dredging.

The Noumea Convention also recognises specially protected areas as a tool for biodiversity conservation. Thus Article 14 provides: The Parties shall, individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems, depleted, threatened or endangered ﬂora and fauna as well as their habitat in the Convention Area. To this end, the Parties shall, as appropriate, establish protected areas, such as parks and reserves, and prohibit or regulate any activity likely to have adverse effects on the species, ecosystem or biological processes that such areas are designed to protect.

In addition, Article 16 contains provisions requiring assessment of the environmental impact of “major projects” on the marine environment so that appropriate measures can be taken to prevent any substantial pollution of, or signiﬁcant and harmful changes within the Convention Area. While these provisions arguably provide some basis to act at the regional level, the obligations are subject to a number of qualiﬁcations. For example, the general obligation to reduce and control pollution under Article 5(1) is to be performed subject to the individual State’s capabilities. Even more signiﬁcantly, Article 4(6) provides that nothing in the Convention shall affect the sovereign rights of States to exploit, develop and manage their own natural resources pursuant to their own policies, taking into account their duty to protect and preserve the environment. Nonetheless, at a regional level the Noumea Convention might provide the legal basis for measures to regulate access to hydrothermal vents. Having the political will or economic means to act, of course, is a different matter, especially given the potential economic signiﬁcance to these countries of such resources.

3.4 3.4.1

The Antarctic Treaty System

Introduction

As noted in Chapter 1, so far few hydrothermal vent sites have been conﬁrmed in the vicinity of Antarctica or within Antarctic waters. Nonetheless, the possibility of the discovery of such sites cannot be ruled out. In such circumstances the provisions of a number of treaties within the Antarctic Treaty System19 may offer a means of regulating or coordinating access to and activities in relation to hydrothermal vents. For present purposes the most relevant instruments are CCAMLR and the Madrid Protocol.

19

The Antarctic Treaty System is composed of a number of international agreements including inter alia the Antarctic Treaty, opened for signature 1 December, 1959, 402 UNTS 71 (entered into force 23 June 1961); CCAMLR and the Madrid Protocol.

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3.4.2

CCAMLR

Under Article I(1) CCAMLR applies to: the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.

Article II (2) deﬁnes Antarctic marine living resources as: the population of ﬁn ﬁsh, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence.

Arguably species of molluscs and crustaceans associated with hydrothermal vents would fall within this deﬁnition. So too, other species, including bacteria and archaea found at hydrothermal vents, fall within the deﬁnition as “other species of living organisms.” These species, if they exist within the area deﬁned in Article I(1), would also form part of the Antarctic marine ecosystem, which is deﬁned in Article I(3) as: The complex of relationships of Antarctic marine living resources with each other and with their physical environment.

Prima facie therefore CCAMLR would apply to hydrothermal vent ecosytems in areas covered by that treaty. Article II(1) of CCAMLR states that the objective of CCAMLR is the conservation of Antarctic marine living resources. Conservation is deﬁned under Article II(2) as including ‘rational use’ of Antarctic marine living resources. As such, harvesting of marine living resources and any associated activities must be conducted in accordance with a number of principles of conservation set out in Article II (3) of CCAMLR.20 To give effect to these principles CCAMLR established the Commission for the Conservation of Antarctic Marine Living Resources. Amongst other powers conferred on the Commission, Article IX(1)(f ) grants power to the Commission to formulate, adopt and revise conservation measures on the basis of the best scientiﬁc evidence available, subject to compliance with the Agreed Measures for the Conservation of Antarctic Fauna and Flora adopted by the Consultative Parties to the Antarctic Treaty.21 Pursuant

20

21

Those principles include: prevention of decrease in the size of any harvested population to levels below those which ensure its stable recruitment; maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations to deﬁned levels; and prevention of changes or minimisation of the risk of changes in the marine ecosystem, which are not potentially reversible over two or three decades, taking into account the state of available knowledge of the direct and indirect impact of harvesting, the effects of the introduction of alien species, the effects of associated activities on the marine ecosystem and the effects of environmental changes, with the aim of making possible the sustained conservation of Antarctic marine living resources. Pursuant to Article IX(2) these conservation measures can include: designation of the quantity of any species which may be harvested in the area to which CCAMLR applies; the designation of regions and sub-regions based on the distribution of populations of Antarctic marine living resources; the designation of the quantity which may be harvested from the populations

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to Article XXI of CCAMLR each contracting party is obliged to take appropriate measures within its competence to ensure compliance with the provisions of CCAMLR and measures adopted by the Commission pursuant to Article IX. If hydrothermal vents were to be found within the area covered by CCAMLR then arguably the provisions of this treaty could be applied to regulate human activities that may have an environmental impact on the hydrothermal vent ecosystems. However, like the Continental Shelf Regime under LOSC discussed in Chapter 2, there may be a number of problems presented by the terminology used in this convention. For example, in the context of hydrothermal vent species, do terms such as ‘harvesting’, ‘harvested population’, and ‘ﬁshing gear’ have any real meaning? More signiﬁcantly, given that so little is known about the hydrothermal vent ecosystem and the life span of individual hydrothermal vent ﬁelds, is it possible to identify ‘changes in the marine ecosystem which are not potentially reversible over two or three decades’ as required by the principles of Conservation under Article II(3) of CCAMLR? Similarly, questions would remain about the applicability of such measures to nonparty States on the high seas. However, unlike ﬁsheries measures, most of the States active in hydrothermal vent research and bioprospecting are parties to CCAMLR. This includes countries such as South Korea, France, Australia, Germany, the United Kingdom, Japan, USA and New Zealand. None of the ﬂag of convenience states such as Panama or Uruguay are involved in such activities. Diving to hydrothermal vents and carrying out research is an activity involving high technology and high cost. In that respect it is very different to other activities in Antarctic waters such as illegal unregulated and unreported ﬁshing. CCAMLR therefore may offer a further source of law and institutional mechanisms that could be used to regulate activities at hydrothermal vents. 3.4.3

The Madrid Protocol

Measures adopted under CCAMLAR could be re-inforced by similar measures adopted in accordance with the provisions of the Madrid Protocol. The Madrid Protocol serves as a framework convention which provides the basic features of the regime for environmental protection in Antarctica.22

22

of regions and sub-regions; the designation of protected species; the designation of the size, age and, as appropriate, sex of species which may be harvested; the designation of open and closed seasons for harvesting; the designation of the opening and closing of areas, regions or sub-regions for the purposes of scientiﬁc study or conservation, including special areas for protection and scientiﬁc study; regulation of the effort employed and methods of harvesting, including ﬁshing gear, with a view, inter alia, to avoiding undue concentration of harvesting in any region or sub-region; the taking of such other conservation measures as the Commission considers necessary for the fulﬁlment of the objectives of CCAMLR, including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than harvested populations. C. Redgwell, ‘Environmental Protection in Antarctica: The 1991 Protocol’ (1994) 43 International and Comparative Law Quarterly 599, 606.

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Chapter Three Article 3(1) of the Madrid Protocol provides: The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientiﬁc research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.

To this end Article 3(2) requires that activities in the Antarctic Treaty area shall be planned and conducted so as to limit adverse impacts on the Antarctic environment and dependent and associated ecosystems. As such, pursuant to Article 3(2)(b), activities in the Antarctic Treaty area must be planned and conducted so as to avoid inter alia: signiﬁcant changes in atmospheric, terrestrial (including aquatic), glacial or marine environments; detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and ﬂora; or degradation of, or substantial risk to areas of biological, scientiﬁc, historic, aesthetic or wilderness signiﬁcance. Signiﬁcantly, Article 3(2)(c) also requires all activities to be “planned and conducted on the basis of information sufﬁcient to allow prior assessments of, and informed judgements about their possible impacts on the Antarctic Environment.” These principles apply to all activities in Antarctica.23 To the extent that speciﬁc activities are not regulated by the Annexes to the Protocol, these fundamental principles provide a benchmark against which all activity must be assessed. One signiﬁcant innovation of the Madrid Protocol is the environmental impact assessment regime established for activities undertaken in Antarctica including scientiﬁc research. This regime would apply to all MSR conducted in Antarctic waters. This is considered in detail in Chapter 8 in the context of its potential role as a model for the regulation of MSR in areas beyond national jurisdiction. In addition to the environmental impact assessment regime, Annex V to the Madrid Protocol provides a mechanism for the establishment of protected areas and the regulation of activities in particular areas, which could also be used to regulate access to hydrothermal vents. Thus Article 2 of Annex V provides that any area “including any marine area, may be designated as an Antarctic Specially Protected Area24 or an Antarctic Specially Managed Area”.25 Activities in both these types of areas are prohibited, restricted or managed in accordance with Management Plans adopted under the provisions of Annex V. ASPAs can be designated to protect outstanding environmental, scientiﬁc, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientiﬁc research under Annex V Article 3(1). Article 3 of Annex V speciﬁcally requires parties to identify within a systematic environmental-geographical framework speciﬁc categories of areas to be established as ASPAs. Categories that are relevant to hydrothermal vents include representative examples of major terrestrial and marine ecosystems (Annex V

23

24 25

C.M. Harris and J. Meadows, ‘Environmental Management in Antarctica: Instruments and Institutions’ (1992) 25 Marine Pollution Bulletin 239, 244. Hereinafter ASPA. Hereinafter ASMA.

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Article 3(2)(b)); the only known habitat of any species (Annex V Article 3(2)(d)); areas of particular interest to on-going or planned scientiﬁc research (Annex V Article 3(2)(e); and examples of outstanding geological or geomorphological features (Annex V, Article 3(2)(f)). Entry into any ASPA is prohibited except with a permit granted only after vetting of the reasons for entry to the particular ASPA. Under Annex V Article 4(1) ASMAs can be established in relation to areas, including marine areas, where activities are being conducted or may be conducted in the future, so as to assist in the planning and co-ordination of activities, avoid possible conﬂicts, improve co-operation between parties or minimise environmental impacts. ASMAs may also include areas where activities pose risks of mutual interference or cumulative environmental impacts (Article 4(2)(a)). 3.4.4

Antarctica as a Model for Regulating Bioprospecting on the High Seas?

So far no measures have been implemented to speciﬁcally regulate bioprospecting in Antarctica or within Antarctic waters.26 Recently bioprospecting in Antarctica has emerged as a major issue for nations that are party to the Antarctic Treaty System and for other members of the international community. Aspects of the bioprospecting issue have been raised without any clear resolution in several meetings within forums associated with the Antarctic Treaty System including the Scientiﬁc Committee on Antarctic Research, Committee for Environmental Protection, and the Antarctic Treaty Consultative Meetings since 1999. The core concerns associated with this issue centre on the environmental impact of bioprospecting, how to regulate access and beneﬁt sharing in relation to genetic resources, and the possible impact of such regulation on freedom of scientiﬁc research. A related issue is what impact bioprospecting has on territorial claims to Antarctica and in particular the ability of States claiming territory in Antarctica to regulate bioprospecting in marine areas immediately adjacent to such claimed areas. The similarities between Antarctica and the deep ocean ﬂoor of the high seas are striking. Both are harsh environments. The ecosystems of both are heavily dependent on one form of life: in the case of Antarctica it is Krill; for hydrothermal vents it is bacteria and archaea. Both occur in areas beyond any one nation’s jurisdiction. Both are of interest to science and both have resources that many wish to exploit. Any future regime to be developed for the high seas could draw on the experience of Antarctica. Developments in relation to regulating bioprospecting in Antarctica should be watched closely as they may provide an example for regulating activities in other parts of the high seas including at hydrothermal vents.

26

For further detail on the response of the Antarctic Treaty System to the bioprospecting issue to date see A. Hemmings and M. Rogan-Finnemore, Antarctic Bioprospecting-Proceedings from the Bioprospecting in Antarctica Workshop, (2005); United Nations University (Institute of Advanced Studies), The International Regime for Bioprospecting. Existing Policies and Emerging Issues for Antarctica, (2003), Tokyo; United Nations University (Institute of Advanced Studies) Bioprospecting in Antarctica, (2005), Tokyo; and J. Jabour-Green and D. Nicol, ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’ (2003) 4 Melbourne Journal of International Law 76.

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The legal instruments discussed above arguably could be utilised in designing a regime to regulate bioprospecting in Antractica and could possibly be a model for regulating bioprospecting on the high seas.27

3.5

NEAF Convention

Many Regional Fisheries Management Organisations28 have a mandate for sustainable ﬁsheries management and some have the capacity to close areas to ﬁsheries.29 The NEAF Convention provides one example of an RFMO that could potentially be applied to hydrothermal vent sites on the high seas, including those potentially associated with seamounts.30 The NEAF Convention applies to portions of the North-East Atlantic and Arctic oceans deﬁned as the “Convention Area”.31 The NEAF Convention aims to promote: the conservation and optimum utilisation of the ﬁshery resources of the North-East Atlantic Area within a framework appropriate to the regime of extended coastal state jurisdiction over ﬁsheries, and accordingly to encourage international co-operation and consultation with respect to these resources.32

Pursuant to Article 1(2) the NEAF Convention applies to all ﬁshery resources of the Convention Area with the exception of sea mammals, and sedentary species.33 In addition where highly migratory species and anadromous ﬁsh stocks are dealt with by other international agreements they are also not regarded as ﬁshery resources for the purposes of the NEAF Convention.

27

28 29

30 31

32 33

On the question of regulating the potential environmental impact of bioprospecting in Antarctica see discussion in Chapter 8 below. Hereinafter RFMOs. K. Gjerde and C. Breide, Towards a Strategy for High Seas Marine Protected Areas: Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas (2003), 19. See discussion on hydrothermal vents and seamounts in Chapter 1. Article 1 of the NEAF Convention deﬁnes the Convention Area as waters: (a) within those parts of the Atlantic and Arctic Oceans and their dependent seas which lie north of 36° north latitude and between 42° west longitude and 51° east longitude, but excluding (i) the Baltic Sea and the Belts lying to the south and east of lines drawn from Hasenore Head to Gniben Point, from Korshage to Spodsbierg and from Gilbierg Head to Kullen, and (ii) the Mediterranean Sea and its dependent seas as far as the point of intersection of the parallel of 36° latitude and the meridian of 5°36’ west longitude (b) within that part of the Atlantic Ocean north of 59° north latitude and between 44° west longitude and 42° west longitude. Preamble, NEAF Convention. Sedentary species are deﬁned in Article 1(2) of the NEAF Convention in exactly the same terms as in LOSC.

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The NEAF Convention establishes the North-East Atlantic Fisheries Commission.34 Signiﬁcantly under Article 5(1) the Commission has the mandate to make recommendations concering ﬁsheries conducted beyond the areas under ﬁsheries jurisdiction of Contracting Parties.35 Thus the NEAF Convention provides a mechanism for regulating ﬁsheries activities of vessels ﬂagged by Contracting Parties operating in high seas areas within the Convention Area. The types of measures the Commission may make recommendations in relation to include: the regulation of ﬁshing gear and appliances (including the size of mesh of ﬁshing nets); the regulation of the size limits of ﬁsh that may be retained on board vessels, or landed or exposed or offered for sale; the establishment of closed seasons and of closed areas; the improvement and increase of ﬁshery resources, which may include artiﬁcial propagation, the transplantation of organisms and the transplantation of young; the establishment of total allowable catches and their allocation to Contracting Parties; and the regulation of the amount of ﬁshing effort and its allocation to Contracting Parties.36 The Commission has adopted a range of such recommendations. For present purposes though the most signiﬁcant recommendation is Recommendation IV adopted at the 23rd Annual Meeting of the Commission titled “NEAFC Recommendation for the Protection of Vulnerable Deep-water Habitats by Denmark (In Respect of the Faroe Islands and Greenland) Estonia, the European Community, Iceland, Norway and Poland”.37 This recommendation prohibits bottom trawling and ﬁshing with static gear such as gill-nets and long-lines in three areas: The Hecate and Faraday seamounts, and a section of the Reykjanes Ridge (which is a portion of the mid-Atlantic Ridge); the Altair seamounts; and the Antialtair seamounts. This prohibition is in force from 1 January 2005 to 31 December 2007. So far ﬁshing has not been identiﬁed as a threat to hydrothermal vent ecosystems, although it has been identiﬁed as a major threat to other vulnerable deep-water habitats such as those associated with seamounts.38 However, what NEAF Convention Recommendation 23/IV suggests is that if a hydrothermal vent ﬁeld were to be identiﬁed in association with seamounts in the Convention Area then a similar recommendation could be adopted to restrict access to such sites. Alternately hydrothermal vent sites associated with seamounts might beneﬁt indirectly where areas with other vulnerable fauna associated with seamounts are closed to ﬁshing.

34 35

36 37

38

Hereinafter referred to as the ‘Commission’. See article 3(1), NEAF Convention. The Contracting Parties are Denmark (in respect of Faroe Islands and Greenland), Estonia, Iceland, Norway, Poland and the Russian Federation. See http://www.neaf.org accessed 8 November 2005. Article 7, NEAF Convention. NEAFC Recommendation for the Protection of Vulnerable Deep-water Habitats by Denmark (In Respect of the Faroe Islands and Greenland) Estonia, the European Community, Iceland, Norway and Poland available from http://www.neaf.org accessed 8 November 2005. Hereinafter referred to as NEAF Convention Recommendation 23/IV. For discussion of the threats posed to seamount habitats and associated fauna by ﬁshing and especially bottom trawling see K. Gjerde and C. Breide above n. 29 and WWF/IUCN/WCPA, The status of the natural resources on the high-seas (2001).

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Although a detailed discussion of other mechanisms associated with the NEAF Convention are outside the scope of this book, it is also signiﬁcant to note that the Contracting Parties have adopted a scheme to promote compliance by Non-Contracting Party vessels with Recommendations established by the Commission.39 However, like CCAMLR there is some uncertainty surrounding the application of the NEAF Convention to hydrothermal vent ecosystems and associated species. Firstly obvious questions arise as to whether the deﬁnition of ‘ﬁshery resources’ under the NEAF Convention applies to species associated with hydrothermal vents. Is it correct to refer to hydrothermal vent species as ‘ﬁshery resources’? Species such as tubeworms and microbes etc are obviously not ‘ﬁshed’ as such. However, there is the possibility that some species of ﬁsh and or skates associated with hydrothermal vents may be subject to ﬁshing in the future as advances in technology permit ﬁshing at greater depths. The Commission is currently considering possible management measures for several deepsea species.40 Subject to further scientiﬁc research on the biodiversity of the deep sea, at some point in the future it may be appropriate to extend similar management measures to ﬁsh and skate species associated with hydrothermal vents, especially where such hydrothermal vent ﬁelds are also associated with seamounts. A further issue associated with the potential application of the NEAF Convention is the fact that it could not regulate MSR in areas beyond national jurisdiction. This is due primarily to the fact, as noted in earlier parts of this book, that MSR is a high seas freedom. This is re-enforced by the provisions of Article 10 of the NEAF Convention which provides that in adopting recommendations the Commission: shall determine whether, and under which conditions, those recommendations shall apply to ﬁshing operations conducted solely for the purposes of scientiﬁc investigation carried out according to relevant principles and rules of international law.41

Similalry it is questionable if the Commission could adopt any measures to regulate bioprospecting or tourism in deep-sea areas in the Convention Area. Also it clearly has no mandate in relation to regulation of deep-sea mining in areas beyond national jurisidiction as this is within the mandate of the ISA.42 Despite these difﬁculties the NEAF Convention does offer a further potential means for partially providing for the sustainable management of hydrothermal vents beyond national jurisdiction. Further research could canvas the extent to which other RFMOs could potentially apply or act as models for designing management regimes for hydrothermal vents beyond national jurisdiction.

39

40

41 42

See North-East Atlantic Fisheries Commission, Scheme to promote compliance by nonContracting Party vessels with Recommendations established by NEAFC, available from http:/www.neafc.org accessed 8 November 2005. A list of deep-sea species currently under consideration for management measures can be obtained from http://www.neafc.org/ﬁsheries/deep-sea_species_list.htm accessed 8 November 2005. Article 10, NEAF Convention. On this last issue see discussion in Chapters 2 and 9.

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77

World Heritage Convention

The World Heritage Convention seeks to establish: an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organised on a permanent basis and in accordance with modern [sic] scientiﬁc methods.43

The provisions of the World Heritage Convention arguably apply to hydrothermal vents found within the territorial waters of State parties to this convention. Under Article 2 of the World Heritage Convention natural heritage is deﬁned as: natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientiﬁc point of view; – geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; – natural sites or precisely delineated areas of outstanding universal value from the point of view of science, conservation or natural beauty.

Hydrothermal vents fall within this deﬁnition. Both the geological structures and their associated biological communities fall within the ﬁrst part of the deﬁnition in Article 2. As discussed in Chapter 1 they are impressive structures in their own right. It is perhaps not possible to say whether they are composed of threatened species within the terms of the second leg of the deﬁnition, although, given the high rates of endemism and the existence of threats as outlined in Chapter 1, this is at least arguable. As with the ﬁrst leg of the deﬁnition they are also clearly of outstanding universal value from the point of view of science. Assuming that individual hydrothermal vent sites within a country’s territorial waters fall within the deﬁnition of natural heritage, the provisions of the World Heritage Convention would apply. While the provisions of the World Heritage Convention would only apply to hydrothermal vents within areas of national jurisdiction, it also provides mechanisms to assist States in taking measures to preserve and manage such sites. For example the mechanisms under Articles 13 and 15 provide for international assistance and establish the World Heritage Fund. These could be useful in assisting States (especially developing States) in establishing mechanisms for the sustainable management of hydrothermal vents in areas within national jurisdiction.

3.7

Conclusion

While the main framework treaties LOSC and the CBD inadequately provide for the sustainable management of hydrothermal vents beyond national jurisdiction, there is considerable scope for the international community to take action within the context of

43

Preamble, World Heritage Convention.

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existing institutions in several areas of the world. Pending further action by the international community within the forums associated with the CBD and LOSC, the treaties discussed in this chapter may provide means of partially addressing the issues associated with hydrothermal vents. This chapter has outlined a number of possible options beyond the CBD and LOSC that might be explored. So while Glowka’s original hypothesis as to a lacuna in international law is correct with respect to the operation of the CBD and LOSC, treaties outside these two global treaties, and in particular, some regional treaties, do provide sources of law and institutional mechanisms that could arguably provide for the sustainable management of hydothermal vents in some areas of the world.

Chapter 4 The continental shelf regime 4.1

Introduction

For over 500 years the international law of the sea has developed as a consequence of “the interplay between two opposing fundamental principles of international law, the principle of sovereignty and the principle of the freedom of the high seas”.1 As Anand has noted “the history of the law of the sea is to a large extent the story of the development of the “freedom of the seas” doctrine and the vicissitudes through which it has passed over the years”.2 Krueger has argued that the development of international law of the sea has also been inﬂuenced by a third factor, namely developments in technology.3 This is because claims for extensions in sovereignty over ocean space, and therefore challenges to freedom of the high seas have been the direct result of a greater understanding of ocean resources, due to advances in technology. LOSC is therefore the most recent attempt at reconciling conﬂicting principles of freedom of the seas and

1

2

3

E.B. Brown, ‘Freedom of the High Seas Versus the Common Heritage of Mankind: Fundamental Principles in Conﬂict’ (1983) 20(3) San Diego Law Review 521. R.P. Anand, ‘Changing Concepts of Freedom of the Seas: A Historical Perspective in J. Van Dyke, et al. (eds), Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (1993), 72. R.B. Krueger, ‘The Convention of the Continental Shelf and the Need for its Revision and Some Comments Regarding the Regime for the Land Beyond’ (1968) 1(3) Natural Resources Lawyer 1.

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claims for extended sovereignty over ocean space by coastal states, as the nature of ocean space was understood in light of the technology of the late 1960s to the early 1980s. However, as discussions in preceding chapters have highlighted, despite the range of issues that have been resolved, LOSC appears ill equipped to deal with the challenges that new technology has brought to our recent understanding of the deep sea, its biodiversity and the threats posed to it by human activities. This chapter explores the origins of the uncertainty that surrounds the applicability of the sedentary species provisions under the Continental Shelf Regime to hydrothermal vent species. In large part much of the discussion contained in this chapter has already been canvassed in the existing literature. While much of the material presented is not new, given many scholars today were born years after the publication of this literature, it is useful for the origins of the Continental Shelf Regime to be revisited, so that in formulating a legal regime for the future we learn from the mistakes of the past and understand why they have arisen. An understanding of the origins of these provisions will assist in reaching conclusions as to whether changes to the law are warranted in light of changes in technology.

4.2 4.2.1

Historical origins of the Continental Shelf Regime

Mare Clausum vs Mare Liberum

The origins of the conﬂict between claims to sovereignty over ocean space and freedom of the high seas can be traced back to the emergence of European colonialism in the America’s and East Indies in the ﬁfteenth century. As Anand notes: In the absence of any rules in ﬁfteenth century Europe about relations with the extraEuropean world and new continents, and continuously engaged in religious wars against Muslims, some of the frontal European states, like Portugal and Spain, adopted the convenient doctrine that the Christian states had the right to occupy and possess the lands of the heathen [sic] and the inﬁdel [sic] without regard to the rights of the native peoples concerned. They also claimed that, as the head of the Christian Church, the Pope had the right to allot temporal sovereignty to any lands not possessed by a Christian ruler.4

On May 4, 1493 Pope Alexander VI divided the world between Spain and Portugal and “deﬁned a line of demarcation running 100 leagues west of the Azores and Cape Verde Islands and granted to Spain all lands west of it, and to Portugal all lands of its east”.5 Thus Spain was given jurisdiction over the Paciﬁc Ocean and the Gulf of Mexico and Portugal the Atlantic south of Morocco and the Indian Ocean.6 This arrangement was subsequently conﬁrmed in 1494 by the Treaty of Tordesillas.7 This division of the oceans between Spain and Portugal did not go unchallenged especially by the Dutch and the English. Most famously in 1609 Hugo Grotius published Mare Liberum in which he disputed the Portuguese claim to sovereignty over the East

4 5 6 7

R.P. Anand, Origin and Development of the Law of the Sea, (1983), 43. Anand, above, n. 4. Ibid. C.J. Colombos, The International Law of the Sea, (1972), 49.

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Indies. Grotius also questioned the division of the world’s oceans between the Spanish and the Portuguese.8 In doing so he formulated his famous doctrine of ‘freedom of the seas’.9 Appealing to Roman law and the works of philosophers such as Cicero, Grotius argued: Nature has made neither sun nor air nor waves private property; they are public gifts . . . they are by nature things open to the use of all, both because in the ﬁrst place they are produced by nature, and have never yet come under the sovereignty of any one . . . .; and in the second place because, as Cicero says, they seem to have been created by nature for common use . . . . the common property of all, and the private property of none.10

As the sea was not capable of becoming private property: Hence it follows, to speak strictly, that no part of the sea can be considered as the territory of any people whatsoever.11

In addition to denying the right of the Portuguese and the Spanish to claim sovereignty over ocean space, signiﬁcantly Grotius asserted that “navigation on the sea is open to anyone”.12 The seas were free for all to use and for all to exploit. Grotius’s views on the freedom of the seas was controversial and was refuted by the likes of British scholar and diplomat John Seldon in his Mare Clausem published in 1635, by Welwood in his A Scottish Abridgement published in 1613 and De Dominio Maris published in 1615, and by Seraphin de Freitas, who published De Justo Imperio in 1625.13 Of these scholars, over the following 200 years it was Seldon whose ideas came to be viewed as the most authoritative.14 Seldon argued that countries could control as much sea territory as they could dominate militarily.15

8

9 10

11 12 13 14

15

The division of the world’s oceans amongst Spain and Portugal was not the ﬁrst time sovereignty was claimed over entire oceans or seas. For example, by the end of the thirteenth century Venice claimed sovereignty over the whole of the Adriatic, while the Republic of Genoa advanced a similar claim to dominium over the Ligurian Sea. Similarly Denmark, Sweden and later Poland raised competing claims to portions of the Baltic. Just as signiﬁcant were the claims of successive English Monarchs from the eleventh century onwards to jurisdiction over the so-called “Sea of England”. For a detailed account of these claims see T.W. Fulton, The Sovereignty of the Sea. An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: with special reference to the Rights of Fishing and the Naval Salute (1911). Anand, above n. 4, 82. H. Grotius, The Freedom of the Seas or the right which belongs to the Dutch to take part in the East Indian Trade, (ﬁrst published 1633, 1916 English Translation of the Latin text translated by Ralph Van Deman Magofﬁn), 28. Grotius, above n. 10. Grotius, above n. 10, 44. R.L. Friedheim, Negotiating the New Ocean Regime, (1993), 13. R.P. Anand, ‘Changing Concepts of the Sea: A Historical Perspective’ in J. Van Dyke, D. Zaelke and G. Hewison (eds), Freedom for the Seas in the 21st Century: Governance and Environmental Harmony (1993), 75. J.M. Van Dyke, ‘Sharing Ocean Resources in a time of scarcity and selﬁshness’, in H.N. Scheiber, Law of the Sea. The Common Heritage and Emerging Challenges, (2000), 3.

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Grotius restricted the application of his general argument for mare liberum to the open sea.16 However, Grotius did recognise State jurisdiction in a narrow band of sea directly off the coast.17 Over time the recognition of the coastal State’s rights in relation to that narrow band of water hardened into a three mile zone, which eventually became known as the territorial sea.18 By the early nineteenth century the notion of the territorial sea was ﬁrmly entrenched in international law.19 Controversy still lingered on into the early twentieth century in relation to a number of questions, such as the width of the territorial sea and the extent of rights of innocent passage through the territorial sea.20 Outside the territorial sea, however, the Grotian idea of freedom of the high seas had ﬁrmly taken hold. 4.2.2

Emergence of sovereign rights in sedentary species beyond the territorial sea

From the mid nineteenth century onwards a number of coastal states also began to assert claims to the sedentary species of the sea ﬂoor beyond the narrow coastal strip of the territorial sea. In a comprehensive review of State practice Auguste notes numerous examples of claims to jurisdiction over sedentary species. These included the Tunisian regulation of a sponge ﬁshery, regulations excluding aliens from pearl banks in French territories in Oceania and from the coral of Algeria, English and Irish claims to oysters on the east coast of Ireland, regulation of pearl and mother of pearl ﬁshing of Panama, Libyan claims to “sedentary ﬁsheries of any kind” located on Libya’s continental shelf, the Ethiopian claims to pearl and other sedentary ﬁsheries, and Norwegian claims to jurisdiction to regulate the taking of crustaceans and molluscs.21 Perhaps more widely known were the claims of the British in Ceylon (now Sri Lanka) and in the colonies of Queensland and Western Australia. Writing in 1911 Fulton notes that access to the pearl ﬁsheries in Ceylon: have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction.22

Since 1811 colonial legislation had regulated access to and navigation around pearlﬁsheries located between six to twenty-one miles off the coast.23 Similarly, the colonial legislatures of Queensland and Western Australia sought to regulate access to pearl ﬁsheries in the Timor and Arafura seas in the later half of the nineteenth century.24 Doubts about the competence of colonial legislatures to legislate extra-territorially

16 17 18 19 20 21

22 23 24

Fulton above n. 8, 347. Friedheim, above n. 13, 11. Friedheim, above n. 13. R.R. Churchill and A.V. Lowe, The Law of the Sea, (1999), 72. Ibid. B.B. Auguste, The Continental Shelf: The Practice and Policy of the Latin American States with Special Reference to Chile, Ecuador and Peru, (1960), 51–56. Fulton, above n. 8, 697. Ibid. D.P. O’Connell, ‘Sedentary Fisheries and the Australian Continental Shelf’, (1955) 49 American Journal of International Law 185.

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effectively limited the operation of such legislation to pearling conducted in territorial waters, or to persons operating outside territorial waters but ordinarily domiciled in the colony.25 However, in 1885 the Imperial Parliament delegated power to the Federal Council of Australasia to “legislate in Australian waters beyond territorial limits” with respect to such ﬁsheries. Eventually the Queensland Pearl Shell and Bêche-de-mer Fisheries (Extra-Territorial) Act 1888 and the Western Australian Pearl Shell and Bêche-de-mer Fisheries (Extra-Territorial) Act 1889 extended to the activities of deepsea divers from Singapore and other British colonies in waters around Queensland and Western Australia.26 This legislation remained in force after federation of the Australian colonies in 1901 pursuant to the Commonwealth Constitution.27 Section 51(x) of the Commonwealth Constitution granted the Commonwealth parliament power to make laws with respect to “ﬁsheries in Australian waters beyond territorial limits”. It was not until 1952 that the colonial legislation was repealed and replaced by the Fisheries Act 1952 (Cth), and the Pearl Fisheries Act 1952 (Cth) which applied to both high seas and sedentary ﬁsheries in waters to be proclaimed “Australian waters”.28 This legislation made provision for the regulation of sedentary ﬁsheries within the proclaimed waters. It speciﬁcally authorised the Minister to prohibit the conduct of sedentary ﬁshing operations in speciﬁed areas of the proclaimed waters at speciﬁed times, as well as proscribing minimum sizes of pearl shell, bêche-de-mer and green snail, together with maximum size of catches.29 The overriding intention of this legislation was “to prevent, by schemes of licensing and conservation, unbridled competition and reckless wastage in the exploitation of this valuable resource”.30 Over time a body of opinion emerged that claims to sedentary ﬁsheries such as those of Ceylon, Australia and other countries were an exception to the notion of the freedom of the high seas.31 However the rights recognised with respect to sedentary species did not totally deprive the areas in which they were found of their high seas status. As Hurst observed in 1923: It cannot be too strongly emphasised that the recognition of special property rights in particular areas of the bed of the sea outside the marginal belt for the purpose of sedentary ﬁsheries does not conﬂict in any way with the common enjoyment by all mankind [sic] of the right of navigation of the waters lying over those beds or banks. Nor does it entail the recognition of any special or exclusive right to the capture of swimming ﬁsh over or around these beds or banks . . . The claim to the exclusive ownership of a portion of the bed of the sea and to the wealth which it produces in the form of pearl oysters, chanks, coral, sponges

25 26 27 28 29

30 31

Ibid. O’Connell, above n. 24, 186. Ibid. Ibid. L.F. Goldie, ‘Australia’s Continental Shelf: Legislation and Proclamations’, (1954) 3 (4) The International and Comparative Law Quarterly 535, 542. Ibid. R. Young, ‘Sedentary Fisheries and the Convention on the Continental Shelf’ (1961) 55 American Journal of International Law 359, 360.

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Such areas remained high seas even though international law recognised rights of the coastal State to regulate access to sedentary ﬁsheries. Some argued these rights appeared to give rise to sovereign claims to the seabed, although such claims were often disputed. Thus in an often cited extract from the same publication in 1923 Hurst also argued: Wherever it can be shown that particular oyster beds, pearl banks, chank ﬁsheries, sponge ﬁsheries or whatever may be the particular form of sedentary ﬁshery in question outside the three-mile limit have always been kept in occupation by the Sovereign of the adjacent land, ownership of the soil of the bed of the sea where the ﬁshery was situated may be presumed, and the exclusive right to the produce to be obtained from these ﬁsheries may be based on their being the produce of the soil. Ownership of the soil by the Sovereign of the country under such circumstances must carry with it the right to legislate for the soil so owned and for the protection of the wealth to be derived from it, and no doubt need be felt as to the binding force of the various enactments which have been issued for the protection of these sedentary ﬁsheries outside the three-mile limit.33

Despite what appeared arguably to be recognition of rights in relation to sedentary species and the surrounding seabed by State practice, there is little evidence to support any suggestion that the origin of what we now know as the doctrine of the continental shelf lies in such State practice. Scholars such as Waldock34 have been able to identify some connection between sedentary ﬁsheries and the notion of the continental shelf in the works of jurists in the early part of the twentieth century. However, it is generally accepted that the origins of the legal notion of the continental shelf lie in other quite separate developments in State practice in the 1940s.35

32

33 34

35

C.J. Hurst, ‘Whose is the bed of the sea?’, (1923–4) 4 British Yearbook of International Law 34, 42–43. Hurst, above n. 32, 40. For example, Waldock notes that at a ﬁsheries conference in Madrid in 1916 the Spaniard, de Bruen, proposed that territorial waters should be extended to include the continental shelf because it was the main habitat of an important edible species of ﬁsh. Similar ideas were also proposed in 1916 by Storni and again in 1918 by Suarez. Waldock notes the “abortive Report of the League of Nations Committee of Experts on the Exploitation of the Products of the Sea, drafted by Suarez in 1925, proposed that, for conservation of ﬁsheries, uniform ﬁsheries regulations should be established by international action over all the continental shelf ”. See C.H. N. Waldock, ‘The Legal Basis of Claims to the Continental Shelf’ (1962) 36 The Grotius Society 115, 122. For more detailed discussion of the work of the League of Nations and the alleged link between the continental shelf and ﬁsheries see also M.W. Mouton, The Continental Shelf (1952), especially Chapter II. There are, however, some isolated examples of State practice linking the concept of Continental Shelf and ﬁsheries,such as a Portuguese decree issued in 1910, which sought to regulate deep-sea trawling by ﬁshing vessels within the limits of the Portuguese Continental Shelf. See Auguste, above n. 21, 57–58.

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85

Emergence of the legal notion of the continental shelf

Writing in 1956 when the legal notion of the continental shelf was less than eleven years old Kunz observed: The doctrine of the continental shelf is the outcome of the fact that petroleum is highly needed, that geologists have located great resources of petroleum below the waters of the continental shelf and that engineering progress has made possible the extraction of this oil.36

Thus the legal notion of the continental shelf is the result of the needs of the coastal State to access the mineral resources of the continental shelf, and the fact that technology by this time had made such mineral resources accessible. The ﬁrst signs of this emerging concept and its link to mineral resources emerged in 1942 with the negotiation of the Anglo-Venezualan Treaty in relation to the Gulf of Paria.37 The United Kingdom wished to exploit the off-shore oil reserves of the Gulf of Paria located beneath the sea-bed of the high seas outside the territorial waters of Trinidad.38 The main obstacle to the exploitation of these resources lay in the inability of any State to assert title to areas of the seabed beyond the territorial sea.39 This was clearly impossible given the state of international law at this time. At least until 1945 it was clear that international law recognised no right of appropriation in relation to submarine areas outside of a nation’s territorial sea.40 The way that the Gulf of Paria Treaty got around this problem was by dividing: the submarine areas of the Gulf of Paria into two spheres of interest, each party undertaking not to make claims in the other’s sphere and “to recognise any rights of sovereignty or control” lawfully acquired by the other party in his [sic] own sphere. In other words the Treaty looked forward to the legal occupation of parts of the sea-bed and meanwhile guarded against quarrels by a political agreement concerning spheres of interest. The unexplored marine territory of the Gulf was treated much as had been the unexplored jungle lands of Africa.41

Immediately thereafter pursuant to the Submarine Areas of the Gulf of Paria (Annexation) Order 1942 Great Britain annexed to Trinidad and Tobago the submarine area allotted to it to under the treaty.42 Lauterpacht was so bold as to observe that this act of annexation marked the starting point in the development of the doctrine of the continental shelf under international 36

37

38

39 40 41 42

J.L. Kunz, ‘Continental Shelf and International Law: Confusion and Abuse’ (1956) 50 American Journal of International Law 828, 829. Great Britain-Venezuela. Treaty relating to the Submarine Areas of the Gulf of Paria, opened for signature 26 February 1942, 205 LNTS 121 (entered in force 22 September 1942), hereinafter Gulf of Paria Treaty. Research Centre for International Law, International Boundary Cases: The Continental Shelf, (1992), 5. Ibid. Krueger, above n. 3. Waldock, above n. 34, 131–132. Waldock, above n. 34, 132.

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law.43 Although the Gulf of Paria Treaty was one of the ﬁrst international legal instruments to expressly lay claims to the mineral resources of a continental shelf area, it made no claim to the continental shelf per se. It was instead the Truman Proclamation44 of 28 September 1945 that gave birth to the doctrine of the continental shelf. It was, as the International Court of Justice45 recognised in the North Sea Continental Shelf Cases,46 “the starting point of the positive law on the subject”.47 As Judge Fouad Ammoun observed, the Truman Proclamation: deliberately cut the Gordian knot of the question whether the immense resources discovered under the high seas would remain, on the model of the high seas themselves, at the disposal of the international community, or would become the property of the coastal States.48

The Truman Proclamation read as follows: Whereas the Government of the United States of America, aware of the long range worldwide need for new sources of petroleum and other minerals, holds the view that efforts to discover and make available new supplies of these resources should be encouraged; and Whereas its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilization is already practicable or will become so at an early date; and Whereas recognized jurisdiction over these resources is required in the interest of their conservation and prudent utilization when and as development is undertaken; and Whereas it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since effectiveness of measures to utilize or conserve these resources would be contingent upon co-operation and protection from the shore, since the continental shelf may be regarded as an extension of the land mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources; Now, therefore, I, Harry S. Truman, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf. Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed

43

44 45 46

47

48

H. Lauterpacht, ‘Sovereignty over Submarine Areas’ (1950) 27 British Yearbook of International Law 376, 380. The Truman Proclamation on the Continental Shelf, 1945, 4 Whiteman 756. Hereinafter ICJ. Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands (‘North Sea Continental Shelf cases’) [1969] ICJ Rep 1. Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands (‘North Sea Continental Shelf cases’) [1969] ICJ Rep 1, 33. Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands (‘North Sea Continental Shelf cases’) [1969] ICJ Rep 1 per Judge Fouad Ammoun, 105–106.

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of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.49

As is clear from its text the Truman Proclamation was a claim to jurisdiction over ‘natural resources’ of the continental shelf and the right to control their utilisation and conservation. Signiﬁcantly though, the claim to ‘natural resources’ was a unilateral claim to the oil and other mineral resources of the continental shelf. Where the expression ‘natural resources’ was used in the Truman Proclamation, this was limited to mineral resources. The Truman Proclamation was not a claim to the living natural resources of the continental shelf. It made no reference to the sedentary species of the continental shelf. If the origin of the doctrine of the continental shelf lies in the Truman Proclamation, as most jurists accept, then it is clear from the outset that claims to the continental shelf were essentially claims to mineral resources. The legal notion of the continental shelf therefore was essentially about claims to the mineral resources of the continental shelf. It was not until several years later that the concept of the continental shelf became intertwined with that of the coastal State’s right to sedentary species. The Truman Proclamation asserted the claim to the mineral resources was not intended to derogate from the high seas nature of the waters above the continental shelf. As Oda notes: The Truman Proclamation was not concerned with the regime of the continental shelf as a space but only made a moderate claim to the control and jurisdiction over the mineral resources contained in the continental shelf.50

To an extent the Grotian heritage of freedom of navigation and exploitation of the superjacent waters remained intact. In fact this was later recognised in both the 1958 Continental Shelf Convention51 and in LOSC. The Truman Proclamation was largely accepted by the international community and was followed shortly thereafter by many more unilateral declarations by other countries. These included claims of Latin American States such as Mexico (29 October 1945), Argentina (9 October 1946), Chile (June 1947), Peru (1 August 1947) and Costa Rica (27 July 1948). On 26 November 1947 by Orders in Council Great Britain also issued similar claims in the Bahamas and Jamaica.52 Claims were also subsequently made by countries such as Iceland (5 April 1948), while in the Middle East a series of proclamations were issued by Saudi Arabia (28 May 1949), and other Arab States (then still

49 50 51

52

The Truman Proclamation on the Continental Shelf, 1945, 4 Whiteman 756. S. Oda, ‘The Continental Shelf’ (1957–58) 1 Japanese Annual of International Law 15, 35. Convention on the Continental Shelf, opened for signature 29 April 1958. 499 UNTS 311 (entered into force 10 June 1964). Lauterpacht, above n. 43, 380–381.

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formally under the protection of the United Kingdom) including Abu Ihabi (10 June 1949), Ajam (20 June 1949), Bahrain (5 June 1949), Dubai (14 June 1949), Kuwait (12 June 1949), and Qatar (8 June 1949).53 Numerous other States followed shortly thereafter and over following years.54 The Truman Proclamation opened the ﬂoodgates to numerous other claims to the mineral resources of the continental shelf. As the ICJ subsequently afﬁrmed in the North Sea Continental Shelf Cases, what commenced as a unilateral declaration by one State rapidly developed into a right of the coastal State under international customary law, which was subsequently codiﬁed (albeit in amended form)55 in the 1958 Convention on the Continental Shelf 56 and more recently in LOSC.

4.3

The 1958 Geneva Convention on the Continental Shelf

From February 24 to April 27, 1958 representatives of 86 countries met at the United Nations Conference on the Law of the Sea in Geneva.57 The outcome of that conference of plenipotentiaries was four new international treaties: the Convention on the Territorial Sea and Contiguous Zone;58 the Convention on the High Seas;59 the Convention on Fishing and Conservation of the Living resources of the High Seas;60 and the Continental Shelf Convention. For present purposes the most important of these treaties was the Continental Shelf Convention. Article 2 of that convention provides: 1. The coastal State exercises over the continental shelf sovereign rights for the purposes of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.

53 54

55 56

57

58

59

60

Auguste, above n. 21, 66–70. Detailed discussion of these claims is beyond the scope of this book. The nature and extent of these claims has been discussed extensively in the existing literature. See for example publications such as Auguste, above n. 21, Lauterpacht, above n. 43, Mouton, above n. 34, S. Oda, above n. 50, and P.C. Anninos, The Continental Shelf and Public International Law (1953). See discussion below. Convention on the Continental Shelf, Geneva, 29 April 1958, entered into force 10 June 1964. 499 UNTS 311, hereinafter Continental Shelf Convention. M.M. Whiteman, ‘Conference on the Law of the Sea: Convention on the Continental Shelf’, (1958) 52 The American Journal of International Law 629. Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April 1958. 516 UNTS 205 (entered in force 10 September 1964). Convention on the High Seas, opened for signature 29 April 1958. 450 UNTS 11 (entered into force 30 September 1962). Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature 29 April 1958. 559 UNTS 285, (entered into force 20 March 1966).

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3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or any express proclamation. 4. The natural resources referred to in these articles consist of the mineral and other nonliving resources of the sea-bed 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 sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.

The effect of Article 2 was to recognise ‘sovereign rights’ in relation to the ‘natural resources’ of the continental shelf. Given the way ‘natural resources’ was deﬁned in Article 2(4), this meant the rights exercised by the coastal State extended beyond the mineral resources claimed by the Truman Proclamation and subsequent claims to the continental shelf. It now included rights in relation to the sedentary species. How did the intertwining of the legal notion of continental shelf and the rights of the coastal State to sedentary species occur? It occurred because of the fusion of the two concepts during the controversial work of the International Law Commission.61 The 1958 Continental Shelf Convention grew out of draft articles prepared by the ILC during the period 1950 to 1956.62 At its ﬁrst session held in 1949, Mr J.P.A. François was elected special rapporteur by the ILC to study the regime of the high seas. At its sessions held in 1950 and 1951 the ILC received reports submitted by Mr François and considered issues associated with the regime of the high seas, including nationality of ships, safety of life at sea, slave trade, submarine telegraph cables, resources of the high seas, the right of hot pursuit, right of approach, contiguous zones, sedentary species and the continental shelf.63 The position initially adopted by the ILC in relation to the continental shelf was unambiguously clear. The rights of the coastal State in relation to the continental shelf extended only to mineral resources. By a convincing vote of eleven to one the ILC initially resolved that the issue of the mineral resources of the continental shelf should be considered separately from that of sedentary ﬁsheries.64 As the ILC observed in its report to the United Nation General Assembly in relation to the work of its third session, the ILC considered that: sedentary ﬁsheries should be regulated independently of the problem of the continental shelf. The proposals relating to the continental shelf are concerned with the exploitation of the mineral resources of the subsoil, whereas, in the case of sedentary ﬁsheries, the proposals refer to ﬁsheries regarded as sedentary because of the species caught or the equipment used eg the stakes embedded in the sea ﬂoor. This distinction justiﬁes a division of the two problems.65 61 62 63

64

65

Hereinafter ILC. Krueger, above n. 3, 3. United Nations, International Law Commission, Report of the International Law Commission Covering the work of its Fifth Session, June 1– August 14, 1953, 8 UN GAOR A/2456 reproduced in (1954) 48 American Journal of International Law, Supp. 1. D.P. O’Connell, ‘Sedentary Fisheries and the Australian Continental Shelf’, (1955) 49 American Journal of International Law 185, 203. United Nations, International Law Commission, Report of the International Law Commission covering its Third Session, May 16–July 27, 1951, 6 UN GAOR, Supp 9, A/1858 reproduced in (1951) 45 American Journal of International Law, Supp 103.

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The proposals the ILC was referring to were its proposed draft articles. Thus draft Part I, Article 2 provided: The continental shelf is subject to the exercise by the coastal State of control and jurisdiction for the purpose of exploring it and exploiting its natural resources.66

The control and jurisdiction over the ‘natural resources’ was clearly conﬁned only to mineral resources. In relation to sedentary species the ILC proposed a separate draft article as follows: The regulation of sedentary ﬁsheries may be undertaken by a State in areas of the high seas contiguous to its territorial waters, where such ﬁsheries have long been maintained and conducted by nationals of the State, provided that non-nationals are permitted to participate in the ﬁshing activities on equal footing with nationals. Such regulation will, however, not affect the general status of the areas as high seas.67

This draft article was essentially declarative of the existing law with respect to sedentary species discussed earlier in this chapter. It is also worth noting that the nature of the coastal State’s rights were deﬁned as ‘control and jurisdiction’. As the ILC observed: [draft] Article 2 avoids any reference to “Sovereignty” of the coastal State over the submarine areas of the continental shelf. As control and jurisdiction by the coastal State would be exclusively for exploration and exploitation purposes, they cannot be placed on the same footing as the general powers exercised by a State over its territory and its territorial waters.68

While in 1951 the ILC was prepared to accept the existing law that clearly recognised a separation of the issue of sedentary ﬁsheries from that of the continental shelf and its mineral resources, by 1953 the ILC completely reversed its position. After a long and contentious debate over several days the ILC eventually agreed on signiﬁcant changes to draft Article 2 which was now amended to read: The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources69

66

67

68

69

Part I, Article 1, Draft Articles on the Continental Shelf and Related Subjects, Annex to United Nations, International Law Commission, Report of the International Law Commission covering its Third Session, May 16–July 27, 1951, 6 UN GAOR, Supp 9, A/1858 reproduced in (1951) 45 American Journal of International Law, Supp, 103. Part II, Article 3, Draft Articles on the Continental Shelf and Related Subjects, Annex to United Nations, International Law Commission, Report of the International Law Commission covering its Third Session, May 16–July 27, 1951, 6 UN GAOR, Supp 9, A/1858 reproduced in (1951) 45 American Journal of International Law, Supp, 103. Report of the International Law Commission covering its Third Session, May 16–July 27, 1951, 6 UN GAOR, Supp 9, A/1858 reproduced in (1951) 45 American Journal of International Law, Supp, 103, 142. Article 2, Draft Articles on the continental shelf, United Nations, International Law Commission, Report of the International Law Commission covering the work of its ﬁfth session 1 August, 1953, reproduced in (1954) 48 American Journal of International Law, Supp., 1, 28.

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In adopting the term ‘sovereign rights’ the ILC was deliberately seeking to: avoid language lending itself to interpretation alien to an object which the Commission considers to be of decisive importance, namely, safeguarding the principle of the freedom of the superjacent sea and the airspace above it.70

This was a compromise between ‘Sovereignty’ and ‘control and jurisdiction’. Although the term ‘natural resources’ remained, this cloaked a far more dramatic change in the legal notion of the continental shelf. The ILC had before it a recommendation by the Special Rapporteur that the rights of the coastal State be limited only to the mineral resources of the continental shelf. This proposal was consistent with the position previously adopted by the ILC. However, some members of the ILC were of a different opinion. Mr Lauterpacht for example argued: The Commission had now to decide whether it wished to limit the exclusive right of exploration and exploitation to the mineral resources which were to be found on the sea-bed and in the subsoil, or whether it should be extended to cover the pearl and oyster beds, sponge deposits and other natural resources which would be included under the term “natural” resources. He saw no good reason why mineral and non-mineral resources should be treated differently . . . [provided] that “natural resources” did not include swimming ﬁsh or bottom ﬁsh.71

Other members of the ILC opposed such a proposal. Mr Scelle for example was unable to agree with the views expressed by several members of the Commission. For if sovereign rights over the continental shelf were to be extended to include sedentary ﬁsheries: What would be left of the principle of the freedom of the high seas at the end of that process of extension? He feared that so little would be left of the high seas as would not sufﬁce to drown a celebrated little book, the author of which was one named Grotius.72

In the end that ‘little book’ did not drown, although it was to become decidedly soggy. After deferring debate on this issue several times, after a ﬁnal lengthy debate, the ILC reversed its position and resolved to bring the sedentary species within the sovereign rights the coastal State enjoyed under proposed draft Article 2. As the ILC noted in its report to the General Assembly: The Commission decided, after considerable discussion, to retain the term “natural resources” as distinguished from the more limited term “mineral resources”. In its previous draft the Commission only considered mineral resources, and certain members proposed

70

71

72

United Nations, International Law Commission, Report of the International Law Commission covering the work of its Fifth Session 1 August, 1953, reproduced in (1954) 48 American Journal of International Law, Supp 1, 31. Comments of Mr Lauterpacht reported in United Nations, International Law Commission, (1953) Yearbook of the International Law Commission, Volume 1 Summary of records of the 5th Session, UN Doc No. A/CN.4/SER.A/1953, 135. Comments of Mr Scelle, reported in United Nations, International Law Commission, (1953) Yearbook of the International Law Commission, Volume 1 Summary of records of the 5th Session, UN Doc No. A/CN.4/SER.A/1953, 146.

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Chapter Four adhering to that course. The Commission, however, came to the conclusion that the products of sedentary ﬁsheries, in particular to the extent that they were natural resources permanently attached to the bed of the sea, should not be outside the scope of the regime adopted and that this aim could be achieved by using the term “natural resources”. It is clearly understood, however, that the rights in question do not cover so-called bottom-ﬁsh and other ﬁsh which, although living in the sea, occasionally have their habitat at the bottom of the sea or are bred there. Nor do these rights cover objects such as wrecked ships and their cargoes (including bullion) lying on the sea bed or covered by the sand of the subsoil. . . . Neither, in the view of the Commission, can the exclusive rights of the coastal state be exercised in a manner inconsistent with existing rights of nationals of other states with regard to sedentary ﬁsheries. Any interference with such rights, when unavoidably necessitated by the requirements of exploration and exploitation of natural resources is subject to rules of international law ensuring respect of the rights of aliens. However, apart from the case of such existing rights, the sovereign rights of the coastal state over its continental shelf cover also sedentary ﬁsheries. It may be added that this was the reason why the Commission did not think it necessary to retain, among the articles devoted to the resources of the sea, an article on sedentary ﬁsheries.73

Thus the doctrine of the continental shelf was fused with the rights of the coastal State in relation to sedentary ﬁsheries. However, as the above discussion illustrates and as Goldie was subsequently to observe, this fusion from the beginning was: an artiﬁcial graft upon a regime whose main purposes and policies were formulated and directed for the purpose of regulating the exploration for and exploitation of mineral resources. The graft was camouﬂaged by a legal ﬁction, namely, the pretence of an untrue state of facts (sessile sea animals are growths of the soil as crops are) to reach a legal conclusion whose propriety depends on the acceptability of the erroneous premise (sessile animals are legally classiﬁable as crops).74

There were attempts to reverse this decision in subsequent debate of the ILC, but the recommendation of the ILC remained unchanged. This fusion was reﬂected in Article 68 of further draft article prepared by the ILC, and ultimately in Article 2 of the 1958 Convention on the Continental Shelf. Even though mineral resources and sedentary ﬁsheries had been fused into ‘natural resources’ controversy remained. Some States (for example the Federal Republic of Germany) still argued that the continental shelf provisions should only apply to mineral resources.75 Controversy also remained as to the precise meaning of the expression ‘natural resources’ well into the negotiations of the 1958 Convention on the Continental Shelf, including whether it should extend to shrimp and crustaceans. As Dean observed:

73

74

75

United Nations, International Law Commission, Report of the International Law Commission covering the work of its Fifth Session 1 June–14 August, 1953, 8 GAOR, Supp No. 9, A/2456 reproduced in (1954) 48 American Journal of International Law Supp, 1, 32. L.F. Goldie, ‘Sedentary Fisheries and Article 2(4) of the Convention on the Continental ShelfA plea for a separate regime’ (1969) 63 The American Journal of International Law 86, 90. M.M. Whiteman, ‘Conference on the Law of The Sea: Convention on the Continental Shelf’, (1958) 52 American Journal of International Law 629, 636.

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In the commentary to the International Law Commission’s draft resolution on the continental shelf, the Commission stated that attempts to further deﬁne the term “natural resources” to make it speciﬁcally include such resources permanently attached to the bed of the sea or to make it include all marine life living in constant physical and biological relationship with the seabed were rejected. The Commission did not, therefore, take a stand in its draft as to whether the term “natural resources” would include shrimp and other such crustaceans.76

Ultimately ‘natural resources’ were deﬁned in Article 2(4) of the 1958 Convention on the Continental Shelf as consisting of: the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

This provision clearly carries the mark of the interests of countries that have claimed historic rights in relation to sedentary species. It is no co-incidence therefore that it was the result of a joint proposal introduced into the negotiations by countries that had claimed such rights, including Australia and Ceylon, as well as the Federation of Malaya, India, Norway and the United Kingdom.77 Australia in particular was inﬂuential in the negotiation of this provision.78 Thus what begun as two completely separate concepts of international law were fused together under the 1958 Continental Shelf Convention. That fusion was carried forward into Article 77 of LOSC with little opposition. The notable exception to this was Japan, which had never signed the 1958 Continental Shelf Convention.79 Japan subsequently introduced a draft proposal dealing with the continental shelf at the Caracas sessions of the LOSC negotiations in 1974. If accepted this proposal would have conﬁned the continental shelf regime to the mineral resources of the continental shelf.80 However, this proposal received little support.81

4.4

Conclusion: Should we sever the link between sedentary species and the continental shelf ?

As the discussion above illustrates, the rights of the coastal State over sedentary species and the legal notion of the continental shelf have quite independent origins. These two 76

77 78

79 80 81

A.H. Dean, ‘The Geneva Conference on the Law of the Sea: What was accomplished.’ (1958) 52 American Journal of International Law 607, 621. M.M. Whiteman, above n. 75, 638. The Australian position was heavily inﬂuenced by its ongoing dispute with Japan in relation to Japanese pearling off the Australian coast. For a detailed overview of this dispute and its inﬂuence on the Australian position in relation to the continental shelf negotiations see S.V. Scott, ‘The inclusion of sedentary ﬁsheries within the continental shelf doctrine’ (1992) 41 International & Comparative Law Quarterly 788. J.C. Wang, Handbook On Ocean Politics & Law (1992), 458. See Document A/CONF.62/C.2/L.31/Rev. 1 reproduced in Wang, above n. 78, 458. Wang, above n. 78, 459.

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very separate legal concepts were fused in controversial circumstances. Despite attempts to revive the issue by the time LOSC entered into force, it was clear that the fusion was now accepted by the international community. The link between sedentary species and the continental shelf is now ﬁrmly entrenched in international law. As noted in Chapter 2, more recent developments in technology present new problems, which the fusion of rights in relation to sedentary ﬁsheries and the legal notion of the continental shelf do not contemplate. It is not clear what hydrothermal vents species fall within the continental shelf regime because of the uncertainty surrounding the applicability of the sedentary species deﬁnition to many hydrothermal vent species. The obvious solution might be to do away with the existing provisions on the continental shelf and sedentary ﬁsheries and replace them with another regime. But such a siginiﬁcant change is unlikely. Given the great mineral wealth to be found on the continental shelf, it is highly unrealistic to expect any State to give up such resources. Similarly the States that had previously claimed historic rights to sedentary ﬁsheries, and that argued so strongly for their fusion with the legal notion of the continental shelf are unlikely to give up such claims. Perhaps more signiﬁcantly there is always the risk that in re-opening debate on this issue, this could lead to a whole range of other issues being re-opened for negotiation. Given the origins of the current Continental Shelf Regime (including the sedentary species provisions), it is arguable that any future legal regime will need to maintain the existing rights that have been recognised in relation to the continental shelf, while providing separately for the regulation of activities at hydrothermal vents. The two regimes will need to be complementary. It is clear that the sedentary species deﬁnition was never intended to apply to species such as those associated with hydrothermal vents. It would seem appropriate that any future regime for the sustainable management of hydrothermal vents operate separately from that of the continental shelf. Beyond the EEZ it would appear appropriate for a common regime to apply to hydrothermal vents sites on the continental shelf and in the Area. However, given the uncertainity as to the number of hydrothermal vent sites on the continental shelf outside the EEZ a more immediate priority for the international community is scientiﬁc research to examine the extent to which this issue requires attention. Any deﬁnitive proposal with respect to changes to the Continental Shelf Regime must therefore await better understanding of the nature and scale of the problem to be addressed. This chapter has nonetheless identiﬁed the origins of the problems previously identiﬁed with respect to the Continental Shelf Regime.

Chapter 5 The common heritage of mankind 5.1

Introduction – unresolved issues

While the 1958 Convention on the Continental Shelf clearly resolved the debate as to whether sedentary species should be linked to the legal notion of the continental shelf, that treaty, together with the other 1958 Geneva Conventions, left two major questions unresolved in relation to the deep seabed. Firstly, the extent to which a coastal State could exploit the ‘natural resources’ of the continental shelf was unclear. Article 1 of the 1958 Continental Shelf Convention deﬁned the term ‘continental shelf ’ as: referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

For many the exploitability criteria in Article 1 introduced unnecessary uncertainty into the law, especially given that rapid advances in technology were extending the area of ocean space that States could claim further and further into the ocean. This uncertainty was ultimately removed by Article 76 of LOSC, which provides for a more certain deﬁnition of the Continental shelf, now generally deﬁned in terms of the baselines from which the territorial sea is measured.1

1

This will not always be the case. Article 76(5) of LOSC also provides that in certain circumstances the baseline may be drawn with reference to the 2,500 metre isobath.

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The second and perhaps more signiﬁcant issued left unresolved by the 1958 Geneva Conventions was the status of the deep seabed.2 The differing interpretations of the legal status of the seabed, together with the response of the international community in Part XI of LOSC, have already been referred to in Chapter 2. One of the most important aspects of the response was the declaration in Article 136 that the “Area and its resources are the common heritage of mankind [sic]”.

5.2

Central elements of the the common heritage of mankind

The central elements of the common heritage of mankind as reﬂected in LOSC are nonappropriation of the deep seabed beyond national jurisdiction, common management of the mineral resources of the deep seabed beyond national jurisdiction and beneﬁt sharing of the deep seabed mineral resources.3 It is unclear to what extent the designation of the Area and its resources as the common heritage of mankind goes beyond these central elements, or to what extent the common heritage of mankind is recognised by international law outside of LOSC. As one author has noted, its application is a source of international controversy, its source and conceptualisation a topic of scholarly debate.4 The extent of this controversy and uncertainty can be clearly demonstrated by referring to a recent and impressive study of the common heritage of mankind in international law by Baslar. In his introductory remarks he observes: Although the concept has been intensively discussed since the late 1960s, international lawyers still ﬁnd themselves in a quandry as to what the common heritage of mankind really means in international law. They have failed until now to give a satisfactory, comprehensive and widely-agreed deﬁnition encompassing the whole scope of the common heritage of mankind. Aside from a comprehensive universal deﬁnition to start with, there is no single descriptive term to which international lawyers and academics adhere. International lawyers so far have used different terms to describe the common heritage of mankind phenomenon. Joyner, for instance, uses ﬁve different terms in his oft-quoted article to refer to the common heritage of mankind- concept, notion, doctrine, regime and ideal. A number of writers label the common heritage of mankind with other terms such as a theory, principle, right, rule and a legal “term of art”.5

A detailed analysis of Baslar’s study is beyond the scope of this book. However, as these comments by Baslar highlight, in considering the common heritage of mankind we are confronted with a major problem. The common heritage of mankind has no agreed deﬁnition beyond that stated in LOSC. There have been numerous attempts to apply the

2

3

4 5

L.M. Alexander, ‘Future Regimes: A Survey of Proposals’ in R. Churchill, K.R. Simmonds and J. Welch (eds), New Directions in the Law of the Sea-Collected Papers, Volume 3, (1973), 119. J. Frakes, ‘Notes and comments: The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will developed and developing nations reach a compromise?’ (2003) 21 Wisconsin International Law Journal 409, 410. Ibid. K. Baslar, The Concept of the Common Heritage of Mankind in International Law, 1998, 1–2.

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label common heritage of mankind to other resources apart from the mineral resources of the Area. Thus: In 1982 Antarctica was proposed to be proclaimed as another common heritage of mankind. There have also been many aspiring attempts up to now to also declare, among others, various resources as belonging to mankind. These include outer space resources such as meteors, the geostationary orbit, the spectrum of radio-frequencies used for space communication, solar energy, low earth orbits, La Grange spots, various environmental resources such as endangered species, genetic resources, tropical rain forests, the atmosphere, all food resources, marine living resources and cultural heritages. Moreover, intentions have been expressed also to use the common heritage philosophy in regard to the transfer of technology and trade commodities.6

Signiﬁcantly despite the calls of some developing countries in particular, the common heritage of mankind concept was not incorporated in the CBD. Instead the preamble to the CBD merely recites that the “conservation of biological diversity is the common concern of humankind”. Although often used inter-changebly there is often confusion as to the difference between the common heritage of mankind and the common concern of humankind. Whatever the common concern of humankind may mean at least at one level it can be distinguished from the common heritage of mankind simply because the common concern of humankind is not restricted to areas beyond national jurisdiction.7 Not only is there no agreed deﬁnition of the common heritage of mankind, there is also a wide divergence of views as to precisely what should be labelled the common heritage of mankind. A review of each of the resources that have been nominated for designation as the common heritage of mankind and the strong arguments that can be made that they should be designated the common heritage of mankind is beyond the scope of this book. But we cannot escape from the fact that no matter how passionate and how justiﬁable some arguments may be that resources such as these should be designated as the common heritage of mankind, we need clearly to distinguish between the common heritage of mankind as rhetoric (as a political and aspirational statement) and the common heritage of mankind as it is currently reﬂected in international law. Despite the wide range of resources that have been put forward as the common heritage of mankind, apart from LOSC, only one other treaty has ever formally included reference to the Common Heritage of Mankind, namely the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.8 Article 11(1) of the 1979 Moon Treaty declares: The moon and its natural resources are the common heritage of mankind, which ﬁnds its expression in the provisions of this Agreement and in particular in paragraph 5 of this article.

6 7

8

Baslar, above n. 5, xx. L. Horn, ‘The Implications of the Concept of Common Concern of a Humankind on a Human Right to a Healthy Environment’ (2004) 1(4) Macquarie Journal of International and Comparative Environmental Law 233, 244. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December, 1979, 18 I L M 1434, (entered into force 11 July 1984), hereinafter referred to as the Moon Treaty.

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However, as Smith observes, the Moon Treaty: is worded broadly enough to permit varying deﬁnitions of its [common heritage of mankind] concept. The [common heritage of mankind] concept of the Moon Agreement ultimately is to ﬁnd its expression from within the provisions of the Agreement itself when an international regime is established. The Agreement calls for Parties to “undertake to establish” this international regime when exploitation “is about to become feasible”. The Agreement does not deﬁne the details and procedures of the regime, but it does set out the main purposes. Those purposes include the orderly and safe development of natural resources, their rational management, and expansion of opportunities for their use. The regime is also to provide for an “equitable sharing” by all Parties in the beneﬁts derived from the natural resources. In this sharing, two groups are to be given special consideration: developing countries and countries that contributed in some fashion to the exploration of the Moon. Apart from these main purposes, little is known about the particular [common heritage of mankind] concept of the Moon Agreement.9

Even though the Moon Treaty includes reference to the common heritage of mankind, its precise legal meaning is unclear and still largely to be deﬁned. Thus we can gain little insight as to the true meaning of the common heritage of mankind from the Moon Treaty. In a strict legal sense, the common heritage of mankind therefore has a very narrow meaning and scope of operation. To the extent that the common heritage of mankind has been reﬂected in international law, (as opposed to international politics) the only clear articulation of that concept is as outlined in LOSC. Even within the context of LOSC its meaning is far from settled. During the negotiations of LOSC the precise meaning of the common heritage of mankind changed dramatically over time, inﬂuenced in large part by economic and diplomatic events of the time, coinciding with the rise and fall of the New International Economic Order.10

5.3

Has the world moved on?

Since LOSC was negotiated the world has also moved beyond the struggles over the NIEO. While poverty, disease malnutrition other “cries of the sea”11 which gave rise to the claims of the NIEO are still with us, the nature of international politics, international

9

10

11

M.L. Smith, ‘The Commercial exploitation of mineral resources in outer space’ in T.L. Zwaan et al. (eds), Space Law: Views of the Future, (1988), 52. New International Economic Order is hereinafter referred to as NIEO. See M. Koskenniemi and M. Lehto, ‘The Privilege of Universality. International Law, Economic Ideology and Seabed Resources’ (1996) 65 Nordic Journal of International Law 533. For a more detailed overviews of the negotiation of the common heritage regime under LOSC see for example M.G. Schmidt, Common Heritage or Common Burden? The United States Position on the Development of a Regime for Deep Sea-Bed Mining in the Law of the Sea Convention, (1989); and J.B. Morell, The Law of the Sea. An Historical Analysis of the 1982 Treaty and Its rejection by the United States, (1992). P.B. Payoyo, Cries of the Sea. World Inequality, sustainable development and the common heritage of humanity, (1997).

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rhetoric and indeed international law has changed dramatically. It is unlikely that we will see the likes of the NIEO agenda pursued so vigorously or successfuly again. As Martti Koskenniemi has observed: Formal decolonization did not turn out to create a just international system. Initiatives within the United Nations, such as the New International Economic Order, failed to bring about a noticeable transformation in the global distribution of resources. On the contrary, when the regulative objectives of the 1982 UN Convention on the Law of the Sea were watered down in a 1994 implementation agreement, this was done under the language of “securing the universality of the Convention” that in fact underwrote the Western policy of creating a cost-effective market for private enterprise in the deep seabed. Receiving the beneﬁt of sovereignty did not do away with conﬂict in the Third World, though it may have localized much of it as civil war. The end of the Cold War did bring about a signiﬁcant expansion of the electoral process. Yet, today’s democratic melancholy suggests that progressive transformation requires more than the export of a determined set of public institutions-but just what this might require and what role international law might play in the future remains obscure. Whatever globalization may mean, it has certainly not strengthened international public policy . . . The acceptance by the developed States of a legal obligation to eradicate poverty in the Third World is no longer seriously expected. Indeed, the very idea that economic injustice might be usefully dealt with by States, and public law, may now seem altogether old-fashioned, and politically ambivalent. Legal internationalism always hovered insecurely between cosmopolitan humanism and imperial apology, revealing itself as either one or the other the moment it was enlisted to support a particular institutional or normative arrangement. In the conditions of the Cold War, it may still have been possible to think that this resulted from the political interpretations that the protagonists in that struggle projected on to the law. Today, it has become much harder to believe that there is a rationality embedded in international law that is independent from the political perspectives from which it is seem.12

One need not take such a bleak view of where international law and international relations are today as Koskenniemi does. But he is right to the extent that he recognises the world has changed since the days of the NIEO. The rhetoric of the free market and free trade dominate international affairs, and, increasingly, the institutions of international law. It is hard to envisage how a concept like the common heritage of mankind, connected as it is to a particularly cumbersome political structure such as the ISA, could ever stand much chance of emerging today. It is not just developments such as end of the cold war and the triumph of the neoliberal ideas such as free trade and emergence of new neo-liberal institutions such as the World Trade Organisation13 that would suggest the time of the common heritage of mankind has passed. An argument might even be made that the common heritage of mankind was at odds with developments in international environmental law and the principles ennunciated at Stockholm, Rio and more recently Johannesburg. The principles reﬂected in treaties such as the CBD and in Soft Law instruments since Stockholm

12

13

M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, (2001), 512–513. Hereinafter WTO.

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speak of the importance of conserving biodiversity and the need for a precautionary approach. They would appear to be at odds with a concept which at its core is about the sharing in the fruits of exploitation of resources. Does expanding the resources which must be shared in part mean that we put exploitation before conservation or sustainable development? Some would argue that there is no contradiction here, that the common heritage of mankind and sustainable development involve common goals. For example Kiss argues: that the common heritage of mankind is mainly a concept of conservation and of transmission of a heritage to the future generations.14

To an extent this may be true, but not all would agree. The argument of just what the common heritage of mankind means was in part what paralysed the negotiations of LOSC and lead to the wholesale renegotiation of key parts of Part XI of LOSC. The form which the common heritage of mankind eventually took in LOSC and the so called Part XI implementation agreement were very different from the goals of the NIEO. Just how different is illustrated by the frank assessment of the common heritage of mankind contained in LOSC by its leading proponent Dr Arvid Pardo, who shortly after the negotiations of LOSC, described the common heritage regime as embodied in LOSC and Part XI as “little short of a disaster.”15 Since the common heritage of mankind is an unclearly deﬁned concept in international law, the adoption of which was contentious and stalled negotiations on a comprehensive oceans regime, is it worthwhile to embark on this debate again for another ocean resource, the genetic resources of hydrothermal vents? I think not. The point is that if we waste time arguing whether or not hydrothermal vents and their genetic resources are the common heritage of mankind we risk re-opening old debates that, in light of changes in world politics and international law, are perhaps now pointless. Unlike the now laughable predictions16 made as to the future wealth that might come from deep-sea minerals during the debates leading up to LOSC, bioprospecting in the deep sea is occurring now and is a commercial proposition.17 If we are to embark on the rather pointless debate of whether hydrothermal vent genetic resources are the common heritage of mankind, we may delay the creation of a new legal regime for decades. By that time the extent of the already existing commercial activities in the deep sea may have grown to a point where design and implementation of any legal regime will be that

14

15

16

17

A. Kiss, ‘Conserving the Common Heritage of Mankind’, (1990) 59 Revista Juridica de la Universidad de Puerto Rico 773, 776. A. Pardo, ‘The Convention on the Law of the Sea: A Preliminary Appraisal’, (1983) 20 San Diego Law Review 489, 499. For example, in calling for the establishment of the international agency that would ultimately become the ISA, Dr Arvid Pardo calculated that, if established in 1970, the agency would after ﬁve years or in 1975 have a gross annual income “conservatively” estimated at US$6 billion and a net proﬁt of US$5 billion. See G. Weissberg, ‘International law meets the short term national interest: The Maltese proposal on the sea-bed and ocean ﬂoor-its fate in two cities’, (1969) 18 International and Comparative Law Quarterly 41, 52. The extent and nature of bioprospecting at hydrothermal vents is discussed in Chapter 7.

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much harder. Vested commercial interests and therefore national interests will have become ﬁrmly entrenched. Instead we must move on immediately to consider what form the regime should take, rather than be diverted by what name we give to such a regime, the common heritage of mankind or otherwise. What matters is that exploitation of these resources is sustainably managed and that beneﬁt sharing is fair and equitable.

5.4

Conclusion – the Common heritage of mankind and future debate

In initially considering the status of hydrothermal vents under international law Glowka observed that: [w]hile it may be worthwhile to create a legal and institutional regime for the Area’s genetic resources, it is difﬁcult to determine conclusively without further study whether it is useful, or even necessary, to declare the Area’s genetic resources a common heritage of mankind.18

This chapter has shown that the Common Heritage of Mankind has no clearly deﬁned or accepted legal meaning (as opposed to its rhetorical meaning) or at best a disputed meaning when divorced from the deep-sea mining regime under Part XI of LOSC. It is largely the product of another and now past era of international relations. That is not to say that there should not be sharing of the beneﬁts associated with the commercialisation of hydrothermal vent genetic resources. This is another issue altogether, taken up in Chapter 7. It is quite a separate issue from whether or not such resources should be regarded as the common heritage of mankind. We start to see here a hint of what the future regime may look like. Some old ideas must be discarded, and perhaps as later chapters will show, new ideas may be required. Before moving to consider what form those new ideas may take, it is ﬁrst necessary to consider how individual States have approached this issue without the need to resort to the common heritage of mankind.

18

L. Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine Scientiﬁc Research, and the Area’ (1996) 12 Ocean Yearbook 154, 170.

Chapter 6 Domestic legal regimes regulating activities at hydrothermal vent sites within national jurisdiction 6.1

Introduction

In complete contrast to the position under international law, a number of States are either in the process of designing policies and legal regimes to regulate access to hydrothermal vents within their territorial waters and EEZs, or they have begun implementing such policies and laws. These states include Canada, New Zealand, Portugal, PNG, Fiji, the Cook Islands1 and Russia. Due to the difﬁculty in accessing information and materials on these regimes only the ﬁrst four are considered in this chapter. To varying degrees each of these policy and legal regimes is grounded upon the rights and obligations of States under both LOSC and the CBD as discussed in Chapter 2. However, their structure and content vary from State to State. This chapter seeks to outline the nature and extent of these regimes. Examination of the policy and legal regimes

1

The Cook Islands is a self governing territory of New Zealand.

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adopted or under development by each State provides some guidance on the range of tools and issues to consider in designing a regime to provide for the sustainable management of hydrothermal vents on the high seas. Discussion in this chapter is broken into two parts. The ﬁrst part of the chapter outlines the main features of the policy and legal regimes in the four States noted above. Discussion of each State’s regime commences with an outline of the location and main features of the particular hydrothermal vents within their territorial sea, EEZ, or continental shelf, and the main stakeholders who have an interest in the regimes under development. This is followed by an examination of the key features of each regime. The chapter then concludes by considering what lessons can be drawn from the domestic experience. Three of these regimes, Canada, New Zealand and PNG, have an impact on the rights of indigenous communities. As issues associated with indigenous rights do not arise on the high seas, a detailed consideration of the impact of these regimes on indigenous communities is beyond the scope of this book.

6.2 6.2.1

Canada – The Endeavour hydrothermal vents

The Endeavour ecosystem

Canada is surrounded by three oceans, the Arctic, the Atlantic and the Paciﬁc. The later is home to some of the most intensely studied hydrothermal vent ﬁelds in the world. The Endeavour hydrothermal vents form part of the Juan de Fuca Ridge system and lie in water 2,250 metres deep some 256 kilometres southwest of Vancouver Island, off Canada’s Paciﬁc Coast and within Canada’s EEZ.2 They are four ﬁelds of large black smoker structures surrounded by lower temperature venting.3 The four ﬁelds are the Main Endeavour Field, the Mothra Field, the High Rise Field and the Sawlty Dawg Field. They represent a unique habitat that is considered the most biologically productive and diverse hydrothermal vent site along the Juan de Fuca Ridge.4 Like all known hydrothermal vent areas, the Endeavour ecosystem fosters numerous unique species, many found no where else in the world.5 At least 60 distinct species are native to the Juan de Fuca Ridge and the Endeavour area,6 and at least 12 of those species do not exist anywhere else in the world.7 The surrounding deep ocean normally only supports sparse life

2

3

4

5 6 7

Canada, Department of Fisheries and Oceans: Backgrounder: The Endeavour Hydrothermal Vents Area (2001). V. Tunnicliffe and R. Thomson, Oceans Background Report. The Endeavour Hot Vents Area: A Pilot Marine Protected Area In Canada’s Paciﬁc Ocean (1999), 2. Canada, Minister of Public Works and Government Services ‘Endeavour Hydrothermal Vents Marine Protected Area Regulations, Regulatory Impact Analysis Statement’, (2001) 135 (23) Canada Gazette 1941. Ibid. Ibid. Canada, Department of Fisheries and Oceans: Backgrounder: The Endeavour Hydrothermal Vents Area (2001).

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of about twenty worms and brittlestars per square metre. However, the area immediately surrounding the diffuse hydrothermal vent ﬂows of Endeavour support an abundant web of life that is estimated to range up to half a million animals per square metre.8 Like many hydrothermal vent sites, one of the most important species in this ecosystem is the vestimentiferan tubeworm, Ridgeia.9 Within tubeworm bushes about 40 species of invertebrates forage.10 Other bottom dwelling fauna found include clams, crabs, snails, polychaete worms, octopus, deep-sea grenadier, squat lobsters and brittlestars.11 At the same level as the plumes emitted from the hydrothermal vents, 100 to 200 metres above the seaﬂoor, macrozooplankton in various stages of their life cycle aggregate in large numbers.12 This zooplankton in turn attracts large numbers of predators such as mictophids, jelly-ﬁsh and snipe eels.13 The vent structures of Endeavour are also impressive. Typically each vent ﬁeld has dozens of sulphide structures of coalescing chimneys topped by spires of black smokers, rising to tens of metres in height.14 One of the tallest vent structures found to date, named ‘Godzilla’, is found in the High Rise Vent ﬁeld. Until it collapsed in 1994 this huge structure was as tall as a 15 storey building.15 6.2.2

Activities and stakeholders

The ﬁrst of the Endeavour ﬁelds to be discovered, the Main ﬁeld, was only discovered as recently as 1982.16 However, this area has been of intense interest to scientists since the mid 1950s. Historically, the Juan de Fuca Ridge played a major role in the development of the modern theory of plate tectonics, with some of the earliest detailed magnetic surveys of the deep ocean ﬂoor conducted in this area.17 Due to their close proximity to Canadian and US ports, the Endeavour hydrothermal vents have been one of the most heavily studied hydrothermal vent sites in the world. The submersibles Alvin and Jason have completed over a dozen missions to the Endeavour hydrothermal vents, while both US and Canadian universities have jointly undertaken four expeditions using the Canadian Remotely Operated Platform for Ocean Studies.18

8

9 10 11

12 13 14 15 16 17

18

Canada, Department of Fisheries and Oceans: Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001), 5. Tunnicliffe and Thomson, above n. 3, 4. Tunnicliffe and Thomson, above n. 3, 4. V. Tunnicliffe, ‘Partial Bottom Dwelling Fauna List (Endeavour Hot Vents Area)’ in Fisheries and Oceans Canada. (1999). The Endeavour Hot Vents Area in Canada’s Paciﬁc Ocean. An ecosystem Overview, CD Rom copy held by author. Tunnicliffe and Thomson, above 3, 5. Ibid. Tunnicliffe and Thomson, above n. 3, 4. Ibid. Tunnicliffe and Thomson, above n. 3, 1. H.P. Johnson and M.L. Holmes, ‘Evolution in plate tectonics; the Juan de Fuca Ridge’ in Geology Society of North America, The Geology of North America Vol. N, The Eastern Paciﬁc Ocean and Hawaii (1989), 73. Hereinafter ROPOS. Tunnicliffe and Thomson, above n. 3, 5.

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Research at Endeavour vent ﬁelds has yielded many signiﬁcant scientiﬁc discoveries. These include: the ﬁrst vents discovered on the Juan de Fuca Ridge (1982); the ﬁrst extensive seaﬂoor ore deposits explored (1984); the ﬁrst discovery of “glowing vents” (1989); the highest natural water temperatures known on Earth (1990); the ﬁrst extensive uses of robotic vehicles (1991 and 1994); site from which the microbe with the highest temperature tolerance has been isolated (113°C); the ﬁrst direct measurement of currents within the main vent ﬁeld; the ﬁrst evidence that hydrothermal plumes were zones of greatly enhanced zooplankton aggregation; and the ﬁrst measurements of both upward and downward ﬂuxes of biomass associated with hydrothermal plumes.19

With such an impressive record of scientiﬁc discovery it is not surprising that research interest continues to this day. Endeavour continues to attract the interest of a range of scientists including geophysicists, who seek to understand its underlying structure and its relation to the rest of the Juan de Fuca Ridge; geologists, who are interested in describing and analysing its geological features; physicists interested in the properties of its thermal plumes and their inﬂuence on the surrounding ocean waters; chemists who analyse the vent ﬂuids; biologists interested in Endeavour’s unique fauna, their physiology and their relationship with the vents and water column; and microbiologists interested in the relationships between water chemistry, bacteria and higher life forms.20 Apart from scientists another stakeholder worth noting is the mining industry. The discovery of polymetalic sulphide deposits on both the Juan de Fuca ridge and the Galapagos rift in the early 1980s initially sparked interest in the potential for the mining of offshore minerals in both the Canadian and USA EEZs and continental shelves. There was especially keen interest in these minerals within the USA Department of Interior and the USA National Oceanic and Atmospheric Administration,21 which enthusiastically embraced the potential of these deposits as an “enormous new frontier”.22 While the enthusiasm of the mining industry and policy makers is now much more subdued, there is still some interest in both Canada and the USA in relation to mining hydrothermal vent mineral deposits. The Canadian ﬁshing industry is another stakeholder, although the only ﬁsheries of note are the albacore tuna troll jig ﬁshery and the neon ﬂying squid ﬁshery.23 Although these ﬁsheries occur at a depth no greater than 100 metres.24 One ﬁnal stakeholder worth noting is the military forces of Canada and the USA. With signiﬁcant naval forces, especially submarines, operating off the paciﬁc west cost

19 20

21 22

23

24

Tunnicliffe and Thomson, above n. 3, 6. P.H. LeBlond, ‘The Endeavour Hot Vents – A Short Scientiﬁc Overview’ in Fisheries and Oceans Canada, above n. 12. Hereinafter NOAA. USA Deputy Assistant Secretary of the Interior William Pendley quoted in M.G. Schmidt, Common Heritage or Common Burden? The United States Position on the Development of a Regime for Deep Sea-bed Mining in the Law of the Sea Convention, (1989), 275. Letter, William Shaw, Operations Branch, Department of Fisheries and Oceans Canada to Dr Paul La [sic] Blond, 22 March, 1999 reproduced in Fisheries and Oceans Canada, above n. 11. Ibid.

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of North America, the military forces have an interest in any regulation of activities in the deep sea along the Juan de Fuca ridge. 6.2.3

Canadian Oceans and Biodiversity Policies

Canada is a party to both the CBD and to LOSC.25 Policies Canada has developed or is in the process of developing (as discussed below) are consistent with Canada’s international obligations under both treaties. Canada had traditionally suffered from a fragmented approach in formulation and implementation of its Oceans Policy, which resulted in conﬂict among political, economic, social and environmental objectives.26 The development of policies and laws to implement Canada’s obligations under international law were complicated by the myriad of conﬂicting or overlapping policies and laws adopted at different jurisdictional levels throughout Canada. For example, in 1995 when Canada prepared its initial Biodiversity Strategy in response to its obligations under the CBD, some 36 Federal Acts and at least 20 provincial and territorial Acts related to protection and use Canada’s various aquatic environments, including its marine areas.27 A number of policy reviews in the early 1990s identiﬁed the need for change in the way Canada’s oceans were managed. Canada’s Biodiversity Strategy 28 identiﬁed the need for enabling legislation and policy to provide for protected areas “to conserve aquatic 29 biodiversity”30 in accordance with Article 8 of the CBD. A report in 1994 by the Committee on Oceans and Coasts of the Canadian National Advisory Board on Science and Technology, Opportunities from Our Coast, which was critical of the fragmented regulatory approach, picked up on recommendations from an earlier review in 1987, and recommended a national oceans policy and supporting legislation in the form of an Oceans Act.31 In response to these recommendations, in November 1994 the Minister for Fisheries and Oceans released a discussion paper, A Vision for Oceans Management, endorsing the concept of an Oceans Act and recommending the development of a national oceans management strategy.32 This lead ultimately to the adoption of Canada’s Oceans Act, which was promulgated on 31st January 1997, some 10 years after defects in Canada’s existing policy and legislation had ﬁrst been identiﬁed.

25 26

27

28 29 30 31 32

Canada ratiﬁed the CBD on the 4th December 1992 and the LOSC on 7 November 2003. F.J. Berkes et al., ‘The Canadian Arctic and the Oceans Act: the development of participatory environmental research and management’ (2001) 44 Ocean & Coastal Management 451, 453. Canada, Minister of Supply and Services Canada, Canadian Biodiversity Strategy. Canada’s Response to the Convention on Biological Diversity (1995). Ibid. Including marine biodiversity. Canada, Minister of Supply and Services Canada, above n. 27, para 1.17 and para 1.56. Berkes et al., above n. 26, 453–454. Berkes et al., above n. 26, 454.

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6.2.4

Canada’s Oceans Act

The Canadian government’s overall objective in enacting the Oceans Act was to consolidate existing federal responsibilities and legislation in relation to the oceans into a single legislative framework that promotes an integrated approach to ocean management.33 The legislation does this by deﬁning Canada’s claims to its maritime jurisdiction, providing a framework for development of Oceans policy, providing overriding goals for the development of that policy, and by providing the Minister for Fisheries and Oceans with the tools (such as MPAs) to implement that policy. Each of these components of the Oceans Act is examined below. Consistent with Canada’s rights under LOSC and international law more generally, Part 1 of the Oceans Act sets out Canada’s claims to a 12 nautical mile territorial sea (under Section 4(a)) and a 24 nautical mile contiguous zone for the enforcement of federal customs, immigration and sanitary laws (under Section 10). Under Section 13(1) of the Oceans Act Canada also claims an EEZ of 200 nautical miles beyond and adjacent to the territorial sea except where other outer limits of the EEZ are proclaimed.34 Pursuant to Section 14 of the Oceans Act Canada claims: (a) sovereign rights in the [EEZ] 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 [EEZ], such as the production of energy from the water, currents and winds; (b) jurisdiction in the [EEZ] with regard to: (i) the establishment and use of artiﬁcial islands, installations and structures (ii) marine scientiﬁc research, and (iii) the protection and preservation of the marine environment; and (iv) other rights and duties in the [EEZ] provided for under international law.

Section 14 largely mirrors Article 56 of LOSC discussed in Chapter 2. The only exception to this is that Section 14(c) of the Oceans Act refers to other rights and duties under “international law”, whereas LOSC speaks only of other rights provided for under LOSC. It is not clear whether Canada asserts rights and duties beyond those recognised under LOSC. Under Section 17 of the Oceans Act Canada also claims a continental shelf consistent with its rights under LOSC, i.e. a continental shelf to the outer edge of the continental margin or 200 nautical miles from the baselines of the territorial sea which ever is the lesser. Canada shares maritime borders with three countries, the USA, France and Denmark.35 Canada’s claims to maritime jurisdiction overlap with the claims of some of these neighbouring states.36 Section 25(a) (iii) of the Oceans Act provides a

33 34 35 36

Ibid. See discussion of Section 25 below. D.H. Gray, ‘Canada’s Unresolved Maritime Boundaries’ (1994) 48(2) Geomatica 131. Overlapping claims to jurisdiction occur off the mouth of the Juan de Fuca Strait, in and seaward of Dixon Entrance on the Paciﬁc coast, and in the Beaufort and Lincoln Seas in the Arctic.

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mechanism to amend Canada’s claimed jurisdictional zones in the event they overlap with those asserted under the Oceans Act. The Governor in Council, on the recommendation of the Minister for Foreign Affairs, may make regulations prescribing an outer limit line of the EEZ or continental shelf, where there is a conﬂict with the claimed territorial sea of another state or other area of the sea in which another state has sovereign rights. 6.2.5 Development of an Oceans Management Strategy and Integrated Management Plans for Canada The Oceans Act empowers the Canadian Minister for Fisheries and Oceans to lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems in waters that form part of Canada, or in which Canada has sovereign rights under international law.37 The Oceans Act proscribes that the Oceans Management Strategy will be based on three principles. Section 30 provides that those principles are: (a) sustainable development, that is, development that meets the needs of the present without compromising the ability of future generations to meet their own needs; (b) the integrated management of activities in estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law; and (c) the precautionary approach, that is, erring on the side of caution.

Section 31 of the Oceans Act also requires the Minister to lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters, and marine waters that form part of Canada or in which Canada has sovereign rights under international law. In response to the speciﬁc requirements of the Oceans Act the Department of Fisheries and Oceans 38 has developed Canada’s Oceans Strategy 39 and the associated Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada.40 Development of these policies was not completed until 2002, some ﬁve years after the Oceans Act came into effect. While it is understandable that policies such as these are complex and would involve extensive

37 38 39

40

Issues also remain unresolved with respect to the negotiated or arbitrated boundaries in Bafﬁn Bay and Nares Strait and in the Gulf of Maine. Jurisdiction in relation to two islands in the Kennedy Channel is also disputed. See Gray, above n. 35. Oceans Act, 1996 (Canada), section 29. Hereinafter CDFO. See Canada, Department of Fisheries and Oceans, Canada’s Oceans Strategy, (2002) reproduced at htttp://www.gc.ca/oceanscanada/newenglsih/htmdocs/cos/publications_e.htm, accessed 8 August 2002. Canada, Department of Fisheries and Oceans, Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada (2002), reproduced at htttp://www.gc.ca/oceanscanada/newenglsih/htmdocs/cos/publications_e.htm, accessed 8 August 2002.

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consultation with stakeholders, it is unclear why these policies took so long to be developed. Two possible reasons for the delay are a lack of resources allocated by the Canadian government to the process, and the fact that development of this policy was undertaken by a department whose previous expertise was limited to the regulation of ﬁsheries rather than conservation more generally. Nonetheless, both policies have now been developed. For present purposes the most relevant policy document is the Oceans Strategy. The overarching goal of the Oceans Strategy “is to ensure healthy, safe and prosperous oceans for the beneﬁt of current and future generations of Canadians”. This goal is based on three key principles of sustainable development, integrated management and the precautionary approach. These principles are to guide all ocean management decision making.41 None of these key principles are clearly deﬁned in the strategy. The term ‘sustainable development’ as used in the strategy seems to suggest a balance between “social, economic and environmental aspects [sic] of decision making”,42 without providing any clear guidance as to which “aspect [sic]” is to prevail in the event of conﬂict. As a principle, Integrated Management is deﬁned as: a commitment to planning and managing human activities in a comprehensive manner while considering all factors necessary for the conservation and sustainable management and use of marine resources and the shared uses of ocean spaces.43

This deﬁnition lacks a statement as to what factors should be given priority in decision making. Similarly, the principle of the precautionary approach deﬁned simplistically as “erring on the side of caution”44 merely mirrors the vague deﬁnition of the same principle in the Oceans Act. While deﬁnitions of key principles are ambiguous, the Strategy does outline three key policy objectives or outcomes for the management of activities in Canada’s oceans strategy, namely: understanding and Protecting the Marine Environment; supporting sustainable economic opportunities; and international leadership.45 It is also clear that both the strategy and the legislation seek to enhance stakeholder involvement in oceans management.46 Understanding the marine environment is “predicated on solid science.”47 Science is clearly recognised as having a signiﬁcant role to play in oceans management including in: delineating ecosystem boundaries, identifying key ecosystem functions and components, developing predictive models and risk assessment techniques, developing ecosystem-based

41 42 43 44 45 46

47

Canada, Department of Fisheries and Oceans, above n. 39, 10. Ibid. Canada, Department of Fisheries and Oceans, above n. 39, 11. Ibid. Canada, Department of Fisheries and Oceans, above n. 39, 12. Berkes et al., above n. 28 argue that this is one of four key goals of the Oceans Strategy, although this is indicated by the terms of the Oceans Strategy it is not explicitly stated as a policy objective or outcome in the ﬁnal Oceans Strategy released in 2002. Canada, Department of Fisheries and Oceans, above n. 39, 12.

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management objectives, developing performance indicators, and assessing the state of ecosystem health.48

While recognising the primary role of science in oceans management, the Oceans Strategy also acknowledges a role for the ﬁshing industry, the community and speciﬁcally, the traditional ecological knowledge shared by Aboriginal peoples.49 The Oceans Strategy deﬁnes protecting the marine environment as a “stewardship responsibility” designed to ensure that resources of the oceans are managed wisely, respecting the principles as stated above and protecting the oceans for the beneﬁt and enjoyment of future generations.50 It recognises pollution, especially from land based sources, as a major concern and the need for remediation and other measures. Particular prominence is given to MPAs as a tool for oceans management consistent with the provisions of the Oceans Act. The role of MPAs is discussed in more detail below. The second key objective of the Oceans Strategy is supporting sustainable economic opportunities in Canada’s oceans, which are estimated to contribute over C$20 billion per year to the Canadian economy.51 Speciﬁc industries identiﬁed by the Oceans Strategy include the ﬁshing industry, aquaculture, offshore energy (oil and gas) and mineral resource development, shipping (including cruise ships), shipbuilding and the industrial marine industry, sea-bed mapping, marine communications and data management, eco-tourism operations and waterfront developments.52 The third policy objective articulated in the Oceans Strategy is international leadership to advance Canadian and global ocean-related interests.53 The aim is to ensure Canada’s sovereignty and security and the sustainable use of ocean resources.54 This involves measures such as aid to developing countries and pro-active participation in international institutions relevant to the oceans.55 Signiﬁcantly, the Oceans Strategy includes a commitment to ratify LOSC and the UN Fish Stocks Agreement.56

48 49 50 51 52 53 54 55

56

Ibid. Canada, Department of Fisheries and Oceans, above n. 39, 13. Ibid. Canada, Department of Fisheries and Oceans, above n. 39, 14. Canada, Department of Fisheries and Oceans, above n. 39, 14–16. Canada, Department of Fisheries and Oceans, above n. 39, 16. Ibid. These include the United Nations Informal Consultative Process on Oceans and Law of the Sea [sic], the International Maritime Organisation and regional ﬁsheries bodies such as the North Atlantic Fisheries Organization, the International Commission for the Conservation of Atlantic Tuna, the North Atlantic Salmon Commission, the North Paciﬁc Anadromous Fisheries Commission and the North-East Atlantic Fisheries Commission. Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling ﬁsh stocks and highly migratory ﬁsh stocks, opened for signature 4 August 1995, 34 ILM 1542 (1995) (entered into force 11 December 2001). This commitment is subject to the qualiﬁcation that ratiﬁcation will occur after “an effective UNFA enforcement regime has been established”. See Canada, Department of Fisheries and Oceans, above n. 39, 16–17. Subsequent to these commitments Canada has ratiﬁed the LOSC and the UN Fish Stocks Agreement. See above n. 25.

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To give effect to the three broad policy goals the Oceans Strategy speciﬁcally commits the Canadian government to several activities over a four year period. For present purposes the most signiﬁcant commitments is to develop a strategy for a national network of MPAs. 6.2.6

Oceans Act and marine protected areas

Section 35(1) of the Oceans Act deﬁnes a marine protected area as: an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated . . . for special protection for one or more of the following reasons: (a) the conservation and protection of commercial and non-commercial ﬁshery resources, including marine mammals, and their habitats; (b) the conservation and protection of endangered or threatened marine species, and their habitats; (c) the conservation and protection of unique habitats; (d) the conservation and protection of marine areas of high biodiversity or biological productivity; and (e) the conservation and protection of any other marine resources or habitat as is necessary to fulﬁl the mandate of the Minister.57

Pursuant to Section 35(3) the Governor in Council, on the recommendation of the Minister, may make regulations designating areas as MPAs, prescribing measures such as the zoning of MPAs and the prohibiting classes of activities within MPAs. It is worth noting that, despite a clear legislative mandate, it took nearly 7 years before the ﬁrst MPA was proclaimed. This was the Endeavour MPA. Environmental NGO’s have been critical of this delay.58 This criticism was noted in a recent review of the Oceans Act by the Canadian House of Commons Standing Committee on Fisheries and Oceans which, prior to the proclamation of the regulations for the Endeavour MPA recommended: That the Department of Fisheries and Oceans, in consultation with the provinces, territories and stakeholders, immediately draft regulations in accordance with the intent of the Oceans Act.59

While there has been delay in formally proclaiming MPAs, a considerable amount of work has been done in developing policies relevant to creation of MPAs under the

57 58

59

Oceans Act, 1996 (Canada), Section 35(1). See, for example, evidence given by Ms Sabine Jessen Executive Director, British Columbia Chapter, Canadian Parks and Wilderness Society, on the implementation of the Oceans Act to the Canadian House of Commons Standing Committee on Fisheries and Oceans, 21 February, 2000 reproduced at http://www.parl.gc.ca/committee/CommitteeHome, accessed 22 March 2005. Canada, House of Commons, Standing committee on Fisheries and Oceans (2001) Report on the Oceans Act, Ottawa, Recommendation 1.

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Oceans Act and on speciﬁc proposals for MPAs. As at 6 January 2004 there were three candidate marine protected areas on Canada’s paciﬁc coast60 in addition to Endeavour. Two key policy documents were released in 1999 after considerable stakeholder consultation, namely the National Framework for Establishing and Managing Marine Protected Areas61 and the Marine Protected Areas Policy.62 These clearly set out the way in which designation of MPAs is to proceed. Discussion of the steps in establishing the Endeavour hydrothermal MPA below highlights the key features of these policies. 6.2.7

Steps towards the establishment of the Endeavour MPA

The process in establishing MPAs under the Oceans Act is essentially a six step process, although some parts (such as the development of a management plan for a proposed MPA and drafting of regulations to establish an MPA) can occur simultaneously. The process is quite straight forward and similar to processes elsewhere in the world.63 Potential MPAs are identiﬁed, evaluated, selected, established, and managed.64 The process for Endeavour began with the identiﬁcation and initial screening of Areas of Interest65 performed by CDFO. Shortly after this the Endeavour area was designated as a pilot marine protected area under the Oceans Act. This pilot designation was purely symbolic as the Oceans Act does not formally recognise pilot MPAs. Following designation as a pilot MPA, in 1999 a planning team was established to study the feasibility of an MPA at the Endeavour site, to develop recommendations and an action plan and to develop and implement a consultation plan for the MPA.66 An advisory team was also established to support the planning team as required.67 Experience with MPAs to date suggests that a key factor in their successful establishment and the implementation of their associated management plans, zoning arrangements, enforcement, etc is stakeholder involvement.68 A signiﬁcant characteristic of the process leading to the establishment of the Endeavour MPA has been the consultation process, which has engaged a wide range of stakeholders. Importantly key stakeholders,

60

61

62 63

64 65 66 67 68

These three candidate marine protected areas are the Bowie Seamount, Race Rocks and the Gabriola Passage. See http://www.pac.dfo-mpo.gc.ca/oceans/mpa/pilots_e.htm, accessed 6 January 2004. Fisheries and Oceans Canada National Framework for Establishing and Managing Marine Protected Areas (1999). Fisheries and Oceans Canada, Marie Protected Areas Policy (1999). Canada, Department of Fisheries and Oceans, An Approach to the Establishment and Management of Marine Protected Areas Under the Oceans Act, A discussion Paper, (1997), copy on ﬁle with author, 16. Ibid. Hereinafter AOI. Canada, Minister of Public Works and Government Services, above n. 5, 1947. Ibid. S. Gubbay, ‘Marine protected areas-past, present and future’ in S. Gubbay (ed), Marine Protected Areas: Principles and techniques for management, (1995), 6.

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scientists, have been heavily involved in the establishment of the MPA and will be involved in its ongoing management. The planning team included a range of interested stakeholders, including representatives from the CDFO, Natural Resources Canada, the Université du Québec à Montréal, The University of Washington, Canadian NonGovernment Science, the international scientiﬁc community and bodies such as InterRidge69 and RIDGE.70 The advisory team included representation from CDFO, the University of Victoria, and St. Michael’s University School.71 The advisory and planning teams determined that an MPA was feasible and developed a Recommendations Document. This involved consultation with members of the scientiﬁc community, representatives of the mining industry, deep-sea ﬁshing industry72 and from a broad range of interested parties including representatives from Heritage Canada, the Canadian Parks and Wilderness Society and the Sierra Club.73 This consultation was facilitated by several different means including tele-conference calls, meetings and bilateral discussions.74 A signiﬁcant part of the process was the preparation of the Area of Interest Evaluation.75 Preparation of the AOI Evaluation was subcontracted by the CDFO to the Institute for Paciﬁc Ocean Science and Technology, Diversiﬁed Scientiﬁc Solutions Inc. and Madeira Research and Associates. The AOI Evaluation process involved collecting and compiling an Ecosystem Overview. The Ecosystem Overview brought together information on the Endeavour vents area including: an ecological assessment, documenting what is known about aspects of the natural environment of the proposed MPA including geology, physics, chemistry and biology of the area; a technical assessment, covering factors relevant to the establishment of the MPA, such as jurisdiction and enforceability; and a socio-economic assessment, which explored issues arising from human activities and interests in the area, such as ﬁshing, mining and scientiﬁc research.76 A draft of the Ecosystem Overview was subjected to further scrutiny by stakeholders who participated in a workshop in March 1999. The workshop presented and gathered feedback on the Ecosystem Overview and other management issues.77 It drew upon

69

70 71 72

73 74 75 76

77

InterRidge is an international scientiﬁc research initiative concerned with facilitating international and multi-disciplinary research associated with mid-ocean ridges currently based in Germany. See www.intridge.org. InterRidges role is discussed in more detail in Chapter 8. Canada, Minister of Public Works and Government Services, above n. 4, 1947. Ibid. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan, (2001), 4. Canada, Minister of Public Works and Government Services, above n. 4, 1948. Ibid. Hereinafter AOI Evaluation. Institute for Paciﬁc Ocean Science and Technology et al., Endeavour Hot Vents Area. A pilot marine protected area in Canada’s Paciﬁc Waters: Ecosystems Overview: Ecological, Social and Economic Components, Summary Report, (1999), 4, reproduced in Canada, Department of Fisheries and Oceans, above n. 11. Canada, Minister of Public Works and Government Services (2001), above n. 4, 1948.

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the expertise and knowledge of a wide cross section of stakeholders. Participants included representatives of Federal and provincial governments (Parks Canada Agency, Natural Resources Canada, British Columbia Ministries of Energy and Mines, of Environment, Lands and Parks, and of Fisheries and the Information, Science and Technology Agency), USA National Oceans and Atmospheric Administration, academic institutions (such as Universities of Victoria, Washington, and Québec à Montréal, Lester B. Pearson College, Oregon State and Pennsylvania State Universities), museums (such as the Canadian Museum of Nature, and the Royal British Columbia Museum), oceanographic groups,78 and the mining industry.79 The major concerns raised by participants in the workshop were: (1) continued access to the area by Canadian and foreign scientists; (2) the need for a management regime that would allow scientiﬁc research to continue and public awareness activities; (3) the need for an assessment of the mineral resources to be alienated by designation as an MPA; and (4) boundary delimitation.80 The most signiﬁcant concern that was raised and that appears to have been addressed was the impact on ongoing Canadian and foreign scientiﬁc research within the MPA. Scientists from the USA in particular were concerned about the possible impacts of the proposed MPA on funding for their research. Concerns were raised that restrictions on access to the MPA and a “complicated bureaucratic” permit process might make it difﬁcult to attract funding for ongoing scientiﬁc research.81 With limited funding available for this type of scientiﬁc research, the point was made that competitors for funding would inevitably ask the question “Why should research be funded in an area where continued access is uncertain and where the Canadians may raise all kinds of obstacles to foreign scientists?”82 Signiﬁcantly these concerns appear to have been recognised in both the regulations establishing the MPA and the proposed Management Plan. Those aspects are dealt with in more detail below. The issue of access to mineral resources was resolved. The mining industry had argued that before an area of Canada’s territory [sic] “is alienated forever from public access an assessment of lost economic opportunities should be made.”83 A technical and economic feasibility assessment conducted in the area in February/March 2001 by Natural Resources Canada concluded that estimates of mineral tonnage in the area are too small to be economically viable.84 There were no economic opportunities to be lost. This conclusion is challenged for different reasons later in this chapter. While it was recognised that the issues of access and management regimes had to be addressed, it was concluded that there was “no major obstacle found in the way of

78 79 80 81 82 83

84

Ibid. Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 7. Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 3. Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 7. Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 11. Submission by Mining Industry Representative, Mr Ben Ainsworth, noted in Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 9. Canada, Minister of Public Works and Government Services (2001), above n. 5, 1949.

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designating the Endeavour Hot Vents as an MPA.”85 Accordingly work was undertaken on designing regulations to establish the MPA, and in preparing a management plan for the MPA. 6.2.8

The Endeavour hydrothermal vent marine protected area regulations

The Endeavour Hydrothermal Vent Marine Protected Area Regulations under the Oceans Act were formally proclaimed on 4 March 2003. These regulations are read in conjunction with the proposed Management Plan for the MPA. The Management Plan provides that the principal objective in establishing the Endeavour Hydrothermal Vent MPA is to contribute toward: the protection and conservation of a representative portion of the Endeavour segment of the Juan de Fuca Ridge, its dynamic submarine ecosystems, unusual hydrothermal features, specialised biota and habitats, high biodiversity and enhanced biological productivity.86

The designation of the MPA has been justiﬁed under three of the criteria listed in Section 35 of the Oceans Act: the conservation and protection of a unique habitat in terms of Section 35(1)(c); conservation and protection of a marine area of high biodiversity in terms of Section 35(1)(d); and conservation and protection of a marine habitat necessary to fulﬁl the mandate of the Minister of Fisheries and Oceans under Section 35(1)(e). The designation as an MPA under the third criterium would appear to be unnecessary. No explanation was given as to why the MPA falls within this criterium. Given that the Endeavour hydrothermal vents already clearly fall within other provisions of section 35, it seems odd that this ‘catch all’ section has been invoked. Under Regulation 1 the MPA ofﬁcially known as the ‘Endeavour Hydrothermal Vents Marine Protected Area’ is deﬁned as: The area of the Paciﬁc Ocean . . . the seabed, the subsoil and the waters superjacent to the seabed . . . that is bounded by a line drawn from a point at 47°54’N, 129°02’W, from there west to a point at 47°54’N, 129°08’W, from there north to a point at 48°01’N, 129°02’W, and from there south to the point of beginning.87

For the purposes of the Regulations this is deﬁned as the ‘Area’.88 In all the total size of the ‘Area’ is 93.48km2. Regulation 2 prohibits certain activities within the Area as follows: No person shall: (a) disturb, damage or destroy, in the Area, or remove from the Area, any part of the seabed, including a venting structure, or any part of the subsoil, or any living marine organism or any part of its habitat; or

85 86

87

88

Institute for Paciﬁc Ocean Science and Technology et al., above n. 76, 3. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan, (2001), 7. Regulation 2, Endeavour Hydrothermal Vents Marine Protected Area Regulations (2003) (Canada). Regulation 1, Endeavour Hydrothermal Vents Marine Protected Area Regulations (2003) (Canada).

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(b) carry out any underwater activity in the Area that is likely to result in the disturbance, damage, destruction or removal of anything referred to in paragraph (a).

Of the activities that have been identiﬁed as threatening hydrothermal vent ecosystems it would appear that only deep-sea mining is prohibited. Deep-sea tourism would appear to be unaffected provided that it did not involve any of the activities prohibited under Regulation 2. Existing ﬁshing activities in the waters above also appear unaffected. MSR is still permitted. This is because the prohibition on activity in the Area under Regulation 2 is qualiﬁed by exceptions noted in regulation 3(1), which provides: No person contravenes section 2 if: (a) the disturbance, damage, destruction or removal is for scientiﬁc research for the conservation, protection and understanding of the Area; (b) subject to subsection (3), a research plan described in sub-section (2) is submitted to the Minister at least 90 days before the start of the scientiﬁc research in the Area; and (c) all licences, authorizations or consents required under the Oceans Act, the Coastal Fisheries Protection Act, the Coasting Trade Act or the Fisheries Act in respect of the scientiﬁc research have been obtained.89

Regulation 3(2) deﬁnes the information to be submitted in a research plan as required by Regulation 3(1) as follows: (a) The name, nationality, overall length, maximum draught, net tonnage, propulsion type, call sign, registration number and port number of each ship to be involved in the scientiﬁc research in the Area, and the name of the captain of each ship; (b) the names and positions of the persons who are responsible for the development of the scientiﬁc research and the scientiﬁc research personnel who will be on board each ship; (c) the date on which the scientiﬁc research in the Area is to start, and the itinerary for each ship while it is involved in the research; and (d) a summary of the scientiﬁc research to be conducted in the Area, together with a detailed map of the research area, which summary shall specify: (i) the data to be collected and sampling protocols to be used, the other techniques, if any, to be used, such as those involving explosives, radioactive labelling or remotely operated vehicles, (ii) the equipment to be moored and the method of mooring, and (iii) the substances, if any, that are intended to be discharged.

There appears to be nothing onerous in the information required. This is all information that can easily be collated and would be compiled anyway as part of the normal planning process for such research programs. In terms of procedures for issuing licences or permits, existing procedures will be maintained for foreign vessels. All foreign vessels wishing to conduct MSR in Canadian waters are already subject to the Foreign Vessel Clearance Request Process90 pursuant to the Coasting Trade Act, 1992 and the Coastal Fisheries Protection Act 1985. Under

89

90

Regulation 3(1), Endeavour Hydrothermal Vents Marine Protected Area Regulations(2003) (Canada). Hereinafter FVCRP.

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this process MSR within any area up to the edge of Canada’s continental shelf is subject to approval by the Canadian Minister of Foreign Affairs. The Canadian Department of Foreign Affairs and International Trade91 forwards foreign vessel clearance requests to relevant government departments for their comment.92 Under existing procedures these requests are vetted by the CDFO on behalf of CDFAIT.93 Section 44 of the Oceans Act now speciﬁcally authorises CDFO94 to attach a condition to a foreign ships approval that it must supply CDFO with the results of the MSR. In addition CDFO usually requires the presence of a Canadian observer on board the ship while the research is being carried out. The FVCRP procedure will continue in its existing form. Overall the procedures would not appear to involve any new measures for foreign researchers. As such concerns of scientists from the USA as to the need to avoid a “complicated bureaucratic permit process” appear to have been met. Research by Canadian scientists will possibly be subject to the grant of licenses under the Fisheries Act 1985 and the Coastal Fisheries Protection Act 1985. However, it is questionable whether either of these pieces of legislation are applicable. Further amendment to these Acts or, alternately, additional regulations under the Oceans Act may be required. For the time being CDFO relies on voluntary submission of cruise plans by Canadian researchers.95 The vast majority of Canadian researchers use research vessels of the Canadian Coast Guard, which is part of CDFO. Hence the department responsible for regulating MSR within the MPA also takes part in such research itself. Whether there is likely to be any conﬂict of interest is yet to be seen. 6.2.9

Marine Protected Area Management Plan

The management plan for the MPA divides the MPA into four zoned management areas: The Main Endeavour Field (an area approximately 400m long by 150m wide); The Mothra Field (a vent ﬁeld approximately 500m long located on the Western wall of the Endeavour Segment); The High Rise Field (an area 400m wide and 400m long located in the Axial Valley of the Endeavour Segment); and The Salty Dawg Field (an area of approximately several hundred square metres located in the Axial Valley of the Endeavour Segment).96 Different types of activity are to be permitted in each of these zones, in large part reﬂecting past activities in these areas. Few activities have previously taken place in the area of the Salty Dawg vent ﬁeld and as such management of this area “will prioritise activities using observation-based or other less intrusive study techniques” leaving it as

91 92 93 94 95

96

Hereinafter CDFAIT. Canada, Minister of Public Works and Government Services, above n. 4, 1945. Ibid. Formally through the Minister. Canadian Department of Fisheries and Oceans, personal correspondance, copy on ﬁle with the author. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001).

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a “relatively pristine portion of the Endeavour area”.97 Activities in the Salty Dawg ﬁeld will be limited to areas on or near the seaﬂoor, infrequent water sampling and visits to monitoring instruments, not more than once a year; acoustic imaging of the ﬁeld; water column investigations that have no impact on the seaﬂoor or benthic/near-bottom ecosystems; and activities in the area that otherwise contribute to the knowledge and understanding of environmental impacts of human activities on hydrothermal vent ecosystems.98 To date the High Rise vent ﬁeld has only been of moderate interest for research activities.99 Its impressive and relatively unspolit natural features makes it suitable for projects focussed on education.100 The High Rise ﬁeld will become a site for research associated with long term monitoring and an important component of the education and outreach strategy of the MPA.101 The bulk of scientiﬁc research will be conﬁned to the Mothra and Main Endeavour ﬁelds. To date most research has focussed on these ﬁelds. This has included most forms of research from purely observational to intensive sampling operations.102 These activities will continue to be permitted “provided they are consistent with the regulations”.103 Presumably all this means is that, provided that all authorisation procedures are adhered to, any type of scientiﬁc research, including the most invasive or destructive activities, will be permitted. It has been argued that enforcement is an essential component in the management of MPAs.104 While the policing of any MPA is often difﬁcult (for example due to lack of resources such as personnel), enforcement or policing in the deep sea presents unique difﬁculties, not the least of which is detection of a breach. The extremes of pressure and temperature in the deep sea and the fact that activities in the area occur in total darkness mean that conventional measures such as regular patrols by ﬁsheries ofﬁcers or rangers are impossible. Nonetheless, the Management Plan for the Endeavour MPA does set out a number of measures that seek to ensure effective enforcement of the Regulations. Firstly, throughout the MPA, particularly in the High Rise and Salty Dawg areas, marine environmental quality protocols and indicators will be developed and implemented to prevent and minimise anthropogenic impacts.105 Speciﬁc policing measures relevant to detection of breach of the regulations include requirements that all research carrying out activities involving sampling take before and 97

98 99

100 101 102 103

104 105

Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001), 10. Ibid. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001), 11. Ibid. Ibid. Ibid. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan (2001), 12. B.D. Causey, ‘Enforcement in marine protected areas’ in S. Gubbay, above n. 68, 119. Canada, Department of Fisheries and Oceans, Endeavour Hydrothermal Vents Marine Protected Area Management Plan, (2001), 14.

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after photos of a sample site. The photographs are to be submitted with cruise reports.106 Also all submersible and dive operations will be required to record and document complete, continuous videotapes of their entire period on the seaﬂoor. These videos must be retained and may be subject to auditing by CDFO.107 In addition, all organisations conducting activities in the area will be required to submit cruise reports that account for all time at sea and that describe the activities and procedures undertaken. These must be submitted within two months of completion of each cruise.108 Finally, all vessels carrying out activities in the area will be required to reserve a berth for an observer.109 In 2000 and 2001 CDFO sent two observers on different vessels and was planning to send at least one observer in 2002.110 The Management Plan also proposes the development and implementation of an education and outreach strategy.111 It is anticipated that this outreach strategy will be developed and implemented to focus on agencies responsible for granting funding for research in both Canada and the USA, including an emphasis on building further cooperation between researchers and funding agencies already involved in research in the Endeavour area.112 This again appears to be recognition of the concerns raised by the scientiﬁc community. The Management Plan also proposes encourageing interest in hydrothermal vents and the MPA through the development of education modules suitable for delivery in Canadian schools and the development of educational material for delivery via a variety of media such as videos and the World Wide Web.113 Overall management of the MPA is to be executed through a management committee chaired by CDFO.114 The management committee will act as adviser to CDFO, which retains legislative responsibility for the MPA. The most important role of the management committee will be to review proposed plans for research and other activities within the MPA, including making recommendations to CDFO with regard to the appropriateness of the activities and any recommended conditions to be imposed as part of the approval process.115 Reﬂecting the inclusive attitude to stakeholders exhibited during the design of the MPA, it is proposed that the management committee will be composed of a cross section of stakeholders and representatives of national government agencies.116 This will include representatives from CDFO-Oceans Directorate, CDFO-Science Branch, Natural Resources Canada, Environmental NGO’s, the Canadian Private Sector (one

106 107 108 109 110 111 112 113 114 115 116

Ibid. Ibid. Ibid. Ibid. Personal communication, CDFO, copy on ﬁle with author. Canada, Department of Fisheries and Oceans, above n. 8, 14. Ibid. Canada, Department of Fisheries and Oceans, above n. 8, 15. Ibid. Canada, Department of Fisheries and Oceans, above n. 8, 16. Ibid.

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member each), Canadian Academic Science (three members), Foreign Science (two members: one US Ridge, one InterRidge), Public Education/ Outreach (two members: one kindergarten to grade 12, one from a public awareness group).117 Given the conclusion that there are no viable mineral resources within the MPA, it is somewhat curious that representatives from Natural Resources Canada and the Canadian Private Sector will be appointed to the management committee. The management committee is also weighted heavily in favour of the interests of stakeholders from the Canadian and foreign scientiﬁc community. This contrasts with the single representative of environmental non-governmental organisation. It will be interesting to see how this mix works in the future, particularly given the management committee’s role in vetting plans for research within the MPA. 6.2.10

Hydrothermal vents and National Security

Of all the interests that one might contemplate needed to be considered in designing an MPA in the deep sea, national security would not appear at ﬁrst to be a signiﬁcant issue. However, in drafting the MPA regulations, it appears that the interests of Canadian (and probably USA) national security were given precedence over the protection of the marine environment. Regulation 5 of the Endeavour Regulations provides: No person contravenes section 2 by carrying out any movement or other activity of ships or submarines if: (a) the movement or other activity is carried out for the purpose of public safety, law enforcement or Canadian sovereignty or national security; and (b) the ships or submarines, as the case may be, are owned or operated by or on behalf of Her Majesty in right of Canada or by foreign military forces acting in cooperation with, or under the command or control of the Canadian Forces.

It is likely that the references to ‘foreign military forces’ includes those of the USA, with which Canada shares extensive boarders, and quite possibly members of the NATO alliance that would routinely be involved in military and naval exercises in both Canadian and US waters. Thus it is not just Canadian national security that underlies this particular provision, but also that of its allies. The term ‘national security’ is of itself quite a subjective term. What activities causing environmental harm in the MPA will be exempt from liability on the grounds of ‘national security’is unclear. In a situation where a state of war might have been declared the term might be given a very broad interpretation, but how broadly should the term be interpreted in peace time? What of situations like the current war on terrorism [sic]? It might be possible to envisage a situation where the exemptions on the grounds of public safety or law enforcement may be invoked. However, it is difﬁcult to see how the exemption on the grounds of Canadian sovereignty can apply. There are numerous actions that might constitute an act of Canadian sovereignty, but is unclear what acts give rise to an exemption under the Regulations. Perhaps all of the exemptions on the basis of ‘public safety’, ‘law enforcement’ and ‘Canadian Sovereignty’ need to be read as merely re-inforcing the ‘national security’ 117

Ibid.

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exemption. The circumstances in which this particular provision was included would support such an interpretation. A draft of these regulations was published in the Canada Gazette on 9 June 2001. The draft regulations published at this time made no mention of any of exemptions on the grounds of ‘public safety’, ‘law enforcement’, ‘Canadian sovereignty’ or ‘national security’. The Regulatory Impact Analysis Statement published in conjunction with draft regulations indicated that the Canadian Department of National Defence had been consulted prior to the draft regulations’ publication. In particular the Regulatory Impact Analysis Statement noted: The Department of National Defence (DND) has been assured that the proposed MPA Regulations would not impact its ability to ensure national security. DND was also assured that the proposed Regulations would not interfere with future military activity, even though the proposed MPA is not currently used for routine military operations.118

Curiously, although the draft regulations published at this stage did not contain the national security exemption, in discussing a range of permitted activities within the proposed MPA, the Regulatory Impact Analysis Statement also noted that Military activities involving National Security will also supersede these Regulations.119

It is clear that the Canadian Department of National Defence had already had input into the drafting of the proposed regulations. In ordinary circumstances, if the Canadian Defence Department had signiﬁcant concerns about national security issues, then these would have been addressed in the regulations prior to their publication in the Gazette. Unfortunately less than 3 months after the draft regulations were published national security and, in particular USA national security interests, have come to dominate all areas of public policy. The terrorist attacks on the World Trade Centre in New York, the Pentagon in Washington D.C. and in Pennsylvania USA on September 11, 2001 have had a profound effect on law and policy around the world. The introduction of the national security exemption under regulation 5 is not due to any possible terrorist threat. It is due to the signiﬁcantly increased ability of the military and security services to inﬂuence public policy and legislation across a wide range of portfolios since September 11, 2001. 6.2.11

Unresolved issue bioprospecting

Bioprospecting and interest in biotechnology associated with hydrothermal vents are discussed in detail in Chapter 7. However, at this point it is worth noting that the potential economic value of the genetic resources of hydrothermal vents appears not to have been considered in detail in the process leading up to the establishment of the Endeavour MPA. There is nothing in either the Regulations or the Management Plan to regulate bioprospecting. There is no obligation on bioprospectors to share the proceeds of the commercialisation of the genetic resources of hydrothermal vents under Canadian law.

118

119

Endeavour Hydrothermal Vents Marine Protected Area Regulations Regulatory Impact Analysis Statement, 13(23) Canada Gazette Part 1, 9 June 2001, 1940. Ibid.

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Strictly speaking under international law Canada is only required to permit MSR (as distinct from bioprospecting) within its EEZ. If scientiﬁc research to be carried within Canada’s EEZ has a commercial focus, then under the provisions of LOSC, Canada is not compelled to permit such activity. Similarly under the provisions of the CBD, to which Canada is a party, marine scientists and bioprospectors are required to obtain prior informed consent as a condition of access to these areas for the investigation of their genetic resources. Canada would be well within its rights to prohibit such activity or permit it on condition of beneﬁt sharing such as through the payment of royalties, subject to it enacting enabling legislation under Canadian domestic law. Given the potential economic value of these resources, the conclusion reached early in the process that there was no economic interest at stake in designating the MPA seems to have been premature.

6.3 6.3.1

New Zealand

The Kermadec arc

New Zealand has jurisdiction over the world’s fourth largest EEZ.120 These waters contain at least 16 active hydrothermal vents sites.121 Although yet to be conﬁrmed, at least one site (and possibly more) lie outside New Zealand’s EEZ but on its continental shelf. All of these active hydrothermal vents lie on the southern Kermadec intra-oceanic arc. The southern Kermadec intra-oceanic arc trends north westward from New Zealand for 1,220 kilometres and is part of the continuous 2,500 kilometre Kermadec-Tonga arc created by the Paciﬁc-Australian plate convergence.122 In March 1999 the ﬁrst 7 active hydrothermal vent sites were discovered as part of the NZAPLUME123 expedition. This cruise surveyed volcanoes of the southern 260 kilometres of the Kermadec arc. Of 13 volcanoes surveyed 7 were found to host active hydrothermal vents. These are the Clark, Tangaroa, Rumble V, Rumble III, Rumble II West, Healy and Brothers hydrothermal vent ﬁelds.124 The remaining sites were located in 2002 as part of NZAPLUME II Cruise. All of these hydrothermal vents are found at a range of depths from 220 metres at Rumble III to 1,650 metres at Brothers.125 So far little work has been done in relation to the fauna of these vents. Work on the fauna of the Kermadec ridge was ﬁrst undertaken in November 2000 and May 2001 by New Zealand’s National Institute of Water and Atmospheric Research.126 Some 100

120

121 122

123 124 125 126

Hon P. Hodgson MP, New Zealand Minister of Fisheries, In P. Batson, Deep New Zealand. Blue water, black abyss. (2003), 7. Interview Dr Cornel de Ronde, 25 November 2003. C.E.J. de Ronde et al., ‘Submarine Hydrothermal Venting Related Volcanic Arcs’ In Society of Economic Geologists Special Publication 10. (2003), 92. New Zealand American Plume Mapping Expedition. C.E.J. de Ronde et al., above n. 122, 94. Ibid. Hereinafter NIWA.

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species have been identiﬁed including Crustacea, Mollusca and Echinodermata.127 These include 3 species of shrimp belonging to the genus Alvinocaris, 12 barnacle species, large gastropods,128 and a new species of large apricot-coloured starﬁsh found on beds of a new large species of deep-sea mussel, Bathmodiolus.129 6.3.2

Activities and Stakeholders

Although only very recently discovered, there are already several stakeholders who have an interest in regulation of activities at these hydrothermal vent sites. These include scientists, the mining industry, the emerging deep-sea tourist industry, documentary makers, the biotechnology industry, the ﬁshing industry and the indigenous people of New Zealand, the Maori. There is signiﬁcant scientiﬁc interest in the Kermadec ridge hydrothermal vents. Planning for several major research expeditions in the near future is underway. One such program is that of the New Zealand Institute of Geological and Nuclear Sciences,130 which in December 2003 was allocated government funding of NZ$4.7 million over the next 6 years to continue its research on New Zealand’s offshore volcanoes, their hydrothermal vents and mineral deposits.131 Although there have been no reported tourist dives to the Kermadec hydrothermal vents so far, the main operator of tourist dives to hydrothermal vents, DOE has expressed interest in tourist dives to these hydrothermal vents, possibly in conjunction with scientiﬁc research expeditions planned under the Census of Marine Life.132 These dives may also involve the ﬁlming of a documentary.133 The biotechnology industry may also have an interest in regulation of bioprospecting at the Kermadec sites. Although there are no reported cases of bioprospecting at these hydrothermal vents, given the history of extensive research on thermophiles associated with hot springs on land in New Zealand, it is likely that researchers and industry may eventually show some interest in bioprospecting at the Kermadec hydrothermal vents. As the Kermadec hydrothermal vents are associated with seamounts, a prime ﬁshing location, the commercial ﬁshing industry also has an interest in regulation of activities at these sites. Finally, although consideration of the rights of indigenous communities

127

128 129 130 131 132

133

M.R. Clark and S. O’Shea, ‘Hydrothermal vent and seamount fauna from the southern Kermadec Ridge, New Zealand’ (2001) 10(2) InterRidge News 14. Ibid. Batson, above n. 120, 144. Hereinafter GNS. Dr Cornel de Ronde, personal correspondence, copy on ﬁle with the author. The Census of Marine Life is an ambitious cooperative international scientiﬁc and interdisciplinary research project involving more than 300 scientists from 53 countries which aims to assess and explain the diversity, distribution and abundance of life in the oceans. For further information on the census of marine life see www.coml.org and discussion in Chapter 8. Interview Ms Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, 5 December 2003.

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in the marine environment is outside the scope of this book, it should be noted that Maori are major stakeholders in regulation of the marine environment in New Zealand waters. The hydrothermal vents of the Kermadec arc are also of interest to the minerals industry. On 15 October 2002 the Sydney-based company Neptune Resources Pty Ltd was granted a prospecting licence to prospect for minerals in an area of 33,000 square kilometres covering a 600 kilometre long southern section of the Kermadec arc.134 The terms of this licence and the relevant legislation are discussed in more detail below. 6.3.3

Oceans governance in New Zealand

At the time of writing oceans governance in New Zealand was undergoing major review with the development of a national oceans policy and major changes to existing legislation foreshadowed. This section reviews the range of existing legislation that is relevant to current regulation of activities at hydrothermal vents in waters over which New Zealand claims jurisdiction. This is then followed by a brief discussion of issues associated with the development of New Zealand’s Oceans Policy and regulation of bioprospecting as relevant to hydrothermal vents. For present purposes the relevant pieces of legislation are the Territorial Sea and Exclusive Economic Zone Act 1977 (NZ), the Continental Shelf Act, 1964 (NZ), the Crown Minerals Act 1999 (NZ) and the Resource Management Act 1991 (NZ).135 Pursuant to the Territorial Sea and Exclusive Economic Zone Act 1977 (NZ) and consistent with its rights under LOSC and international law more generally, New Zealand claims a 12 nautical mile territorial sea136 and a 200 nautical mile EEZ.137 Under the Continental Shelf Act 1964 (NZ) New Zealand also asserts sovereign rights in relation to the natural resources138 of its continental shelf.139

134

135

136 137 138

139

See New Zealand Ministry of Economic Development press release at http://www.med/ govt.nz accessed 8 December 2003. One other signiﬁcant piece of legislation in relation to the Oceans, worth noting is the United Nations Convention on the Law of the Sea Act 1996 (NZ), which deals with implementation of New Zealand’s obligations under LOSC relating to the ISA and the International Tribunal for the Law of the Sea. Territorial Sea and Exclusive Economic Zone Act 1977 (NZ), section 3. Territorial Sea and Exclusive Economic Zone Act 1977 (NZ), section 9. Consistent with the deﬁnition contained in LOSC section 2 of the Continental Shelf Act 1964 (NZ) deﬁnes natural resources as: (a) the mineral and other natural non-living resources of the seabed and subsoil; and (b) 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 subsoil. Section 2 of the Continental Shelf Act 1964 (NZ) deﬁnes New Zealand’s Continental shelf as: the seabed and subsoil of those submarine areas that extend beyond the territorial limits of New Zealand, throughout the natural prolongation of the land territory of New Zealand, to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured (as described in sections 5 and 6 of the Territorial Sea and Exclusive Economic Zone Act 1977) where the outer edge of the continental margin does not extend to that distance.

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6.3.4

Neptune resources prospecting licence

Section 5(1) of the Continental Shelf Act 1964 (NZ) provides that: No person shall prospect or mine for, or carry on any operations for the recovery of, minerals in the seabed or subsoil of the continental shelf except in pursuance of a licence issued under this section.

Section 5(2) of the same Act also provides that: The Minister of Energy may from time to time, on application in that behalf, grant to any person a licence authorising the licensee to prospect and mine for, and carry on operations for the recovery of minerals or of minerals of any speciﬁed kinds in any speciﬁed area of the continental shelf.

Pursuant to Section 5(2) of the Continental Shelf Act 1964 (NZ) a prospecting licence was granted to Neptune Resources Pty Ltd140 with respect to mineral deposits including those associated with hydrothermal vents located on the Kermadec arc. The licence granted to Neptune Resources applies to some 33,160 square kilometres of New Zealand’s continental shelf for a period of four years expiring on 15 October 2006.141 Subject to compliance with conditions set out in the licence, the licence grants Neptune resources: exclusive rights to prospect for all metallic and non-metallic minerals in the area of the continental shelf described in [the] First Schedule of [the] licence and delineated on the plan [attached to the licence].142

Prospecting is deﬁned in the Second Schedule of the prospecting licence as: any activity undertaken for the purpose of identifying mineral deposits or occurrences and evaluating the feasibility of mining particular deposits or occurrences of one or more minerals.143

Interestingly the licence also states: this licence does not confer any right to conduct bioprospecting activities.144

140

141

142

143

144

Hereinafter Neptune Resources. The prospecting licence was initially incorrectly issued in the name of Neptune Resources Limited but the name of the licence holder was changed to Neptune Resources Pty Limited by Certiﬁcate of Correction dated 29 May 2003, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, First Schedule, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, page 1, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, Second Schedule, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf

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There appears to be no law authorising the New Zealand government to impose such a prohibition. Licences under section 5 the Continental Shelf Act 1964 (NZ) can only be issued in relation to the mineral resources of the New Zealand continental shelf. There also appears to be no formal mechanism provided under the Continental Shelf Act 1964 (NZ) for the exploitation of resources other than minerals resources. Pursuant to section 6 of the Continental Shelf Act 1964 (NZ) living resources such as oysters, shellﬁsh and sponges, all of which are sedentary species, were previously governed by the provisions of the Part I of the Fisheries Act 1908 (NZ) and Part I of the Fisheries Amendment Act 1963 (NZ). However, these provisions were repealed by the Fisheries Act 1996 (NZ), which does not operate beyond the limits of New Zealand’s EEZ. More fundamentally, as discussed in Chapter 2, under international law New Zealand only has jurisdiction to regulate the exploitation of the sedentary species of the continental shelf beyond the EEZ, and the extent to which hydrothermal vent species are sedentary species is unclear. Thus there appears to be no legal basis for the New Zealand government’s imposition of a prohibition on bioprospecting. The licence also sets out a three stage programme of work that Neptune Resources is obliged to carry out during the term of the licence. In Stage 1 the licence holder is obliged to undertake a literature review of previous work undertaken in the southern section of the Kermadec Arc and Havre Trough.145 On completion of Stage 1, Stage 2 of the programme of work obliges Neptune Resources to conduct a programme of multibeam echo sounding and geochemical surveys to identify areas of further interest within the licence area. Stage 2 must be completed within two years of the date of grant of the licence.146 At this point Neptune Resources must make a written commitment to complete the work detailed in Stage 3 of the licence. Stage 3 of the work programme obliges Neptune Resources to: undertake a programme of sampling of volcanoes, seamounts and cross-basin structures and conduct a preliminary close-spaced sampling programme to determine their probable mineral extent and grade.147

Importantly Clause 16 of the licence makes clear that New Zealand government entities are entitled to carry out scientiﬁc research in relation to the minerals in the area subject to the licence. Thus Clause 16 provides: The licence does not preclude any minerals based scientiﬁc research programme from being undertaken in the licence area where the programme is wholly or partly funded by the New Zealand Government and has the consent of the Minister, and the data collected is made

145

146

147

Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, page 1, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, Second Schedule, Work programme clause 1, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, Second Schedule, Work programme clause 2, copy on ﬁle with author. Ibid.

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Chapter Six available to the Crown Minerals Resource Data Library available at the cost of [sic] dissemination within two years of collection.148

This provision was included at the speciﬁc request of scientists from the New Zealand Institute of Geological and Nuclear Sciences or GNS involved in ongoing research on the geology of the Kermadec Arc, who wanted to avoid any restriction on their ability to carry out research in the area covered by the licence.149 Neptune Resources is obliged to pay an annual licence fee at the rate of NZ$1.125 (GST inclusive) per square kilometres during the term of the licence. This equates to a licence fee of NZ $37,305 per annum.150 The licence also grants Neptune Resources the “right in priority over any other person to apply for a subsequent mining licence in respect of any area within [the] licence.”151 The licence holder is obliged to comply with a number of other requirements, including providing a berth for government observers on board all research vessels involved in prospecting, as well as obligations to comply with reporting obligations under section 90 of the Crown Minerals Act 1999 (NZ) and the Crown Minerals (Minerals and Coal) Regulations 1999 (NZ) (Part 3 sections 26 to 34).152 Release of any of these reports to the public will be restricted in accordance with section 90 of the Crown Minerals Act 1991 (NZ) and the Ofﬁcial Information Act 1982 (NZ).153 The Crown Minerals Act 1991 (NZ) does not apply beyond the outer limits of the territorial sea.154 Nonetheless, in issuing the licence the New Zealand Crown Minerals Ofﬁce sought to model the licence on licences issued in accordance with the Crown Minerals Act 1991 (NZ).155 This appears to be consistent with the provisions of Section 5(3) of the Continental Shelf Act 1964 (NZ), which allows the Minister to grant licences

148

149 150

151

152

153

154

155

New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, Second Schedule, Work programme clause 16, copy on ﬁle with author. Dr Cornel de Ronde, interview, 25 November 2003. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, Certiﬁcate of change of Conditions dated 25 June 2003, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, clause 9, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, clause 5, copy on ﬁle with author. New Zealand Prospecting Licence number 39195 granted pursuant to the Continental Shelf Act 1964 to Neptune Resources Pty Ltd, dated 15 October 2002, clause 6(b), copy on ﬁle with author. The Crown Minerals Act 1991 (NZ) applies only to “Land” which is deﬁned in section 2 as including “land covered by water; and also includes the foreshore and seabed to the outer limits of the territorial sea”. Interview Mr Warren Player, Crown Minerals, New Zealand Ministry of Economic Development, 26 November 2003.

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“subject to such conditions as the Minister, when granting the licence, thinks ﬁt to impose”.156 The licence does not include any conditions in relation to environmental impact assessment or obligations to avoid adverse impacts on the marine environment. This may be due in part to the fact that none of the relevant legislation dealing with activities in the marine environment currently applies to the continental shelf. For example, the main New Zealand legislation providing for measures such as environmental impact assessment of activities in the marine environment, the Resource Management Act 1991 (NZ), does not apply beyond the limits of the territorial sea.157 The only legislation of relevance that appears to apply to the New Zealand continental shelf is the Environment Act 1986 (NZ). However, this legislation is not a management statute in the regulatory or operational sense.158 It merely provides for the creation of a parliamentary Commissioner for the Environment and a Ministry of the Environment to monitor and provide advice in relation to implementation of other legislation including the Continental Shelf Act 1964 (NZ).159 While no other legislation appears relevant, conditions could be imposed in relation to the protection of the marine environment, such as requirements for environmental impact assessment under section 5(3) of the Continental Shelf Act (NZ) 1964 discussed above. A possible explanation for the absence of any such condition lies in the fact that this is the ﬁrst such licence granted by New Zealand Crown Minerals, and the process for grant of such licences is still under development. It is worth noting that, subsequent to the grant of the licence, part of the area covered by the licence was closed to all forms of trawling pursuant to regulations under the Fisheries Act 1996 (NZ). However, this appears to have no impact on the Neptune Resources exploration licence. It is unclear if Crown Minerals were consulted during the decision making process that lead to the closure.160 6.3.5

Development of New Zealand’s Oceans Policy

In July 2000 the New Zealand Cabinet agreed to the development of an Oceans Policy for New Zealand. The policy will seek to provide for an integrated and consistent

156 157

158

159

160

Continental Shelf Act 1964 (NZ) section 5(3). Section 12 of the Resource Management Act 1991 (NZ) prohibits certain activities in the coastal marine area unless allowed by a regional coastal plan or a resource consent. The application process for resource consents does involve assessment of the effects of such activity on the environment. However, the term ‘coastal marine area’ as deﬁned in section 2 of the Resource Management Act 1991 (NZ) does not extend beyond the outer limits of the territorial sea and accordingly the Resource Management Act 1999 (NZ) has no application on the continental shelf. Enfocus Ltd, Hill Young Cooper and URS NZ Ltd (2002) Oceans Policy Stocktake. Part 1–Legislation and Policy review, New Zealand Oceans Policy Secretariat, Appendix 3. The Continental Shelf Act 1964 is listed in the Environment Act 1986 (NZ) as legislation to which the provisions of the later legislation apply. Enfocus Ltd, Hill Young Cooper and URS NZ Ltd (2002) Oceans Policy Stocktake. Part 1–Legislation and Policy review, New Zealand Oceans Policy Secretariat, Appendix 4.

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management of oceans within New Zealand’s jurisdiction. Development of the policy aims to be a cross-government exercise, covering all aspects of oceans management, and would extend out to the edge of the EEZ and the continental shelf.161 As development of the Oceans Policy is still underway at the time of writing this book detailed examination of the likely policy is beyond the scope of this book, but for present purposes it is worth noting a number of points of relevance to hydrothermal vents. One important part of the Oceans policy development process in New Zealand has been a review of existing legislation and policies undertaken for the Ocean Policy Secretariat by external consultants.162 That review produced an Oceans Policy Stocktake,163 which examines some of the strengths and weakness of existing legislation and policies relating to oceans management. The strengths identiﬁed in New Zealand’s existing legislative and policy landscape by the stocktake include: • Single uncontested jurisdiction: the only boundary dispute New Zealand had was with Australia and related to the demarcation of the continental shelf boundaries.164 There are also no complicated constitutional arrangements dividing domestic jurisdiction between different levels of government. New Zealand does not have the problems of a federal system like Australia.165 • Comprehensive legal framework: New Zealand has law in place to assert its rights under LOSC, although there are a few gaps in the legal ability for the executive to take management steps.166 • Some ability to create consistent regulatory regimes: although management functions are fragmented across statutes, some opportunity exists to create seamless management regimes in respect of key issues.167 Of particular note is the possibility of regulations under the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act and the Continental Shelf Act.168 • Integrated Coastal Zone Management: exists under a single statute, the Resource Management Act, out to the limits of the territorial sea.169 • Treaty of Waitangi: which acts as a formal framework for addressing and consid-

161 162 163 164

165

166 167 168 169

http://www.oceans.govt.nz accessed 8 January 2004. The Consultants were Enfocus Limited, Young Cooper Ltd and URS NZ Ltd. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160. This dispute has subsequently been resolved with the signing of the Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries [2004] ATNIF 1 opened for signature 25 July 2004 ( not yet in force). See also Australian Department of Foreign Affairs and Trade web site http://www.foreignminister.gov.au/releases/2004/fa112a_04_bg.html accessed 27 January 2005. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd Oceans Policy Stocktake – Part 1 – Legislation and Policy Review, (2002), 1. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 163, 2. Ibid. Ibid. Ibid.

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ering Maori rights and relationships with respect to the Crown’s sovereignty and sovereign rights.170 • Relatively efﬁcient allocation mechanisms for ﬁsheries.171 The weaknesses identiﬁed include: • Absence of over-riding goal: for example, no clearly articulated statement of “sustainability”, “wise use” or other formula. As such each agency is left to interpret and apply key international marine management goals articulated in instruments (such as LOSC) and non-statutory strategies such as New Zealands Biodiversity Strategy.172 This can lead to conﬂicting management decisions across agencies and government departments.173 • Inconsistent decision making structures and opportunities for participants.174 • Inconsistent management of “like” activities (and potential effects), particularly beyond the territorial sea: management of non-living resources outside the territorial sea is largely “reactive” and “ad hoc”, with little integration with management of living resources. There is an absence of key tools such as structured environmental impact assessment. There seems to be no mechanism to resolve conﬂicts between use of non living resources and management of living resources other than at Cabinet level.175 • Treaty of Waitangi Act and aboriginal rights: there is uncertainty as to Maori rights in the oceans, which must await a future court decision.176 • Ecologically arbitrary spatial management units and a general lack of integrated management: most management regimes reﬂect LOSC’s geospatially concentric and geological boundaries rather than ecological boundaries, which can prevent a truly coherent ecosystem management approach.177 • Lack of information: in relation to marine ecosystems. Even though there are principles, such as the Precautionary Principle, to deal with such situations, they are interpreted and applied inconsistently.178 With respect to legislation applicable to hydrothermal vents within New Zealand waters, it is worth noting a few key comments contained in the Oceans Stocktake. Firstly the stocktake notes that only the Resource Management Act and the Fisheries Act (neither of which apply to the hydrothermal vents on New Zealand’s continental shelf ) explicitly refer to the principle of sustainability.179 In that respect the stocktake notes:

170 171 172 173 174 175 176 177 178 179

Ibid. Ibid. Discussed below. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 3. Ibid. Ibid. Ibid. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 4. Ibid. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 19.

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Although as the stocktake also points out this is not inconsistent with LOSC. Thus: Minerals are not required to be managed “sustainably”, for the obvious reason of either nonregeneration or extremely slow regeneration. This mirrors the situation on land under the [Resource Management Act], and might be consistent with LOSC’s omission of non-living organisms from the “optimum utilisation” imperative.181

While minerals themselves need not be managed sustainably, the stocktake also recognised the absence of a mechanism for management of environmental effects of activities beyond the territorial sea. In relation speciﬁcally to the Continental Shelf Act the stocktake notes: That Act does not provide for sustainability or (explicitly) environmental protection and the extent to which these objectives are promoted is at the discretion of the Minister. On the other hand the Act does not limit the minister’s ability to take into account environmental effects in granting licences, and in the one case where a licence for prospecting was issued, environmental impacts were part of the consideration and assessment.182

While there may have been some cursory examination of these issues in the process leading up to the grant of the prospecting licence to Neptune Resources, as noted earlier, there appears to have been no comprehensive assessment of the likely environmental effects of prospecting activities, notwithstanding the stocktake’s assertions to that effect. The stocktake also identiﬁes the lack of formal mechanisms for achieving integration across statutes.183 Even where mechanisms exist, often a lack of statutory direction mandating integration and insufﬁcient communication and collaboration between management agencies means integration is of limited effectiveness.184 The stocktake in particular notes the existence of co-ordination of regulation under the Fisheries Act 1996 (NZ) and Continental Shelf Act 1964 (NZ) through non-statutory ministerial interdepartmental consultation. Even this example has sometimes failed to be effective. For example, as noted above, in issuing regulations under the Fisheries Act 1996 (NZ) closing seamounts to trawling, it is unclear whether there was any consultation with Crown Minerals, the department responsible for issuing the prospecting permit to Neptune Resources. Signiﬁcantly the stocktake also highlights the absence of a process for the issuing of licences under the Continental Shelf Act 1964 (NZ).185 As noted earlier however, to a limited extent Crown Minerals has strived for consistency with regulation in other maritime

180 181 182 183 184 185

Ibid. Ibid. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 20. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 22–23. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 23. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 33.

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zones. Finally the stocktake notes a lack of public participation in the process of granting licences under the Continental Shelf Act 1964 (NZ).186 Later the stocktake goes on to summarise the combined effect of each of these gaps in terms of what lessons can be learnt for the development of Oceans policy. In that respect the stocktake notes: The construction and sophistication of the Act reﬂects LOSC and, perhaps the extent of historical pressure on resource use on the shelf seaward of the territorial sea. However, should pressure on the non-living resources of the continental shelf increase in the future it is doubtful whether the [Act] will be regarded as providing an adequate management regime. The lack of opportunities for public participation, environmental assessment obligations, or monitoring requirements puts it at clear odds with the regime inside the territorial sea (notwithstanding that practice has been to provide for input by other government agencies). The critical internal tensions of the Act are presented by: • On the one hand, the purpose focusing on providing for resource exploitation but the absence of administrative or decision-making provisions that provide any certainty for business; and • The assumption that may be taken that licences regulate for a purpose and the further assumption (based on LOSC) that this purpose includes environmental protection, but the lack of tools and information to provide for that protection.187

Thus, in the course of its formulation of an Oceans Policy, New Zealand has recognised tensions and problems with the existing regime. As the formulation of Oceans Policy is ongoing, it is difﬁcult to predict to what extent the identiﬁed weakness will be rectiﬁed. Nonetheless, at least with respect to this part of the Oceans Policy process, the identiﬁcation of these weaknesses can be regarded as a signiﬁcant step forward for those involved in formulating New Zealand’s Oceans Policy. 6.3.6

Economic Opportunities in New Zealand’s Oceans

A second component of the development of Oceans Policy in New Zealand is the examination of economic opportunities available in New Zealand’s oceans. Interestingly this has included an examination of the various economic opportunities offered by hydrothermal vents. A key document worth noting is a report prepared for the Oceans policy Secretariat by the Centre for Advanced Engineering of the University of Canterbury. This report, Economic Opportunities in New Zealand’s Oceans,188 examines current economic activities and future opportunities in the oceans, as well as considering what policy framework may be necessary for realising the policy goal of providing “for economic return from New Zealand’s oceans.”189 The report aims to contribute to “searching for

186 187 188

189

Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 25–28 and 33. Enfocus Limited, Young Cooper Ltd and URS NZ Ltd, above n. 160, 33–34. Centre for Advanced Engineering, Economic Opportunities in New Zealand’s Oceans. Informing the development of oceans policy, (2003). Centre for Advanced Engineering, above n. 198, 1.

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the best ways to pursue economic opportunities within New Zealand’s oceanic territory [sic], generally in accordance with accepted principles of sustainable development.”190 A detailed review of this report is beyond the scope of this book but a number of salient points contained in the report are relevant for present purposes. Firstly, the report devotes considerable discussion to both potential mineral and biotechnology resources associated with hydrothermal vents along the Kermadec arc. In relation to the mineral resources, the report is pessimistic as to the immediate economic beneﬁts that such resources may offer. Thus the report notes: There are currently substantial barriers to commercial mining of these deposits, including low commodity prices and the difﬁculties of operating in offshore environments. Nevertheless, it has been predicted that mining polymetallic massive sulphides from the oceans will become economically viable within 10–15 years.191

Interestingly, in the context of consideration of the potential of mineral resources, the report also notes: Proposals have also been made for oceanic production of hydrogen fuel using vent systems.192

It is not clear whether this is referring to speciﬁc proposals in New Zealand or to the theoretical possibility noted in Chapter 1 of this book. In relation to biotechnology the report makes a number of key points. Firstly, concerning the biotechnology potential of hydrothermal vent species the report observes: Biodiversity is a driver of bioproduct opportunity. Marine micro-organisms include microalgae, bacteria, archaea and extremophiles. The latter live in extreme environments such as hydrothermal vents, and have developed biochemical means to protect themselves from the effects of these environments. Extremophiles are potential sources of robust enzymes used as antivirals, antibiotics, and anti-cancer agents, thermoprotectants and osmoprotectants.193

Secondly, the report also recognises the long development process and cost involved in bringing marine bioproducts to the market.194 As the report observes: The development of marine bioproducts is characterised by a long and technologically challenging value chain from exploration for highly bioactive organisms (bioprospecting), through identiﬁcation of candidate organisms, screening for valuable biochemicals, extraction of the target product, devising the method of supplying the product, the actual production of bioproducts. . . . Development of a speciﬁc product from bioprospecting can take 10–15 years and require development costs of US$300–500m.195

190 191 192 193 194 195

Ibid. Centre for Advanced Engineering, n. 188, 7. Ibid. Centre for Advanced Engineering, above n. 188, 12–13. This is discussed in Chapter 7. Centre for Advanced Engineering, above n. 188, 12–13.

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The second part of the report makes a number of recommendations as to how the economic opportunities discussed in the ﬁrst part of the report may be facilitated. In the case of hydrothermal vents there are clear recommendations as to the need to design and implement policies and appropriate legislation to provide for secure, freely tradeable property rights in relation to both the mineral resources, and any biotechnology that may be developed. This is justiﬁed on the grounds that it would provide a stable environment for the signiﬁcant capital investment projected to be required in developing such resources. It is argued that this is perfectly consistent with LOSC. Thus the report observes: [LOSC] implicitly recognises that there are net global economic gains where the technological capital of one country (a ‘maritime nation’) can be combined with the natural resources of another (‘coastal state’), and that the latter has the sovereign right to establish a fair means of sharing in the wealth so created. New Zealand statutes, including the Continental Shelf Act, the Crown Minerals Act and the Fisheries Act, all provide for such developments within the EEZ, and the participation of foreign and multi-national corporations. . . . The development of new sectors, such as biotechnology or volcanic-related mineral deposits, will depend on similar frameworks that create secure and tradable property rights in respect of which capital investment can secure attractive returns.196

Finally, the report suggests that the existing framework for the development of these resources may need to be rethought. Although the report does not offer any suggestions on what this may involve, it observes: The nature and allocation of rights to develop ‘new’ resources such as gas hydrate and volcanic vent-hosted minerals need to be considered very carefully, well in advance, to optimise the beneﬁts to the nation. These opportunities are being led by public-funded research, mainly into resource characterisation. In the present framework, title in the form of an exclusive right to develop any discovery arising from commercial exploration is available to whichever visionary entrepreneur is ﬁrst prepared to make an application. The potential leverage is tremendous but the probability of sustaining title until development proves commercial, and raising the required capital, is very low. The model has many precedents throughout the history of the oil industry and in many other sectors such as satellite broadcasting, but it does result in potential capture of a disproportionate share of the value by the visionary provider of high-risk capital. Without government intervention, this is unlikely to come from New Zealand. Alternative approaches to title deﬁnition and allocation of ‘new’ resources should be examined with the speciﬁc goal of facilitating their commercialisation while securing an optimal return to the Crown.197

6.3.7

New Zealand’s Biodiversity Strategy

Finally, it is also worth noting that, independent of the Oceans Policy development, New Zealand is also in the process of developing a Bioprospecting Strategy in accordance

196 197

Centre for Advanced Engineering, above n. 188, 23. Centre for Advanced Engineering, above n. 188, 25–26.

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with the terms of its Biodiversity Strategy, launched in 2000 in response to New Zealand’s obligation under the CBD.198 The implementation of New Zealand’s Biodiversity Strategy and development of New Zealand’s Bioprospecting Strategy are ongoing. Detailed examination of both documents is beyond the scope of this book. However a number of points are worth noting about developments to date. Firstly, a discussion paper on options for regulating bioprospecting was released in November 2002. This document, Bioprospecting in New Zealand – discussing the options,199 sets out what the New Zealand government deﬁnes as the “bioprospecting policy problem”: the lack of an overarching framework for bioprospecting; uncertainty of the policy environment and lack of information; and ad hoc controls over access by foreign vessels. The lack of an overarching framework for bioprospecting is a major element of the “bioprospecting problem.” As the options discussion paper notes: The legal and policy frameworks governing access to biological resources are a fragmented system of rules, contained under legislation designed for other purposes. There is no overarching government bioprospecting policy to provide consistency in the implementation of different statutory functions. . . . . . In an institutional sense, there is no body to take a strategic view of bioprospecting activities, and no central point of contact for overseas investors and researchers. There is no systematic gathering of information on what bioprospecting activities are occurring in New Zealand, or on the outcomes and beneﬁts of bioprospecting research. . . . There is also no beneﬁt-sharing framework to ensure individual cases of bioprospecting research maximise possible beneﬁts to New Zealand.200

These are the sort of issues New Zealand must address in the course of developing its bioprospecting policy and legislation. For present purposes it is interesting to note that the Bioprospecting options discussion paper referred to above does mention hydrothermal vents in passing.201 It is not clear however to what extent bioprospecting at hydrothermal vents will subsequently be regulated as these policies are implemented.

198

199

200 201

The New Zealand Biodiversity Strategy, available from http://www.mfe.govt.nz/publications/biodiversity/nz-biodiversity-strategy-feb00.html accessed 27 January 2005. New Zealand Ministry of Economic Development Bioprospecting in New Zealand-discussion the options (2002), available from http://www.med.govt.nz/ers/nat-res/bioprospecting/ review/discussion/ accessed 27 January 2005. New Zealand Ministry of Economic Development, above n. 199, 14. Thus the paper notes: “Interest in bioprospecting in New Zealand’s resources is partly driven by the nature of the country’s biodiversity. As a group of isolated islands, our indigenous biodiversity has developed in a particular way. New Zealand also has a large Exclusive Economic Zone, providing a rich source of marine biodiversity. For example, the large number of hydrothermic [sic] vents in New Zealand’s Exclusive Economic Zone offers an opportunity to study micro-organisms that have developed in extreme environments.” See New Zealand Ministry of Economic Development, above n. 208, 7.

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137

Portugal – Lucky Strike and Menez Gwen

The Azores archipelago

The archipelago of the Azores, located in the middle of the Atlantic ocean, was colonised by the Portuguese in the 15th century and to this day remains a Portuguese territory with its own regional government.202 The Archipelago consists of nine volcanic islands and several small islets forming three groups running WNW-ESE between 37° and 47°N latitude, 25° and 32°W longitude.203 Its surrounding EEZ covers more than 1 million square kilometres of ocean.204 The marine environment of the Mid Atlantic, and the Azores in particular, has been of intense interest to scientists since the 1880’s.205 With the discovery of hydrothermal vents in the Paciﬁc ocean in the late 1970s and early 1980s, exploration for hydrothermal vents on the mid-Atlantic ridge began shortly thereafter.206 The ﬁrst active hydrothermal vents on the mid-Atlantic ridge were those found at the TAG207 site in 1985.208 Since then several other active sites have been found on the Mid-Atlantic Ridge including the Lucky Strike and Menez Gwen hydrothermal vent sites,209 which at the time of writing the Azores Regional Government are proposing to shortly designate as MPAs. Although these are not the only hydrothermal vent sites on the Mid-Atlantic ridge to be proposed as MPAs,210 they are the ﬁrst sites on the Mid-Atlantic ridge to receive government backing for formal designation, and will probably be the ﬁrst deep-sea MPAs in the Northeast Atlantic.211

202

203 204 205 206

207 208

209

210

211

R.S. Santos et al., ‘Marine research and conservation in the Azores’ (1995) 5 Aquatic Conservation: Marine and Freshwater Ecosystems 311. Ibid. Santos et al., above n. 202, 312. Santos, et al., above n. 202, 313. K.L. Von Damm et al., ‘The geochemical controls on vent ﬂuids from the Lucky Strike vent ﬁelds, Mid-Atlantic Ridge’ (1998) 160 Earth and Planetary Science Letters 521, 522. TAG stands for Trans Atlantic Geotraverse. P.A. Rona et al., ‘Black smokers, massive sulphides and vent biota at the Mid-Atlantic Ridge’, (1986) 321 Nature 33. Other sites include Broken Spur, Logatchev Field and the Rainbow site. See Von Damm, Bray, Buttermore, and Oosting, above n. 206, 522. For example the Logatchev site located in international waters has been proposed as a high seas MPA. See K.M. Gjerde and C. Breide, Towards a Strategy for High Seas Marine Protected Areas: Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas (2003). WWF ‘Lucky Strike and Menez Gwen, Azores. The ﬁrst deep sea Marine Protected Areas in the Northeast Atlantic’, pamphlet available from http://www.ngo.grida.no/wwfneap/ Whatsnew/Azores.htm accessed 26 November 2004.

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The “Lucky Strike”212 hydrothermal vents were ﬁrst discovered during the FAZAR213 expedition in 1992.214 Menez Gwen was discovered in 1994.215 The Lucky Strike vents, located at 37°17’N and 32°20’W,216 are found over an area 700 metres by 300 metres at depths ranging from 1618 metres in the north to 1730 metres in the south.217 These include a number of impressive vent structures such as the Statue of Liberty, a 3 metre tall active ﬂange structure with inactive chimney spires, Sintra, a 5 metre tall spire, in the north, and a number of structures such as the Eiffel Tower, a 20 metre tapered spire ‘black smoker’, in the south.218 The temperatures of ﬂuids emitted from these vents ranges from 200°C at the Statue of Liberty to 333°C at Eiffel Tower.219 One vent, Crystal vent, is a unique example of a high temperature vent that emits clear ﬂuid due to low concentrations of iron, magnesium and zinc.220 High temperature clear ﬂuid vents like this are quite rare. The Menez Gwen hydrothermal vent site is located on a volcano at 37°50’N221 at a depth of 840–870 metres.222 Several active hydrothermal vents have been found on the southeast and east slopes of the volcano. Vent chimneys at this site are typically small and composed of white anhydrite, although some small mounds with hot water diffusing through all surfaces are also to be found at Menez Gwen.223 Menez Gwen vents typically exhibit temperatures between 265°C and 281°C.224 The Lucky Strike fauna is biogeographically distinct from other hydrothermal vent sites found on the mid-Atlantic ridge and may possibly represent a ﬁfth biogeographic 212

213

214 215

216 217 218 219 220 221

222

223 224

This hydrothermal vent site was called “Lucky Strike” because it was quite literally found by accident. The active hydrothermal vent was found accidentally by scientists dredging at this site. When the dredge was brought to the surface it contained fresh sulphides and live vent mussels. See P. Asimov, ‘Lucky Strike Smokers are different’ (2002) 3 Engineering & Science 9,15 and C. Langmuir et al., ‘Hydrothermal vents near mantle hot spot: the Lucky Strike veny ﬁeld at 37°N on the Mid-Atlantic Ridge’ (1997) 148 Earth and Planetary Science Letters 69, 71. FAZAR stands for French American ZAPS and Rocks. ZAPS stands for Zero Angle Photon Spectrometer. See Asimov, above n. 217. Von Damm, Bray, Buttermore and Oosting, above n. 206, 522. J.P. Donval et al., ‘Compared chemistry of hydrothermal ﬂuids collected with the Nautile at Lucky Strike (37°17’N) and the new Menez Gwen (37°50’N) sites on the Mid-Atlantic Ridge (DIVA 1 cruise, May 1994)’ (1994) 75 Eos 309. Von Damm, Bray, Buttermore, and Oosting, above n. 206, 522. Langmuir et al., above n. 212, 75. Langmuir et al., above n. 212, 75–79. Ibid. Von Damm, Bray, Buttermore and Oosting, above n. 206, 527. J.L. Charlou et al., ‘Compared geochemical signatures and the evolution of Menez Gwen 37°50’N and the Lucky Strike (37°17’N) hydrothermal ﬂuids south of the Azores Triple Junction on the Mid-Atlantic Ridge’ (2000) 171 Chemical Geology 49, 52. R.S. Santos, A. Colaço and S. Christiansen (eds), ‘Management of Deep-sea Hydorthermal Vent Fields MPA in the Azores Triple Junction. Proceedings of the workshop’ (2003) Arquipélago-Life and Marine Science, Supplement 4, 31. Ibid. Ibid.

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hydrothermal province.225 Fauna found at the Lucky Strike vents are dominated by dense mussel beds.226 Other fauna includes at least two new gastropods, polychaete such as the blood-red Branchipolynoe seepensis, two new species of halacarid mites, a new species of bresiliid shrimp and small white amphipods.227 Fish species identiﬁed at Lucky Strike include Chimaerids, such as Hydrolagus pallidus, and bythtid ﬁsh, such as Cataetyx laticeps, as well as several sharks.228 There are two quite unusual elements of the Lucky Strike faunal community. The ﬁrst one is the presence of a new species of sea urchin.229 Secondly, and perhaps more signiﬁcantly, unlike most other known hydrothermal vent sites, both the Lucky Strike and Menez Gwen ﬁelds are characterised by a total absence of vestimentiferan tubeworms and vesicomyid clams.230 Like Lucky Strike, fauna at Menez Gwen is dominated by mussel beds.231 Other fauna identiﬁed at Menez Gwen includes small limpets and deep sea scavengers such as crabs,232 gastropods, mytilids and several species of ﬁsh.233 6.4.2

Activities and stakeholders

As noted above, there is a long history of MSR in and around the Azores, and more recently at hydrothermal vents within the Portuguese EEZ surrounding the Azores and elsewhere in the Mid-Atlantic. Due to the proximity of Lucky Strike to staging areas in the Azores and because of international interest in time-series observations of hydrothermal communities, Lucky Strike may become the principal area of ridge crest hydrothermal research.234 Similarly, due to their close proximity to each other, to other hydrothermal vent sites such as the João Castro seamount and at São Miguel, Lucky Strike and Menez Gwen offer the best potential for studying shallow and deep water hydrothermal vents in the Mid-Atlantic.235 In addition to work of individual research institutions such as the Institut français de recherche pour l’exploitation de la mer,236 Bremen University, and the University of the Azores, a number of international collaborative research projects have been undertaken along the Mid Atlantic Ridge near the Azores in recent years as part of programs funded by the European Commission and

225

226 227 228 229 230 231 232 233 234 235 236

Other provinces identiﬁed include the eastern Paciﬁc (east Paciﬁc Rise and Galapagos Spreading Centre), northeastern Paciﬁc (Gorda, Juan de Fuca, Explorer Ridges), western Paciﬁc (Back-Arc) and Mid-Atlantic (TAG and Snake Pit). See C.L. Van Dover et al., ‘Biology of the Lucky Strike hydrothermal, ﬁeld’ (1996) 43(9) Deep-Sea Research I 1509, 1524. Van Dover et al., above n. 225, 1512. Van Dover et al., above n. 225, 1512–1518. Van Dover et al., above n. 225, 1518. Ibid. C.L. Van Dover, The Ecology of Deep-Sea Hydrothermal Vents (2000), 337. Santos, Colaço and Christiansen (eds) above n. 222, 13. Ibid. Santos, Colaço and Christiansen (eds) above n. 222, 32–33. See Van Dover et al., above n. 225, 1526. Santos et al., above n. 203, 344. Hereinafter IFREMER.

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the US National Science Foundation.237 Further international collaborative research, such as MOMAR II and a Deep-Sea Observatory, part of the European Unions European Research Area programme,238 is also planned for the near future. The scientiﬁc community therefore is a major stakeholder in regulation of activities at Lucky Strike and Menez Gwen. Another stakeholder of relevance is the emerging deep-sea tourist industry. As noted in Chapter 1, DOE, has conducted a number of tourist dives to Lucky Strike.239 It is also worth noting the existence of a substantial ﬁshing industry in and around the Azores.240 The extent of ﬁshing activities in the MPAs proposed for the Lucky Strike and Menez Gwen sites is unclear. Finally, although the writer has been unable to locate any evidence of any company expressing interest in the mineral resources of Lucky Strike or Menez Gwen, it is worth noting that the potential of mining has been considered in the process leading up to the creation of the MPA. 6.4.3

Lucky Strike and Menez Gwen marine protected areas

The ﬁrst MPA in the Azores, Monte da Guia, was established in 1980.241 There are now 9 marine protected areas that have been designated by the Regional Government of the Azores and 7 sites designated as sites of community interest under the EEC Habitat Directive.242 For several years leading members of the scientiﬁc community have called for the implementation of a plan for conservation of marine areas in the Azores.243 More recently many of the same scientists have also recognised that there is a need for greater co-ordination of research activities at Lucky Strike and Menez Gwen, and a need to take measures to regulate activities at these vents, so as to ensure they can remain both as special areas of reference and study and accessible for future advanced scientiﬁc research, while also ensuring that their associated biodiversity is sustainably managed for the future.244 Thus, while MSR arguably poses the greatest threat to these sites for the conceivable future, the scientiﬁc community itself, in conjunction with other interested parties such as the WWF and the Regional Government of the Azores, is taking the initiative to call for the establishment of MPAs for Lucky Strike and Menez Gwen.

237 238 239 240

241

242

243 244

Santos, Colaço, and Christiansen (eds), above n. 222, 13. Santos, Colaço, and Christiansen (eds), above n. 222, 6. Interview Belinda Sawyer, Operations Manager, Deep Ocean Expeditions, 5 December 2003. A detailed discussion of the ﬁshing industry which is of only marginal relevance to the proposed MPAs for Lucky Strike and Menez Gwen is beyond the scope of this chapter. For a detailed discussion of the ﬁshing industry in and around the Azores see Santos et al., above n. 202, 323 to 327. Interview, Professor Ricardo Serrão Santos, Director, Department of Oceanography and Fisheries, University of the Azores, 20 June 2003. Council Directive 92/43/ EEC of 21 May 1992. Interview, Professor Ricardo Serrão Santos, Director, Department of Oceanography and Fisheries, University of the Azores, 20 June 2003. Santos et al., above n. 202, 335. Santos, Colaço, and Christiansen, above n. 222, 5.

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While the scientiﬁc community had a signiﬁcant role and input into the establishment of the Endeavour MPA in Canada, in the case of Lucky Strike and Menez Gwen, it appears that key members of the scientiﬁc community are leading the calls for regulation of their own activities. A key step along the way to the establishment of the proposed MPAs for Lucky Strike and Menez Gwen was a major workshop convened in Horta under the sponsorship of the Secretary of the Environment of the Regional Government of the Azores from 18–20 June 2002. Some 35 experts attended the workshop, including leading scientists involved in hydrothermal vent research from institutions such as the University of the Azores, IFREMER, Université du Québec à Montréal, and Southhampton Oceanography Centre, lawyers and policy makers from institutions such as WWF, the World Conservation Union,245 the Intergovernmental Oceanographic Commission and the United Nations Educational Scientiﬁc and Cultural Organisation or UNESCO, as well as collaborative research programmes such as InterRidge, and several representatives of government departments including the Hydrographic Institute (Portuguese Navy). The goal of the workshop and the outcome of discussions and recommendations are set out in the detailed record of the proceedings published in 2003.246 Based upon the recommendations of that workshop, a draft decree and regulations in relation to the MPA have been prepared.247 As at 20 June 2003 the draft decree and regulations were being considered by both the Regional Government of the Azores and the National Government of Portugal, and the proclamation of the MPA awaits the outcome of negotiations between these governments.248 Assuming the MPA proceeds along the lines of the recommendations, the draft degree and regulations currently proposed, it is anticipated that the MPA will take the following form.249 Both the Lucky Strike and Menez Gwen MPAs will include the water column, the seabed and the sub-surface of the respective vent ﬁelds.250 Signiﬁcantly therefore, the MPA will include all components of the vent ecosystem. The inclusion of the water column is signiﬁcant given the microbial communities that occupy the hydrothermal plume. Some areas will be reserved for observational research only, whilst in others only non-intrusive observation and non-destructive sampling will be allowed.251 245 246 247

248

249

250 251

Hereinafter IUCN. See Santos, Colaço, and Christiansen (eds), above n. 222. The draft documents are Regulamento do Plano de Ordenamento dos Parques marinhos Lucky Strike e Menez Gwen Proposta Decreto Regulamentar and Proposta De Decreto Legislativo Parque Marhino Lucky Strike e Menez Gwen, copies on ﬁle with the author. Interview, Professor Ricardo Serrão Santos, Director, Department of Oceanography and Fisheries, University of the Azores, 20 June 2003. The following discussion of the proposed marine protected areas is drawn from Santos, Colaço, and Christiansen (eds), above n. 222. Unless otherwise acknowledged or where the context suggests otherwise that publication is hereby acknowledged as the source of information in relation to the proposed MPAs. Santos, Colaço, and Christiansen (eds), above n. 222, 21. Ibid.

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MSR will be the only activity permitted within the MPA. Other activities such as bioprospecting, mining, and other commercial uses such as geothermal energy extraction will be speciﬁcally prohibited within the MPA. Outside the MPA, if any of these activities might have an impact within the MPA, they may be prohibited, or at a minimum will only be permitted to proceed after a strict independent environmental impact assessment.252 In addition to restricting MSR to certain zones, it is proposed that MSR be conducted in accordance with the following speciﬁc measures. Firstly, all research will require prior approval and proposals for research must be accompanied by an environmental impact assessment. Also all by-catch or non target sample collection must be reported. There will also be controls over pollution within the MPA such as ballast disposal. To avoid possible contamination of areas outside the MPA, disposal of sampling material outside the MPA will be prohibited as will biological transplantation. Finally voucher specimens and a reference collection will also be required to be deposited with a natural history museum.253

6.5 6.5.1

Papua New Guinea

The Manus Basin

The PNG territorial sea is host to several intensively studied hydrothermal vent ﬁelds, which may possibly be the ﬁrst hydrothermal vent mineral deposits in the world to be mined. Hydrothermal vents have been discovered in the Manus Basin (including the Vienna Woods, PACMANUS,254 Su Su Knolls Willaumez and Conical Seamount ﬁelds) and in the Woodlark Basin (including on the Franklin Seamount).255 Although both these areas have been subject to study by scientists, for the purposes of this chapter the most important area is the Manus Basin. The Manus Basin is located between New Britain, New Island and Manus Island at the eastern end of the Bismarck Sea, northeast of New Guinea.256 The PACMANUS ﬁeld in the Manus Basin was discovered in 1991.257 It lies between 1750 and 1650 metres deep along the crest of the Pual

252 253 254

255 256

257

Santos, Colaço and Christiansen (eds), above n. 222, 25–26. Santos, Colaço and Christiansen (eds), above n. 222, 44–46. The PACMANUS ﬁeld was named after the ﬁrst Papua New Guinea-Australia-Canada Manus Basin expedition. See R. Binns, ‘The nature of the PACMANUS hydrothermal ﬁeld, Eastern Manus Basin, Papua New Guinea: The results of a decade of seaﬂoor investigation and the ﬁrst deep drilling of an active, felsic hosted, submarine hydrothermal system’, in C.J. Yeats (ed) (2003) Seabed hydrothermal systems of the Western Paciﬁc: Current research and new directions-Conference Presentation, Extended abstracts, CSIRO Exploration and Mining Report 113F, (2003) CD-ROM, 21, copy held by author. Binns, above n. 254. V.S. Kamenetsky et al., ‘Parental basaltic melts and ﬂuids in eastern Manus backarc Basin: implications for hydrothermal mineralisation’ (2001) 184 Earth and Planetary Science Letters 685, 686. R.A. Binns and S.D. Scott, ‘Actively forming Polymetallic Sulphide deposits associated with

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Ridge, a 500–700 metre high neovolcanic ridge at the centre of the Eastern Manus Volcanic Zone.258 Spread over 13 kilometres along the Pual Ridge, the PACMANUS ﬁelds consist of four main sites: Roman Ruins and Satanic Mills, which are sulphide ‘black smoker’ chimneys venting ﬂuid at 276°C, Snowcap, a site of diffuse vents emitting ﬂuids at a low 6°C, and Tsukushi, which has vents up to 30 metres in height.259 Another very active hydrothermal vent ﬁeld located in the Manus Basin is the Vienna Woods ﬁeld. This ﬁeld is located at a depth of 2500 metres and extends for about 1000 metres.260 It includes various kinds of active and inactive complex massive sulphide chimneys.261 Active chimneys, some as high as 20 metres, are known to vent both milky and black smoke, with a maximum recorded temperature of 276°C.262 A range of fauna associated with hydrothermal vents elsewhere in the world has also been identiﬁed at hydrothermal ﬁelds in the Manus Basin. These include gastropods, barnacles, vestimentiferans, and sea anemones.263 One of the dominant species is the gastropod or ‘black snail’ (Olgaconcha tufari), while my personal favourite, the ‘hairy snail’ (Alviniconcha hessleri) is also abundant in some areas.264 At some sites there are also areas of dead snail shells at the foot of active chimneys. Surrounding these snail ‘cemeteries’, a range of galatheids, whelks, echinasterid starﬁsh, amphipods, shrimps and other non-vent carnivores and scavengers are often abundant.265 Microfauna, such as bacterial mats, are also to be found at Manus Basin vents.266 6.5.2

Activities and Stakeholders

The main stakeholders in PNG are the scientiﬁc community and the mining industry, which for the time being is essentially one company, the PNG registered and Australian based company Nautilus Minerals Corporation Limited.267 Several MSR research institutions and universities have carried out research on PNG’s hydrothermal vents, including Australia’s CSIRO, the French research institution IFREMER and the Japanese research institution JAMSTEC. In addition to ship based

258 259 260

261 262 263 264 265 266

267

Felsic Volcanic Rocks in the Eastern Manus Back-arc Basin, Papua New Guinea’, (1993) 88 Economic Geology 2226. Binns, above n. 254, 21–22. Ibid. S.V. Galkin, ‘Megafauna associated with hydrothermal vents in the Manus Back-Arc Basin (Bismarck Sea)’ (1997) 142 Marine Geology 197, 198–199. Ibid. Ibid. Galkin, above n. 260, 198. Galkin, above n. 260, 199. Galkin, above n. 260, 200. J.M. Auzende et al., ‘Étude géologique et biologique in situ de deux zones hydrothermales du bassin de Manus (Papouasie Nouvelle-Guinée) (In situ geological and biological study of two hydrothermal zones in the Manus Basin (Papua New Guinea))’ (1997) 325 Earth & Planetary Sciences 585. Hereinafter Nautilus Minerals. Placer Dome Oceania Limited a PNG registered company is also farming in to Nautilus’s tenements and has an interest in regulation of activities in PNG.

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research there has also been research carried out by submersibles such as the Russian Mir submersibles, and the Japanese submersibles the Shinkai 6500 and the Shinkai 2000. In 2000 the PACMANUS hydrothermal ﬁelds were drilled as part of the Ocean Drilling Programme Leg 193.268 Geologists especially have been interested in these hydrothermal vents. This is due in part to the fact that these hydrothermal vents are not found at mid oceanic ridges or spreading centres, but at a convergent plate boundary. The PACMANUS hydrothermal ﬁeld is the most thoroughly investigated active hydrothermal system known at a convergent plate boundary.269 Apart from the interesting geological setting, the Manus Basin hydrothermal ﬁelds are also of great interest because of the high concentrations of valuable minerals such as gold and silver associated with these vents. The PACMANUS vents in particular are unusually high in concentrations of silver and gold.270 While research has focused primarily on the geology of hydrothermal vents within PNG waters, some work on vent microbes and their possible use in biotechnology has also been undertaken. For example, Australia’s CSIRO has sampled microbes from the Manus Basin on several occasions as well as from other locations such as Lihir Island and Rabaul. These have subsequently been investigated for their potential in biomining and bioleaching applications.271 Some institutions including the CSIRO have carried out bioprospecting lawfully and with informed consent from the PNG government. However, there are recorded instances of some foreign researchers carrying out bioprospecting without the consent of the Papua New Guinea government. 272 The second major stakeholder is Nautilus Minerals, which was originally granted two exploration licences in relation to minerals each in an area of about 2,500 km2 in the Manus Basin, including the Vienna Woods and the PACMANUS sites. Of these original two licences, one (EL 1196) has been signiﬁcantly reduced and the other (EL 1205) over Vienna Woods has lapsed. Recently Nautilus Minerals has been granted a further licence covering the original 2,500sq km area of EL 1196 and has applied for an additional ﬁve exploration licences (each approximately 2,500 sq km), two of which relate to areas in the Manus Basin known as Vienna Woods (covering the original lapsed EL 1205) and Willaumez, as well as three in the Woodlark area of Milne Bay.273 The PNG

268 269 270

271

272

273

Binns, above n. 254, 21. Ibid. S.D. Scott and R.A. Binns ‘Hydrothermal processes and contrasting styles of mineralization in the western Woodlark and eastern Manus basins of the western Paciﬁc’ in L.M. Parson, C.L. Walker et al. (eds), Hydrothermal Vents and Processes, Geological Society Special Publication No. 87, (1995), 199. Interview, Dr Peter Nichols, Project Leader, Marine Products, CSIRO Marine Research, 12 November 2003. Even though the identity of that research institution is not revealed in this book, its identity and activities are well known within the scientiﬁc community and by the relevant government authorities in PNG and it is unclear if this organization will ever be permitted to carry out research in PNG’s waters again. Interview, Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, personal correspondence, copy on ﬁle with author.

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licences and licence applications, cover a total of approximately 15,000 square kilometres. The legislative and policy framework governing the issue of these licences is discussed in detail below. It is also worth noting that related companies of Nautilus have made application for exploration licences in Fiji and Tonga’s EEZs.274 The areas covered by the applications are 48 square kilometres and 44,000 square kilometres respectively.275 As at the time of writing these applications are still pending. It is also important to recognise that there may be stakeholders with interests beyond those of the two main stakeholders noted above. These might include coastal subsistence, artisanal and commercial ﬁsheries, navigators and the tourist industry.276 The interests of these stakeholders also need to be taken account of in developing any policy or legal regimes that apply to PNG’s offshore areas, as they would on land. 6.5.2

PNG’s Developing Policy Regimes

PNG is in the process of developing policy regimes and legislation in relation to a number of activities that impact on activities at hydrothermal vents, including offshore mining, bioprospecting and MSR. At the time of writing formulation of these policies is ongoing. But like the emerging regimes in New Zealand, a brief examination of the progress on these issues to date does provide some useful guidance for designing a regime in international waters. Mining activities in PNG are governed by the Mining Act 1992 (PNG). The Mining Act extends to the territorial sea, but does not apply in either the EEZ or on the continental shelf.277 The PNG government has recognised that a “policy and regulatory vacuum” exists with respect to exploration and exploitation of mineral resources offshore,278 and PNG is currently in the process of developing an offshore mining policy and appropriate legislation for mining beyond the limits of the territorial sea. The exploration licences granted to Nautilus Minerals, mentioned above, have raised a number of issues that are being considered in the course of development of PNG’s offshore mining policy. Thus before considering that draft policy in detail, it is useful to consider the Nautilus licences and current status of their proposals in detail. Section 5(1) of the Mining Act 1992 (PNG) provides that:

274 275

276

277

278

Interview Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, 7 May 2003. D. Heydon ‘Steps for commercialization [sic] of a new World Class copper mine – the “Golden Treasure” beneath the blue waves’ in Yeats, C.J. (Ed) (2003) Seabed hydrothermal systems of the Western Paciﬁc: Current research and new directions-Conference Presentation. CSIRO Exploration and Mining Report 113F, CD-ROM. Papua New Guinea, Department of Mineral Resources, Revised Green Paper on Offshore Mining Policy, copy on ﬁle with author. The Mining Act 1992 (PNG) applies to all minerals on land. Under Section 2(1) of the Mining Act ‘land’ is deﬁned as including “the offshore area being the seabed underlying the territorial sea from the mean low water springs level of the sea to such depth as admits of exploration for or mining of minerals”. Papua New Guinea, Department of Mineral Resources, Revised Green Paper on Offshore Mining Policy, copy on ﬁle with author.

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Chapter Six All minerals existing on, in or below the surface of any land in Papua New Guinea, including any minerals contained in any water lying on any land in Papua New Guinea, are the property of the State.

Pursuant to Section 20(1) of the Mining Act the Minister for Mineral Resources can grant exploration licences for minerals. Licences can be granted for terms not exceeding two years, which may be extended.279 They grant the licence holder the right inter alia to enter and occupy land which comprises the exploration licence for the purpose of carrying out exploration for minerals on that land, extract and remove samples of rock, earth, soil and minerals and the right to do all other things that might be necessary or expedient for the undertaking of exploration on the land.280 These activities must be undertaken in accordance with a plan of work upon which the licence is conditional. An exploration licence under the Mining Act does not grant any right to mine. The ﬁrst of its exploration licences under the Mining Act was granted to Nautilus Minerals in 1997.281 Nautilus has over time been carrying out exploration in accordance with the terms of its licence.282 Much of Nautilus’s exploration in relation to its tenements has been undertaken in conjunction with MSR conducted by a range of MSR research institutions including Australia’s CSIRO, a South Korean research institution, and JAMSTEC.283 For a number of years the CSIRO provided information in relation to the Manus Basin deposits to Nautilus by way of a formal consultancy agreement, but over time this became much more of an informal arrangement.284 Nautilus is currently conducting its own exploration in conjunction with Placer Dome, with a major geophysics survey undertaken by private contractor Williamson and Associates in January to February 2005.285 A considerable obstacle for Nautilus has been the scepticism within both the mining industry and the ﬁnance sector for its plans. Within some elements of the banking and ﬁnance community initial reactions to Nautilus’s plans were greeted thus: well, yes we know there are minerals on the sea ﬂoor and also that there are minerals on Mars and about the same time as they mine Mars they will mine Nautilus’s areas. If it is that obvious then why are no major mining companies also out there.286 279 280 281

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283

284 285

286

Mining Act 1992 (PNG) Sections 21 and 28. Mining Act 1992 (PNG) Section 23. Interview, Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, 7 May 2003. Recent drilling in Nautilus’s tenements in PNG by German scientists and by the British Geological Survey using a limited core rig to 5 metres depth averaged 13g/t Gold, 22% Zinc, 5% Copper, 167g/t Silver. Three deposit types have been recognised by Nautilus with the following indicative grades: Copper Ore-8.5% Copper, 50 g/t Silver; Mixed Ore-5% Copper, 12% Zinc, 120 g/t Silver; Zinc Ore-20% Zinc, 200 g/t Silver. Source: Nautilus Minerals Limited Seaﬂoor Massive Sulphide Copper-Zinc Project-Executive Summary. Interview, Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, 7 May 2003. Ibid. Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, personal correspondence, copy on ﬁle with author. Interview Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, 7 May 2003.

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The mining industry was slightly more receptive to the idea of mining deep-sea hydrothermal deposits, and to date their main concerns have centred on the viability of such a project.287 However, since these early days Nautilus has done a considerable amount of work to prove the feasibility of mining the Manus Basin hydrothermal vent mineral deposits. In December 2004 Nautilus announced that a major international gold mining company, Placer Dome, has entered into an agreement with Nautilus to join its deep-sea exploration program for gold and copper minerals in PNG.288 Signiﬁcantly, Nautilus also recently commissioned leading international engineering group Worley Engineering to conduct an engineering pre-feasibility study. The scope of Worley’s study included: a review of the state of prior art and existing mining technology suitable for mining deep-sea hydrothermal vents; options for mining; technology risks; and likely capital and operating costs of the proposed mining.289 The Worley study, based on mining 2 million tonnes of ore per annum, required a mining rate of 400 tonnes per hour and a treatment rate of 270 tonnes per hour. Indicative capital costs were US$308 million, comprising US$139 million for offshore vessel and mining plant and US$101 million for onshore treatment plant.290 The Worley study also suggests that mining from one of three potential ore body types291 would yield an annual production of one of the following: Copper Orebody-155,000 tonnes copper in concentrates; Zinc Ore body-340,000 tonnes zinc in concentrates; Mixed Copper/ Zinc Ore-90,000 tonnes copper and 200,000 tonnes zinc in concentrates.292 On the basis of these ﬁgures Nautilus estimates that production would be more economic than current porphyry copper mining operations on land in the Andes.293 Nautilus also estimates that 75% of mining operators would produce copper at higher cash operating costs.294 The writer is not qualiﬁed to assess these ﬁgures or to express an opinion on them. But if one can accept these ﬁgures at face value as correct, then arguably mining in the Manus Basin is not only feasible, but possibly proﬁtable if exploration succeeds in locating sufﬁcient resources of these deposit types. Nautilus is also in the process of assembling a consortium of key partners for the proposed mining venture in the Manus Basin. Key partners include Worley Engineering, which will act in the capacity as owners engineer; Perry Slingsby Systems Ltd, the

287 288 289

290

291 292 293

294

Ibid. Nautilus Minerals Press Release, 10 December, 2004, copy on ﬁle with author. Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, interview, Sydney, 7 May 2003 and D. Heydon, ‘Engineering of a Deep Ocean Copper-Zinc Mine’ in C.J. Yeats (ed), above n. 276. Nautilus Minerals Limited Seaﬂoor Massive Sulphide Copper-Zinc Project-Executive Summary, copy on ﬁle with author. See above n. 283. Ibid. Interview, Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, interview, 7 May 2003. Ibid.

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world’s largest manufacturer of remote operated vehicles for offshore oil, sub-sea telecommunications and sub-sea trenching;295 Canyon Offshore,296 the largest contract operator in the Gulf of Mexico of deep-sea ROV’s for offshore oil exploration and mining; Voest-Alpine Bergtechnik, a tunnelling and coal mining equipment manufacturer;297 Williamson & Associates,298 a specialist in deep sea geophysics, and Seacore,299 a major marine drilling company.300 Finally, Nautilus has also commenced negotiations with potential customers including Sun Metals Corporation, a subsidiary of Korea Zinc, one of the worlds largest zinc producers.301 While mining of hydrothermal mineral deposits on the high seas is many years away, similar mineral deposits in PNG may be mined in the near future. 6.5.3

Exploration Licences and MSR

Section 23(2) of the Mining Act provides that: the holder of an exploration licence is entitled to the exclusive occupancy for exploration purposes of the land in respect of which the exploration licence was granted.

Accordingly Nautilus’s licence grants exclusive rights to explore the area of the ocean subject to the licence. However, questions have been raised about the impact of these exploration permits on the ability of scientists (and especially geologists) to carry out MSR in the areas subject to the exploration licences. Members of the scientiﬁc community have expressed some concerns that this may limit access to such sites for MSR. Given the great scientiﬁc interest in the Manus Basin hydrothermal vents scientists are obviously concerned about restrictions that may hamper scientiﬁc research. However, although international law recognises the right for scientiﬁc research institutions to carry out scientiﬁc research in the EEZ, no such right is recognised under international law in the territorial sea. The territorial sea is the sovereign territory of the coastal state. Accordingly, determining who may or may not carry on activities like MSR within the territorial sea is a matter for the sovereign government of PNG to determine in accordance with the domestic law of PNG. While Nautilus may have the exclusive right to carry out exploration for minerals in the ocean space covered by its licence, there appears to be nothing to prohibit other activities, including MSR not involving exploration for minerals in the area covered by Nautilus’s licence. That is, geologists could conduct research and studies on the min-

295

296 297 298 299 300

301

For information on this company see http://www.perryslingsbysystems.com accessed 18 January 2005. For information on this company see http://www.Canyonrov.com accessed 18 January 2005. For information on this company see http://www.vab.sandvik.com accessed 18 January 2005. For information on this company see http://www.wassoc.com/ accessed 18 January 2005. For information on this company see http://www.seacore.com/ accessed 18 January 2005. Air Niugini,‘Commercial Seabed Mining. Now its Coming to South of Manus Islands’ (2003) 1 Paradise – inﬂight with air niugini 59, 61. Nautilus Minerals Limited Seaﬂoor Massive Sulphide Copper-Zinc Project-Executive Summary, copy on ﬁle with author.

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eral deposits at the hydrothermal vent ﬁelds already located as this is not ‘exploration’. Thus assuming all other requirements of PNG law are met, there is nothing under the Mining Act 1992 (PNG) that would prohibit other activities of MSR research vessels such as bioprospecting. However, the difﬁculty for MSR research institutions is that usually MSR research cruises involve multi-disciplinary research. Rather than limit research to activities not inconsistent with Nautilus’s licence in a particular area, researchers are more likely to target an area where the whole range of scientiﬁc research is possible, such as an area perhaps outside PNG’s territorial waters. On the other hand Nautilus point to the fact that their exploration licences speciﬁcally permit researchers to continue their full range of MSR.302 Despite the concerns expressed by scientists there appears to be no evidence to suggest Nautilus’s operations have had an adverse impact on MSR in PNG to date. 6.5.4

Development of PNG’s offshore mining policy

The PNG government is currently developing an offshore mining policy, which aims to promote exploration for and exploitation of PNG’s offshore mineral resources.303 An inter-agency committee304 was established by the PNG Department of Mineral Resources in March 1998 to recommend a policy framework for consideration and approval by the government. A draft ‘green paper’ was available in February 1999 and was reviewed at an international workshop sponsored by the South Paciﬁc Geosciences Commission and the Metal Mining Agency of Japan. As a result of the deliberations of that workshop, a revised ‘green paper’ was issued by the PNG government.305 To date there have been no further developments. As noted above, the Mining Act 1992 (PNG) does not extend beyond the outer limits of the territorial sea. As such the draft ‘green paper’ foreshadows additional legislation to apply to the EEZ and continental shelf to give effect to the sovereign rights [sic] provided for under LOSC.306 The Offshore Mining Policy and foreshadowed legislation will not only apply to the mineral deposits associated with hydrothermal vents in PNG waters but also to a range of other potential mineral deposits including sand,

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303

304

305

306

Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, personal correspondence, copy on ﬁle with author. Papua New Guinea, Department of Mineral Resources, Revised Green Paper on Offshore Mining Policy, copy on ﬁle with author. The committee includes representatives from relevant government agencies such as the Departments of Prime Minister & National Executive Council, Attorney General, Foreign Affairs, Provincial Affairs, Treasury & Corporate Affairs, Petroleum & Energy, and Transport, as well as Statutory bodies including the National Fisheries Authority, PNG Harbours Board, Ofﬁce of National Planning & Implementation, Ofﬁce of the Environment and Conservation, Internal Revenue Commission and the University of Papua New Guinea Law Faculty. See Papua New Guinea, Department of Mineral Resources, Revised Green Paper on Offshore Mining Policy, copy on ﬁle with author. Papua New Guinea, Department of Mineral Resources, Revised Green Paper on Offshore Mining Policy, copy on ﬁle with author. Ibid.

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gravel, diamonds, black sands, manganese nodules and manganese crusts.307 While other mineral resources are expected to be dealt with under the policy, the draft ‘green paper’ does refer to polymetalic sulphides associated with hydrothermal vents in some detail. For example, the ‘green paper’ notes in particular the high grades of minerals associated with the PACMANUS deposits. It also refers to the licences granted to Nautilus as evidence of the growing interest in these mineral deposits. The draft ‘green paper’ also devotes considerable detail to considering the regulation of the environmental impact of offshore mining. Firstly, it clearly acknowledges a lack of detailed information on the impact of mining of hydrothermal vent mineral deposits on their associated biota. Thus the draft ‘green paper’ observes: Past and recent studies have shown that both the manganese nodules of the deep ocean and the polymetallic massive sulphides of intermediate depth have associated with them a relatively diverse biota which is of primary concern in terms of areas of environmental impact. The environmental impact of manganese nodule mining has been reasonably well evaluated, most recently in the work of the Japanese, whereas, that of possible exploitation of polymetallic sulphide deposits is largely unknown. As such assessing the environmental impact of possible mining on the associated biota of polymetallic massive sulﬁdes remains an area requiring extensive research.308

The draft ‘green paper’ also places an emphasis on environmental impact assessment and suggests that: Because of the unprecedented nature of the deep seabed mining activities contemplated, the State will adopt a precautionary approach in all signiﬁcant decision-making activities.309

It is also worth noting that the draft ‘green paper’ considers the impact of an Offshore Mining Policy on MSR and on one interpretation appears to have provisions that have been inserted speciﬁcally for the beneﬁt of the offshore minerals industry. This section of the ‘green paper’ ﬁrstly discusses LOSC’s regime for MSR in the territorial sea, the EEZ and on the continental shelf. This includes a correct statement or interpretation of the coastal States rights under international law. However, the ‘green paper’s’ interpretation of the coastal State’s rights within its internal waters, archipelagic waters and territorial sea is quite interesting. The ‘green paper’ thus observes: Within its internal waters, archipelagic waters and territorial sea, the State has absolute discretion over the conduct of MSR. The State may impose such conditions on MSR as it sees ﬁt, including provisions relating to the disclosure and publication of data. The country should be mindful of the needs of a tenement holder under the Mining Act or such other legislation that may be developed to regulate offshore mineral exploration and development. The State will require all information derived from MSR within its sovereignty and maritime jurisdiction be provided by the MSR group. This data or information received after the granting of exploration licence may be made available to the [Exploration Licence] holder upon payment of appropriate fees to the State as owner of such data and information.310

307 308 309 310

Ibid Ibid. Ibid. Ibid.

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As a matter of law this is perfectly consistent with PNG’s sovereign rights under international law. A sovereign State is clearly entitled to impose such conditions as it sees ﬁt. However, as a matter of public policy it is indeed a curious provision, which would seem to act as a disincentive to MSR. On the other hand it is a bonus for those mining companies that will gain access to such information. They receive some of the hard scientiﬁc data they need to develop the resources for proﬁt and the expense in obtaining that scientiﬁc data is born by the scientiﬁc research institutions that carry out such research. The ‘green paper’ on PNG’s Offshore Mining Policy, although essentially concerned with mining, also notes the potential economic value of hydrothermal vent genetic resources. Thus the green paper observes: It is recognised that the biodiversity and genetic resources associated with certain areas of marine minerals may have signiﬁcant economic value. Therefore, means must be sought to ensure that the state receives adequate compensation from any utilisation.311

However, there is currently no legislation in PNG that regulates bioprospecting in PNG’s territorial waters and EEZ. PNG is currently developing guidelines for MSR within its waters and is also considering options for legislation to regulate bioprospecting.

6.6

Lessons to be learnt from the domestic regimes

The four regimes that have been discussed in detail in this chapter each have very different characteristics. It is impossible to nominate one approach as a preferred approach that might be suitable to translate onto the high seas. All the regimes have features that are worthy of further investigation, while all have some feature that could be criticised by one stakeholder or another. The following discussion therefore does not seek to put forward one regime as a preferred model. Rather it seeks to highlight some of the main lessons that can be learnt from the domestic experience so far. Each of these six lessons is relevant to how we may go about designing a legal regime for regulating access to hydrothermal vents on the high seas. These lessons are: 1. The need for any regime to accommodate multiple and at times conﬂicting uses; 2. The role of scientists as both stakeholders and leaders in the policy development process; 3. The need for basic research on the environmental impact of mining (and other activities such as tourism) on hydrothermal vent ecosystems, and the need to develop effective tools for environmental impact assessment; 4. The feasibility of MPAs as a tool for conservation of biodiversity in the deep sea; 5. The need to avoid using a ‘sedentary species’ type deﬁnition in a high seas regime; 6. The need to integrate any access and beneﬁt sharing regime with intellectual property rights. Each of these lessons is discussed in more detail below. 311

Ibid.

152 6.6.1

Chapter Six Accommodating multiple and at times conﬂicting uses

One of the most obvious lessons that emerge from discussion of the domestic regimes is that there is usually more than one stakeholder whose interests may be affected by regulating access to particular hydrothermal vent sites. At times these uses conﬂict with one another. The strongest example of this is in PNG, where the emerging regime attempts to protect the legitimate commercial interests of a company that is expending large amounts of capital in developing a resource, and the concerns of scientists who wish to have continued access to an area of immense scientiﬁc interest. In the case of PNG there has been a clear policy decision that the policy and legal regime will protect the interests of the mining industry. Of course this is understandable in a country like PNG that is heavily dependant on its natural resources for future economic development. Ongoing scientiﬁc research is arguably of little immediate economic beneﬁt to PNG. However, when one contrasts the approach of PNG with that of New Zealand, it may be appropriate to ask whether the PNG regime is too strict in its regulation. Why is it that the New Zealand government allows MSR in the area covered by Neptune Resources exploration licence? In PNG MSR in Nautilus’s licence area is subject to regulation. However, as the New Zealand experience shows, it is possible to accommodate both uses. How that is done is just a question of degree. The Canadians and the Portuguese have taken a very different approach. Mining is clearly prohibited in the MPAs established by these States, whereas MSR continues largely unaffected. 6.6.2

Scientists as stakeholders and leaders in the policy making process

One of the most striking lessons from all four regimes is that the scientiﬁc community is a major, if not the main stakeholder. Although scientiﬁc arguments are frequently invoked in discussing the design of many policy and legal regimes, science per se has rarely been considered as a stakeholder in its own right.312 However, as experience in domestic waters shows, MSR is the major activity at all hydrothermal vent sites. At most areas on the high seas it is the only activity. Any international regime must therefore permit MSR to continue, and where possible must avoid imposing any unnecessary burdens on research. That is not to say MSR should be unregulated. As already noted in Chapter 1, MSR is one of the most immediate threats to hydrothermal vents that have been identiﬁed to date. However, as both the Canadian and Portuguese experience shows, it is feasible to regulate MSR in the deep sea while avoiding complicated and bureaucratic procedures. It is too early to say to what extent these regimes will be successful, but experience to date shows that regulation of MSR in the deep sea is feasible. This issue is covered in detail in Chapter 8. Experience from the domestic regimes also shows that the scientiﬁc community is willing to be engaged in the process of developing regulation of their activities. This engagement by the scientiﬁc community should be harnessed to develop a regime for the high seas. After all, the scientiﬁc community understands the deep sea more than any

312

H. Thiel, ‘Science as Stakeholder – a proposal for unique science priority areas’ (2003) 12(1) Ocean Challenge, reproduced in Gjerde and Breide (eds) above n. 210, 164–167.

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other party to the process of developing appropriate regimes. Signiﬁcantly, not only has the scientiﬁc community shown a willingness to be involved in the development of some of the domestic regimes, in some cases it has taken a leading role in pushing forward the case for regulation, especially in Canada and Portugal. The willingness of leading members of the scientiﬁc community to be engaged and often to lead the process of developing regulation should be encouraged. 6.6.3

Deep-sea mining and environmental regulation

One of the most glaring defects in each of the regimes that regulate mining at hydrothermal vents was the lack of any transparent regulation of the environmental impact of deep-sea mining. Although some of the regimes, for example PNG, have recognised the need to develop guidelines and mechanisms for assessing and minimising the potential environmental impact of mining at hydrothermal vents, so far none of the four states discussed above have developed such regulations. As the PNG ‘green paper’ discussed above highlights however, very little is known about the potential environmental impact of deep-sea mining on the biodiversity of hydrothermal vents and in the deep sea more generally. On the basis of existing scientiﬁc knowledge, it is unclear what environmental impact mining anywhere in the deep sea will have on biodiversity of hydrothermal vents and the deep sea more generally. The writer is not suggesting that there should be no mining of deep-sea mineral resources (including those associated with hydrothermal vents), only that before mining can proceed there needs to be more scientiﬁc investigation of its potential environmental impact, and appropriate regulation perhaps through standard tools such as environmental impact assessment. Similar pre-conditions need to be satisﬁed before mining can commence on the high seas. The ISA is currently developing regulations for prospecting for hydrothermal mineral deposits on the high seas and these are considered in detail in Chapter 9. There is an urgent need for the ISA to develop such regulations as some countries may base their own regulation on those drafted by the ISA. One particularly concerning aspect of the ISA’s progress on these regulations is that there has been little other than token consultation with the existing commercial interests such as Nautilus Minerals. Clearly these companies’ interests will be affected by whatever regulations the ISA develops even though their operations do not fall under the jurisdiction of the ISA. The lack of adequate consultation with existing commercial interests is a matter of concern. While not currently of concern, further scientiﬁc study might be warranted in relation to the environmental impact of other activities such as tourism. 6.6.4

Marine protected areas as tools for biodiversity conservation in the deep sea

Both Canada and Portugal have shown that MPAs are equally feasible in the deep sea as they are in shallow waters. Both countries’ experience shows that it is possible to design a management regime to accommodate a range of activities and stakeholders’ interests at hydrothermal vents. This is hardly surprising as experience with MPAs around the world does show that MPAs can accommodate the interests of a wide range of stakeholders, while at the same time providing for protection of the marine environment and the sustainable use of marine resources.

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There is currently no legal basis for the establishment of MPAs on the high seas. However, as discussed in Chapter 3, existing regional institutions and mechanisms under the Antarctic Treaty System, and, as will be outlined in Chapter 9, some parts of Part XI of LOSC, might be able to be utilised to create MPAs for hydrothermal vents on the high seas. Future development of international law to create such mechanisms should be encouraged. 6.6.5

The sedentary species deﬁnition and the high seas

Chapter 2 highlighted the legal difﬁculties associated with the sedentary species deﬁnition under LOSC as applied to the continental shelf. Discussion of the existing regime in New Zealand in this chapter highlighted one speciﬁc example where this theoretical problem exists in actuality. The New Zealand example highlights how the sedentary species deﬁnition hinders coastal State regulation of activities at hydrothermal vents on its continental shelf. This re-inforces the concerns raised about the 2003 SBSSTA report discussed in Chapter 2 about the need to avoid any attempt to incorporate any distinction between species attached to the seabed and those in the surrounding waters in any future regime. 6.6.6

Intellectual Property Rights and the domestic regimes

The last lesson that can be learned from the domestic regime is the importance of the link between access to genetic resources at hydrothermal vents and intellectual property rights such as patents. Increasingly the race to the bottom of the deep sea for new developments in biotechnology is also becoming a race to be the ﬁrst to the patent ofﬁce. Currently rights to use and market biotechnology developed from hydrothermal vents species are determined solely by who is ﬁrst to obtain rights under laws dealing with intellectual property such as patents and trademarks. In Portugal it is proposed that bioprospecting will be prohibited within the Lucky Strike and Menez Gwen MPA. However, it is unclear how the proposed MPA will deal with the sharing of samples collected by researchers as part of MSR and subsequently transferred or sold to biotechnology companies. Given that bioprospecting is prohibited, will MSR research institutions violate the terms of their approval to conduct MSR by sharing samples with biotechnology companies? What if research conducted by MSR research institutions results in new developments in biotechnology, which are eventually commercialised in conjunction with biotechnology companies? Will such entities be liable to share proﬁts gained with Portugal? These questions cannot be addressed at this stage. New Zealand appears to have recognised that this is an issue that requires consideration, although concrete measures have not yet been proposed. With this limited exception, none of the domestic regimes have made the connection between the economic incentive for bioprospecting and MSR at hydrothermal vents and intellectual property rights. This issue needs to be addressed as part of any comprehensive legal regime that applies to the genetic resources of the deep sea on the high seas or within the territorial sea and EEZ of coastal States. This issue is considered in detail Chapter 7.

Chapter 7 The emerging deep sea biotechnology industry 7.1

Introduction

Prior to the release of the SBSTTA Study discussed in Chapter 2, a preliminary assessment of the areas that might be considered in this ﬁnal study was published in an unofﬁcial report of the CBD in 1996.1 The preliminary assessment released in 1996 reviewed the possible beneﬁts that might be derived from the biotechnological uses of the genetic resources of the deep sea. In that context a number of signiﬁcant observations were made in relation to these resources. Firstly, the preliminary assessment noted that there was then little reliable information on the collection of these resources, and that what information that did exist was largely unsubstantiated.2 Secondly, the preliminary assessment also noted that the extent to which new commercially useful extremophiles may come from the deep-sea bed was not known. Consequently, the study concluded the economic value of this market was entirely speculative and, to date,

1

2

Convention on Biological Diversity, Subsidiary Body on Scientiﬁc, Technical and Technological Advice, Bioprospecting of Genetic Resources of the Deep Sea-bed, Note by the Secretariat, U N Doc UNEP/CBD/SBSTTA/2/15. Above n. 1, at para 43.

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unrealized.3 In addition, the preliminary assessment noted that there was a lack of information and knowledge surrounding the use of genetic resources from the deep-sea bed.4 Accordingly, the preliminary assessment concluded that the knowledge base on which to make informed and appropriate decisions about how this area might be controlled is almost non existent.5 This chapter seeks in part to address this knowledge gap by considering the nature and extent of bio-prospecting and product development associated with hydrothermal vents and their genetic resources, as well as considering the interaction of that activity with intellectual property rights. Discussion in this chapter will show that there is signiﬁcant scientiﬁc and commercial interest in biotechnology associated with the genetic resources of hydrothermal vents. The chapter begins by providing a deﬁnition of bioprospecting. It then gives an overview of the main areas of research into the biotechnology potential of hydrothermal vent genetic resources. It goes on to consider the process of bioprospecting as it relates to hydrothermal vents. This includes reporting on a desk top review of published literature available on the internet and in scientiﬁc journals, in relation to the nature and extent of commercial interest in biotechnology developed from hydrothermal vent genetic resources. A signiﬁcant part of this desktop review is an analysis of the extent to which products derived from species sampled from hydrothermal vents are already marketed. The third part of this chapter then goes on to consider the relationship between bioprospecting, product development and patents. This includes a brief review of the existing international legal regimes in relation to patents as they relate to this ﬁeld of biotechnology. This section of the chapter outlines the nature and extent of patents that have been granted or that are currently subject to applications of relevance to this ﬁeld of biotechnology. This discussion is based on a desktop search of U.S. and European Patent Ofﬁce databases. The chapter then concludes with an examination of the missing link between the regimes of the CBD dealing with access and beneﬁt sharing and the international legal regime dealing with patents. A proposal is outlined for an international global commons trust fund to provide for the sustainable management and use of hydrothermal vent ecosystems beyond national jurisdiction and the marine environment more generally. It is suggested that the Global Environment Facility6 could take on such a role. It does not canvass the issue of the environmental impact of bioprospecting. In some areas of marine biotechnology the distinction between sample extraction for MSR and sample extraction for bioprospecting is important because of the environmental impact of such activities. There is so far little information as to the environmental impact of sample extraction from the high seas marine environment and at hydrothermal vents in particular. However, anecdotal evidence would suggest there is no greater environmental impact associated with bioprospecting than other activities associated with

3 4 5 6

Above n. 1, at para 65. Above n. 1, at para 19. Above n. 1, 16, para 67. Hereinafter referred to as the GEF.

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MSR in these environments.7 Accordingly the issue of regulating the environmental impact of bioprospecting is considered in Chapter 8 in conjunction with MSR.

7.2

What is bioprospecting?

In the 1996 preliminary assessment prepared by SBSTTA and referred to above bioprospecting was deﬁned as: The process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products.8

Similar deﬁnitions are to be found in the literature. For example Farrier and Tucker deﬁne bioprospecting as: The collection of small samples of biological material for screening in the search for commercially exploitable biologically active compounds or attributes such as genetic information. While the end focus is frequently on the design and development of pharmaceuticals, other types of commercial products sourced from biological . . . [materials include] . . . agrochemicals, industrial chemicals, construction materials, crops, cosmetics, food and ﬂavouring.9

Similarly, in a recent submission to a Parliamentry inquiry into bioprospecting, Biotechnology Australia deﬁned bioprospecting as: The search for naturally occurring chemical compounds, genes or other parts of organisms that have potential economic value.10

Much of the literature also canvasses debate on the extent to which bioprospecting includes processes beyond sample extraction down the path of commercialisation of biotechnology. If any future regime is to include mechanisms for beneﬁt sharing in relation to the genetic resources of the deep sea, and hydrothermal vents in particular, then this necessarily means that bioprospecting in the context of such a regime must be more widely deﬁned as including all steps leading up to and including the commercialization of biotechnology products. Accordingly, for the purposes of this chapter in particular,

7

8

9

10

This was a conclusion reached by a workshop on bioprospecting in the High Seas in which the writer participated. See J. Green, ‘Workshop on Marine Bioprospecting’, In Food and Agriculture Organisation of the United Nations, Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries-Part 2, (2006) 433–487. Convention on Biological Diversity, Subsidiary Body on Scientiﬁc, Technical and Technological Advice, note by the Secretariat Bioprospecting of Genetic Resources of the Deed Sea Bed, UN Doc., 8 at para 31. D. Farrier and L. Tucker, ‘Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse’ (2001) 32(3) Ocean Development & International Law 213. Biotechnology Australia, Submission to the House of Representatives Standing Committee on Primary Industries and Regional Services. Enquiry into Development of High Technology Industries in Regional Australia based on bioprospecting, (2001), 6.

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bioprospecting will be taken to refer to the much broader process of collection of genetic material from the deep sea, subsequent research and product development and ultimately commercialisation. In that respect a deﬁnition proposed by Jeffery would appear an appropriate deﬁnition. He suggests bioprospecting denotes an activity that involves search of biodiversity (sometimes termed nature or natural sources) for resources, be they genetic or biochemical or both, for use in purely scientiﬁc and or commercial endeavours.11

Accepting a wider deﬁnition of bioprospecting necessarily invites consideration of the processes involved in research and development of products by biotechnology companies which is outlined below.

7.3 7.3.1

Why are hydrothermal vents subject to bioprospecting?

The emergence of the biotechnology industry

The search for and exploitation of natural products and novel properties of naturally occurring substances have been at the core of the biotechnology industries for many years now.12 Modern developments in biotechnology are attributable to two major developments in science in the last 50 years. The ﬁrst was the discovery in 1953 of the structure of deoxyribonucleic acid or DNA by James Watson and Francis Crick.13 The second important development occurred in 1985 with the invention of the Polymerase Chain Reaction or PCR technique which revolutionized molecular biology and molecular medicine.14 The PCR technique is an enzymatic procedure that uses a heat stable enzyme capable of replicating DNA.15 PCR is an extremely powerful technique which ampliﬁes (i.e. makes many copies of ) a gene.16 PCR techniques are now essential for many areas of molecular biology, diagnostic and forensic research.17 Rapid advances in molecular and microbial biology arising from these developments resulted in the emergence of new companies, which began to take advantage of this

11

12

13

14

15

16 17

M.I. Jeffery, ‘Bioprospecting: Access to Genetic Resources and Beneﬁt Sharing under the Convention of Biodiversity and the Bonn Guidelines’ (2002) 6 Singapore Journal of International and Comparative Law 747, 755. A.T. Bull, A.C. Ward and M. Goodfellow, ‘Search and Discovery Strategies for Biotechnology: the Paradigm Shift’ (2000) 64(3) Microbiology and Molecular Biology Reviews 573, 576. B. Cicin-Sain et al., ‘Emerging Policy Issues in the Development of Marine Biotechnology’ (1996) 17 Ocean Yearbook 179, 180. For a personal account of this momentous event in the history of science see J.D. Watson, The Double Helix. A Personal Account of the Structure of DNA, (1969). M. Somma and M. Querci, The Analysis of Food Samples for the Presence of Gentically Modiﬁed Organisms, World Health Organisation Report (undated), 3. Australian Centre for Astrobiology, GEOS389 Astrobiology Practical. Using Molecular Genetics to Assess Environmental Microbial Diversity, copy on ﬁle with the author. Ibid. Somma and Querci, above n. 14.

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research and its applications in a wide range of commercial and industrial applications.18 The systematic investigation of the biotechnology potential of the marine environment, especially with respect to novel biologically active agents suitable to develop, began in the mid 1970s.19 Four areas have been the main focus of research and commercial interest since this time. These are the areas of: aquaculture and seafood supply enhancement; commercial and industrial applications of marine substances and processes: marine pharmaceuticals and biomedical applications; and improved environmental monitoring and resource management.20 The last three of these areas have been the focus of biotechnology research in relation to hydrothermal vent genetic resources. As deep-sea hydrothermal vent microbial communities are highly diverse metabolically, physiologically and taxonomically they have become of interest to researchers and commercial interests keen to investigate their biotechnology potential.21 Each new hydrothermal vent site discovered in the deep sea appears to be different chemically and biologically.22 Hydrothermal vent biological communities are also exposed to extremes of temperature (both hot and cold), extreme hydrostatic pressure and high levels of toxic compounds such as heavy metals.23 As such it has been suggested that, as a newly explored marine environment, hydrothermal vent sites promise a wealth of biotechnologically useful microorganisms.24 The most signiﬁcant life forms in terms of developments in biotechnology have been the thermophilic and hyperthermophilic bacteria and archaea associated with hydrothermal vents. Derivatives from thermophiles and hyperthermophiles from sources other than hydrothermal vents, such as terrestrial hot springs, are already utilised in a wide range of industrial processes. Of particular signiﬁcance have been various enzymes derived from such species, which are used in industrial processes requiring high temperatures and in life sciences research and diagnostics. Examples of some of the existing uses of thermophile and hyperthermophile derivatives from terrestrial sources are listed in Table 1 below. Research and product development in similar ﬁelds is also under way with respect to derivatives from hydrothermal vent thermophile and hyperthermophile microorganisms. To date research and product development has centered mainly on development of novel enzymes for use in a range of industrial and manufacturing processes, and DNA polymerases for use in life sciences research and diagnostics. Some research has also been directed towards possible pharmaceutical and therapeutic applications, and environmental management technologies such as bioremediation. The following discussion outlines the focus of research and product development in each of these areas. 18 19

20 21 22

23 24

Cicin-Sain et al., above n. 13, 180. G.M. Cragg, D.J. Newman and R.B. Weiss, ‘Coral Reefs, Forests, and Thermal Vents: The Worldwide Exploration of Nature for Novel Antitumor Agents’ (1997) 24(2) Seminars in Oncology 156, 158. Cicin-Sain, above n. 13, 180. D. Prieur, ‘Microbiology of deep-sea hydrothermal vents’ (1997) 15 TIBTECH 242, 244. H.W. Jannasch, ‘Deep-sea hot vents as sources of biotechnologically relevant microorganisms’ (1995) 3 Journal of Marine Biotechnology 5, 8. Prieur, above n. 21, 244. Jannasch, above n. 22, 8.

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Table 1. Examples of thermophile and hyperthermophile derivatives and their applications25 Thermophile and Hyperthermophile products

Industrial/commercial applications

DNA polymerases

DNA ampliﬁcation by PCR used in research and diagnostics, especially genetic engineering.

Lipases, pullulinases and proteases

Detergents, food processing and waste water treatment.

Amylases

Baking and brewing

Xylamases

Paper bleaching, pulp and paper processing.

Cellulases

Pulp and paper recycling.

7.3.2

Enzymes for use in industrial and manufacturing processes

Enzymes are catalysts that facilitate a great number of chemical reactions, including reactions that build up or break down living tissue and that provide organisms with energy.26 The ﬁrst industrial enzymes were developed for use in detergents as long ago as 1915.27 As well as their use in detergents, enzymes are now also widely used in industrial processes such as in the production of food and beverages.28 The most widely used thermostable enzymes are the amylases used in the starch industry.29 They are also used in textile and leather processing, in pharmaceuticals, waste treatment, or to enable process improvement through utilization of new types of raw materials or through improving the physical properties of materials so they can be more easily processed.30 They are also of considerable value in high temperature pulp and paper bleaching.31

25

26 27

28

29

30 31

Adapted from S. Maloney, ‘Extremophiles. Bioprospecting for Antimicrobials’ http:/4/ www.medidiscover.net/Extremophiles.cfm, accessed 10 July 2003; C. Chiradi and M. De Rosa, ‘The production of biocatalysts and biomolecules from extremophiles’ (2002) 20(12) Trends in Biotechnology 515; A. Aguilar et al. ‘Extremophile microorganisms as cell factories: support from the European Union’ (1998) 2 Extremophiles 367; E. Blochl et al. ‘Isolation, taxonomy and phylogeny of hyperthermophilic microorganisms’ (1995) 11 World Journal of Microbiology and Biotechnology 9; D.A. Cowan and C.L. Walker et al., ‘Hyperthermophilic enzymes: biochemistry and biotechnology’ in L.M. Parson et al., Hydrothermal vents and Processes, (1995) 351–363; and J.W. Deming ‘Deep Ocean Environmental Biotechnology’ (1998) 9 Current Opinion in Biotechnology 283. Cicin-Sain et al., above n. 13, 182. S. Fujiwara, ‘Extremophiles: Developments of Their Special Functions and Potential Resources’, (2002) 94(6) Journal of Bioscience and Bioengineering 518. M. Chandrasekaran, ‘Industrial enzymes from marine microorganisms: The Indian scenario’, (1997) 5 Journal of Marine Biotechnology 86. G.D. Haki and S.K. Rakshit, ‘Developments in industrially important thermostable enzymes: a review’, (2003) 89 Bioresource Technology 17. Chandrasekaran, above n. 28. C. Leuschner and G. Antranikian, ‘Heat-stable enzymes from extremely thermophilic and

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Microbial enzymes, including proteases, amylases, glucoamylases, lipases, cellulases, xylanases and pullulanases, have typically been derived from terrestrial microorganisms and/or fungi.32 Most enzymes from mesophilic organisms are not effective for processes above 45°C and at pH values outside the range of 5 to 8.33 However, as microbes around hydrothermal vents have adapted to survive extremes of temperature and acidity that would be toxic to other life forms, their enzymes are an area of considerable interest for potential use in chemical and industrial processes requiring high temperatures or other extreme conditions. The general rule is the higher the growth temperature of the host organism, the greater the ability of their enzymes to sustain high temperature industrial processes.34 Hence hydrothermal vent species are especially of interest for chemical and industrial processes involving high temperatures. One example of research that has been undertaken includes the screening of nine extremely thermophilc archaea and bacteria for their ability to produce amyloytic and pullulytic enzymes. Some of these species were isolated from hydrothermal vents in the Guayamas Basin in the Gulf of California.35 Thermoactive proteases have also been identiﬁed from a number of thermophilic and hyperthermophilic Archaea in the genera Pyrococcus, Thermococcus, and Sulfolobus, all of which are present at several hydrothermal vent sites.36 Similarly a thermostable xylanase has been successfully synthesized from Rhodothermus marinus. This enzyme has potential application in biopulping.37 An unusual example of research in relation to enzymes from hydrothermal vent species relates to the poultry industry. One scientiﬁc project at the University of Hamburg carried out research to develop high temperature enzymes useful in the processing of chicken feathers, which are a waste product from poultry processing. These enzymes were developed from thermophilic bacteria isolated from hydrothermal vents in the Azores.38 There is also some suggestion in the literature that enzymes from extremophiles including hydrothermal vent extremophiles, may have future application in devices such as biosensors and biochips.39

32 33

34

35 36 37 38

39

hyperthermophilic microorganisms’, (1995) 11 World Journal of Microbiology & Biotechnology 95, 98. Chandrasekaran, above n. 28. University of Bath, ‘Biotechnology. Tissue Engineering’, http://www.bath.ac.uk/chemeng/fundraising/biotechnology.htm accessed 10 July 2003. J.M. Bragger et al., ‘Very stable enzymes from extremely thermophilic archaebacteria and eubacteria’ (1989) 31 Applied Microbiology and Biotechnology 556. Leuschner and Antranikian, above n. 31, 96. Leuschner and Antranikian, above n. 31, 100. Aguilar et al., above n. 25, 369. M. Klingeberg, A.B. Friedrich and G. Antranikian, ‘Production of heat-stable proteases from thermophilic microorganisms and their application in the degradation of chicken feathers’, (1992) 5 DECHEMA Biotechnology Conferences 173. Aguilar et al., above n. 25, 371.

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A number of commercially viable enzymes have already been developed from hydrothermal vent thermophiles and hyperthermophiles. Some of these are referred to in Table 2 in Appendix 1. 7.3.3

DNA polymerases for use in research and diagnostics

One of the major biotechnological uses of thermophilic and hyperthermophilc organisms is the use of such organisms in the isolation, coding, and commercial production of thermostable restriction polymerases for research applications, especially in the life sciences.40 The development of the Taq polymerase derived from Thermus aquaticus isolated from a terrestrial hot spring in Yellowstone National Park, opened new frontiers in molecular biology with its use in the PCR technique referred to above.41 There has been considerable research undertaken with respect to the development of polymerases from other thermophilic sources, including deep-sea hydrothermal vent thermophiles and hyperthermophiles. DNA polymerases have been isolated from several hydrothermal vent species including Thermotoga maritime, Thermococcis litoralis, Pyrococcus woesii and Pyrococcus furiosus.42 Many of these are already on the market. Some of these are listed in Table 2 Appendix 1. 7.3.4

Therapeutic and Pharmaceutical research

Polysaccharides are carbohydrates that are composed of long chains of repeating units of a simple sugar.43 Exo-polysaccharides of microbial origin are currently utilized as stabilizers, thickeners, gelling agents and emulsiﬁers in the paint, oil recovery, paper and textile industries, and in the manufacture of pharmaceuticals.44 One of their major uses has been in the food industry.45 In recent years there has been growing interest in biological activities of microbial polysaccharides, such as their antitumor activity and the immunostimulatory activities of some polysaccarides produced by marine bacteria.46 While there is little discussion of such speciﬁc uses of biotechnology from hydrothermal vents in the literature, there are nonetheless a number of speciﬁc examples of on going biotechnology research involving exo-polysaccharides isolated from deep-sea hydrothermal vents.

40 41 42

43 44

45

46

Jannasch, above n. 22, 8. Sciraldi and De Rosa, above n. 25, 516. ‘Extremophiles’, http://www.micro.unsw.edu.au/rick/extremophiles.html accessed 10 July 2003. P.W. Davis, E.P. Solomon and L.R. Berg, The World of Biology, (1990), 61. A. Ventosa and J.J. Nieto, ‘Biotechnological applications and potentialities of halophilic microorganissms’ (1995) 11 World Journal of Microbiology & Biotechnology 85, 87. H. Rougeaux et al., ‘Novel bacterial exopolysaccharides from deep-sea hydrothermal vent’ (1997) 31 Carbohydrate Polymers 237. J. Guezennec, ‘Deep-sea hydrothermal vents: A new source of innovative bacterial exopolysaccharides of biotechnological interest?’ (2002) 29 Journal of Industrial Microbiology & Biotechnology 204.

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Microbial exo-polysaccharides isolated from deep-sea hydrothermal vents which display interesting properties, are currently under evaluation for therapeutic uses, principally in the areas of tissue regeneration and cardiovascular diseases.47 One of the most promising research areas so far in this ﬁeld relates to the use of exopolysaccharides as a new bone-healing material.48 Researchers carrying out research at the French marine science research institution IFREMER have secreted a bacterial exopolysaccharide HE 800 from the bacterium Vibrio diabolicus originating from deep-sea hydrothermal vents.49 Initial clinical research on rats shows promising signs that this exopolysaccharide may be of signiﬁcant beneﬁt in treating several bone diseases or as an aid to bone regeneration.50 Some of the same researchers from IFREMER have also been involved in research that has lead to the development of ingredients for cosmetics, including anti-aging creams.51 Exopolysaccharides isolated from a polychaete annelid Alvinella pompejana (otherwise known as the Pompei worm) at a deep-sea hydrothermal vent on the East Paciﬁc Rise have subsequently been included in cosmetics marketed under the DEEPSANE™ trademark. Examples of those cosmetics are marketed under the Darphin cosmetics label referred to in Table 2 Appendix 1. There is also some evidence of research aimed at the discovery and isolation of novel antifungal compounds for therapeutic use. One company referred to in Table 2 Appendix 1 is especially interested in identiﬁcation of extremophiles and thermophiles that have potent activity against human fungal pathogens. Fungal infections are a common complication in kidney, liver, lung and heart transplants and have also been associated with AIDS. Although most research in this area has focussed on extremophiles from terrestrial sources, the potential for hydrothermal vent extremophiles in the development of antifungals has been identiﬁed in such research.52 Researchers interested in tubeworm colonies around hydrothermal vents are also investigating the possibility of making artiﬁcial blood from the hemoglobin found in the blood of tubeworms.53 Related work is being undertaken with respect to the production

47

48

49

50 51

52

53

J. Querellou, ‘Biotechnology from Marine Extremophiles’ extended abstract reproduced at http://www.iasonnet.gr/abstracts/querellou.html accessed 21 October 2003. P. Zanchetta, N. Largarde and J. Guezennec, ‘A New Bone-Healing Material: A Hyaluronic Acid-Like Bacteria Exopolysaccharide’, (2003) 72 Calciﬁed Tissue International 74. Zanchetta et al., above n. 48. See also H. Rougeaux et al., ‘Structure of the exopolysaccharide of Vibro diabolicus isolated from a deep-sea hydrothermal vent’, (1999) 322 Carbohydrate Research 40. Zanchetta et al., above n. 48. M.A. Cambon-Bonavita et al., ‘A novel polymer produced by a bacterium isolated from a deep-sea hydrothermal polychaete annelid’ (2002) 93 Journal of Applied Microbiology 310. C.H. Phoebe et al., ‘Extremophilic Organisms as an Unexplored Source of Antifungal Compound’ (2001) 54 (1) The Journal of Antibiotics 56. S.K. Juniper, ‘ Description of ecosystems of the deep seabed and impacts’ presentation to the ﬁfth meeting of the United Nations Open-ended informal consultative process on oceans and the law of the sea, 7–11 June 2004, available from http://www.un.org/Depts/los/consultative_process/consultative_process.htm, accessed 7 July 2004.

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of a substance that bares a chemical resemblance to heparin, an anti-coagulant that delays the onset of blood clotting.54 This substance was isolated from a exopolysaccharide from a mesophile taken from a hydrothermal vent.55 7.3.5

Other potential uses

It has also been suggested that hyperthemophiles including those from hydrothermal vents, may be suitable for use in novel biotechnological processes including oil, coal and waste-gas desulphurization.56 Another area of interest is the possible use of extremophiles in the treatment of industrial efﬂuents.57 The ability of extremophiles, such as hydrothermal vent thermophiles and hyperthermophiles, to survive in extreme environments has also suggested that they may have a role treating industrial chemicals which are not treatable by conventional methods.58 Some researchers, such as microbiologists from Australia’s CSIRO, have been investigating the potential of thermophiles in the development of new mining techniques such as biomining and bioleaching.59 These scientists have primarily been interested in thermophiles from terrestrial sources, such as volcanoes on Rabaul in PNG. However, they have also extracted and analysed thermophile specimens from the Manus Basin hydrothermal vent ﬁelds and elsewhere in the Paciﬁc.60 The CSIRO is currently involved in joint research projects with industry in relation to the development of biotechnology for use in biomining and bioleaching processes.61

7.4 7.4.1

The process of bioprospecting for deep-sea genetic resources

Overview of the process

In a recent study of bioprospecting in Antarctica and the Southern Ocean JabourGreen and Nicol62 suggest that the process of bioprospecting for Antarctic biological resources can be subdivided into a number of discreet phases. These are: Phase 1:

54

55 56

57 58 59

60

61 62

J.W. Deming, ‘Deep ocean biotechnology’ (1998) 9 Current Opinion in Biotechnology 283, 284. See also S. Colliec-Jouault et al., ‘Les polysaccharides microbiens d’origine marine et leur potential en thérapeutique humaine’ (2004) 52 Pathologie Biologie 127. Ibid. E. Blöxhl et al., ‘Isolation, taxonomy and phylogeny of hyperthermophilic microorganisms’, (1995) 11 World Journal of Microbiology and Biotechnology 9, 13. University of Bath, above n. 33. Ibid. CSIRO, ‘Biomining: the next mineral revolution’, http://www.csiro.au/index.asp?type= featureArticle&id=Biomining&pf=yes accessed 21 November 2003. Interview Dr Peter Nichols, Project Leader Marine Products, CSIRO Marine Research, 12 November 2003. Ibid. J. Jabour-Green and D. Nicol, ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’ (2003) 4 Melbourne Journal of International Law 76.

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sample collection; Phase 2: isolation, characterisation and culture; Phase 3: screening for pharmaceutical activity; Phase 4: development of product, patenting, trials, sales and marketing.63 A similar process is involved in bioprospecting in relation to the genetic resources of hydrothermal vents. The only fundamental difference between hydrothermal vent genetic resources and the genetic resources in Antarctica and the Southern Ocean is that Phase 3 of bioprospecting in relation to hydrothermal vent genetic resources is not just limited to screening for pharmaceutical activity. In fact, as discussion above highlights, screening to identify product potential from hydrothermal vents organisms has been much wider than this. To date the screening for pharmaceutical activity has only been a minor component of overall bioprospecting research and product development in relation to hydrothermal vent genetic resources. Despite these differences the framework proposed by Jabour-Green and Nicol is a useful framework for examining bioprospecting and product development in relation to the genetic resources of hydrothermal vents. Accordingly, the following discussion is structured around the four phases identiﬁed above. 7.4.2

Phase 1 – Sample Collection

Sample collection from hydrothermal vents principally focuses on the microbial species associated with hydrothermal vents. Accessing microbes at hydrothermal vents is an exercise involving a high degree of skill and expensive technology. Given that most hydrothermal vent sites are located at depths greater than 11/2 kilometres below the ocean surface, only researchers who have access to high technology submersibles and or remotely operated vehicles64 are able to extract samples of these microbes. Few such submersibles and ROVs exist. Only a handful of research institutions have such technology. These include the research submersible Alvin operated by the Woods Hole Oceanographic Institute,65 the Mir submersibles owned and operated by the PP Shirshov Institute, of the Russian Academy of Sciences,66 the Shinkai 6,500 operated by the JAMSTEC and the submersible Nautile operated by IFREMER.67 Some organizations also rely on ROVs. For example the Canadian Scientiﬁc Submersible Facility, a not for proﬁt corporation established in Canada, operates the Remotely Operated Platform for Ocean Science or ROPOS, which is a ROV that can be operated without sending a crew into the deep ocean.68

63 64 65

66 67

68

Jabour-Green and Nicol, above n. 62, 85. Hereinafter ROV. Alvin was the submersible used by researchers who discovered the ﬁrst hydrothermal vent biological communities in 1977. For a description of Alvin and its equipment see http:// www.ocean.udel.edu/extreme2001/mission/alvin/# accessed 7 September 2004. See http://www.sio.rssi.ru/index_en.htm accessed 15 September 2004. For an overview of IFREMER’s ﬂeet and research capacity see http://www.ifremer.fr/ﬂeet/ index.htm accessed 15 September 2004. For a description of the ROPOS see http://www.ropos.com/ accessed 15 September 2004.

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The great risk and expense involved in operating such technology was demonstrated recently with the loss of the KAIKO, a ROV operated by JAMSTEC. The KAIKO was a 10,000 metre class deep-sea ROV that was able to survey every region of the ocean and was successful in diving to the Challenger Deep (a depth of 10,911 metres) in the Mariana Trench in 1995. However, on 29 May 2003 the KAIKO was lost overboard while being retrieved from a research dive at a depth of 4,675 metres in the Nankai Trough. Despite an extensive search scientists from JAMSTEC were unable to locate the KAIKO and it now appears to have been lost forever.69 The need for such sophisticated high technology to carry out research and, in particular, sample extraction, means that such research can largely only be undertaken by countries with sufﬁcient capital to invest in such technology. So far sample collection from hydrothermal vents appears to be conducted exclusively by scientiﬁc research institutions in wealthy developed countries. These include the research organizations mentioned above with submersible and ROV capacity, and other organizations that link up in joint research projects with those organizations such as Australia’s CSIRO, New Zealand’s GNS, and the Korean Ocean Research and Development Institute. As well as being an activity requiring sophisticated high technology, extracting samples of microbes from hydrothermal vents also requires adherence to strict protocols to ensure that there is no contamination of the samples, either while being returned to the surface or afterwards when being analysed in the laboratory. Accordingly, most scientiﬁc research expeditions to the deep sea develop detailed protocols for the extraction and collection of microbes from hydrothermal vents. One major problem that researchers face is the difﬁculty sampling and cultivating microorganisms extracted from extreme environments such as hydrothermal vents. This is especially a problem in the case of development of new enzymes from extremophiles.70 For the time being this is one of the major obstacles to further developments in biotechnology in this ﬁeld. Similar challenges are posed for chemical and mechanical engineers in universities and biotechnology companies in undertaking the development of novel fermentation equipment, because of the need to mimic in the laboratory the extreme environments from which these microbes have been extracted.71 The challenges are slowly being overcome with many researchers developing new technology for sample extraction and culturing, etc.72 Thus biotechnology research has also indirectly contributed to developments in technology associated with MSR.

69

70 71 72

For information on KAIKO and proposals to build a replacement ROV for JAMSTEC see http://www.jamstec.org.jp accessed 17 September 2004. Schiraldi and De Rosa, above n. 25, 517. Schiraldi and De Rosa, above n. 25, 518. For example one scientist interviewed in the course of this research, Dr Alex Malhoff from GNS was involved in the development of sampling apparatus for sampling ﬂuids at hydrothermal vents. This device is described in A. Malahoff et al., ‘A Seamless System for the Collection and Cultivation of Extremophiles From Deep-Ocean Hydrothermal Vents’, (2002) 27(4) IEEE Journal of Oceanic Engineering 862. Another example of technology that has been developed includes the sampling equipment developed by the DEEPSTAR program at JAMSTEC. See Schiraldi and De Rosa, above n. 24, 518 and http://www.jamstec.go.jp accessed

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7.4.3 Phase 2 – Isolation, characterisation and culture-collaboration between academia and industry There is no substantiated evidence that any company has mounted its own dive to hydrothermal vents (as distinct from those in collaboration with scientiﬁc research institutions) for sample collection purposes. There is anecdotal evidence, though, that at least one company is planning its own series of dives, independent of any research institution. It is not known precisely what the purposes of these dives are or indeed whether such dives have taken place.73 It would appear, therefore, that the involvement of commercial interests in bioprospecting for hydrothermal vent genetic resources at this early stage involves either funding for research dives or, more usually, research collaboration in laboratories once the samples have been extracted. As Jabour-Green and Nicol point out in the second phase of bioprospecting there is a difference in the way that the samples are handled depending upon whether they are to be used by public research institutions or by commercial interests.74 Isolation, characterisation and culture of microbes extracted from hydrothermal vents can occur either in laboratories operated by public research institutions such as universities, or in laboratories funded by commercial interests. Often such research is carried out as part of major collaborative research projects across several research institutions. For example, within the European Union there have been several major research projects on extremophiles (including hydrothermal vent species) within the framework of the ongoing Biotechnology Programme of the European Union. This has involved co-operative research between 39 academic and industrial laboratories.75 This project was a major undertaking over three years and resulted in as many as 270 scientiﬁc publications.76 One speciﬁc example of a development in biotechnology from hydrothermal vents directly attributable to such research was the development of an Amylase from the hyperthermophile Pyrococcus woesei, which is an interesting enzyme for the starch industry.77 In addition to supporting this collaborative research, the European Union has also encouraged research exchange between academic researchers and industry through its Industry Platform for Microbiology.78 This exchange has been successful in bringing

73 74 75

76 77 78

27 January 2005. This technology was used to sample the Mariana Trench. For more recent developments in sampling technology see K.E. Wommack et al., ‘An instrument for collecting discrete large-volume water samples suitable for ecological studies of microorganisms’ (2004) 51(11) Deep-Sea Research Part I 1781. Another example is described in V Thor Marteinsson, J.L. Birrien and D. Prieur, ‘In situ enrichment and isolation of thermophilic microorganisms from deep-sea vent environments’ (1997) 43 Canadian Journal of Microbiology 694. Interview, Agnieszka Adamczewska, InterRidge Co-ordinator, 17 September 2003. Jabour-Green and Nicol, above n. 62, 86. A. Aguilar, ‘Exploring the last frontier of life: R & D initiatives of the European Union’ (1995) 11 World Journal of Microbiology & Biotechnology 7, 8. Aguilar et al., above n. 25, 368. Ibid. A. Aguilar, ‘Extremophile research in the European Union: from fundamental aspects to industrial expectations’ (1996) 18 FEMS Microbiology Reviews 89, 92.

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European biotechnology companies closer to the multidisciplinary work being undertaken by the scientiﬁc community, thereby enhancing research, technology transfer and industrial exploitation of scientiﬁc research in this ﬁeld.79 Another example of publicly funded research institutions involvement in collaborative commercial research with industry is the Frontier Research Program for Extremophiles at JAMSTEC. This involves collaboration with industry on the development of biotechnology from extremophiles collected by JAMSTEC through its Bioventure Centre. One of the largest of these projects at JAMSTEC is its Frontier Research System for Extremophiles (DeepStar) project, which is involved in research on micro-organisms from the deep sea with an eye to their biotechnology potential. This work is being undertaken in close co-ordination with industry partners through JAMSTEC’s Cooperative Research Project for Extremophiles. This project provides a forum for collaboration between academic and industrial researchers interested in exploiting the biological and chemical potential of extremophiles.80 As part of the joint research programs conducted at the Centre, personnel from industry are invited to work alongside staff to utilize the expertise and facilities available for their own company’s needs. Research includes genome analysis of extremophiles, software development for genome analysis, and useful enzyme and natural product discovery from microorganisms isolated from deep sea and deep subsurface environments.81 Where biotechnology research is funded by the public sector, generally speaking such results will be openly published in the scientiﬁc literature.82 However, where the research is funded by the private sector, these results are generally kept conﬁdential and are ordinarily not disclosed until after patent applications have been ﬁled. In addition to gaining access to samples collected through research collaboration with publicly funded institutions, commercial interests can also gain access to samples through national culture collections where samples are often deposited by research institutions. For example, the American Type Culture Collection offers a range of samples of hydrothermal vents microorganisms such as Thiobacioous Hydrothermalis isolated from hydrothermal vents in the North Fiji Basin, Pyrococcus Horikoshi isolated from hydrothermal vents in the Okinawa Trough in the Paciﬁc Ocean, and Idiomarina Ioihiensis from hydrothermal vents on the Loihi Seamount in the United States. These can be purchased over the internet for between US$50 and US$190 per sample.83 Similarly, the Japanese National Institute of Technology and Evaluation offers ampules of hydrothermal vent microorganisms for between JPY4000 and JPY8000 per ampule.84

79 80

81

82 83 84

Ibid. JAMSTEC web site http://www.jamstec.go.jp/jamstec-e/XBR/bv/en/menubiov.html accessed 11 December, 2004. JAMSTEC web site http://www.jamstec.go.jp/jamstec-e/XBR/bv/en/menubiov.html accessed 11 December, 2004. Aguilar et al., above n. 24, 368. See http://www.nite.go.jp/index-e.htm, accessed 6 July 2004. Ibid.

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The use of microorganisms deposited at many type culture collections is governed by the terms of the Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.85 The role of the Budapest Treaty in the granting of patents in relation to microorganisms and derivatives is discussed in more detail later in this chapter. 7.4.4 Phase 3 – Screening for Pharmaceutical Activity/Other Potential Uses and Phase 4 – Development of Product, Patenting, Trials, Sales and Marketing Discussion earlier in this chapter identiﬁed the main areas of research in relation to the potential of biotechnology from hydrothermal vent species. For the purposes of this book a brief desktop review was undertaken to determine to what extent there is existing commercial activity with respect to the screening, development, patenting and marketing of biotechnology developed from hydrothermal vents. This review highlights that there is already substantial commercial interest in biotechnology developed from deepsea hydrothermal vent species. The review of existing commercial interest in biotechnology developed from hydrothermal vents outlined in Appendix 1 and 2 is not intended to be a comprehensive statement of the existing state of commercial interest. Instead the review was undertaken with a view to gauging whether or not there is currently any commercial interest in biotechnology from hydrothermal vent microorganisms and derivatives. The review was based upon a search of the internet and, in particular, of information published by a number of leading biotechnology companies on the internet, from a number of published scientiﬁc sources and from anecdotal comments made by a number of members of the scientiﬁc community interviewed in the course of this research. Further more detailed research could be undertaken at a later date to more clearly deﬁne the nature and extent of commercial interest in biotechnology from hydrothermal vents and the deep sea in general. Nonetheless, as the very rudimentary review shows, there does appear to be signiﬁcant commercial interest in biotechnology from deep-sea hydrothermal vent microorganisms and from extremophiles from other sources more generally. This sector of the biotechnology industry is only in its infancy, and accordingly, over time, and subject to further developments in technology, greater commercial interest is foreseeable. At least 14 biotechnology and other companies were identiﬁed as being actively involved in product development, and/or collaboration with research institutions with a view to product development, in relation to derivatives of thermophiles and hyperthermophiles from hydrothermal vents. It is important to note that the research and product development is directed primarily towards derivatives as opposed to speciﬁc uses of the microbes themselves. Six companies have been identiﬁed that already market products derived from hydrothermal vent thermophiles and hyperthermophiles. Details of companies that have been involved in research and product development and products currently marketed by these companies are listed in Table 2 in Appendix 1. 85

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, opened for signature 28 April 1977, 9 ATS (1987) (entered into force 19 August 1980), hereinafter Budapest Treaty.

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7.5 7.5.1

Intellectual property rights and bioprospecting

The justiﬁcation for patents

Biotechnology research and product development is an expensive high technology process. The patent or monopoly on exploitation granted in relation to the invention the subject of the patent rewards the inventor for the effort and cost expended in developing the new invention. As the World Intellectual Property Organisation has noted: The basic function and role of the patent system is simple and reasonable. It is desirable in the public interest that industrial techniques should be improved. In order to encourage improvement, and to encourage also the disclosure of improvements in preference to their use in secret, any person devising an improvement in a manufactured article, or a method of making it, or a new substance and/or the process of making that substance, may, upon disclosure of the details to the Patent Ofﬁce of a country, be given a set of exclusive rights for a certain period of time. After that period expires, the invention passes into the public domain. The exclusive rights are justiﬁed on the grounds that if it had not been for the inventor who devised and disclosed the improvement, nobody would have been able to use it at that or any other time since it and the manner of producing it may have remained unknown. In addition, the giving of the monopoly encourages the putting into practice of the invention, since the only way the applicant can make a proﬁt is by putting the invention into practice, either by using it himself [sic] and deriving an advantage over his [sic] competitors by its use, or by allowing others to use it in return for royalties.86

Importantly, it is worth noting that the grant of a patent is essentially a sovereign act of a nation State. There is a considerable body of international law that relates to patents and, in particular, that sets minimum requirements for the grant of a patent, some of which is examined below. But in the end it is a matter for each individual State to determine the terms on which a patent may or may not be granted under its domestic law, provided this is consistent with their international obligations. This is especially signiﬁcant in the case of biotechnology derived from genetic resources beyond national jurisdiction because, regardless of where the original genetic resource is obtained, the grant of a patent is always something that occurs within a States jurisdiction. This means that the rights of a patent holder are determined by the domestic law of the State in which the patent was granted. Thus rights in relation to patents (as opposed to the question of access rights) are not affected by the absence of regulation of such action in areas beyond national jurisdiction. This is a signiﬁcant point when we seek to understand how we may bridge what could be called the ‘missing link’ between the CBD and Intellectual Property rights. This missing link, and how it may be bridged, is explored in more detail below. But before exploring the ‘missing link’, it is worth brieﬂy considering the various sources of law at the international level that relate to patents in particular, and the nature and the legality of patents in relation to biotechnology more generally.

86

World Intellectual Property Organization (ed), Introduction to Intellectual Property. Theory and Practice, (1997).

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The patentability of biotechnology

The patent law of most countries includes three basic requirements for determining whether a claimed invention is patentable. These are that the invention, whether it is in relation to a product or a process, must be: new (or novel); involve an inventive step (or not be obvious); and be capable of industrial application (or have utility).87 In many countries patent protection for biotechnological inventions has been available and expanding for nearly 20 years.88 An important legal landmark in the history of patenting of biotechnology that is often referred to is the 1980 decision of the United States Supreme court in Diamond v Chakrabarty 447 U.S. 303 (1980), which held that inventions involving biological materials and some life forms were patentable under United States law.89 Since this decision there has been a dramatic increase in the number of patents granted in relation to biotechnology and a whole new subset of patents covering ‘genetic inventions’ (ie that relate to nucleotide DNA or RNA sequences that may encode genes or fragments of genes and their uses) has ﬁrmly taken hold in intellectual property law in most jurisdictions.90 Although there has been debate in some jurisdictions on the extent of patentability of some life forms (especially as they relate to human beings, medical treatment and, more controversially, genetically modiﬁed organisms), the patentability of biotechnology is now largely accepted in most jurisidictions. Claims in gene patent applications generally fall into a number of different categories including: Genes or partial DNA sequences such such as cDNAs, ESTs, SNPs, promoters and enhancers; proteins encoded by these genes and their function in the organism; vectors used for the transfer of genes from one organism to another; Genetically modiﬁed micro-organisms, cells, plants and animals; processes used for the making of a genetically modiﬁed product; and uses of genetic sequences or proteins which include: genetic tests for speciﬁc genetic diseases or predisposition to such diseases; drugs developed on the basis of the knowledge of proteins and their biological activity; industrial applications of protein functions.91

The biotechnology companies identiﬁed above have actively pursued protection of intellectual property rights in relation to developments in biotechnology arising from their research and product development. Several of the companies mentioned in Table 2 Appendix 1 have already obtained extensive patent protection for the products they have developed and for other developments in technology arising from their research and product development. A brief desktop review and search of the databases of the European Patent Ofﬁce and the USA Patent Ofﬁce revealed 37 patents that have been granted as a result of such research and/or product development. Details of these patents are listed in Table 3

87

88

89 90 91

Australia, Department of Foreign Affairs and Trade, Intellectual Property and Biotechnology: A Training Handbook, (undated), 1–8. Organisation for Economic Co-operation and Development (OECD), Genetic Inventions, Intellectual Property Rights and Licensing Practices. Evidence and Policies, (2002), 7. OECD, above n. 88, 7. OECD, above n. 88, 8 OECD, above n. 88, 28.

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Appendix 2. The search of the European and USA patent databases was by no means an exhaustive search. It is likely, therefore, that many other patents have been granted within these jurisdictions and elsewhere. In addition to patents, several of the companies referred to earlier in this chapter have also obtained trade-mark protection for products developed from research related to hydrothermal vents. For example, New England Biolabs owns the trade marks “Vent™” and “Deep Vent™”, which are utilised in the marketing of the DNA polymerase products by this company. Similarly, Stratagene Inc holds the trademark for a derivative from the hydrothermal vent species Pyroccocus furiosus included in several products sold by this company and marketed as the ArchaeMaxx™ Factor. Similar examples can be found in the names and trademarks of products marketed by other companies. One other interesting aspect worth noting in relation to these companies is the way in which the extreme environments in which the microbes form are included prominantely in marketing material of these companies. These companies emphasise that they are searching these areas because they are biodiversity hot spots that offer many unique and new potential leads for developments in biotechnology. The relevant companies are New England Biolabs Inc and Diversa Corporation.

7.6 7.6.1

International law and patents in relation to biotechnology

The international patent treaty system

The patentability of biotechnology is clearly contemplated by the international legal regime dealing with patents. Several international treaties are relevant to an understanding of the international legal regime in relation to patents. For present purposes the most signiﬁcant treaties worth noting are:92 the Paris Convention for the Protection of Industrial Property;93 the Patent Cooperation Treaty;94 the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights;95 and the Budapest Treaty. For present purposes the most signiﬁcant is the Budapest Treaty for the reasons outlined below.

92

93

94

95

For detailed discussion of the major treaties see A. D’Amato and D.E. Long (eds), International Intellectual Property Law (1997) and World Intellectual Property Organization (ed) Introduction to Intellectual Property. Theory and Practice (1997) Convention for the Protection of Industrial Property, Paris, 20 March 1883, ATS (1972) 12 (entered into force 26 April 1970). Patent Cooperation Treaty, Washington, 19 June 1970, ATS (1980) 6 (entered into force 24 January 1978). Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marakesh Agreement Establishing the World Trade Organisation, Annex 1C, Gatt Doc. MTN/FAII-A1C, 33 I L M 1197. Hereinafter TRIPS.

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Microorganisms, patents and the Budapest Treaty

For a patent to be granted details of the invention must be fully disclosed to the public. For this to occur the patent application must contain a description of the invention in sufﬁcient detail to permit a person skilled in the art to repeat the invention.96 However, in the case of inventions involving new microorganisms, it is often impossible to provide an adequate written description.97 As a consequence, under the provisions of the Budapest Treaty, samples of microorganisms can be deposited with certain culture collections recognized as ‘international depository authorities’ for the purposes of patent procedure.98 Under the Budapest Treaty any contracting State that allows or requires the deposit of microorganisms must recognize a deposit made in any ‘international depository authority’.99 In addition the Budapest Treaty includes certain Regulations concerning administrative requirements and procedures in relation to deposits made under the Treaty.100 The Regulations deal inter alia with what information must be supplied with a deposit made under the regulations. For example Rule 6.1 provides: (a) The microorganism transmitted by the depositer to the international depositary authority shall, except where Rule 6.2 applies, be accompanied by a written statement bearing the signature of the depositor and containing: (i) an indication that the deposit is made under the Treaty and an undertaking not to withdraw it for the period speciﬁed in Rule 9.1; (ii) the name and address of the depositor; (iii) details of the conditions necessary for the cultivation of the microorganism, for its storage and for testing its viability and also, where a mixture of microorganisms is deposited, descriptions of the components of the mixture and at least one of the methods permitting the checking of their presence; (iv) an identiﬁcation reference (number, symbols etc.) given by the depositor to the microorganism

96

97 98

99 100

World Intellectual Property Organisation, Guide to the Deposit of microorganism under the Budapest Treaty, (2000), 1. Ibid. World Intellectual Property Organisation, Guide to the Deposit of microorganism under the Budapest Treaty, (2000), 3. Speciﬁcally Article 3 of the Budapest Treaty provides: Contracting States which allow or require the deposit of microorganisms for the purposes of patent procedure shall recognize, for such purposes, the deposit of a microorganism with any international depositary authority. Such recognition shall include the recognition of the fact and date of the deposit as indicated by the international depositary authority as well as the recognition of the fact that what is furnished as a sample is a sample of the deposited microorganism. World Intellectual Property Organisation, above n. 96, 3. The Regulations are dealt with in Article 12 of the Treaty and were originally contained in Annex 2 to the Budapest Treaty.

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The Regulations under the Budapest Treaty do not currently require disclosure of the location from which a microorganism is sourced. However, under Article 12 of the Budapest Treaty, the Assembly of the Contracting Parties to the treaty is given express power to amend the Regulations. It is, therefore, possible for the Regulations to be amended to require the disclosure of the location from where a microorganism was sourced. If the Regulations were to be amended in this way then it would be possible for national authorities granting patents to identify whether or not such microorganisms had been sourced from areas within national jurisdiction, in which case patents could be made conditional on proof of access and beneﬁt sharing arrangements having been entered into in accordance with the provisions of the CBD and the Bonn Guidelines. Perhaps more signiﬁcantly, such a mechanism could identify when microorganisms had been sourced from areas beyond national jurisdiction. Patents granted in relation to biotechnology from such microorganisms would then fall within the scope of the proposed global commons trust fund outlined below.

7.7 7.7.1

The missing link – The CBD and patents

The failure of the CBD to address intellectual property rights

One of the major challenges faced in conserving the planet’s biodiversity is the inevitable conﬂict between trade and the conservation of biodiversity. A signiﬁcant factor in this ongoing conﬂict is the failure of the CBD to adequately address the close relation between the exploitation of biodiversity and intellectual property rights. As one author has observed: Sustainable development means that current generations must leave future generations an environment and a stock of natural resources that is as good and as plentiful as those it received from past generations. The philosophy also says that technology and social organization affect the capacity of the biosphere to meet the economic demands placed on it. International trade is one of the most important forms of social organization by which natural resources are transformed into economic prosperity, but there has been little progress in clarifying the environment-related aspects of trade or the trade-related aspects of environmental protection. Intellectual property rights, already a contentious trade issue even without taking environmental arguments into account, is one piece of the sustainable development puzzle that needs deliberate and careful attention. Instead, the biodiversity convention deals with the issue in the worst possible manner: by equivocation in hopes that the controversy will simply go away.102 101

102

Rule 6.1, Regulations Under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purpose of Patent Procedure, Appendix 2, Budapest Treaty. A. D’Amato and D.E. Long, International Intellectual Property Law, (1997), 86.

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Indeed more than 12 years since the Earth Summit there can be no more obvious defect in the international regime for the conservation of biodiversity than the missing link between the CBD and the international legal regime dealing with intellectual property rights. This is more so in the areas beyond national jurisdiction, such as at hydrothermal vents and other parts of the deep sea. In those places requirements of informed consent and beneﬁt sharing mandated by the CBD, and subsequent instruments such as the Bonn Guidelines, do not apply. Beyond national jurisdiction there is no sovereign government or other community with whom to negotiate informed consent and with whom to share beneﬁts. As noted in Chapter 2, access to such resources is free to anyone with the necessary technology to reach into the dark depths of the abyss. However, as discussion in the earlier parts of this chapter has highlighted, these freely exploitable resources ultimately become subject to intellectual property rights, principally patents, which grant a monopoly on exploitation and use. Intellectual property rights are clearly a key part of the economic incentive behind research and development in relation to deep-sea genetic resources. Without the monopoly on exploitation which a patent grants, it is unlikely that much of the research and product development outlined above would have occurred. In responding to the question posed by Glowka,103 one of the obvious questions that needs to be addressed is how could the beneﬁts associated with the exploitation of the genetic resources of the deep sea be shared? Also, any such response needs to address how such resources should be shared? What is suggested in the following discussion is that the resources could be shared by means of royalties payable in relation to patents granted in relation to deep-sea genetic resources. It is also suggested that such resources should be shared by dispersing any such royalties received through the mechanisms of the GEF. In this way funding for the sustainable manangement of speciﬁc hydrothermal vent sites in accordance with proposals outlined elsewhere in this book, and the sustainable management of the marine environment more generally, could be linked to patents granted in relation to biotechnology derived from organisms taken from commons areas, such as hydrothermal vents in the deep sea beyond national jurisdiction. For the sake of clarity it is stressed that this proposal relates only to the genetic resources of hydrothermal vents beyond national jurisdiction. Genetic resources within areas of national jurisdiction are outside the scope of this proposal. This is because the status of resources within national jurisdiction is now ﬁrmly entrenched in international law and realistically this is not likely to change in the foreseeable future. While the proposal is limited to the genetic resources of hydrothermal vents beyond national jurisdiction, a similar structure might equally be adopted with respect to genetic resources in other parts of the deep sea beyond national jurisdiction, the ocean more generally or perhaps even Antarctica.

103

See the introduction to this book, page 1 above.

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7.7.2 Ocean Development Taxes and Commons Trust Funds: re-interpretation of some old ideas The beneﬁts associated with the exploitation of the genetic resources of the deep sea could be shared by establishing a form of trust fund from royalties or other fees collected from developers of biotechnology derived from hydrothermal vents on the high seas. This trust fund would become operational by linking existing international institutions associated with intellectual property rights and the conservation of biodiversity. This is an obvious option that was not canvassed in the so-called options paper prepared by the SBSTTA and discussed in Chapter 2. This idea has a respectable heritage and it is worth noting some proposals that have previously been put forward. The need for new and creative ways of funding biodiversity conservation and sustainable development has been recognised for some time.104 In 1987 the Bruntland Commission observed: Given the current constraints on major sources and modes of funding, it is necessary to consider new approaches as well as new sources of revenue for ﬁnancing international action in support of sustainable development. The commission recognizes that such proposals may not appear politically realistic at this point in time. It believes, however, that – given the trends discussed in this report – the need to support sustainable development will become so imperative that political realism will come to require it. The search for other, and, especially more automatic, sources and means for ﬁnancing international action goes almost as far back as the UN itself. It was not until 1977, however, when the Plan of Action to Combat Desertiﬁcation was approved by the UN General Assembly that governments ofﬁcially accepted, but never implemented, the principle of automatic transfers. That Plan called for the establishment of a special account that could draw resources not only from traditional sources but also from additional measures of ﬁnancing, including ﬁscal measures entailing automatacity. Since then, a series of studies and reports have identiﬁed and examined a growing list of new sources of potential revenue, including: revenue from the use of international commons (from ocean ﬁshing and transportation, from sea-bed mining, from Antarctic resources, or from parking charges for geostationary communications satellites, for example) taxes on international trade (such as a general trade tax; taxes on speciﬁc traded commodities, on invisible exports, or on surpluses in balance of trade; or a consumption tax on luxury goods) international ﬁnancial measures (a link between special drawing rights and development ﬁnance, for example, or IMF gold reserves and sales. . . . [G]iven the compelling nature, pace, and scope of the different transitions affecting our economic and ecological systems as described in this report, we consider that at least some of those proposals for additional and more automatic sources of revenue are fast becoming less futuristic and more necessary. This Commission particularly considers that the proposals regarding revenue from the use of international commons and natural

104

D. Hunter, J. Salzman and D. Zaelke, International Environmental Law and Policy, (2002), 1501.

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resources now warrant and should receive serious consideration by governments and the General Assembly.105

Many different proposals have been put forward for the sharing of the oceans’ resources over time. One example that has been debated extensively in the literature is the so called Ocean Development Tax. The leading advocate of such a proposal was noted scholar and environmentalist Elizabeth Mann Borgese. An Oceans Development Tax is essentially a consumption tax on the use of the oceans. As Borgese describes it: This tax is, in a way, on consumption of ocean space and resources. This proposal calls for a 1 percent tax (modiﬁed by population and GNP) on all the major commercial uses of the ocean-on ﬁsh caught, oil extracted, minerals produced, goods and persons shipped, water desalinated, recreation enjoyed, waste dumped, pipelines laid, and installations built. There would be no tax, however, on subsistence ﬁsheries or on scientiﬁc research. This tax would be levied on activities no matter where located-in areas under national or international jurisdiction. This functional, not territorial, tax would be levied by governments and paid over to the competent ocean institutions (e.g. FAO, UNEP, IOC, International Maritime Organization [IMO], International Seabed Authority) for the purpose of building and improving ocean services (e.g. navigational aids, scientiﬁc infrastructure, environmental monitoring, search and rescue, disaster relief, etc.).106

However, there are some problems with an Ocean Development Tax as far as it might apply to the genetic resources of the deep sea and hydrothermal vents in particular. Firstly, in the form proposed by Borgese, the Ocean Development Tax would not apply to MSR. But, as noted previously, often the distinction between MSR and bioprospecting is blurred. Without such a clear distinction, which in practice is is almost impossible to make, how will it be possible to determine when bioprospecting is said to occur and is then subject to taxation? More problematic, though, is how the proceeds of such taxation would be distributed. Although potential uses of such a tax are outlined in the extract quoted above, it is unclear how decisions might be made as to how the Ocean Development Tax might be spent. Would it need the creation of a new institution or international bureaucracy? This is unclear. Another alternative that has been canvassed at length in the literature is the notion of the global commons trust fund. The idea of a global commons trust fund is not a new idea and there have been many varied proposals along similar lines over time.107 One of the clearest articulations of the concept is by Stone, who has summed up the concept as follows:

105

106 107

World Commission on Environment and Development, Our Common Future, (1987), 342–43 reproduced in Hunter et al., above n. 104, 1510–1511. E.M. Borgese, The Future of the Oceans. A Report to the Club of Rome, (1986). For an overview of the many different proposals that have been put forward over time see C.D. Stone, ‘Mending the Seas through a Global Commons Trust Fund’ in J.M. Van Dyke, D. Zaelke and G. Hewison (eds), Freedom for the Sea in the 21st Century: Ocean Governance and Environmental Harmony, (1993).

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Chapter Seven Essentially, on the funding side, the idea is to capitalize on revenues from all commons-connected activities, and not only from charges for carbon “storage” in the atmosphere, the most familiar fund-raising scheme; on the expenditure side, the funds so raised would be applied to the conservation and repair of the commons areas rather than to distribute them back to the individual nations to let them expend them on developmental projects of their choice, however tenuously connected the projects are to the environment.108

In essence the use of commons resources is made dependent on some of the beneﬁts arising from their use ﬂowing back into the protection of commons areas themselves. However, there are two problems with the way such an idea has been developed in the past. Firstly, as Stone explains, such a concept is based on the notion that the commons areas are the common heritage of mankind. If they are regarded as the common heritage of mankind this implies that they are therefore common property of all nations and that accordingly “one may argue that the users of the commons areas ought to be charged for their use”.109 However, for the reasons outlined in Chapter 5, the utility or, indeed, the desirability of invoking the common heritage of mankind is questionable. Is there a way around this inconsistency? Can we argue for a global commons trust fund without invoking the common heritage of mankind? The answer to this question is yes, and the way that it is done is by linking the global commons trust fund to the grant of patents in relation to the biotechnology derived from such commons resources, in this case patents derived from hydrothermal vent microorganisms. Here it is not because such resources are regarded as the common heritage of mankind, but merely because, as a conscious policy choice, States may choose to make the grant of a patent conditional upon the patent holders’ agreement to contribute to the global commons trust fund in the manner outlined in more detail below. The reason that this is possible is because the grant of the patent is something that lies within the competency of the State under international law. While the micro-organisms from which biotechnology may be derived are located beyond national jurisdiction, the grant of the exclusive monopoly to exploit such biotechnology is an act of each individual State that occurs within its jurisdiction. One other signiﬁcant objection that has also previously been raised with respect to the concept of a global commons trust fund, especially as it applies to biodiversity, has been a concern that such a concept would impinge upon the sovereignty of the nation State.110 However, such a criticism could not be levelled against a global commons trust fund linked to patents granted in relation to biotechnology derived from micro-organisms sourced beyond national jurisdiction. By very deﬁnition such resources are not within the ‘sovereign space’ of any one nation. More signiﬁcantly, though, the very act of granting a patent is a sovereign act; it is the grant of a monopoly to exploit a particular invention within that State’s jurisdiction. Thus, where a global commons trust fund is linked to patents, the global commons trust fund does not undermine State sovereignty, but rather re-inforces it. This is done in a way that

108 109 110

C. Stone, The Gnat is Older than Man. Global Environment and Human Agenda (1993), 208. Ibid. Ibid.

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ultimately contributes to the protection of global commons areas and the conservation of biodiversity. How much should that royalty be? The author is not an economist and therefore, it would be unwise for me to nominate a particular amount or percentage. However, a few parameters for any such royalty are worth noting. Firstly, a good benchmark ﬁgure may be similar amounts paid under access and beneﬁt sharing arrangements within national jurisdiction. These ﬁgures may be a useful guide as to what is economic for biotechnology companies to afford, having regard to the return on investment required to justify undertaking such research and development in the ﬁrst place. Although costs of accessing genetic resources may be greater in the deep sea beyond national jurisdiction, royalties paid in relation to genetic resources within national jurisdiction might provide a useful benchmark. Secondly, it would be preferable that any such royalty be linked to the actual sale of products derived from deep-sea genetic resources. If such a royalty were to be payable at the time the patent is granted this may well act as a disincentive to research and product development. Linking the royalty payable to actual product sold would enable research on new uses of deep-sea genetic resources to be carried out without the added expense or burden of a tax on what may well turn out to be a speculative exercise that yields no results. No doubt other factors need to be considered in determining an appropriate royalty and that is work best left to economists and other policy makers to determine. 7.7.3 A global commons trust fund as a new source of funding for the global environment facility The only remaining question then is what institution could act as the trust fund and be responsible for the disbursement of its funds. The most obvious existing institution is the ISA. Under LOSC the ISA already has a mandate with respect to the distribution of wealth generated from exploitation of the mineral resources of the Area. Thus under Article 160(1)(f) the ISA is required to develop rules, regulations and procedures for the equitable sharing of ﬁnancial and other economic beneﬁts derived from mining activities in the Area. Likewise under Article 82 of LOSC the ISA is responsible for the distribution of proceeds derived by coastal States from the exploitation of the mineral resources of the continental shelf beyond 200 nautical miles. Under Article 82(4) of LOSC the ISA is obliged to distribute such proceeds to State Parties to LOSC: on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and land-locked among them.

To date the ISA has not developed rules, regulations or procedures for the equitable sharing of the ﬁnancial and other economic beneﬁts derived from mining activities in the Area, nor has it yet had to disburse proceeds of mining on the continental shelf contemplated by Article 82(4) of LOSC. The ability of the ISA to manage the process of disbursing such funds is therefore unproven. In contrast there a number of other international institutions and mechanisms that already have experience and expertise in the disbursement of large sums of money

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and in addition have substantial experience in playing a role in funding or managing projects associated with sustainable development.111 For present purposes though the most signiﬁcant is the GEF. The GEF was established in 1991 as a pilot program, by resolution of the Executive Directors of the World Bank.112 The GEF was restructured ﬁrst in 1994 and again in 2002.113 The GEF provides funding to assist developing countries in meeting the objectives of international environmental conventions and currently serves as the ﬁnancial mechanism for four conventions.114 GEF projects address six global issues biodiversity, climate change, international waters, land degradation, ozone depletion, and persistent organic pollutants.115 The GEF is funded by donor nations who commit money each four years through the process known as the GEF replenishment. The third and most recent replenishment was in 2002. In the third replenishment 32 donor countries pledged U$3 billion to fund operations between 2002 and 2006.116 Although the GEF has been subject to criticism from time to time it does have considerable experience in funding and managing a range of projects related to sustainable development and the environment more generally.117 Since 1991, the GEF has provided $6.2 billion in grants and generated over $20 billion in co-ﬁnancing from other sources to support over 1,800 projects that produce global environmental beneﬁts in 140 developing countries and countries with economies in transition.118 The GEF is arguably well placed to act as the ﬁnancial mechanism for the equitable and sustainable disbursement of the proceeds of the exploitation of deep-sea genetic resources beyond national jurisidiction. The GEF could hold and disburse the funds collected by the global commons trust fund suggested above. Although there may need to

111

112

113 114

115 116

117

118

Some of these institutions include the GEF (see discussion below) Inter-American Development Bank (see http://www.iadb.org/ accessed 25 January 2006) and the Asian Development Bank (see http://www.adb.org/ accessed 25 January 2006). Global Environment Facility, The First Decade of the GEF. Second Overall Performance Study (2002), 4. See Global Environment Facility web site http://www.gefweb.org/ accessed 6 June 2006. The four conventions are the CBD, the United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 31 ILM (1992), 851 (entered into force 21 March 1994), the United Nations Convention to Combat Desertiﬁcation, opened for signature 14 October 1994 33 ILM (1994), 1016 (entered into force 26 December 1996) , and the Stockhom Convention on Persistent Organic Pollutants, opened for signature 23 May 2001, 40 ILM (2001), 532 (entered into force 17 May 2004). Global Environment Facility web site http://www.gefweb.org/ accessed 6 June 2006. Ibid. The donor countries were Australia, Austria, Belgium, Canada, China, Cote d’Ivoire, Czech Republic, Denmark, Finland, France, Germany, Greece, India, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Portugal, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, and the USA. For examples of criticism of the GEF see R. Lake, ‘Finance for the Global Environment: the Effectiveness of the GEF as the Financial Mechanism to the Convention on Biological Diversity’ (1998) 7(1) RECIEL 68. Global Environment Facility web site http://www.gefweb.org, accessed 6 June 2006.

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be some amendments to existing operational mechanisms and constituent documents the GEF is one potential mechanism that already exits and has experience. There would be no need to create a whole new international bureaucracy to manage and distribute the resources of the proposed trust fund.

7.8

Conclusion

This chapter has highlighted the extent of the commercial interest in deep-sea genetic resources and those of hydrothermal vents in particular. This is an exciting, emerging ﬁeld of biotechnology and, on the basis of the available evidence presented above, it is reasonable to anticipate that this new ﬁeld of commercial activity will expand as technology makes the deep-sea environment more accessible. This chapter has put forward a proposal for how the beneﬁts of the exploitation of these resources may be shared. Principally, through minor amendments to existing institutions, it has been shown how deep-sea genetic resources could provide a new source of funds for sustainable development. This new found wealth could likewise be a source of funding to provide for the sustainable management of hydrothermal vent ecosystems upon the basis outlined elsewhere in this book. What appears to be the issue is not the lack of mechanisms to provide for beneﬁt sharing as has previously been suggested. Rather it appears possible to provide for beneﬁt sharing of deep-sea genetic resources with only slight modiﬁcation to existing legal regimes and institutions. What probably will be a major obstacle to the realization of a beneﬁt sharing regime will be the lack of political will to act. As this sector of the biotechnology industry grows, vested interests will be more forceful in their opposition to any such regime. Now is the time to act and to put such a regime in place before vested commercial interests make such a regime impossible to achieve. This is yet a further reason why, as suggested in Chapter 5, it is futile for us to engage in the debate as to whether such resources are the common heritage of mankind. Engaging in this debate will delay the creation of a beneﬁt sharing regime and will make it even less likely to be achieved.

Chapter 8 Marine Scientiﬁc Research 8.1

Introduction

As noted in Chapter 1, MSR poses the most immediate threat to the hydrothermal vent ecosystem. Chapter 2 of this book outlined gaps in the existing law with respect to the regulation of the environmental impact of MSR on the continental shelf and in the Area. This chapter considers how MSR could be regulated in all areas of the oceans including ocean space beyond national jurisdiction. The chapter begins by outlining the nature of MSR conducted at hydrothermal vents in general terms. In part this discussion is based on a number of interviews conducted with several leading scientists active in hydrothermal vent research. It is not suggested that the material in this part of the chapter is the deﬁnitive dissertation on the nature and extent of hydrothermal vent related MSR. More detailed research may be warranted at a later date. This material nonetheless provides a useful insight into the nature of the activity for which regulation is proposed. The second part of the chapter then goes on to explore what form regulation of MSR might take. This section considers the debates surrounding the MSR issue during the negotiation of LOSC in some detail. It is suggested that the arguments raised in relation to MSR over 40 years ago are equally valid today. Consideration of these arguments in the context of MSR at hydrothermal vents suggests how the issue of regulation of MSR should be approached. The chapter then concludes by outlining a proposal for a regulatory regime for MSR modelled on the regime of the Madrid Protocol to the Antarctic Treaty.

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8.2 8.2.1

The nature of marine scientiﬁc research involving hydrothermal vents

Methodology employed

Several scientists engaged in research in relation to hydrothermal vents were interviewed during the course of research for this Book. The purpose of these interviews was to obtain general background information on the nature of MSR conducted at hydrothermal vents. Interviews covered a range of issues including the type of research carried out in relation to hydrothermal vents by individual scientists and research organisations with which they were afﬁliated, research techniques, environmental impact, internal ethical and environmental impact assessment approval processes, potential for and extent of commercialisation of their research, approval processes of foreign governments for their research, and their views on regulation of activities associated with hydrothermal vents generally. No particular methodology was employed in selecting these scientists for interview. Scientists were approached based upon their reputation in published scientiﬁc literature and or contacts or referrals provided by third parties, including the scientists initially interviewed. In total 9 scientists directly involved in hydrothermal vent research were interviewed. Details of each of the relevant scientists, including their research institution and area of research, are provided in Table 4 Annex 3. Subsequent to these interviews two researchers could not be contacted to obtain their consent to disclose their identity. Accordingly in accordance with the terms of ethics approval for this research the identity of both these scientists is withheld from Table 4. I was also fortunate to have informal discussions with a number of other scientists working in related ﬁelds, who provided further leads for research. These scientists’ contributions are acknowledged at the beginning of this book. It became clear during the early stages of these interviews that much of the information sought covered topics that individual researchers either were only able to comment on in general terms, or were unable to comment on at all. For example, most researchers were generally not involved in the process of obtaining foreign government approval to carry out MSR within coastal State waters and therefore could not comment on difﬁculties encountered in the process. This was the responsibility of other administrative staff within their respective research organisations. Likewise, for reasons of commercial conﬁdentiality, scientists whose research had commercial applications were not able to comment on the status of such research. Accordingly, while a more comprehensive survey of the nature and extent of MSR in relation to hydrothermal vents was proposed at the outset of this research, instead more general conclusions on the nature of MSR are presented below based on these interviews and a range of published scientiﬁc literature and material. 8.2.2

Areas of scientiﬁc research

Research covers a wide area of scientiﬁc interest. Research in relation to the geology and geophysics of hydrothermal vents, includes the resource potential of associated minerals. Other forms of research includes research in relation to biology and micro-

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biology of hydrothermal vent fauna, research in relation to the chemistry of hydrothermal vent ﬂuid and their impact upon the chemistry and circulation of the surrounding ocean. Geological and geochemical research at hydrothermal vent sites has the potential to lead to better understanding of the genesis of ore deposits and improve models for exploration of ores on land.1 Research may also provide new geological knowledge about the formation, structural deformation and ageing of the Earth’s volcanic ocean crust and associated sediments.2 Such research may also lead to a better understanding of the tectonic history of the earth.3 Research is also being undertaken to expand fundamental knowledge of biological systems and physiological processes of vent species as well as other species that live in extreme environments.4 Similarly, coastal species living at shallow vent sites have adapted to toxic conditions and high temperatures.5 Study of these organisms could help predict how coastal ecosystems may respond to increasing anthropogenic pollution and global warming.6 Research at hydrothermal vents is also important to understand the role they play in maintaining the geochemical balance of the planet as a result of their output of chemicals.7 It is estimated that all sea water re-circulates through the vents on average every 107–108 years.8 In addition, it is suggested that hydrothermal vents contribute to ocean productivity and the local circulation of seawater.9 Continued research will enable a greater understanding of these processes. While individual scientists may be conducting experiments in a discrete ﬁeld of science or as part of individual research expeditions, on a much larger scale MSR is also being conducted as part of global research programs. One such program is the Census for Marine Life, a cooperative international research program that seeks to assess and explain the diversity, distribution and abundance of life in the oceans. This project involves more than 300 scientists from 53 different countries.10 Perhaps ambitiously this research seeks to comprehensively answer three signiﬁcant questions: (1) What did live in the oceans? (2) What lives in the oceans now? and (3) What will live in the oceans in the future? Hydrothermal vent ecosystems and other chemosynthetic biological communities are the focus of part of the research attempting to answer these questions. Two key components of the Census of Marine Life include the Biogeography

1

2 3 4 5 6 7 8 9 10

P. Dando and S.K. Juniper, Management and Conservation of Hydrothermal Vent Ecosystems: Report from an InterRidge Workshop (2001), 4–5. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Census of Marine Life, The Unknown Ocean. Baseline Report of the Census of Marine Life (2003), 2–3.

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of Deep-Water Chemosynthetic Ecosystems, the so called ChEss research program, which is a global study of the biogeography and biodiversity of deep-water chemosynthetic ecosystems and the processes that drive them.11 Similarly the Mid-Atlantic Ridge Ecosystem Project or MarEco, also part of the Census of Marine Life, seeks to carry out co-ordinated international studies of the macro fauna of the northern midatlantic ridge, including species associated with hydrothermal vents.12 There are several other international co-operative research programmes in relation to hydrothermal vents, including a number of research projects conducted under the auspices of international co-operative research bodies and loose networks of researchers such as InterRidge,13 and the Integrated Ocean Drilling Program. While the primary objective of such projects is what may traditionally be called pure scientiﬁc research, many researchers recognise that their research may have implications for biotechnology and developments in deep-ocean exploration technology. Several of the institutions visited in the course of this research, including JAMSTEC, CSIRO and GNS, were involved to varying degrees in on-going biotechnology research with possible commercial implications. One of the largest of these projects was at JAMSTEC. Its Frontier Research System for Extremophiles (DeepStar) project was mentioned in Chapter 7. Individual national research institutions also often co-operate on joint research programs. For example, the very ﬁrst research expedition to the PACMANUS ﬁeld in PNG’s waters was a collaborative project between researchers from PNG, Australia and Canada.14 Since then researchers have participated in several collaborative research expeditions with scientists from Japan, France and Germany. International collaborative work is not just conﬁned to the PACMANUS ﬁeld. Similar international collaborative research work occurs at many other hydrothermal vent sites. This co-operation also often extents to joint applications for funding from government bodies. For example, the Marie Curie Research Training Network (MOMARnet), a collaborative research network involving scientists in fourteen European laboratories in eight countries, recently secured funding of €2.5 million from the European Union.15 While MSR in relation to hydrothermal vents takes many forms and crosses many disciplines, and may also involve international collaboration, there are also many differences in relation to the size and scale of such research. There are vast dif11

12 13

14

15

Full details on the nature and goals of the ChEss research program are available from the programme’s web site http://www.coml.org, accessed 22 November 2004. See the MarEco web site http://www.mar-eco.no accessed 22 November 2004. For detailed information on Interidge and its associated research see http://www.interridge.org accessed 22 November, 2004. The PACMANUS ﬁeld was named after this expedition ie the Papua New Guinea, Australia, Canada Manus Basin Expedition. See R.A. Binns, ‘The PACMANUS Field, Eastern Manus Basin, Papua New Guinea: A Decade of Seaﬂoor Investigation and the First Deep Drilling of an Active, Felsic-Hosted, Submarine Hydrothermal Field’ In C.J. Yeats (Ed) Seabed hydrothermal systems of the Western Paciﬁc: Current research and new directions-Conference Presentations, CSIRO Exploration and Mining Report 1113F, CD-ROM. MOMARnet project web site, http://beauﬁx.ipgp.jussieu.fr/rech/lgm/MOMAR/ accessed 12 December 2004.

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ferences in technology depending upon both the research being conducted and the participants in that research. This may be illustrated by comparing the research undertaken by the JAMSTEC and Australia’s CSIRO. JAMSTEC has been involved in a wide range of scientiﬁc research in relation to the marine environment. These include the study of the deep-sea ﬂoor dynamics and the movement of magma and the earth’s plates. Studies of these processes are aided by observations of hydrothermal vent chimneys such as those associated with black smokers.16 To carry out its research JAMSTEC has several sophisticated vessels equipped for MSR in the deep sea. These include the Shinkai 2000 capable of taking scientists to depths up to 2000 metres and its support vessel the R/V Natsushima. JAMSTEC also has the Shinkai 6500 capable of taking scientists to a depth of 6500 metres and its support vessel the R/V Yokosuka.17 JAMSTEC utilises other sophisticated technology such as ROVs. These include ROVs such as the Kaiko (which, until its recent loss, was capable of diving to depths of up to 10,000 metres to carry out research and retrieve samples from the deep sea), the Dolphin-3K, a large scale deep-sea research vehicle, and the Deep Sea ROV “UROV-7K” a thin cable controlled ROV capable of operating at depths of up to 7,000 metres.18 While sending humans to carry out research at extreme depths is often only possible using submersibles or remotely by ROVs, MSR on hydrothermal vents is possible using far less sophisticated technology. For example, over the past decade the PACMANUS ﬁeld in PNG’s territorial waters has been studied as part of the Ocean Drilling Program and has been accessed by scientists using both the Shinkai 6500 and the Shinkai 2000 submersible. However, much of the research carried out for many years by researchers from Australia’s CSIRO was carried out without using such sophisticated technology. Research often involved simple techniques such as dredging, sediment coring, towing of platforms carrying video recorders and echo sounding traverses.19 While there are clearly signiﬁcant differences in technology and capacity to carry out such research between different research institutions, regardless of these differences MSR in the deep sea, and at hydrothermal vents in particular, is very expensive. For example, for a 30 day research cruise conducted by the CSIRO in the Manus Basin the total cost was AUD$500,000.20 Similarly, for research involving the use of

16

17 18 19

20

Japan Marine Science & Technology Centre, JAMSTEC Brochure (undated), copy on ﬁle with author, 14. Japan Marine Science & Technology Centre, above n. 16, 6. Ibid. Examples of techniques used on such research expeditions are set out in copies of research reports provided during the course of this research by Dr Tim McConachy, Principal Research Scientist, CSIRO Exploration and Mining including T.F. McConachy et al. Final Cruise Report FR08-2001, VAVE-2001, Vanuatu Australia Vents Expedition Aboard the RV Franklin 5–25 September 2001 (2001) and T.F. McConachy et al. Solavents-2002, Solomons Australia Vents Expedition Aboard the RV Franklin, CSIRO Exploration and Mining Report 1026F (2002). Interview, Dr Timothy McConachy, CSIRO 10 April 2003.

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submersibles, the cost typically ranges from between C$30,000 to C$50,000 per day for research conducted at sites such as the Endeavour hydrothermal vents.21 These ﬁgures only relate to the cost of research at sea. Extra expenses are often involved in the analysis of samples in laboratories on shore. One scientist interviewed indicated that this can add anything from C$50,000 to C$100,000 per year to the cost of research.22 A range of other costs may be involved, such as the costs associated with obtaining foreign government approvals to conduct research in a coastal State’s waters, a lengthy process usually conducted through diplomatic channels. 8.2.3

Conclusion – the nature of marine scientiﬁc research at hydrothermal vents

The research that is being conducted by scientists in relation to hydrothermal vents takes many different forms. It is, therefore, not possible to identify any form of scientiﬁc research as ‘typical’ scientiﬁc research on which to model the design of any legal regime for the regulation of MSR. However, a few signiﬁcant observations are worth noting. Firstly, this research is multi-disciplinary. Hydrothermal vents are clearly of interest to many different areas of science. Secondly, the research is also multinational. Scientists from many nations are involved in this research. There is a large amount of co-operation across international borders. This has implications for legal regime design because it means that not only must various types of MSR be regulated, but also various national and international scientiﬁc research cultures must be considered. Similarly, MSR at hydrothermal vents can be both so called pure and applied scientiﬁc research. Often it is impossible at any one time to distinguish which form of research it may be. MSR at hydrothermal vents also involves sophisticated and expensive technology, while on the other hand equally useful and valid scientiﬁc research is being undertaken with less sophisticated technology. It is clear that this research is largely the domain of wealthy developed states. Although to some degree developing countries such as India and China are also involved in this research, the expense and sophisticated technology involved mean that this area of MSR is dominated by the developed countries. This is a signiﬁcant point worth noting because, unlike other ocean uses such as ﬁshing, deep-sea MSR is unlikely to involve vessels from Flag of Convenience States simply because these states do not have the necessary capital to invest in this research, and the required sophisticated technology. This in turn has implications for the way in which regulation may be achieved and would suggest that, unlike other issues such as ﬁshing, ﬂag state enforcement could possibly be effective for regulating MSR. However, before turning to consider how enforcement should occur, it is perhaps ﬁrst useful to consider the nature of the environmental impact of MSR at hydrothermal vents, because it is the environmental impact of MSR that is one of the main reasons regulation is contemplated.

21 22

Interview, Professor Kim Juniper, 18 June 2003. Ibid.

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189

Environmental impact of marine scientiﬁc research

While it is not possible to identify any one area of MSR in relation to hydrothermal vents as typical research, each area to varying degrees has an environmental impact. Further detailed scientiﬁc research is required before we have a full picture of the environmental impact, but, as already mentioned, there is a body of opinion that MSR research does have a measurable environmental impact. Threats that have been identiﬁed to date include: habitat loss and organism mortality as a result of removal of chimneys and rocks for geological investigations or chemical sampling; environmental manipulation, such as drilling, which can change ﬂuid ﬂow pathways and shut off the supply of ﬂuids to colonies of vent organisms; clearing fauna for experimental studies; transplantation of fauna between locations; placement of instrument packages that disturb fauna and change water ﬂows; and the use of submersibles and ROVs (including the impact of light from submersibles on photosensitive organisms).23 This in turn can lead to a range of second order biological effects including: A decrease in population numbers; Local extinction of species; Regional or global extinction of species; A change in community structure; The introduction of exotic species carried by underwater vehicles from another site.24

The impact of scientiﬁc research is further compounded by the fact that most research is highly localised and usually conﬁned to only a few sites that are visited repeatedly.25 It would be wrong to generalise and say that all MSR has the same environmental impact. That is, the environmental impact of MSR varies depending on the nature of the research being conducted. The writer’s survey of the scientiﬁc literature has not been able to identify any speciﬁc work that has been done to measure the environmental impact of MSR and clearly detailed studies are warranted in the future. However, on the basis of the interviews conducted with scientists during this research it is possible to provide a few examples to illustrate the nature of the environmental impact of MSR in more speciﬁc terms. For example, it might be reasonable to speculate that MSR involving acoustic imaging of the deep-sea ﬂoor would have negligible impact. Sampling water from the water column via niskin bottles would also probably have a negligible environmental impact. Sampling biota or dredging rock samples may have more of an environmental impact. For example, one of the research cruises mentioned in the course of the interviews conducted, collected 486 samples of rock and sediment totalling 2.7 tonnes of material over 27 days, of which less than 0.5% was hydrothermal in origin. (2.7 tonnes of rock is equivalent to one cubic metre). The balance of material was collected from a wide range of features on the seaﬂoor including seamounts, ridges and valley ﬂoors.26

23 24 25 26

Dando and Juniper, above n. 1, 6. Ibid. Ibid. T.F. McConachy et al., Solavents-2002, Solomons Australia Vents Expedition Aboard the RV Franklin, CSIRO Exploration and Mining Report 1026F (2002).

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To a lay observer such as the writer this seems a considerable amount of material to be removed from the ocean ﬂoor in just one cruise, but in the view of some scientists interviewed in the course of this research the removal of such materials has quite negligible environmental impact.27 Given the current state of scientiﬁc knowledge it is arguable that the environmental impact of such MSR is still unclear. While more scientiﬁc research is clearly warranted as to the environmental impact of MSR one very signiﬁcant matter worth noting from the interviews conducted with scientists is that few, if any, processes currently exist for considering the environmental impact of MSR when scientists plan research cruises. Only one scientist out of nine scientists interviewed from ﬁve different countries active in MSR at hydrothermal vents indicated that there was any formal consideration of the environmental impact of their research in assessing whether or not to proceed with such research. This example was MSR conducted in Canada. As part of the formal approval process for research funding in Canada all scientiﬁc research to be funded by the Canadian Government may be subject to environmental impact assessment. This is a formal requirement of the funding process for scientiﬁc research managed by the Natural Sciences and Engineering Research Council of Canada,28 which is tasked with implementing the provisions of the Canadian Environmental Assessment Act 199229 and associated regulations with respect to the funding it administers. This process and the associated legislation is examined in detail later in this chapter. Before turning to consider this regime it is useful to consider what the key concerns raised were when the issue of MSR was raised during the negotiations that lead to LOSC.

8.4

Debate on regulation of marine scientiﬁc research at the law of the Sea negotiations

Until the middle of the twentieth century regulation of MSR was not perceived to be necessary.30 However, by the mid 1950s the increasing importance of the resources of the continental shelf lead to calls for the regulation of MSR by the coastal State in the territorial sea and on the continental shelf. In the case of the territorial sea, regulation was essentially an act of sovereignty.31 The coastal State was able to regulate MSR as it saw ﬁt, subject only to the right of innocent passage recognised under Article 14 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. Article 5 of the 1958 Convention on the Continental Shelf explicitly recognised that the exploration of the continental shelf, and the exploitation of its natural resources must not result in any unjustiﬁable interference with fundamental oceanographic or other scientiﬁc research carried out with the intention of open publication. However, Article 5(8) speciﬁcally provided:

27 28 29 30 31

Interview, Dr Timothy McConachy, CSIRO 10 April 2003. Hereinafter NSERC. Hereinafter CEA Act. R.R. Churchill and A.V. Lowe, The Law of the Sea (1999), 400. Churchill and Lowe, above n. 30, 401.

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the consent of the coastal State shall be obtained in respect of any research concerning the continental shelf and undertaken there. Nevertheless the coastal State shall not normally withhold its consent if the request is submitted by a qualiﬁed institution with a view to purely scientiﬁc research into the physical or biological characteristics of the continental shelf, subject to the proviso that the coastal State shall have the right, if it so desires, to participate or to be represented in the research, and that in any event the results shall be published.

Thus, MSR on the continental shelf was subject to limited control by the coastal State, especially where such MSR was of direct signiﬁcance for the commercial exploitation of the resources of the continental shelf. On the high seas, although the 1958 Convention on the High Seas did not explicitly refer to MSR as a high seas freedom, it was generally accepted as such. The non-exclusive list of high seas freedoms provided for in Article 2 of the 1958 Convention on the High Seas and the inclusion of the qualifying term “inter alia” were said to indicate that other high seas freedoms recognised by customary international law, such as MSR, were not excluded merely because they were not mentioned in Article 2. By the time of the negotiation of LOSC freedom of MSR in the high seas and in other jurisdictional zones in the oceans was under question. The parties to the LOSC negotiations were therefore called upon to consider various proposals for the regulation of MSR. One of the most ambitious proposals was that put forward by Malta in a working paper submitted to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction on 23 March 1973.32 The Maltese proposal dealt with all areas of ocean space. Signiﬁcantly, though, in areas beyond national jurisdiction the Maltese proposal called for the establishment of International Ocean Space Institutions that would have responsibility for authorising and regulating MSR in the ocean beyond national jurisdiction. Draft Article 9 of the Maltese proposal listed the purposes of the proposed International Ocean Space Institutions inter alia as: To encourage the scientiﬁc investigation of ocean space and the dissemination of knowledge thereon, to promote international cooperation in the conduct of scientiﬁc research therein and to strengthen the research capabilities of technologically less advanced countries; . . . . . . . To promote the development and the practical application of advanced technologies for the penetration of ocean space and for its peaceful use by man [sic] and to disseminate knowledge thereof; . . . . . . To assist Contracting parties and their nationals in all matters relating to knowledge and development of ocean space and its resources and in particular to assist Contracting Parties to train their nationals in scientiﬁc disciplines and technologies relating to ocean space and to its peaceful uses33

The Maltese proposal was not motivated by the desire to control the environmental impact of MSR. However, other proposed institutions and provisions in the draft

32

33

Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/SC.III/L.34, reproduced in United Nations, The Law of the Sea. Marine Scientiﬁc Research. Legislative History of Article 246 of the United Nations Convention on the Law of the Sea, (1994), 14–20. Draft article 9, Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32, 18.

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articles contained in the Maltese proposal, if included in LOSC, could have been used to control or minimize the environmental impact of MSR. The Maltese proposal called for the creation of four principle organs of the International Ocean Space Institution, namely an Assembly, a Council, an International Maritime Court and a Secretariat.34 It was proposed that these institutions be vested with authority to regulate MSR in all areas of ocean space beyond national jurisdiction. The Assembly would be vested with authority to approve such standards and rules of a general and non-discriminatory character relating to the conduct of scientiﬁc research as recommended by the Council.35 Under the Maltese proposal these standards and rules would be obligatory for all users of ocean space beyond national jurisdiction two years after their adoption by the Assembly.36 Draft Article 12(3) also provided that violation of these standards and rules would entail legal responsibility when injury is caused to the rights and interests of others. The last sentence of draft Article 12(3) of the Maltese proposal was even more ambitious because it went on to provide that: Persistent violators may be excluded from the use of ocean space beyond national jurisdiction.

Just how this proposed organisation was to effectively police such exclusion in the vast expanse of millions of square miles of ocean space beyond national jurisdiction was not articulated. The Maltese proposal also involved a system of licensing for MSR beyond national jurisdiction. Thus, States or their organs, intergovernmental organisations, scientiﬁc institutes and scientiﬁc organisations, as well as physical or juridical persons possessing such qualiﬁcations as determined by the proposed Scientiﬁc and Technological Commission, were eligible to be entered in a central register to be maintained by the International Ocean Space Institutions.37 Registered persons or entities would then be authorised to freely conduct MSR in ocean space beyond the territorial sea, subject to such general and non-discriminatory regulations as prescribed by the Institutions proposed under the draft article.38 The proposal, if adopted, would have imposed liability for damage or environmental harm caused by MSR. Thus draft Article 17(3) provided: The person or entity inscribed in the register is legally responsible for damages to the environment or for injury to the legitimate rights and interests of States or to those of

34

35

36

37

38

Draft article 10, Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32, 14. Draft Articles 11 and 12, Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32, 14. Draft article 12 (2), Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32. Draft article 17, Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32. Draft article 17(2), Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32.

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the international community caused in the course of scientiﬁc research in ocean space by physical or juridical persons under its sponsorship.39

Proposed draft Article 17(4) then went on to provide that any member or associated member of the institutions could bring to the attention of the Scientiﬁc and Technological Commission any instance where it believes that scientiﬁc research conducted by such a person or entity has caused signiﬁcant damage to the marine environment, or injury to its legitimate rights or interests. Draft Article 17(5) provided: If the Scientiﬁc and Technological Commission ﬁnds that scientiﬁc research conducted by a person or entity inscribed in the register has caused signiﬁcant damage to the marine environment or injury to the legitimate rights and interests of a member or associate member, it may (a) issue a warning to the person or entity which was responsible for the research; (b) suspend the person or entity which was responsible for the research for a ﬁxed period of time not exceeding two years, or (c) remove the person or entity from the register. The action taken by the Scientiﬁc and Technological Commission may be appealed to the International Maritime Court.

Presumably the imposition of the ultimate sanction of removal from the register would mean that, once a particular person or entity was removed from the register, it would be unlawful for them to conduct MSR in areas beyond national jurisdiction. A similar but less detailed proposal was put forward by Canada in a Working Paper submitted to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction on 25 July 1972. Canada’s proposal centred around so called “Principles on marine scientiﬁc research.” Thus Canada proposed that MSR concerning the sea-bed and ocean ﬂoor, and the subsoil thereof beyond the limits of national jurisdiction, should: comply with any regulations developed by a competent international organization [sic] to minimize [sic] disturbance and to prevent pollution of the marine environment and interference with exploration and exploitation activity.40

Consistent with these obligations the Canadian principles also proposed that: States shall devise means to enable responsibility to be ﬁxed with States or international organizations [sic] that have caused damage in the course of marine scientiﬁc research or where such damage had been caused by the activities of persons under their jurisdiction, to the marine environment or to any other State or to its nationals.41

Several other countries put forward proposals or expressed support for an international body responsible for regulating MSR in ocean space beyond national jurisdiction. The Colombian delegation, for example, expressed support for such a body believing that:

39

40

41

Draft article 17(3), Malta: draft articles on scientiﬁc research; UN Doc No. A/AC. 138/ SC.III/L.34, reproduced in United Nations, above n. 32. Canada, Working paper submitted by the Canadian delegation; A/AC/138/SC.III/L.18 of 25 July 1972, reproduced in United Nations, above n. 32, 12. Ibid.

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Chapter Eight an international authority would be the ideal place for the preparation and implementation of a world policy for marine scientiﬁc research.42

Despite the bold nature of such proposals many members of the international community at that time had grave reservations about regulating MSR in areas beyond national jurisdiction, and especially in vesting an international institution with authority to regulate MSR. Ultimately when the negotiations for LOSC were concluded no institutional mechanism was provided to regulate MSR.43 One of the major objections of those opposed to such proposals was the impact that such regulation may have had on MSR. For example, the United Kingdom objected strongly to any regulation of MSR in the ocean beyond national jurisdiction. The United Kingdom delegate to the meeting of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction commented: British marine scientists had great difﬁculty in appreciating the underlying motives of some of the proposals that had been made. The United Kingdom was ﬁrmly convinced that the close regulation of all marine scientiﬁc research was unnecessary and that undue restrictions were bound to discourage research. . . . The scientiﬁc staff of the suggested international authority would have to be very large and highly qualiﬁed to deal with all the different kinds of research concerned, to check conclusions based on the enormous amount of data involved, to translate and study all the relevant literature and thus to understand what was going on. Moreover, the effort required would clearly be much more extensive if the authority were to be made responsible for the regulation of research . . . In conclusion, his delegation wished to reassert that, with a few exceptions, scientiﬁc research should remain as free of regulation as it was at present, so as to promote the objective of improving and increasing knowledge of the marine environment for the beneﬁt of all mankind [sic].44

Concerns were also expressed by several other delegates that too tight a regulatory regime would stiﬂe MSR. Thus a delegate from the USA, who was also a scientist, argued: to ensure, through appropriate treaty agreement, that the realization [sic] of the commonly accepted goals of scientiﬁc research at sea was facilitated, not hindered. . . . restrictions on research in the oceans would not beneﬁt mankind [sic]. The effort to understand the natural world was one of the noblest pursuits of human kind. Free intellectual inquiry about the oceans should be encouraged, not only because of its importance to man’s [sic] understanding of the world but because of its importance to the human spirit. Recent studies of the ocean bed had led to revolutionary concepts. . . . the history of the Earth, current studies of ocean circulation might lead to better understanding of climatic ﬂuctuations, and many biologists were convinced that the clues to the puzzle of species development and differentiation were to be found in a study of oceanic life. Of course, the society which allocated

42

43 44

Comments by the Colombian delegate, recorded in record of the General debate Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction reproduced in United Nations, above n. 32, 53. For discussion of the position of MSR under international law today see Chapter 2 above. Comments by the delegate of the United Kingdom before Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, reproduced in United Nations, above n. 32, 50.

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some of its resources to the conduct of ocean science hope to be compensated by material as well as by intellectual and spiritual growth, and some of the information of marine science might become of economic signiﬁcance. It could not be too strongly emphasized, however, that the primary purpose of marine geologists was to achieve a better understanding of the recent geological history of the Earth. There was also the risk that close regulation of scientiﬁc oceanography would result in a stiﬂing of scientiﬁc creativity. He hoped that the Seabed Committee would not unduly attempt to minimize creativity by agreeing to unnecessary controls and regulations. Regulations would not, of course mean the end of oceanography; research would continue, but the more it was subject to controls, the greater the danger that it would become second-class research. . . . The world could not afford any reduction in the quantity or quality of ocean research . . . Basic research could not ﬂourish in a regulated environment, and it must ﬂourish if the contribution of science to the beneﬁt of mankind [sic] was to continue to be truly meaningful. Accordingly, the new regime which the Committee was engaged in constructing should impose no restrictions on basic research beyond the territorial sea.45

The concerns expressed by countries such as the United Kingdom and the USA were in part affected by their views on other related and ongoing divisions in international affairs, including those associated with the Cold War and the developed countries’ response to the demands of the Third World and the NIEO. However, the main thrust of their argument was that too much regulation and a bloated international bureaucracy posed a very real threat to further advances in marine science. These arguments are as equally valid today as they were some 30 years ago. There is a very real risk that illconceived regulation runs the risk of stiﬂing MSR. Similarly, given the amount of MSR conducted in the world’s oceans today, its complexity and the vast amount of data that is being collected, it would be impossible for any one international institution to regulate MSR in the oceans. Simply to assess applications for approval to conduct MSR, let alone to police compliance with any international regulatory regime, would require vast amounts of human resources, technical and scientiﬁc skills and money to operate effectively. For that reason alone the arguments made in the 1960s and 1970s against any single international institution being vested with the mandate to regulate MSR, or even only the environmental impact of MSR, are equally valid today. Simply put, the idea of creating an international institution to regulate and authorise MSR in the high seas was a bad idea in the 1960s and 1970s and it is still a bad idea today. In any event, it is highly unlikely that the scientiﬁc community would allow any such regime to be imposed on them. As we saw in Chapter 3 similar concerns have already been expressed by the scientiﬁc community involved in hydrothermal vent research within national jurisdiction. Concerns were expressed by scientists about the regulation of their activity within the Endeavour marine protected area in Canada’s EEZ and in the Portuguese EEZ around the Azores. Similarly, concerns have been expressed by the scientiﬁc community about the impact of regulation of other activities, such as mining, on

45

Comments by the delegate of the United States of America, Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, reproduced in United Nations, above n. 32, 71–72.

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their ability to carry out MSR. As was concluded in Chapter 3, the success of any regime to regulate MSR will depend on both the level of stakeholder involvement and the degree to which scientists support the objectives of regulation. If the regulation is perceived by the scientiﬁc community as the imposition of an unnecessary burden on their work, then such a regime is likely to encounter stiff opposition and is unlikely to be effective. While the environmental impact of scientiﬁc research may be of concern, the scientiﬁc community must nonetheless be involved in the creation and implementation of any regime to be created.

8.5

The InterRidge Code of Conduct for marine scientiﬁc research

There are clearly emerging signs of the willingness of the scientiﬁc community to engage with this issue. Within the scientiﬁc community there is already debate as to whether or not the environmental impact of their research should be subject to some form of regulation. The ﬁrst proposal for regulation of MSR has in fact come from the scientiﬁc community. This has emerged from the work of the Biology Working Group of InterRidge. For the past two to three years the InterRidge Biology Working Group, co-chaired by Professor Kim Juniper and Dr Françoise Gaill in conjunction with Lyle Glowka, has been working on a draft Code of Conduct for the sustainable use of hydrothermal vent sites by both scientiﬁc researchers and tourist operators.46 In its initial form it was proposed that the Code would consist of a concise statement of principles applicable to MSR and tourist activities, plus a set of Operating Guidelines applicable to organisations and individuals operating generally and at speciﬁc sites.47 It has been proposed that they would operate: as benchmarks against which to judge the performance of the organisations undertaking marine scientiﬁc research, their afﬁliated researchers and tour operators. They could provide principles with which to develop institutional environmental management systems. They may also provide principles for regulatory agencies developing or applying vessel clearance and other regulatory procedures or conservation measures such as marine protected areas.48

Also included in the Code would be operation guidelines developed around four basic principles to which organisations and individuals undertaking MSR and tourist activities adopting the Code would commit. They are:

46

47 48

For an overview of this draft Code of Conduct was see S.K. Juniper and L. Glowka, ‘Biology Working Group. A Code of Conduct to Conserve and Sustainably Use Hydrothermal Vent Sites’ (2003) 12(1) InterRidge News 8. The Code and a number of other international initiatives such as those at Endeavour and in the Azores discussed in chapter 3 are canvassed in L. Glowka, ‘Putting marine scientiﬁc research on a sustainable footing at hydrothermal vents’ (2003) 27 Marine Policy 303. Juniper and Glowka, above n. 46. Ibid.

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(1) Identify and comply with international, national and sub-national laws and policies; (2) Minimise or eliminate adverse environmental impacts through all stages of an activity; (3) Minimise or eliminate actual or potential conﬂict or interference with existing or planned MSR activities; and (4) Monitor, evaluate and report on the Code’s application.49

It is proposed that the Code would apply to organisations and afﬁliated individuals undertaking MSR and tourism activities at hydrothermal vents located within and beyond the limits of national jurisdiction.50 While the idea of a Code of Conduct is worth encouraging, several difﬁculties with this proposal are worth noting. Firstly, the ﬁrst basic principle of the Code noted above really does not represent any signiﬁcant change. If there are particular national laws that apply to MSR then clearly scientists are already under a binding legal obligation to comply with such laws. The Code of Conduct in that respect does no more than state the obvious; scientists like all other citizens and legal persons are obliged to comply with the law. More signiﬁcantly, though, as this book has already outlined at length, there really is no effective international legal regime that applies in areas beyond national jurisdiction. In that respect the operation principles in the proposed Code of Conduct are no more than aspirational or rhetorical statements. What is the point of scientists abiding by international law when essentially international law says that their activities beyond national jurisdiction are unregulated? A further signiﬁcant omission is the lack of any sanction or, alternatively, any incentive for researchers to comply with the Code of Conduct. Apart from the obvious ethical imperatives that underlie the proposed Code, why would scientists adhere to it when there is no sanction or adverse consequence for failing to either sign up to it or to adhere to it? Of course many scientists will sign up and adhere to such a code simply because they recognise the importance of these ecosystems and the need for their sustainable management. But those scientists who already recognise the need for their activities to be sustainably managed will probably already be trying to minimise the environmental impact of their research. It is not these scientists whose activities need to be regulated. Rather it is scientists who fail to recognise the need for regulation or who don’t even believe their research has a negative environmental impact who should be subject to regulation. It is precisely the latter who need to be regulated and this cannot be achieved through a voluntary Code of Conduct. One strength of the proposal is that it calls for the establishment of certain benchmarks and standards against which sustainable MSR could be assessed. This latter idea has merit and could be one way to involve the scientiﬁc community in designing sustainable management regimes for their research, which are balanced against the need for MSR to continue. The proposed Code of Conduct, therefore, has both strengths and weakness. However, at this stage it is only a draft proposal. It is not clear whether the Code will ever come into operation. At the ﬁrst detailed consideration of the proposal concerns

49 50

Ibid. Ibid.

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were expressed that, in its current form, it is too legalistic. Instead, consideration is being given to watering it down to be much more of an aspirational statement rather than one containing any detailed obligations. What form the Code of Conduct will take if it ever comes into existence is unclear at this stage.51 For the time being, other more effective mechanisms need to be considered. The following discussion outlines a proposal for such a regime.

8.6

Environmental impact assessment and international environmental law

In putting forward a proposal for a protocol on marine environmental impact assessment to LOSC Tanaka notes the increasing inclusion of principles of environmental impact assessment in binding international legal instruments, soft law documents and other international legal materials.52 Examples cited by Tanaka53 include the adoption of the UNEP’s Goals and Principles of Environmental Impact Assessment (UNEP Guidelines)54 which provide a set of non-binding guidelines to adequately assess environmental impacts at national, regional, and international levels; the Convention on Environmental Impact Assessment in a Transboundary Context55 adopted at the United Nations Economic Commission for Europe which was modelled on the UNEP Guidelines; the subsequent 1997 EC Directive;56 the North American Commission for Environmental Cooperation Draft North American Agreement on Transboundary Environmental Impact Assessment;57 the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities adopted by the International Law Commission in 2001;58 lending decision making processes of the World Bank and regional banks;59 and

51 52

53 54

55

56 57

58

59

Professor Kim Juniper, personal communication, copy on ﬁle with author. M. Tanaka, ‘Lessons form the protracted MOX Plant Dispute: A Proposed Protocol on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea’ (2004) 25 Michegan Journal of International Law 337. Ibid. UNEP Governing Council, Goals and Principles of Environmental Impact Assessment, Dec 14/25 UN Doc. UNEP/GC/DEC/14/25 (1987) available at http://www-penelope.drec.unlim.fr/ penelope/library/Libs/Int_nal/unep.html accessed 25 February 2005. Convention on Environmental Impact Assessment in a Transboundary Context, opened for signature 25 February 1991, 30 I L M 800 (1991) (entered into force 10 September 1997). Council Directive 97/11/EC, 1997 OJ (L73) 5. North American Commision for Environmental Cooperation, Draft North American Agreement on Transboundary Environmnetal Impact Assessment (June 21, 1997) available at http://www.cec.org/pubs_info-resources/law_treat_agree/pbl.cfm?varian=english accessed 25 February 2005. International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, in Report of the International Law Commission on the Work of Its Fiftythird Session, UN GAOR, 56th Sess., Supp. No. 10, at 370–77, UN Doc A/56/10 (2001). For example World Bank, Environmental Assessment, in The World Bank Operational

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ﬁnally and perhaps most signiﬁcantly for present purposes, the Madrid Protocol to the Antarctic Treaty which provides for detailed environmental impact assessment of all activities in Antarctica. It is clear that environmental impact assessment is now a widely utilised mechanism under international law. No doubt this is due in part to the fact that it has been an accepted mechanism under numerous domestic legal regimes for decades.60 Tanaka’s proposed protocol for environmental impact assessment under LOSC is quite interesting, but, as it is conﬁned essentially to environmental impact assessment in the context of marine pollution and transboundary movement of hazardous waste, detailed consideration of his proposal is beyond the scope of this book. Nonetheless one treaty referred to by Tanaka as evidence of the increasing incorporation of environmental impact assessment processes in international legal instruments that warrants detailed consideration is the Madrid Protocol to the Antarctic Treaty.

8.7 8.7.1

Environmental impact assessment and science in Antarctica

The Madrid Protocol

Chapter 3 introduced the provisions of the Antarctic Treaty system that could arguably be utilised in regulating human activities at hydrothermal vents in Antarctica. The following builds on that discussion and considers the environmental impact assessment process under the Madrid Protocol as a model for how the environmental impact of MSR at hydrothermal vents on the high seas could be regulated. The provisions discussed in this section are already applicable to MSR conducted at hydrothermal vents in Antarctic waters. Perhaps more importantly the Madrid Protocol provides an example of how environmental impact assessment can be utilised to manage the environmental impact of scientiﬁc research in areas beyond national jurisdiction. The signiﬁcant innovation introduced by the Madrid Protocol was the requirement for environmental impact assessments to be undertaken for activities in Antarctica. Under Article 8 “activities undertaken in the Antarctic Treaty area pursuant to scientiﬁc research programs, tourism and all other governmental activities”61 are subject to prior assessment of the:

60

61

Manual: Operational Policies 4.01, 2 (1999) available at http://wbln0018.worldbank.org/ Institutional/Manuals/OpManual.nsf/944eea1d5fb31d95852564a30060b223/9367a2a9daeed3 8525672c007d972?OpenDocument accessed 25 February 2005. One of the earliest examples of legislation incorporating environmental impact assessment is the United States National Environmental Policy Act 1969, which Robinson claims established the ﬁrst systematic procedure for environmental impact assessment. See N. Robinson, ‘Questionnaire Response: USA Report’, International Environmental Conference on Codifying The Rio Principles In National Legislation, 22–24 May, The Hague, Netherlands, 1996, reproduced in D.G. Craig, N.A. Robinson and K. Kheng-Lian, Capacity Building for Environmental Law in the Asian and Paciﬁc Region-Approaches and Resources, Volume 1 (2003), 549. Madrid Protocol, article 8(2).

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Chapter Eight impacts of those activities on the Antarctic environment or on dependent or associated ecosystems according to whether those activities are identiﬁed as having: (a) less than a minor transitory impact; (b) a minor or transitory impact; or (c) more than a minor or transitory impact.62

The procedure for this prior assessment is set out in Annex I to the Madrid Protocol. Annex I Article 1(1) requires that the environmental impacts of proposed activities be considered in accordance with appropriate national procedures. By virtue of Annex I Article 1(2), if an activity is determined as having less than a minor or transitory impact such activity may proceed. However, if it is determined that a proposed activity will have more than a minor or transitory impact then compliance with the environmental impact assessment provisions of Articles 2 and 3 of Annex I becomes mandatory. Article 2 of Annex 1 requires that, unless it has been determined that an activity will have less than a minor or transitory impact or unless a Comprehensive Environmental Evaluation63 is prepared under Annex I, Article 3, an Initial Environmental Evaluation64 must be prepared. An IEE must contain sufﬁcient detail to allow assessment of whether a proposed activity may have more than a minor or transitory impact. In particular it must include: (a) a description of the proposed activity, including its purposes, location, duration, and intensity; and (b) consideration of alternatives to the proposed activity and any impacts that the activity may have, including consideration of cumulative impacts in the light of existing and known planned activities.65

By virtue of Article 2(2) of Annex I, if the IEE indicates that the proposed activity is likely to have no more than a minor or transitory impact, then the activity can proceed. However, this is subject to implementation of appropriate procedures, including monitoring, to assess and verify the impact of the activity. What is not clear, however, is what is meant by the benchmark ‘minor or transitory impact’, as this term is not deﬁned.66 This will become important in determining whether a CEE is required. Article 3(1) of Annex I requires that, if an IEE indicates or if it is otherwise determined that a proposed activity is likely to have more than a minor or transitory impact, a CEE must be prepared. Under Article 3(3) of Annex I, a draft of the CEE must be made publicly available and a copy circulated to all Parties to the Madrid Protocol, who are also required to make it publicly available. The ﬁnal decision on whether to allow an activity to proceed rests with the Antarctic Treaty Consultative Parties acting on the advice of the Committee for Environmental Protection, a permanent body established pursuant to Articles 11 and 12 62 63 64 65 66

Madrid Protocol, article 8(1). Hereinafter CEE. Hereinafter IEE. Madrid Protocol, Annex I, Article 2(1). F.O. Vicuna, ‘The Protocol on Environmental Protection to the Antarctic Treaty: Questions of Effectiveness.’ (1994) 7 Georgetown International Environmental Law Review 1, 3.

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of the Madrid Protocol. The function of the Committee is to “provide advice and formulate recommendations to the Parties in connection with the implementation”67 of the Protocol and annexes. There are two important points to note about this entire process. Firstly, it allows parties to make informed decisions with respect to any proposed activity. In theory decisions will only be made after rigorous scientiﬁc scrutiny of the likely environmental impact. Secondly, and perhaps more signiﬁcantly, transparency is introduced into the process with wide public circulation of CEEs. 8.7.2 Individual State implementation of the Antarctic model – the Australian example While the provisions of the Madrid Protocol apply to all activities in Antarctica, implementation is effectively achieved as the result of measures taken by the individual signatory State in accordance with its own domestic legal system. For some States this may involve the enactment of legislation that directly regulates the way scientiﬁc research can be carried out in Antarctica. One example of a country that has enacted laws applying to scientiﬁc research in Antarctica is Australia. It is useful for present purposes to examine how Australia regulates the environmental impact of scientiﬁc research in Antarctica. The main legislation that implements Australia’s obligations under the Madrid Protocol and applies to Australia’s Antarctic Territory is the Antarctic Treaty (Environment Protection) Act 1980 (Cth)68 and subordinate legislation such as the Antarctic Treaty (Environmental Protection) (Environmental Impact Assessment) Regulations 1993 (Cth).69 By virtue of Section 4 of the ATEP Act, the Act applies both to Australia’s Antarctic Territory and outside of Australia to Australian citizens, Australian expeditions and members of expeditions, Australian organizations, members of the crew (including persons in charge) of aircraft, vessels or vehicles that are Australian property and Australian property. The Act as a whole (together with the other legislation noted above) implements Australia’s obligations under the Madrid Protocol in Antarctica.70 Part 3 in particular

67 68 69

70

Madrid Protocol, Annex I, Article 12. Hereinafter the ATEP Act. Other Commonwealth legislation that implements Australia’s obligations under the suite of treaties that constitute the Antarctic Treaty System include inter alia the Environmental Protection and Biodiversity Conservation Act 1999 and associated Environment Protection and Biodiversity Conservation Regulations 2000, the Antarctic Marine Living Resources Conservation Act 1981, the Antarctic Mining Prohibition Act 1991, the Protection of Sea (Prevention of Pollution From Ships) Act 1983, the Australian Antarctic Territory Act 1954, the Australian Antarctic Territories Acceptance Act 1933 and subordinate legislation. Speciﬁc legislation such as the Commonwealth Heard Island and McDonald Islands Act 1953 and the Tasmanian Macquarie Island – Environmental Management and Pollution Control Act 1994 (Tas) also apply to speciﬁc territories claimed by Australia in the Southern Ocean. Section 3 of the ATEP Act deﬁnes the ‘Antarctic’ as “the area south of 60° south latitude, including all ice shelves in the area”.

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implements the obligations of the Madrid Protocol dealing with Environmental impact assessment. Thus Section 12B of the ATEP Act provides: The object of this Part is to provide for: (a) the assessment of proposed activities in the Antarctic to identify the impact that they are likely to have on the environment; and (b) the regulation of activities that are likely to have an adverse impact on the environment.

Mirroring the provisions of the Madrid Protocol the ATEP Act implements a graduated process of environmental impact assessment for all activities in Antarctica. This commences with a mandatory preliminary assessment of the likely impact of any activity on the Antarctic environment.71 The preliminary assessment is then considered by the Minister responsible for administering the ATEP Act. Reﬂecting the provisions of Article 8(1) of the Madrid Protocol, under Section 12E of the Act, the Minister has to make a determination as to whether the activity is likely to have: (i) more than a minor or transitory impact; or (ii) a minor or transitory impact; or (iii) no more than a negligible impact; on the environment.72

The Minister must then inform the proponent of his or her determination.73 The ATEP Act goes on to provide that, if the determination is that the activity is likely to have no more than a negligible impact on the environment, the Minister must authorise the proponent to carry on the activity.74 Under Section 12G(1) of the ATEP Act, if the Minister determines that the activity is likely to have a minor or transitory impact on the environment, then an initial environmental evaluation must be prepared. The initial environmental evaluation must cover matters required by the regulations, and assess the impact that the activity is likely to have on the environment in a manner that allows for a reasoned conclusion to be reached as to whether the activity is to have either a minor or transitory impact or more than a minor or transitory impact on the environment.75 If the assessment indicates that the impact on the environment is likely to be minor or transitory the initial environmental evaluation must also make recommendations as to the measures necessary for assessing and verifying any impact on the environment. If, after considering the initial environmental evaluation, the Minister determines the activity is likely to have a minor or transitory impact then he or she must authorise the activity subject to conditions if appropriate.76 Alternately, under Section 12J, if at this or any earlier stage the Minister determines that the activity is likely to have more than

71

72 73 74 75 76

Section 12A of the ATEPAct provides that, for the purposes of Part 3 of the Act, “environment means the Antarctic environment and dependent and associated ecosystems.” Section 12E(a) ATEP Act. Section 12E(b) ATEP Act. Section 12F ATEP Act. Section 12G(2) AETP Act. Section 12J ATEP Act.

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a minor or transitory impact on the environment then the proponent of the activity must prepare draft and ﬁnal comprehensive environmental evaluations in accordance with the provisions of the regulations. The regime for implementation of the Madrid Protocol by Australia outlined above is managed by the Australian Antarctic Division.77 The AAD seeks to implement this legislation and Australia’s obligations under the Madrid Protocol in collaboration with other Antarctic Treaty States, and in accordance with guidelines adopted by these States for Environmental Impact Assessment. Australia’s legislation outlined above is broadly consistent with these guidelines.78 This regulatory regime applies to all activities in Antarctica. Accordingly, scientiﬁc research in Antarctica is regulated under the provisions of the Madrid Protocol and the legislation outlined above, together with similar legislation implemented by other signatory states. 8.7.3 The regulation of the environmental impact of scientiﬁc research – the Canadian model Canada is another country that has established a detailed legal regime for environmental assessment beyond its borders. Most Canadian scientiﬁc research is not regulated under this regime simply because the environmental impact of such research is negligible, and, therefore, it does not trigger the relevant legislation. However, what is interesting for present purposes about this regime is how Federal Government funding for scientiﬁc research is linked to an environmental impact assessment process. The following discussion outlines the main features of this regime before proceeding to discuss the implications of this and the Australian regime for designing a regime to regulate MSR in areas beyond national jurisdiction. Most MSR conducted by Canadian researchers based in universities and other research institutions is funded by grants provided by the Natural Sciences and Engineering Research Council of Canada,79 which in 2004/2005 was responsible for allocating approximately C$771 million dollars per year in research funding.80 This also includes administering funding for researchers who may use vessels operated by the Canadian Department of Fisheries and Oceans, the ROPOS or other similar research platforms, and any other Canadian or foreign vessels to which the provisions of the Canada Shipping Act apply.81 As a federal authority the NSERCC is subject to the provisions of the Canadian Environmental Assessment Act 1992 (Canada).82 Section 5(1) of the CEA Act requires

77 78

79 80

81

82

Hereinafter AAD. Australian Antarctic Division Web site http://www.aad.gov.au/default.asp?casid=756 accessed 16 December 2004. Hereinafter referred to as the NSERCC. Natural Sciences and Engineering Research Council of Canada web site http://www. nserc.gc.ca/about/history_e.asp accessed 16 December 2004. Natural Sciences and Engineering Research Council of Canada web site http://www. nserc.gc.ca/professors_e.asp?nav=profnav&lbi=d3 accessed 16 December 2004. Hereinafter referred to as the CEA Act.

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that an environmental assessment be carried out before a federal authority exercises a number of powers or performs one of a number of duties or functions in respect of a project.83 A project is deﬁned in section 2(1) of the CEA Act as: (a) in relation to a physical work, any proposed construction, operation, modiﬁcation, decommissioning, abandonment or other undertaking in relation to that physical work, or (b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b).

The NSERC routinely screens all applications for funding to determine whether the environmental assessment processes required by the CEA Act applies to the activities for which funding is sought. All applicants for funding by the NSERC are required to provide information on their research activities, and outline possible environmental effects of their proposal and what measures they intend to minimise any negative environmental effect. After considering this and other information provided by researchers in a two part appendix to their application for funding, the NSERC then makes a determination as to whether the proposal is subject to the CEA Act.84 If it is, then the applicant will be obliged to prepare an environmental assessment under Section 5 of the CEA Act, and, if the scale or type of research merits it, the application would be subject to the environmental assessment process, which may involve a screening or comprehensive study, mediation or assessment by a review panel in accordance with procedures laid down under the Act.

83

84

Speciﬁcally section 5(1) provides as follows: An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority (a) is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part; (b) makes or authorizes payments or provides a guarantee for a loan or any other form of ﬁnancial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the ﬁnancial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that ﬁnancial assistance is provided for the purpose of enabling an individual project speciﬁcally named in the Act, regulation or order that provides the relief to be carried out; (c) has the administration of federal lands and sells, leases or otherwise disposes of those lands or any interests in those lands, or transfers the administration and control of those lands or interests to Her Majesty in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or (d) under a provision prescribed pursuant to paragraph 59(f ), issues a permit or licence [sic], grants and approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part. NSERC web site http://www.nserc.gc.ca/programs/EA_e.htm accessed 16 December 2004.

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The NSERC web site provides some useful examples of the sort of applications that are routinely assessed. Thus it notes: In general, proposals dealing exclusively with the following will be considered not to constitute a “project” and therefore not be subject to the assessment process under the Act: • Equipment grants: Requests for equipment that can be transported, i.e., that will not have a ﬁxed location even though it might be difﬁcult to transport, such as a mass spectrometer; • Scholarships and fellowships; • Research grants: applications that propose work to be carried out exclusively in a laboratory or ofﬁce, and that does not contribute to the construction, operation, modiﬁcation, decommissioning, abandonment or other undertaking in relation to a physical work that is constructed and ﬁxed in place, or that is set out in the Act’s Inclusion List Regulations The following applications are subject to a pre-screening under NSERC’s environmental assessment and review process. These include research activities conducted abroad or with researchers in other countries. • Research proposals for which some phase of the work takes place outside a laboratory or ofﬁce, whether the work is done by the applicant, co-applicants, technicians, graduate students, postdocs, or others; • Grant proposals for equipment that is built and ﬁxed in place (for example, experimental greenhouses or aquaculture installations).85

Based on these comments by the NSERC it is reasonable to conclude that the majority of research projects would not be subject to any further consideration of their environmental impact beyond the initial screening conducted by the NSERC. However, what is signiﬁcant is that the environmental impact assessment process is integrated into the funding process, and that funding is conditional on this process having been undertaken. By virtue of the CEA Act it is the responsibility of the funding agency to ensure environmental impacts are addressed in planning scientiﬁc research. Although the peer review of the scientiﬁc merit of particular research is a separate process from the environmental effects screening, the two are effectively integrated. If the CEA Act is triggered then the NSERC is prohibited from releasing funding unless the provisions of the CEA Act have been complied with. This process applies to scientiﬁc research funded by the NSERC that occurs outside of Canada. In the case of MSR this means that this regime applies not only to MSR conducted in Canada and Canadian waters, but also arguably to research being carried on the high seas or within other countries’ maritime jurisdiction by Canadian researchers or on Canadian Vessels.

85

Natural Sciences and Engineering Research Council of Canada web site http://www.nserc. gc.ca/programs/EA_e.htm accessed 16 December 2004.

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Conclusion – a model environmental impact assessment procedure for MSR beyond national jurisdiction

How then are the Australian experience in implementing the Madrid Protocol and the Canadian regulation of funding scientiﬁc research relevant to MSR in the deep sea beyond national jurisdiction? They are both relevant because they suggest a way we may be able to design a regime for managing the environmental impact of MSR in the deep sea beyond national jurisdiction, without the need to create a new international institution or entity responsible for regulating MSR. Rather what is proposed is that an international treaty could be prepared modelled on the Madrid Protocol to apply to all MSR beyond national jurisdiction and especially at deep-sea hydrothermal vents, which could be implemented under domestic legislation. Speciﬁcally such a treaty could include provisions on environmental impact assessment modelled on the Madrid Protocol provisions. These could be implemented by signatory parties to such a treaty adopting implementing legislation, if required, along the lines of the Australian ATEP Act. Similarly, adopting the Canadian model, national bodies responsible for funding MSR could incorporate environmental impact screening processes modelled on the Canadian regime into the funding process. For research not funded by government, authorisation to carry out such research on the high seas could be made conditional on compliance with similar environmental impact procedures. Clearly there are several issues that need to be addressed before any such scheme could be negotiated or indeed implemented. One of the major issues that must be addressed is whether the scale of the environmental impact of MSR even warrants regulation in the ﬁrst place. As this is a very new and emerging issue we simply do not yet know if that is the case. Clearly further comprehensive scientiﬁc research is required before we can determine if regulation is even required, and if it is what form it should stake. The beneﬁts derived from MSR means that it would be totally unjustiﬁed to ban MSR or to impose to tight regulation on it. On the other hand as evidence is emerging that MSR does have some environmental impact a precautionary approach would mandate that we consider seriously the nature and scale of its impact, and the extent to which regulation is warranted. Given that the design of such regime will clearly need to be built on a sound scientiﬁc basis, as the examples of the Endeavour MPA in Canada, and Lucky Strike and Menez Gwen in Portugal discussed in Chapter 6 show, clearly scientists, as the major stakeholders must be intimately engaged in the design and implementation of such a regime. Failing to engage scientists or regulating MSR too closely or bureacraticaly will undoubtedly lead to the failure of such a regime. While many scientists would dispute that their research should be regulated, there is nonetheless, recognition by many scientists that MSR does have an environmental impact. In the end scientists should not be approached as people whose activities should be regulated, but rather as partners in a process of providing for the sustainable management of hydrothermal vent sites, so that these sites may be available for future scientiﬁc research and the conservation of the biodiversity of the deep sea. For the beneﬁt of future generations MSR should be encouraged, but sustainably managed. The notion of intergenerational equity is at the

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core of the concept of sustainable development, which in turn shows us how we should approach all human activity (including MSR) in the deep sea and at hydrothermal vents in particular. MSR, like all human activity in the oceans, needs to be sustainably managed. The proposal canvassed in this chapter illustrates how this could be achieved.

Chapter 9 The role of the International Seabed Authority 9.1

Introduction

As noted in Chapter 2 there is already a detailed international legal regime governing mining in the deep sea in areas beyond national jurisdiction. This regime is provided for in Part XI of LOSC and the associated 1994 Part XI Agreement. The 2003 SBSTTA options paper discussed in Chapter 2 noted that one possible option for regulating access to the genetic resources of the deep sea was to expand the mandate of the ISA to include these new resources. This chapter considers whether an expanded mandate should be given to the ISA to regulate all activities, including bioprospecting, in the deep sea. The chapter commences by examining the extent of the ISA’s existing mandate with respect to the marine environment. The work of the ISA to date in fulﬁlling that mandate is then critically examined. The chapter also examines a possible role for the ISA in contributing to the creation of a network of MPAs on the high seas. In that respect the ability of the ISA to designate ‘de-facto’ MPAs in accordance with its existing mandate is considered. Finally, a brief examination of the ISA’s existing structure will highlight difﬁculties that might be encountered should an expanded mandate be granted to the ISA.

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9.2 9.2.1

The environmental mandate of the International Seabed Authority Overview

While the primary objective of Part XI is to facilitate the commercial exploitation of deep-sea mineral resources, Part XI also recognises that uncontrolled exploitation of these mineral resources may have an adverse impact on the marine environment. The core provision of LOSC that deals with the protection of the marine environment is contained in Article 145. Article 145 requires that necessary measures be taken with respect to activities in the Area to “ensure effective protection for the marine environment from harmful effects which may arise from such activities”. Under Article 145 the ISA is speciﬁcally required to adopt appropriate rules, regulations and procedures with respect to: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation and maintenance of installations, pipelines and other devices related to such activities; (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.

A similar requirement is also found in LOSC, Annex III, Article 17(1)(b)(xii), which requires the ISA to adopt and apply rules, regulations and procedures for the exercise of its functions in relation to “mining standards and practices, including those relating to operational safety, conservation of the [mineral] resources and protection of the marine environment”. Likewise Annex III, Article 17(2)(f) of LOSC requires rules, regulations and procedures to be drawn up: in order to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area or from shipboard processing immediately above a mine site of minerals derived from that mine site, taking into account the extent to which such harmful effects may directly result from drilling, dredging, coring and excavation and from disposal, dumping and discharge into the marine environment of sediment, wastes or other efﬂuents.

The provisions of the Part XI Agreement have further elaborated these requirements. In the interim period from the entry into force1 of the deep-sea mining regime until the approval of the ﬁrst plan of work for exploration, the ISA was required to, inter alia, focus on the adoption of rules, regulations and procedures incorporating applicable standards for the protection and preservation of the marine environment pursuant to Part XI Agreement, Annex, Section 1, paragraph 5(g). So far the only regulations adopted by the ISA dealing speciﬁcally with environmental issues are the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area.2 Adoption of the

1 2

The regime entered into force on 28 July 1996. International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic

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Nodule Prospecting Regulations cleared the way for the ISA to enter into the ﬁrst contracts for exploration.3 These regulations include some curious provisions. For example, Regulation 2(2) provides that: Prospecting shall not be undertaken if substantial evidence indicates the risk of serious harm to the marine environment.4

Serious harm to the marine environment is deﬁned in the Nodule Prospecting Regulations as: any effect from activities in the Area on the marine environment which represents a signiﬁcant adverse change in the marine environment determined according to the rules, regulations and procedures adopted by the Authority on the basis of internationally recognized [sic] standards and practices.5

So far no such rules or regulations or procedures have been prepared. The requirements for ‘substantial evidence’, ‘serious harm’ and ‘signiﬁcant adverse change’ would appear to be at odds with a precautionary approach, as reﬂected in Principle 15 of the Rio Declaration6 and subsequent instruments.7 The Precautionary Principle dictates that the onus of proof should be carried by the Prospector to prove that the environmental impact of the proposed activity would not cause unacceptable levels of environmental harm. Even a minor environmental impact may have unforseen consequences given the current level of our understanding of the deep-sea environment. Regardless of the exact way in which the Precautionary Principle is characterised, requiring ‘substantial evidence’ of environmental harm appears to be setting too high a threshold given there is great scientiﬁc uncertainty as to the environmental impact of mining on the deep-sea environment. The use of these terms is even more curious given that speciﬁc provisions of the regulations dealing with protection and preservation of the marine environment contained

3

4 5 6

7

Nodules in the Area, ISBA/6/A/18, hereinafter referred to as the Nodule Prospecting Regulations. The ﬁrst such contract was signed with the State enterprise Yuzhmorgeologia (Russian Federation) on 29 March 2001. Since then similar exploration contracts have been signed with Interoceanmetal Joint Organization (a consortium formed by Bulgaria, Cuba, the Czech Republic, Poland, the Russian Federation and Slovakia), the Republic of Korea, the China Ocean Mineral Resources Research and Development Association (China), Deep Ocean Resources Development Company (Japan), Institut français de recherche pour l’exploitation de la mer Association français pour l’étude et la recherche des nodules (France) and the government of India. See International Seabed Authority, Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4 of the United Nations Convention on the Law of the Sea, 7th June, 2002, UN Doc ISBA/8/A/5. Nodule Prospecting Regulations, Regulation 2(2). Nodule Prospecting Regulations, Regulation 1(3)(f ). Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 UN Doc. A/CONF 151/26. For discussion on the nature of the Precautionary Principle and its various interpretations see Chapter 2.

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in Part V of the Regulations seem to make application of a precautionary approach mandatory. Thus Regulation 31(2) provides: In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reﬂected in principle 15 of the Rio Declaration, to such activities.

The ISA has recently commenced work on consideration of the appropriate type of regulation for prospecting for polymetallic sulphides associated with hydrothermal vents and cobalt-rich ferromanganese crusts, following a request from Russia. In accordance with its programme of work agreed upon during the eighth session of the ISA, the members of the Legal and Technical Commission convened informal working groups to consider certain aspects of the rules and regulations including one working group charged with analysing: Considerations relating to the development of environmental rules, regulations and procedures relating to prospecting and exploration for polymetallic sulphides and cobalt-rich crusts.8

It is worth noting that, in the course of its work, the working group has indicated it is appropriate for the draft regulations to reﬂect “developments in international environmental law achieved since the adoption of the Convention in 1982.”9 This working group has produced a draft of regulations relating to the protection and preservation of the marine environment during prospecting and exploration, which, as the following discussion outlines, is inconsistent with some recent developments in international environmental law. These draft regulations were scheduled to be considered at the meeting of the Council of the ISA in 2004. At the date of completion of this book the Council has not yet voted to approve the draft regulations. The draft regulations are considered below. 9.2.2

The draft polymetallic sulphide propsecting regulations

The draft polymetallic sulphide prospecting regulations apply to prospecting and exploration for polymetallic sulphides10 and cobalt crusts11 in the Area. Prospecting is deﬁned in draft Regulation 3(g) as: 8

9

10

11

International Seabed Authority, Report of the Chairman [sic] of the Legal and Technical Commission on the work of the Commission during the ninth session, UN Doc. ISBA/9/C/4. International Seabed Authority, Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4 of the United Nations Convention on the Law of the Sea, 7th June, 2002, UN Doc. ISBA/8/A/5. Draft Regulation 3(f ) deﬁnes ‘polymetallic sulphides’ as “hydrothermally formed deposits of sulphide minerals which contain concentrations of metals including, inter alia, copper, lead, zinc, gold and silver.” Draft Regulation 3(b) deﬁnes ‘cobalt crusts’ as “hydroxide/oxide deposits of cobalt-rich iron/manganese (ferromanganese) crust formed from direct precipitation of minerals from seawater onto hard substrates containing minor but signiﬁcant concentrations of cobalt, titanium, nickel, platinum, molybdenum, tellurium, cerium, other metallic and rare earth elements”.

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the search for deposits of polymetallic sulphides or cobalt crusts in the Area, including estimation of the composition, sizes and distributions of deposits of polymetallic sulphides or cobalt crusts and their economic values, without any exclusive rights.

Exploration is deﬁned in draft Regulation 3(d) as: the searching for deposits of polymetallic sulphides or cobalt crusts in the Area with exclusive rights, the analysis of such deposits, the use and testing of recovery systems and equipment, processing facilities and transportation systems, and the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be taken into account in exploitation.12

The regulations, therefore, will apply to a range of activities in the deep-sea marine environment13 just short of full scale commercial mining operations. The operation of the draft regulations is subject to one major qualiﬁcation. Draft Regulation 4 provides: The Regulations shall not in any way affect the freedom of scientiﬁc research, pursuant to article 87 of [LOSC], or the right to conduct marine scientiﬁc research in the Area pursuant to articles 143 and 256 of the Convention. Nothing in these regulations shall be construed in such a way as to restrict the exercise by States of the freedom of the high seas as reﬂected in article 87 of [LOSC].

Thus the freedoms of the high seas and, in particular, freedom of MSR recognised by LOSC are unaffected. Under the current draft it is proposed that prospecting and exploration for polymetallic sulphides and cobalt crusts will be controlled through a system of notiﬁcation of prospecting under Part II, and a system of contractual licences for exploration under Parts III and IV of the regulations. The notiﬁcation scheme under Part II of the draft regulations provides that prospecting may only commence after notiﬁcation by the entity concerned of its intention to carry out prospecting has been recorded in a register to be maintained by the SecretaryGeneral of the ISA.14 The notiﬁcation must comply with provisions of the draft regulations, and in particular, must include the details set out in Annex 1 of the draft regulations. Signiﬁcantly, draft regulation 4(3), although not explicitly saying so, seems to suggest that the Secretary-General may refuse to enter a notiﬁcation in the register, thereby effectively denying a potential prospector authority to carry out prospecting. Thus draft regulation 4(3) provides: 12

13

14

‘Exploitation’ is in turn deﬁned in draft regulation 3(c) as the recovery for commercial purposes of polymetallic sulphides or cobalt crusts in the Area and the extraction of minerals therefrom, including the construction and operation of mining, processing and transportation systems, for the production and marketing of metals”. Draft regulation 3 (e) deﬁnes the terms ‘marine environment’ as including “the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, conditions and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean ﬂoor and subsoil thereof ”. See speciﬁcally draft Regulation 2(1) and 4(2).

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Chapter Nine The Secretary-General shall, within 45 days of receipt of the notiﬁcation, inform the proposed prospector in writing if the notiﬁcation includes any part of an area included in an approved plan of work for exploration or exploitation of any category of resources, or any part of an area which has been disapproved by the Council for exploitation because of the risk of serious harm to the marine environment, or if the written undertaking is not satisfactory, and shall provide the proposed prospector with a written statement of reasons. In such cases, the proposed prospector may, within 90 days, submit an amended notiﬁcation. The Secretary-Geneal shall, within 45 days, review and act upon such amended notiﬁcation.

Thus the right to prospect would be subject to any other existing rights or measures implemented by the ISA to protect certain areas of the marine environment such as disapproved areas. Prospecting, if authorised under this procedure, must then be carried out in accordance with the provisions of the draft regulations and, in particular, the provisions dealing with protection of the marine environment discussed in more detail below. The provisions relating to exploration are far more detailed than those relating to prospecting, and are contained in draft Regulations 9 through to 31 in Parts III and IV. They incorporate provisions dealing with an application for approval of a plan of work for exploration to obtain a contract set out in Annex 2, and a model Contract for Exploration set out in Annex 3 to the draft regulations. The draft polymetallic sulphide prospecting regulations include extensive provisions dealing with the marine environment. Issues associated with the marine environment are addressed in draft Regulations 2(2), 2(3), 3(4), 4(3), 4(5), 5, 7(1), 23(4)(b), 23(6)(c), all of Part V (i.e. draft regulations 33 to 37 inclusive),15 as well as portions of Annex 2 and the model contract for exploration set out in Annex 3. A signiﬁcant term used throughout the regulations is the expression ‘serious harm to the marine environment.’ Draft regulation 3(h) deﬁnes ‘serious harm to the marine environment’ as: any effect from activities in the Area on the marine environment which represents a signiﬁcant adverse change in the marine environment determined according to the rules, regulations and procedures adopted by the Authority on the basis of internationally recognized standards and practices.

Draft Regulation 2(2) provides that: Prospecting shall not be undertaken if substantial evidence indicates the risk of serious harm to the marine environment

The polymetallic sulphide regulations are permissive, ie they authorise the conduct of prospecting activities unless it can be proved to a high standard (i.e. substantial evidence) that there is a risk of serious harm to the marine environment. As with the Nodule Prospecting Regulations discussed above, this appears inconsistent with one interpretation of the Precautionary Principle which would place the burden on the prospector to show there is not a serious risk of harm.

15

Draft regulation 37 deals with objects of an archaeological or historical nature. Only the most signiﬁcant provisions of these regulations are examined below.

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Environmental impact assessment

As noted in Chapter 8, increasingly procedures for environmental impact assessment are being incorporated into international legal instruments. The draft regulations contain at times contradictory provisions on the the requirement to carry out environmental impact assessments. There appears to be no provision in the draft Polymetallic Sulphide Prospecting Regulations per se requiring environmental impact assessments to be carried out for prospecting.16 There is some suggestion that such procedures may be developed at a later date, but there is no explicit obligation imposed on a prospector to carry out an environmental impact assessment by the regulations. Thus draft Regulations 5(1) to 5(3), which deal with protection and preservation of the marine environment during prospecting, provide: (1) Each prospector shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from prospecting as far as reasonably possible using for this purpose the best practicable means at its disposal. In particular, each propsector shall minimize [sic] or eliminate: (a) Adverse environmental impacts from prospecting; and (b) Actual or potential conﬂicts or interference with existing or planned marine scientiﬁc research activities, in accordance with the relevant future guidelines in this regard. (2) Prospectors shall cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the potential impacts of the exploration and exploitation for polymetallic sulphides and cobalt crusts on the marine environment. (3) A prospector shall immediately notify the Secretary-General in writing, using the most effective means, of any incident arising from prospecting which poses a threat of serious harm to the marine environment. Upon receipt of such notiﬁcation the SecretaryGeneral shall act in a manner consistent with regulation 35.

Whether regulations in relation to environmental impact assessment will be developed at a later date is unclear. Similarly, when prospecting eventually becomes exploration17 there is also no procedure for environmental impact assessment contained in the draft regulations per se. Draft Regulation 13 requires each applicant seeking approval of a plan of work to carry out exploration to provide enough information for the Council to determine whether the applicant is ﬁnancially and technically capable of carrying out the proposed plan of work. There is no requirement contained in the draft regulations that the applicant is to provide an environmental impact assessment with the proposed plan of work. Curiously, draft Regulation 23(4)(b) provides that in considering an application for approval of a plan of work for exploration, the Legal and Technical Commission are required to consider if the proposed plan of work will: Provide for effective protection and preservation of the marine environment.

16 17

As that term is deﬁned in draft regulation 3(g) discussed above. See comments in relation to draft regulation 3(d) above.

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Just how the Legal and Technical Commission is expected to reach conclusions on that issue is unclear. What is also unclear is how this provision should be reconciled with the draft Regulation 2(2) discussed above. Can the Legal and Technical Commission always reject an application for approval of a proposed plan of work if they form the view that the plan does not provide for the effective protection and preservation of the marine environment, or can they only do so when there is substantial evidence of the risk of serious harm to the marine environment as those terms are used in draft Regulation 3(h)? Simply put, it is unclear when approval for a plan of exploration might be rejected on environmental grounds. Clariﬁcation can partly be obtained from reading the draft Regulations in conjunction with the standard clauses for exploration contracts contained in Annex 4 to the draft Regulations. Section 5.2 of the standard clauses provide: Prior to the commencement of exploration activities, the Contractor shall submit to the Authority: (a) An impact assessment of the potential effects on the marine environment of the proposed activtities; (b) A proposal for a monitoring programme to determine the potential effect on the marine environment of the proposed activities; and (c) Data that could be used to establish an environmental baseline against which to assess the effect of the proposed activities.18

There is an obligation imposed upon the Contractor to undertake environmental impact assessment, but this is imposed as a matter of contract rather than by virtue of operation of law via the regulations. The standard clauses for exploration contracts must be included in any exploration contract by virtue of Regulation 25. The ultimate source of law governing the obligation to carry out an environmental impact assessment lies in contract law. This then raises interesting questions as to which legal system’s principles of contract law will apply. Section 25.1 of the standard clauses makes clear that all disputes between the parties concerning the interpretation or application of the contract will be settled in accordance with Part XI, section 5 of LOSC. It is clear under Article 187 that the Sea-Bed Disputes Chamber of the International Tribunal of the Law of the Sea19 would have jurisdiction to hear any such dispute. Thus Article 187(c) of LOSC provides that the Sea-Bed Disputes Chamber has jurisdiction in relation to: (c) disputes between parties to a contract, being State Parties, the Authority or the Enterprise [sic], state enterprises and natural or juridical persons referred to in article 153, paragraph 2(b) concerning: (i) the interpretation or application of a relevant contract or a plan of work; or (ii) acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests.

18

19

Section 5.2, Annex 4 – Standard clauses for exploration contract, International Seabed Authority, Draft regulations on prospecting and exploration for polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area, UN Doc. ISBA/10/C/WP.1, 24 May 2004. Hereinafter ITLOS.

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While ITLOS would clearly have jurisdiction in relation to any such dispute, it is not clear how ITLOS would resolve what would essentially be a contractual dispute. That is, ITLOS would not be called on to apply principles of International Law or Law of the Sea as it traditionally has, but rather ITLOS would be required to rule on principles of contract law. Which contract law it will apply is unclear. Contract law or Laws of Obligations (as it is called in some juridisctions) vary between nations and legal systems. If there were ever any dispute as to the nature and extent of the obligation to carry out an environmental impact assessment it would be unclear how ITLOS would resolve such a dispute. Given the expertise of ITLOS lies in resolving Law of the Sea disputes based in principles of international law questions are raised as to the ability of ITLOS to effectively deal with such disputes. This problem only arises because the obligation to undertake an environmental impact assessment is a contractual obligation. This uncertainity could be removed simply by imposing a positive obligation to undertake environmental impact assessment under the regulations as distinct from including these provisions in the standard contract clauses. Other provisions of the standard clauses introduce further ambiquity with respect to the contractor’s obligations. In particular Section 5 of the standard clauses provides: The contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using for this purpose the best praticable means at its disposal.

Two interesting questions are raised by this provision. Firstly what is meant by the term ‘as far as reasonably possible’? Does this mean that a contractor would be able to enagage in activities that have an impact on the marine environment if it was not reasonably possible to take mitigating measures to minimize the environmental impact? This is not clear. More fundamentally, the use of the expression ‘the best practicable means at its disposal’ seems to suggest that the principle of common but differentiated responsibility would be incorporated into what is essentially a commercial contract.20 Presumably a higher environmental standard would be imposed on a contractor from a developed country than a contractor from a developing country. Does this then represent an extension of the concept of common but differentiated responsibility into new and unintended ﬁelds? Is such an extension desirable? It would be consistent with the designation of the mineral resources of the Area as the common heritage of mankind, but might not the consequence be undesirable? That is, by imposing a lower standard on contractors from developing countries do we not permit possibly greater harm to the environment for the same commercial gain? To add to the confusion, in contradiction to the provisions of the standard clauses, the draft Regulations include several other detailed provisions relating to the environmental impact of activities in the area21 which are more consistent with recent trends

20

21

For present purposes it is not necessary to consider whether this is a principle of customary international law or merely soft law, although the writer is of the view that the better interpretation is that it merely represents soft law. Regulation 1(1) provides that “Terms used in the Convention [i.e. LOSC] shall have the

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in international environmental law. Part V of the draft Regulations, and especially draft Regulations 33–35, contain quite detailed provisions on protection and preservation of the marine environment. One provision worth highlighting is Regulation 33(2). Thus: In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reﬂected in principle 15 of the Rio Declaration, to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph.

This provision on face value is encouraging. However, when read in conjunction with the other provisions outlined above, it is unclear how a precautionary approach can be applied. It is inconsistent with the other provisions of the draft regulations. This ambiquity in such an important legal instrument is regrettable.

9.3

The emerging interest of the International Seabed Authority in biodiversity issues

While the draft regulations are far from satisfactory, there are some encouraging signs that the ISA is taking a closer interest in the potential environmental impact of mining on marine biodiversity. In the context of its work on these regulations and ‘working within its mandate’, the Legal and Technical Commission of the ISA has also acknowledged that it does need to know more about seabed and deep-ocean biodiversity. Accordingly, at its 2003 meeting the Commission requested one of its members, Helmut Beiersdorf,22 to draw up a proposal for a seminar on seabed and deep-ocean biodiversity relevant to mineral resource prospecting and exploration, with participation by members of the Legal and Technical Commission and experts in the ﬁeld. In addition, another member of the Legal and Technical Commission, Frida Mara Armas Pﬁrter, is to co-ordinate the preparation of a paper on legal issues ‘to ensure the Commission remained within its mandate’ under LOSC. The Legal and Technical Commission will also review the idea of establishing a working group to study the issue further.23 While it is clear that environmental issues and, in particular, protection of the biodiversity of the deep sea (including hydrothermal vents), is increasingly of interest to the ISA, it is also clear from these recent developments that the ISA (and most member States) appear to want to conﬁne its work within its existing mandate. At its session in 2003 there were concerns expressed by several States lest the ISA go beyond this mandate. For example, in debate during the closing session of the Assembly of the ISA,

22

23

same meaning in these Regulations”. As such the expression ‘activities in the area’ would be interpreted as a reference to the deﬁnition of ‘activities in the area’ contained in LOSC. It is not clear therefore whether the Legal and Technical Commission intends these regulations to extend beyond prospecting and exploration. Unfortunately Helmut Beiersdorf was subsequently killed in a boating accident on 30 May 2004 and it is not clear at this stage who will complete his work. International Seabed Authority, Press Release, UN Doc SB/9/7.

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a number of States, including the Netherlands, clearly expressed concern that the ISA not exceed its deﬁned mandate. For the time being, it appears as if the ISA intends to conﬁne its consideration of deep-sea biodiversity strictly to the terms of its existing mandate. The implications of this are perhaps concisely summarised by statements made by the Secretary-General of the ISA to the meeting of the ﬁnal session of the Assembly in 2003. In relation to the ISA’s work on biodiversity Ambassador Nandan stated: Our purpose is not to deal with it in a comprehensive way; our purpose is to deal with it in a manner which would be of interest to the authority [ie in regard to the regulation of deepsea mining] We are not looking to control or manage or regulate marine scientiﬁc research. We are not looking to licence bioprospectors or to deal with the patent rights of bioprospectors.24

On the other hand, at the recent meeting of the Assembly a number of delegations did express support for a role for the ISA in regulating management of the Area’s genetic resources.25 Thus, while the SBSTTA study in Chapter 2 seems to suggest an expanded mandate for the ISA as a preferred option for regulating access to hydrothermal vents for bioprospecting, it appears that such a proposal currently has only minimal support amongst members of the ISA.

9.4

The International Seabed Authority and de-facto marine protected areas

Despite criticisms of the draft Regulations outlined above, one additional positive aspect of the ISA’s work to date within the terms of its existing environmental mandate is the way it is exploring a possible role in designating de-facto MPAs in the high seas. Article 162(2)(x) of LOSC provides that the Council of the ISA may: disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment.

In a recent statement to the Fourth Meeting of UNICPLOS the Secretary-General of the ISA suggested that: There is no reason why, pursuant to this provision, the Council [of the ISA] should not develop criteria for the identiﬁcation of particularly sensitive areas to be reserved for detailed scientiﬁc study as environmental baselines or as reference areas.26

The Secretary-General’s comments appear to suggest the Council could designate particularly sensitive areas, which would act both as environmental baselines and arguably 24 25

26

International Seabed Authority, Press Release, 7th August, 2003, UN Doc no SB/9/13. International Seabed Authority, Statement of the President on the work of the Assembly at the tenth session, UN Doc. ISBA/10/A/12, at para 26. Statement by the Secretary-General of the International Seabed Authority to the Fourth Meeting of the Informal Consultative Process of the United Nations Convention on the Law of the Sea, available from http://www.isa.org.jm accessed 7 November 2003.

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as de-facto marine protected areas. This is further re-inforced by the provisions of Regulation 31(7) of the Nodule Prospecting Regulations which provides: If the Contractor applies for exploitation rights, it shall propose areas to be set aside and used exclusively as impact reference zones and preservation reference zones. Impact reference zones means areas to be used for assessing the effect of each contractor’s activities in the Area on the marine environment and which are representative of the environmental characteristics of the area. Preservation reference zones means areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the ﬂora and fauna of the marine environment.

Similarly Regulation 33(4) of the draft polymetallic sulphide prospecting regulations provide: Contractors, sponsoring States and other interested States or entities shall cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the impacts of deep seabed mining on the marine environment. When required by the Authroity, such programmes shall include proposals for areas to be set aside and used exclusively as impact reference zones and preservation reference zones. “Impact reference zones” mean areas to be used for assessing the effect of activities in the Area on the marine environment and which are representative of the environmental characteristsics of the Area. “Preservation reference zones” means areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the ﬂora and fauna of the marine environment.

Designating such sites in accordance with both sets of regulations is arguably consistent with the ISA’s existing mandate under Article 145 of LOSC to protect and preserve the marine environment from the impact of deep-sea mining. One site has already been suggested as a possible candidate site by WWF. This site is the Logatchev vent ﬁeld in the mid-Atlantic.27 It is worth noting though that such action by the ISA could not restrict or control any other activities such as MSR, bioprospecting or tourism. Nonetheless such measures by the ISA would be consistent with the terms of its existing mandate and should be encouraged.

9.5

Structural impedements to effective sustainable management of deep-sea hydrothermal vents by the ISA

Part of the explanation for the ambiguity contained in the regulations outlined above probably lies in the very political nature of the ISA itself. Its structure and the way it operates are the result of very complex political negotiations. However, this explanation of itself highlights further difﬁculties that may be encountered in expanding the ISA’s mandate. Any proposal to expand the mandate of the ISA needs to deal with the

27

See S. Schmidt et al., ‘Logatchev – A Potential MPA, WWF North-East Atlantic Programme brieﬁng note’ available at http://www.ngo.grida.no/wwfneap/overview/overfset, accessed 7 November 2003.

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very difﬁcult issue of the reform of the structure of the ISA. This is problematic not only in the event of an expansion of the ISA’s mandate, but also for States that would like to see the ISA take a greater role in the conservation of marine biodiversity within the scope of its existing mandate. The existing structure of the ISA favours States that might be reluctant to see the ISA implement more environmently responsible and progressive measures. The two principal decision-making organs of the ISA are the Council and the Assembly. All State parties are members of the Assembly.28 The Council consists of 36 members of the ISA, who are elected in accordance with a formula set out in the Part XI Agreement. This formula, contained in the Annex, Section 3, paragraph 15 of the Part XI Agreement, provides for the Council to be composed of 36 members elected on the following basis: • Four members from among the States that are the major consumers of the categories of minerals to be derived from the Area.29 These four members must include one State which is the largest consumer in Eastern Europe (effectively Russia) and upon its accession to LOSC, the USA;30 • Four members from among the eight State Parties that have made the largest investment in preparation for mining;31 • Four members from among State parties that are the major net exporters of the categories of minerals to be derived from the Area, including at least two that are developing States whose exports of such minerals have a substantial bearing upon their economies;32 • Six members from developing State parties representing special interests;33 • Eighteen members elected according to the principle of ensuring an equitable representation for each geographical region of the world.34 This structure effectively ensures that no decisions can be pushed through the council against the will of any of the recognised interest groups.35 This is further complicated by the fact that, as a general rule, decision-making in the organs of the ISA is by

28 29 30

31 32 33

34

35

LOSC, Article 159(1). Part XI Agreement, Annex, Section 3, paragraph 15(a). One author notes this effectively guarantees permanent seats to Russia and (and upon its accession to LOSC) to the USA. See G. French, ‘The International Seabed Authority (ISBA) and the regulation of the Area’, paper presented at Oceans Management in the 21st Century: Institutional Frameworks and Responses under the Law of the Sea Convention Workshop, University of Sydney, Sydney, Australia, 22–23 November, 2002. Part XI Agreement, Annex, Section 3, paragraph 15(b). Part XI Agreement, Annex, Section 3, paragraph 15(c). Part XI Agreement, Annex, Section 3, paragraph 15(d). The special interests are deﬁned as States with large populations, landlocked or geographically disadvantaged States, island States, States which are major importers of the categories of minerals to be derived from the Area, States which are potential producers of such minerals and least developed States. Part XI Agreement, Annex, Section 3, paragraph 15(e). The regions are Africa, Asia, Eastern Europe, Latin America and the Caribbean, and Western Europe and Others. French, above n. 30, 8.

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consensus.36 As such any proposal to create de-facto MPAs or to implement measures to conserve biodiversity will need to negotiate the very tortured and complex web of interests represented in the Council of the ISA. If an expanded mandate were to be given to the ISA then there would need to be considerable reform of this structure. The existing structure and, in particular the balancing of various interest groups, was established after long and tortuous negotiation. Such a structure may not be appropriate when other more varied interests are at stake. The ISA is a body that has been designed to regulate a deep-sea mining industry. Accordingly, its structure reﬂects varied interests including producers and consumers of minerals. These interests are signiﬁcantly different from those of the biotechnology industry, the tourist industry and the scientiﬁc community. Attempting to reform the structure of the ISA to balance the interests of those stakeholders against those of the minerals industry, while at the same time, enhancing the ability of the ISA to deal with environmental issues would require very complex changes to the ISA structure. It is questionable if such changes would be achievable. Similarly, while it may be true that the ISA has expertise in deep-sea mining and a wealth of information on the mineral resources of the Area, it is unclear, and probably unlikely, that it has the required knowledge or expertise to deal with the complex nature of MSR37 and deep-sea tourism. More fundamentally, the ISA deﬁnitely does not have expertise to deal with beneﬁt sharing and deep-sea genetic resources. As we saw in Chapter 7, the issue of beneﬁt sharing is intimately connected with intellectual property rights such as patents. The ISA clearly does not have any expertise in the area of patents, and in particular, patents associated with biotechnology. Unlike the mineral resources of the Area, the commercial exploitation of the genetic resources of the deep sea is not simply a process of digging something up, bringing it to the surface and processing it for sale. While the mining of minerals from the deep sea is perhaps a more sophisticated process than this, in essence the primary issues relate to engineering and commercial feasibility. As outlined in Chapter 7, the process of development of biotechnology from the deep-sea’s genetic resources is a far more complicated and lengthy process. The reward for those who engage in such activities is the monopoly on exploitation that comes with the grant of a patent and the associated proﬁt which ﬂows from its exploitation. If the ISA is to be entrusted with the management of beneﬁt sharing from the genetic resources of the deep sea and from hydrothermal vents in particular, on one interpretation this implies that the ISA would be entrusted with some role to play in the grant of patents, perhaps as some huge international patent ofﬁce for the deep sea. This would involve a signiﬁcant infringement on the sovereignty of nation States. Even if the assessment and grant of patents in relation to biotechnology derived from the deep sea were to remain primarily within the jurisdiction of nation States what role would the ISA play in this process? One signiﬁcant role that would remain would be the distribution of the beneﬁts associated with the exploitation of the genetic resources of

36 37

Pursuant to Part XI Agreement, Annex, Section 3, paragraph 2. See Chapter 8 above for discussion of this issue.

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the deep sea and of hydrothermal vents in particular. Even if patent royalties were to ﬂow into the accounts of the ISA to be distributed by the ISA in accordance with whatever mechanism is agreed, again as outlined in Chapter 7, the ISA has no expertise in co-ordinating the distribution of funds such as these. On the other hand, as discussed in Chapter 7, a number of international institutions, and perhaps most signiﬁcantly the GEF, all have vast experience in the distribution of funding for sustainable development. These institutions would be better suited to the task than the ISA. The only remaining role left for the ISA would be the regulation of the environmental impact of bioprospecting in the deep sea. As we saw in earlier chapters, this would essentially mean giving the ISA a role in regulating MSR, which, for the reasons previously discussed, would not be a desirable option. Perhaps, realistically, the only role that the ISA should play is in the dissemination of knowledge about the deep sea and in facilitating (as opposed to regulating) MSR. In large part these are activities already undertaken within the terms of its existing mandate.

9.6

Do states consider the International Seabed Authority irrelevant?

Even without these obstacles there is also some evidence to suggest that states consider the activities of the ISA largely irrelevant to their national interests. It is true that there has been widespread acceptance of the ISA’s mandate by the international community. However, several countries, including the USA, have not yet ratiﬁed the Part XI Agreement. More signiﬁcantly, even amongst those countries that are part of the ISA, there is poor participation in the work of the ISA. A major problem for the ISA has been securing broad participation in the work of the Assembly. Article 159(5) of LOSC and the rules of procedure of the Assembly require a majority of ISA member States to be represented for there to be a quorum for the deliberations of the Assembly.38 However, since 1998 each year there has been great difﬁculty in securing the required quorum for meetings at the ISA’s headquarters in Kingston, Jamaica.39 On at least one occasion the lack of a quorum meant that the meeting of the Assembly had to be adjourned to the United Nations headquarters in New York just to adopt the budget of the ISA. Although measures were implemented to better co-ordinate the schedule of the Assembly meeting in 2003, no signiﬁcant increase in attendance was noted in 2003.40 In his recent report the Secretary-General of the ISA expressed concern that lack of participation may become worse. Thus he commented:

38

39 40

International Seabed Authority, Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, Tenth Session of the Assembly, UN Doc ISBA/10/A/3 (2004), 6. Ibid. International Seabed Authority, above n. 38, 7.

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Chapter Nine As the number of States parties to the Convention continues to increase, so the required number for a quorum increases. Given that many States parties have little or even indirect interest in the exploratory phase of deep seabed mining, it is inevitable that the Assembly will continue to have difﬁculy in securing a quorum for taking important decisions on matters such as the budget, the scale of contributions and election to subsidiary bodies. This situation remains of grave concern to the Authority and needs to be addressed.41

Given the lack of participation of members in the existing work of the ISA, serious concerns must be raised as to whether the mandate of a body many States clearly consider irrelevant should be expanded.

9.7

Conclusion – expansion of the International Seabed Authority mandate

The ISA is currently the main international body with responsibility for regulating the environmental impact of the deep-sea mining on the high seas. States should be encouraged to assist the ISA’s increased focus on the conservation of the biodiversity of the deep sea and environmental matters more generally, within the scope of its existing mandate. In that context it is worthwhile for the ISA to give serious consideration to the designation of defacto MPAs on the basis outlined in this chapter. However, for the reasons set out above, any attempt to expand the mandate of the ISA should be approached with caution. It is questionable, given the ISA’s track record, whether it is appropriate to expand its mandate into more general responsibility for the sustainable management of human activities in the deep sea other than mining. More fundamentally, given its existing structure and expertise, it is an organisation ill suited to play a much broader role in the sustainable management of the deep sea and in beneﬁt sharing of the deepseas genetic resources. Even if there were a willingness on the part of States to accept an expanded mandate for the ISA, long and complicated negotiations would be required. It would seem, therefore, that if sustainable management of activities other than mining could be achieved by other means, then perhaps those means should be pursued in preference to expanding the mandate of the ISA.

41

Ibid.

Chapter 10 Elements of the future international legal regime 10.1

Expanding mandates, modiﬁed mandates and the challenge of achieving global oceans governance

While the deep sea may be alien to humans, regulating human activity at deep-sea hydrothermal vents involves exactly the same core legal issue as elsewhere on our planet. That is, how to achieve the sustainable management of human activities with the overall goal of conservation of biodiversity. As emerging threats are becoming obvious, there is a need for international action to address the threats to hydrothermal vent ecosystems and the deep sea more generally. While Chapter 9 rejected an expanded mandate for the ISA, other chapters of this book have advocated changes to exsiting laws and mechanisms to deal with varied issues. However, in this book there is no grand plan or vision to create a new global organisation to deal with all of the environmental issues associated with the sustainable management of hydrothermal vents both beyond and within national jurisdiction. This book could have taken the courageous leap in calling for the establishment of a global body responsible for the sustainable management of the deep sea. This would not be a new idea and it is not necessarily a bad idea either. Like many concepts examined in this book the idea of an international agency for the environment has a respectable heritage and has been debated at length in the academic and policy literature. In a recent paper on the concept of a global body responsible for the

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environment Charnovitz surveys several such proposals that have been put forward over time.1 Proposals he cites include an International Environmental Agency, an International Environmental Authority, a World Environmental Organization and International Environmental Organization.2 The idea of a global body to sustainably manage the global marine environment has also been advocated extensively. One of the leading proponents of such an idea was the leading scholar Elizabeth Mann Borgese. Throughout her distinguished career right up until her death she passionately advocated for such an institution.3 Similarly as was discussed at length in Chapter 8 similar proposals for regulating MSR were canvassed and rejected by the international community when LOSC was negotiated. The calls for organisations such as a World Environmental Organisation or a World Oceans Organisation are one of many responses to concerns about the lack of governance in relation to the global environment and in the oceans more speciﬁcally. These ideas have merit and if it were politically possible at some future date they might be worth exploring. But as noted in Chapter 5 in the context of the concept of the common heritage of mankind, the nature of international relations has changed dramatically since the 1960 and 1970s when LOSC was negotiated. The idea of a global marine organisation was rejected by the international community back in the 1960s and 1970s and the possibility of such an idea being realised in todays geopolitical climate is even less likely. If there is no desire for new global environmental institutions today then to achive better global marine environmental governance in the deep sea we have to look for other possibilities. This is why this book has instead canvassed the extent to which existing mechanisms, laws and institutions might be utilised. Thus what has been proposed is incremental change to global oceans governance in the deep sea. Protocols to existing treaties to deal with some issues, and a more thorough implementation of existing laws and regimes to deal with other issues is a more viable option than creating new global institutions or negotiating a new global high seas biodiversity treaty. Thus for the foreseeable future improving global oceans governance in the deep sea is more likely to be achieved by building on existing laws and using existing institutions more creatively. For some issues this may involve expanding the mandates of existing institutions (such as is proposed for the GEF in Chapter 7), for others such as the ISA it will simply be a matter of more effective implementation of existing mandates consistent with modern principles of international environmental law. Thus environmental governance in the deep sea and at hydrothermal vents in particular will involve more effective use of, and linkage between existing laws, and institutions and incremental changes to others. This book has examined a number of ways that this could be achieved.

1

2 3

S. Charnovitz, ‘A World Environment Organization’ (2002) 27 Columbia Journal of Environmental Law 323. Ibid. See for example E.M. Borgese, The Oceanic Circle: Governing the Seas as a Global Resource, (1998).

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One aspect of a future international regime may involve the creation of marine protected areas in the high seas. The growing international interest in the potential role of MPAs as a tool for sustainable management of ocean space beyond national jurisdiction reﬂects the success of MPAs as a tool for the sustainable management of ocean space within areas of national jurisdiction. The success of many (but not all) MPAs within national jurisdiction suggests that well planned, funded and managed MPAs can be an effective tool for managing a range of activities in the marine environment. Although MPAs have only recently been extended to vulnerable deep-water habitats such as hydrothermal vents within national jurisdiction, experience to date suggests MPAs can be just as effective in the deep sea as they are elsewhere in the ocean. The MPAs for hydrothermal vents in Canada and Portugal outlined in this book demonstrate the feasibility of MPAs for hydrothermal vent sites, and also provide models for how to go about creating similar MPAs on the high seas. Therefore MPAs should be a central element of a future regime for the sustainable management of human activities at deep-sea hydrothermal vents both within and beyond national jurisdiction. The efforts of like minded states who wish to create mechanisms for the establishment of MPAs for vulnerable deep-water ecosystems, including hydrothermal vents beyond national jurisdiction, should be encouraged. While MPAs within national jurisdiction are often an effective tool they should not be viewed in isolation. The sustainable management of hydrothermal vent sites beyond national jurisdiction should involve the establishment of MPAs, but a range of other issues will need to be addressed. First and foremost, the most immediate issue relates to the extent of regulation of the exploitation of hydrothermal vent genetic resources. There is very clear evidence of commercial and scientiﬁc interest in the biotechnology potential of hydrothermal vents species, especially microbial life forms. As scientiﬁc understanding of the deep sea grows and technology makes these areas more accessible the commercial interest will increase. The most obvious way that this subsidiary issue could be dealt with would be by expanding the existing mandate of the ISA to include the genetic resources of the deepsea beyond national jurisdiction. This would involve bringing the genetic resources of hydrothermal vents, and the deep sea more generally, within the complicated and cumbersome common heritage of mankind regime established under Part XI of LOSC. The two are interchangeable. In terms of law the common heritage of mankind concept means only one thing, the institutional regime established under Part XI of LOSC. Conversely at its core the Part XI regime is predicated on the common heritage of mankind concept. But it is clear that the ISA lacks the expertise to deal with the complex issue of intellectual property rights which are intimately connected with regulating access and beneﬁt sharing in relation to these resources. More generally serious questions arise as to the ability of the ISA to adequately deal with biodiversity issues even within the scope of its existing mandate. Having said that though the ISA should be encouraged to explore ways it can play an effective role in the sustainable management of deep-sea biodiversity within the scope of its existing mandate, including its potential role in creating de-facto MPAs outlined in Chapter 9. We can avoid all the complications of the debate surrounding the common heritage of mankind and complicated negotiations to further revise Part XI of LOSC, if we reject

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this option outright. It is a simplistic solution to the issues at stake that brings with it a whole range of unnecessary complications. In fact, it is possible to envisage a regime for the equitable utilization and sharing of beneﬁts associated with the genetic resources of hydrothermal vents without recourse to the concept of the common heritage of mankind, or the need to add to the mandate of the ISA. This could be achieved by the creation of a global commons trust fund linked to international and national legal regimes for the grant of patents. While the micro-organisms from which biotechnology are derived are sourced beyond national jurisdiction, the grant of the exclusive monopoly to exploit such biotechnology is an act of each individual State that occurs within its jurisdiction, and as such the status of these resources beyond national jurisdiction as the common heritage or otherwise is not in issue. A regime such as this would not impinge upon the sovereignty of the nation State. By very deﬁnition such resources are not within the sovereign territory of any one nation. More signiﬁcantly though the very act of granting a patent is a sovereign act, it is the grant of a monopoly to exploit a particular invention within that States jurisdiction. The grant of a patent could then be made conditional on payment of a royalty to the global commons trust fund. The royalties from the exploitation of the genetic resources of deep-sea hydrothermal vents and other deep-sea genetic resources could then be utilized to fund measures such as MPAs beyond national jurisdiction, as well as other measures for the sustainable management of the marine environment and sustainable development more generally. There are a number of international institutions and mechanisms that already play a role in funding sustainable development that could be utilised to provide mechanisms for the fair and equitable distribution of the beneﬁts associated with the exploitation of these genetic resources. The most signiﬁcant of these being the GEF. The experience of existing international institutions and mechanisms in dealing with the sustainable management of ocean space within national jurisdiction could be utilized in designing and implementing measures for the sustainable management of ocean space beyond national jurisdiction. There would be no need to create a whole new international bureaucracy to manage and distribute the resources of the proposed trust fund. Perhaps as contentious as the issue of beneﬁt sharing, questions also arise as to how MSR beyond national jurisdiction should be regulated. Of the options canvassed in this book the integration of environmental impact assessment procedures into existing mechanisms associated with MSR is the most desirable option. The Madrid Protocol provides a model of how environmental impact assessment can be utilized to manage the environmental impact of scientiﬁc research in areas beyond national jurisdiction. The signiﬁcant innovation introduced by the Madrid Protocol was a graduated scheme of environmental impact assessment for activities in Antarctica. A regime should be established to regulate MSR at hydrothermal vents based on the provisions on environmental impact assessment contained in the Madrid Protocol. The experience of a number of countries that regulate scientiﬁc research in Antarctica suggests that regulation of MSR in areas beyond national jurisdiction can be achieved by individual nations implementing measures under their domestic law. Compliance with these provisions could be enhanced by linking them with government funding for MSR, as is currently the case for scientiﬁc research in countries such as Canada.

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For the time being the environmental impact of bioprospecting and tourism should be regulated by the proposed regime for MSR, as these activities are currently closely associated with MSR. The regulation of the environmental impact of bioprospecting and tourism may need to be revisited at a later date if there is any signiﬁcant change from this pattern of activity. One of the most difﬁcult questions in relation to hydrothermal vents relates to a limited number of sites located on the continental shelf, but not associated with the midoceanic ridge system. Uncertainty centres on the extent of the coastal States jurisdiction under the continental shelf regime. A historical analysis of the origins of the continental shelf regime showed that the reason for this uncertainty was the way in which two totally different concepts, namely States historic claims to sedentary species and claims to the mineral resources of the continental shelf, were intermingled during the work of the ILC in the early 1950s. As a consequence modiﬁcation to the Continental Shelf Regime may be required. But before options for such a regime can be considered further scientiﬁc research is warranted to determine the extent to which there are hydrothermal vent sites on the continental beyond 200 nautical miles. However, the signiﬁcance of the continental shelf problem should not be overstated. It should not distract the international community from the more urgent need for regulation of activities on the high seas. While negotiation of a treaty to give effect to the proposed regime outlined in this book may take some time, measures could also be developed under a range of regional and other treaties to both supplement the new regime, and as separate regimes in their own right. Regional measures and measures under other treaties discussed in this book such as the various Antarctic Treaties, the NEAF Convention, the OSPAR Convention, the Noumea Convention and the World Heritage Convention are perfectly consistent with the existing framework under LOSC and the CBD. These could be as equally effective under the proposed regime for the areas beyond national jurisdiction set out in this book. State parties to these treaties should therefore give further consideration to the potential role they might play in an integrated international regime for the sustainable management of hydrothermal vents sites, both within national jurisdiction and beyond national jurisdiction. One of the key factors for the successful negotiation and implementation of the regime proposed by this book will be stakeholder involvement. Any future legal regime will need to accommodate multiple and at times conﬂicting uses and interests. In reconciling the conﬂicting uses it will be important to harness the skills of key stakeholders such as the scientiﬁc community. It is vital to the success of the proposed regime that there be full engagement of all stakeholders in the process that leads to the creation and implementation of the regime. Stakeholders who should be involved in the creation and ongoing management of any such regime include, inter alia, scientists, the mining industry and the biotechnology industry. The signiﬁcance of the biotechnology industry will increase the longer establishment of the proposed regime is delayed. Although only in its infancy in the ﬁeld of deep-sea genetic resources, the biotechnology industry will exert considerable inﬂuence over negotiations for an international legal regime. The longer negotiation of such a regime is delayed the more inﬂuential this industry will become. The larger the vested interest at stake the less likely a regime will emerge.

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Chapter Ten

10.2

The way forward

There is an urgent need for a comprehensive response by the international community. In that respect the emerging interest of the international community in these issues reﬂected in recent developments within the forums of the CBD and the UN system is timely. It would seem appropriate therefore that proposals such as those outlined in this book should be fed into the work of the Ad Hoc Open-Ended Informal Working Group recently established by the United Nations General Assembly, as well as the work currently underway in other forums such as those associated with the CBD. Changes to international law contemplated by the recommendations set out in this book should be implemented by means of an international treaty. There are a number of possible ways such a treaty could be structured and the ﬁnal outcome will depend very much on the positions adopted by individual nation States during negotiations. The most desirable outcome would be a protocol to the LOSC, and in particular to implement the environmental impact assessment scheme proposed in Chapter 8. The reason why a protocol to the LOSC is the most desirable option is simply because the LOSC is the closest thing we have to a Constitution for the Oceans. The LOSC was the result of a very long and complex diplomatic negotiation process. Although it is not a perfect Constitution for the oceans, it is a Constitution nonetheless and in order to enhance the rule of law in the oceans and foster good oceans governance it would be best to build on that Constitution rather than operate around or outside it. The successful negotiation of the LOSC necessarily involved compromises and ambiguities were perhaps unavoidable. A protocol to the LOSC could potentially resolve the ambiguities associated with deep-sea hydrothermal vents while not unravelling the compromises struck in negotiating the LOSC. However, in maintaining the base of oceans governance that is contained in the LOSC, this does not mean that we need to ignore more recent developments in international environmental law such as the Precautionary Principle and the ecosystem approach recognised in later instruments such as the CBD. A desirable outcome therefore would be a protocol to the LOSC that integrates modern concepts and principles of international environmental law, and which fosters greater linkages between existing mechanisms such as those associated with the CBD, regional environmental organisations, and other existing international institutions such as the GEF. As this book has demonstrated, we can work with concepts with which we are familiar and we can utilise a range of existing international institutions. It would appear therefore that we now only lack the political leadership or vision to guide us towards an effective regime. The issues at stake are more than just questions associated with ‘bugs’ and bioprospecting in the dark depths of the abyss. The question remains whether our political leaders have the vision to see that the future of conservation and sustainable management of our planets biodiversity does lie in the deep sea. Will they continue to see only the scary monsters of the dark depths of the abyss, or will they see the deep sea for what it is, one of the most important habitats on earth desperately in need of sustainable management?

Table of treaties, agreements and declarations 1883 Convention for the Protection of Industrial Property, ATS (1972) 12. 1942 Great Britain-Venezuela. Treaty relating to the Submarine Areas of the Gulf of Paria, Caracas, 26 February 1942, 205 LNTS 121. 1945 The Truman Proclamation on the Continental Shelf, 1945, 4 Whiteman 756 1958 Convention on the High Seas, 450 UNTS 11. 1958 Convention on the Continental Shelf, Geneva, 499 UNTS 311. 1958 Convention on the Territorial Sea and the Contiguous Zone, 516 UNTS 205. 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285. 1959 Antarctic Treaty, opened for signature 1 December, 1959, 402 UNTS 71 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies, 6 ILM 386 (1967). 1970 Patent Cooperation Treaty, Washington, 19 June 1970, ATS 1980 (6). 1972 Convention for the Protection of the World Cultural and Natural Heritage, 11 ILM (1972) 1358. 1972 Declaration of the UN Conference on the Human Environment, Stockholm. 5–16 June 1972, UN Doc. A/CONF/.48/14/REV.1 (1972). 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 13 ILM (1974). 1977 Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 9 ATS (1987). 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 ILM 1434.

232 1980 1980 1982 1986 1991 1991 1992 1992 1992 1994 1994 1994

1994 1995

1998 2001 2002

2004

Table of treaties, agreements and declarations Convention on the Conservation of Antarctic Marine Living Resources, 19 ILM (1980). Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries, Cmnd. 8474 297. United Nations Convention on the Law of the Sea, 21 ILM 1245 (1982). Convention for the Protection of the Natural Resources and Environment of the South Paciﬁc Region, (1990) ATS 31. Protocol on Environmental Protection to the Antarctic Treaty, 30 ILM (1991). Convention on Environmental Impact Assessment in a Transboundary Context, 30 ILM 800 (1991). Convention on the Protection of the Marine Environment of the Baltic Sea Area, 22 LOSB 54 (1993) 155. Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 UN Doc. A/CONF 151/26. United Nations Convention on Biological Diversity, 31 ILM (1992). United Nations Framework Convention on Climate Change, 31 ILM (1992), 851. United Nations Convention to Combat Desertiﬁcation, 1994 33 ILM (1994), 1016. Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marakesh Agreement Establishing the World Trade Organisation, Annex 1C, 33 ILM 1197. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 33 ILM 1309. Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling ﬁsh stocks and highly migratory ﬁsh stocks, 34 ILM 1542 (1995). Convention for the Protection of the Marine Environment of the North-East Atlantic, opened for signature 22 September 1992, 32 ILM (1992). Stockhom Convention on Persistent Organic Pollutants, 40 ILM (2001) 532. United Nations, Plan of Implementation of the World Summit on Sustainable Development, Annex to United Nations, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002, UN Doc No. A/CONF.199/20. Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries [2004] ATNIF 1.

Table of legislation Australia, Australian Antarctic Territory Act 1954 (Cth) Australia, Australian Antarctic Territories Acceptance Act 1933 (Cth) Australia, Antarctic Marine Living Resources Conservation Act 1981 (Cth) Australia, Antarctic Mining Prohibition Act 1991 (Cth) Australia, Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Australia, Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Australia, Heard Island and McDonald Islands Act 1953 (Cth) Australia, Macquarie Island-Environmental Management and Pollution Control Act 1994 (Tas) Australia, Protection of Sea (Prevention of Pollution From Ships) Act 1983 (Cth) Canada, Canadian Environmental Protection Act 1999 Canada, Coastal Fisheries Protection Act 1985 Canada, Endeavour Hydrothermal Vents Marine Protected Area Regulations 2003 Canada, Oceans Act 1996 European Union, Council Directive 92/ 43/ EEC New Zealand, Continental Shelf Act 1964 New Zealand, Crown Minerals Act 1991 New Zealand, Fisheries Act 1983 New Zealand, Marine Reserves Act 1971 New Zealand, Resource Management Act 1991 New Zealand, Territorial Sea and Exclusive Economic Zone Act 1977 New Zealand, United Nations Convention on the Law of the Sea Act 1996

234

Table of legislation

Papua New Guinea, Mining Act 1992 Portugal, Regulamento do Plano de Ordenamento dos parques marinhos Lucky Strike e Menez Gwen Proposta Decreto Regulamentar (draft) Portugal, Proposta De Decreto Legislativo Parque Marhino Lucky Strike e Menez Gwen (draft)

Table of cases Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands (North Sea Continental Shelf Cases) [1969] ICJ Rep 1. Southern Blueﬁn Tuna Cases (New Zealand v Japan; Australia v Japan (Provisional Measures), ITLOS Cases No. 3 and 4, 27 August 1999. Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133.

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POSTGRADUATE DISSERTATION Dosoo Jang, Accessing Marine Genetic Resources Under the Law of the Sea Convention and the Convention on Biological Diversity, Doctor of Philosophy in Marine Studies Thesis, University of Delaware, 2000.

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INTERVIEWS (THE FOLLOWING INTERVIEWS WERE CONDUCTED BY THE AUTHOR) Ms Agnieszka Adamczewska, InterRidge Co-ordinator, 17 September 2003. Dr Roberto Anitori, School of Biological Sciences, Macquarie University, 11 September 2004. Dr Cornel de Ronde, Institute of Geological & Nuclear Sciences, Lower Hutt, New Zealand, 25 November 2003. Mr David Heydon, Chief Executive Ofﬁcer, Nautilus Minerals Limited, 7 May 2003. Dr Timothy F. McConachy, Principal Research Scientist, CSIRO North Ryde, Australia, 10 April, 2003. Professor Kim Juniper, University of Quebec, Montreal, High Seas Biodiversity Workshop, Cairns, Australia, 18 June 2003. Dr Alex Malahoff, Chief Executive, Institute of Geological & Nuclear Sciences, Lower Hutt, New Zealand, 25 November 2003. Dr Peter Nichols, Project Leader, Marine Products, CSIRO Marine Research, Hobart, Australia, 12 November 2003. Ms Carrol Oliver, Executive Ofﬁcer, Australian Centre for Astrobiology, 11 February 2004. Mr Warren Player, Senior Projects Ofﬁcer, Crown Minerals, Ministry of Economic Development, New Zealand, 26 November 2003. Professor Dr Ricardo Serrão Santos, Director, Department of Oceanography and Fisheries, University of the Azores, Portugal, 19 and 20 June 2003, High Seas Biodiversity Workshop, Cairns, Australia. Ms Belinda Sawyer, Operations Manager, Deep Ocean Expeditions Inc., Queenstown New Zealand 5 December 2003. Ms Brigit Stephenson, Senior Advisor, Oceans Policy Secretariat, Ministry of the Environment, New Zealand, 26 November 2003.

INTERNET SITES AND OTHER ELECTRONIC RESOURCES Alvin and its equipment http://www.ocean.udel.edu/extreme2001/mission/alvin/# accessed 7 September 2004. American Type Culture Collection, Global Bioresource Center, http://www.atcc.org/ accessed 6 July 2004.

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APPENDICES

Industrial enzymes including applications such as detergents, starch processing, textile manufacturing, oil and gas production, pulp and paper processing, and the production of baked goods, beer, wine and dairy products. Also investigating applications in areas such as water treatment, industrial cleaning and bioﬁlm removal.

Commercialisation of three of Diversa Corporation’s thermostable DNA-modifying enzymes.

Innovase LLC (50/50 joint venture of Diversa Corporation and The Dow Chemical Company).

Invitrogen Corporation3 Under licence from Diversa Corporation.

3

2

Sourced from individual company web sites, annual reports and literature as cited. See www.diversa.com, accessed 12 July, 2004. See www.invitrogen.com, accessed 12 July, 2004.

Agricultural, chemical processing, industrial and pharmaceutical applications. This company is especially interested in potential uses of thermophiles in animal feed additives, agricultural product processing enzymes, industrial and consumer product enzymes and high performance specialty chemicals and polymers.

Diversa Corporation.2

1

Areas of research interest and product development from thermophiles and hyperthermophiles from terrestrial and marine sources and other relevant areas

Company

ThermalAce™ DNA Polymerase, a novel enzyme that improves the performance of DNA ampliﬁcation for the widely used polymerase chain reaction.

Pyrolase™ 160 enzyme, which can be employed in industrial applications at pH 5–9 and at high temperatures.

Products currently on the market developed from hydrothermal vent thermophile or hyperthermophile derivatives

Table 2. Biotechnology and other companies involved in research and/or product development in relation to hydrothermal vents: potential applications of ongoing research and products developed and currently on the market.1

APPENDIX 1

Appendices 271

New England Biolabs Inc.4

Appendix 1 (cont.)

Restriction endonucleases and other related products for molecular biology research/recombinant DNA technology.

9°Nm™ DNA Polymerase puriﬁed from a strain of E.coli that carries a modiﬁed 9°Nm DNA Polymerase gene from the extremely thermophilic marine archaea Thermococcus sp. Isolated from a submarine hydrothermal vent at a depth of 2,500 metres, 9° north of the equator at the East Paciﬁc Rise11

Deep VentR ® (exo- ) DNA Polymerase, genetically engineered version of Deep VentR ® DNA Polymerase puriﬁed from a strain of E.coli that carries the Deep VentR DNA Polmerase gene from Pyrococcus species GB-D(1).10 The native organism was isolated from the location noted above.

Deep VentR ® DNA Polymerase, a more stable form of Vent ®R DNA Polymerase. Puriﬁed from a strain of E.coli that carries the Deep VentR DNA Polymerase gene from Pyrococcus species GB-D(1).8 The native organism was isolated from a submarine thermal vent in the Guaymas Basin at 2010 metres.9

VentR ® (exo-) DNA Polymerase, genetically engineered version of Vent R DNA Polymerase that carries the Vent DNA Polymerase gene from the archaea Thermococcus litoralis isolated from the hydrothermal vent site noted above.7

VentR ® DNA Polymerase a high-ﬁdelity thermophilic DNA polymerase, which is puriﬁed from a strain of E. coli that carries the Vent DNA Polymerase gene from the archaea. Thermococcus litoralis isolated from a submarine hydrothermal vent near Lucrino, Bay of Naples, Italy.5 The native organism is capable of growth at up to 98°C. 6

272 Appendices

16

15

14

13

12

11

10

9

8

7

6

5

4

Tli DNA Polymerase isolated from the archaea Thermococcus litoralis.16

Tth DNA Polymerase isolated from the archaea Themus thermophilus.15

Pfu DNA Polymerase, a themostable enzyme isolated from Pyrococcus furiosus.14

See www.neb.com, accessed 12 July, 2004. Perler F.B. and Jack W.E. et al. ‘Intervening sequences in an Archaea DNA polymerase gene’ (1992) 89 Proc.Natl. Acad. Sci. USA 5577. New England Biolabs Inc. Vent ® R DNA Polymerase Technical Bulletin # M0254 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. New England Biolabs Inc. Vent ® R (exo-) DNA Polymerase Technical Bulletin # M0257 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. New England Biolabs Inc. Deep Vent ® R DNA Polymerase Technical Bulletin # M0258 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. H.W. Jannasch et al., ‘Comparative Physiological Studies on Hyperthermophilic Archaea isolated from Deep-Sea Hot Vents with emphasis on pyroccus strain GB-D’ (1992) Applied and Environmental Microbiology 3472. New England Biolabs Inc. Deep Vent ® R (exo-) DNA Polymerase Technical Bulletin # M0259 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. New England Biolabs Inc. 9°Nm™DNA Polymerase Technical Bulletin # M0260 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. New England Biolabs Inc. Therminator ™DNA Polymerase Technical Bulletin # M0261 (26/8/02) available from http://www.neb.com, accessed 4 October 2002. www.promega.com, accessed 17 September 2004. Pfu DNA Polymerase Usage Information, accessed from www.progmega.com accessed 15 September 2004. See also Huber H. and Stetter K.O., ‘Hyperthermophiles and their possible potential in biotechnology’ (1998) 64 Journal of Biotechnology 39, 48. Promega Enzyme Resource Guide available from www.promega.com, accessed 17 September 2004. Promega Enzyme Resource Guide available from www.promega.com, accessed 17 September 2004.

Promega Corporation.13 Development of products for life sciences research.

Therminator™ DNA Polymerase12

Appendices 273

Biopolymer Engineering Inc.21

Discovery and isolation of novel antifungal compounds for therapeutic use. Especially interested in identiﬁcation of extremophiles and thermophiles that have potent activity against human fungal pathogens. Fungal infections are a common complication in kidney, liver, lung and heart transplants and have also been associated with AIDS.

Montana Biotech Corporation & Mycologics Inc.19

Research in relation to polysaccharides, especially chitin for use in a range of applications including consumer products such as recycled paper, household sponges, diapers and

Although most research has focussed on extremophiles from terrestrial sources, the potential for hydrothermal vent extremophiles has been identiﬁed in such research.20

Joint Research by these two companies resulted in the ﬁrst reported screening of extremophiles for antifungal activity.

Enzymes for use in applications such as detergents, converting starch to sweeteners, producing ethanol, “stone-washing” blue jeans, and enhancing the nutritional value of animal feed.

Prokaria is currently the sole company licensed to access and sample Iceland’s offshore submarine hydrothermal vents, and also has sole access to some of Iceland’s prime terrestrial hot springs and geothermal areas.

Development of products for biotechnology/genomics industry for research and diagnostics, for food, agricultural, chemical companies and the pharmaceutical industry, including thermostable DNA polymerases and ss RNA/DNA ligases.

Genencor International Inc.18

Prokaria ehf.17

Appendix 1 (cont.)

274 Appendices

24

23

22

21

20

19

18

This company markets a range of DNA polymerases containing the ArchaeMaxx™ Factor isolated from Pyrococcus furiosus, a hyperthemophilic archaeon

www.prokaria.com, accessed 17 September 2004. www.genencor.com, accessed 17 September 2004. www.mycologics.com, accessed 17 September 2004. Phoebe C.H., et al. ‘Extremophilic Organisms as an Unexplored Source of Antifungal Compounds’ (2001) 54(1) The Journal or Antibiotics 56. www.biopolymer.com, accessed 17 September 2004. See www.biopolymer.com and Gaill F et al., ‘In Situ Biodegradation experiments of chitinous Exoskeletal structures of crabs and vestimentiferans coming from Deep Sea Hydrothermal Vents (1995) Advances in Chitin Science 143. http://www.qbiogene.com accessed 17 September 2004. http://www.stratagene.com accessed 17 September 2004.

This company’s web site describes the company as a worldwide leader in developing innovative products and technologies for life science research. Its products are used

Strategene Inc.24

17

This company describes itself as a fully integrated provider of molecular and cellular biology, drug discovery, and development of products focussing on genetic identiﬁcation, cloning and manipulation.

QBiogene Inc.23

Chitin is found in the shells of crustaceans, the exoskeletons of insects and the cell walls of fungi. Biodegradation of these materials in nature involves processes similar to those used commercially to produce popular nutraceuticals. The process of biodegradation has been modelled and quantiﬁed in various studies by this company, including one study involving the evolution of chitin and protein contents of the shells of a hydrothermal vent crab exposed to marine soil.22

feminine napkins and tampons, and medical uses such as wound dressings, hospital bedding, gowns and other medical products.

Appendices 275

Darphin

Appendix 1 (cont.)

This company is not a biotechnology company per se. Its principal area of business is cosmetics. It markets a number of products that contain the DEEPSANE active ingredient derived from a range of deep-sea microorganisms, including some sourced from deep sea hydrothermal vents in the Paciﬁc ocean.26 References on the IFREMER web site suggest that DEEPSANE was developed by researchers at IFREMER, although it was not possible to conﬁrm this. DEEPSANE appears to have been derived from the hydrothermal vent bacteria Alteromonas macleodii. A related product is also marketed as ABYSSINE® 657. 27

in academic, industrial and government research sectors, including in molecular biology, genomics, proteomics, drug discovery and toxicology.

Darphin Stimulskin Plus Eye Contour-a cosmetic containing DEEPSANE described by the manufacturer as “a multi-action, antiaging defense system for your eyes.”29 In the advertising material for this product the manufacturer describes DEEPSANE as an ingredient which “stimulates the immune system to form a protective barrier against environmental irritants such as pollution and smoke”.30 ABYSSINE® 657.

Darphin Stimulskin Plus Cream-a cosmetic product containing DEEPSANE described on the manufacturer’s web site as “an intensive skin-restructuring and lifting treatment”.28

This company also markets the UITma™ DNA polymerase which was isolated from the hydrothermal vent hyperthermophile T.maritima.25

Pfu DNA Polymerase; PfuTurbo® DNA polymerase; PfuTurbo® Hotstart DNA polymerase; PfuUltra™ Hotstart DNA Polymerase; Herculase® Enhanced DNA Polymerase; Herculase Hotstart DNA Polymerase; EXL™ DNA Polymerase; Easy-A™ High-Fidelity PCR Cloning Enzyme; and TaqPlus® Maxx™ DNA Polymerase.

found in hydrothermal vents. DNA polymerases marketed containing the ArchaeMaxx™ Factor include:

276 Appendices

30

29

28

27

26

25

H. Huber and K.O. Stetter, ‘Hyperthermophiles and their possible potential in biotechnology’, (1998) 64 Journal of Biotechnology 39, 48. http://www.google.com.au/search?q=cache:V7WOtVHfOY8J:www.renew4u.com/ski accessed 17 September 2004. See in particular references to DEEPSANE on the IFREMER web site http://www.ifremer.fr/anglais accessed 17 September 2004 and the extended abstract of a papers by IFREMER scientist Guezennec J., ‘Innovative Bacterial Exopolysaccharides from Hydrothermal Deep-Sea Vents’ and by Vacher A.M., ‘Valorization of an exopolysaccharide excreted by a microorganism from hydrothermal vents. Valorization of Deepsan in the cosmetic industry’ reproduced at http://216.239.37.104/translate_c?hl=en&sl=fr&u=http://www.cbb-developpement.co accessed 17 September 2004, as well as the published article Gambon-Bonavita M.A., et al., ‘A novel polymer produced by a bacterium isolated from a deep-sea hydrothermal vent polychaete annelid’ (2002) 93 Journal of Applied Microbiology 310. http://darphin-vip.store.yahoo.com/darstimplusc1.html, accessed 17 September 2004. http://www.liposculpte.com/eye-wrinkle-cream/ , accessed 17 September 2004. http://www.meimanmarcus.com/store/catalog/prod.jhtml?itemId=prod6100594&paren, accessed 17 September 2004.

Appendices 277

Title of Invention

Puriﬁed thermostable Pyrococcus Furiosus DNA Ligase

Puriﬁed Thermococcus Barossii DNA Polymerase

Puriﬁed Thermstable Pyrococcus DNA Ligase

Thermococcus AV4 and enzymes produced by the same.

Patent Number

US5,506,137

US5,602,011

US5,700,672

US5,714,373

Recombinant Bio-Catalysis Inc.

Stratagene

Pharmacia Biotech Inc. and North Carolina State University

Stratagene

Assignee (Owner of the Patent Right)

Micro-organism and derivatives

Derivative

Derivative

Derivative

Thermococcus AV4

Pyrococcus Furiosus

Thermococcus Barossii

Pyrococcus Furiosus

Micro-organism, Source derivative or Micro-organism process

Deutsche Sanmlung Von Micro-organismen DSM Accession No: DSM-6217

Endeavor Segment, Juan De Fuca Ridge, Washington State, USA. A strain of Thermococcus Barossii was deposited at DSM (Deutsche Sanmlung Von [SIC] Mikro-organismen Und Zellkulturen GmvH, Federal Republic of Germany, DSM Accession No: DSN9535.

Location of Source Micro-organism (if stated)

Table 3. Patents granted in relation to biotechnology derived from hydrothermal vent microbes and other inventions.

APPENDIX 2

Pfu DNA Ligase

Product as Marketed

278 Appendices

Cleavage of nucleic acid using thermostable methoanococcus jannaschii FEN-1 endonucleases

Amidase

Carboxymethyl Cellulase from Thermotoga Maritima Esterases

US5,843,669

US5,877,001

US5,925,749

US5,942,740

Endoglucanases

US5,789,220

Diversa Corporation

Diversa Corporation

Diverso [sic] Corporation

Third Wave Technologies Inc.

Diversa Corporation

Derivative

Derivative

Derivative

Derivative and process

Derivative

Staphylothermus Marinus F1 Pyrodictum TAG11 Acuifex Pyrophilus KOI 5a Thermococcus CL2

The subject matter of this patent was derived from a number of terrestrial and marine organisms including the following organisms from hydrothermal vents:

Archael Bacterium Thermococcus GU5L5 Thermotoga Maritima

Methoanococcus jannaschii

Archael Bacterium AEPII1a

Middle Atlantic Ridge Kolbeinsey Ridge, North of Iceland North Cleft Segment of the Juan De Fuca Ridge

Vulcano Italy

Vulcano, Italy

Vulcano, Italy

Appendices 279

Diversa Corporation

b-Galactosidase

Carboxymethyl Cellulase from Thermotoga Maritima

Transminases and Amnotransferases

Amivase

Thermophilic Phospholipases and method for production thereof

US5,958,751

US5,962,258

US5,962,283

US5,985,646

US6,001,626

Director-General of Agency of Industrial Science and Technology (Japan)

Diversa Corporation

Diversa Corporation

Diversa Corporation

Assignee (Owner of the Patent Right)

Title of Invention

Patent Number

Appendix 2 (cont.)

Derivative and method

Derivative

Derivative

Derivative

Derivative

Pyrococcus Horikoshii

Archael Bacterium Thermococcus GU5L5

Derived from a number of micro-organisms including Acquifex VF5

Thermotoga Maritima

Thermococcus, Alcaliphilus AEDII12RA

Aquifex VF5 Archaeoglobus Fulgidus VC16 Sulfolobus Solfataricus P1

Micro-organism, Source derivative or Micro-organism process

Vulcano, Italy

Vulcano, Italy

Vulcano, Italy Vulcano, Italy

Location of Source Micro-organism (if stated)

Product as Marketed

280 Appendices

Re-enactment of a deep-sea voyage to the bottom of the sea

Thermostable Proteolytic Enzymes and uses thereof in Peptide and Protein Synthesis

Transforming Biomass Board of Supervisors Process to Hydrocarbon of Louisiana State Mixtures in NearUniversity et.al. critical or Super-critical Water

Puriﬁed Thermostable Pyrococcus Furiosus DNA Ligase

Marine Bacterial Strain of the Genus Vibrio, Water-Soluble Polysaccharides Produced by said Strain and Their Uses

US6,143,517

US6,180,845

US6,280,998

US6,436,680

Instit Francais de Recherche Pour L’Exploitation de la Mer

Stratagene

University of Florida

Cyrus Milamian

Pyrococcus Furiosus

Not applicable

Pyrococcus Furiosus

Not applicable

Archael Bacterium Thermococcus GU5L5

Archael Bacterium AEPII1a

Micro-organisms, Vibrio derivative, and Diabolicus use

Derivative

Derivative and use.

Machinery/ process.

Derivative

US6,066,049

Diversa Corporation

Amidase

Derivative

US6,004,796

Diversa Inc.

Endoglucanases

US6,001,984

Isolated from Pompeii worm (Alvinella Pompejana), location not stated.

Not applicable

Not applicable

Vulcano, Italy

Vulcano, Italy

Appendices 281

Roche Molecular Systems Inc.

Diversa Corporation

The Board of Trustees of the University of Illinois, The Institute for

US6,500,659B1 Amidase

US6,503,729

Selected Polynucleotide and Polypeptide Sequences of the Methanogenic

Diversa Corporation

US6,492,511B2 Isolation and Identiﬁcation of Novel Polymerases

Thermostable DNA Polymerase from Carboxydothermus Hydrogenoforrnans

US6,468,775

New England Bio-labs, Inc.

Diversa Corporation

Method for Cloning and Expression of Rhodothermus Obamensis DNA Polymerase I Large Fragment in E.coli.

US6,440,715

Assignee (Owner of the Patent Right)

US6,465,208B1 Amidase

Title of Invention

Patent Number

Appendix 2 (cont.)

Micro-organism (complete genome sequence)

Derivative

Derivative

Derivative and method

Derivative

Derivative and method

Methanococcus Jannaschii

Archael Bacterium Thermococcus GU5L5

Ammonifex Degensii KC4

Carboxydothermus Hydrogenoforrnans

Archael Bacterium Thermococcus GU5L5

Rhodothermus Obamensis

Micro-organism, Source derivative or Micro-organism process

Volcano, Italy

Middle Atlantic Ridge

Tachibana Bay, Japan

Location of Source Micro-organism (if stated)

Product as Marketed

282 Appendices

Instit Francais de Recherche Pour L’Exploitation de La Mer and Cooperative Laitiere de Ploudaniel

Puriﬁed Alteromonas Macleodii Polysaccharide and its Uses

Sampling Apparatus for Collecting Samples from Underwater Hydrothermal Vents and the Marine or Limnological Water Column

Thermostable Protolytic Enzymes and Uses Thereof in Peptide Protein Synthesis

Thermophilic DNA Polymerases from Thermoactinomyces Vulgaris

US6,545,145

US6,561,046

US6,573,065

US6,632,645

Promega Corporation

David Michael Young

McLane Research Laboratories

Diversa Corporation

Genomic Research and Johns Hopkins University

US6,525,190B1 Amidase

Archaeon, Methanococcus Jannaschii

Derivative

Derivative

Not applicable

Derivative

Derivative

Thermoactinomyces Vulgaris

Pyrococcus Furiosus

Not applicable

Alteromonas Macleodii Subst.Fijiensis

Thermococcus GU5L5

Not applicable

North Fiji Basin

Vulcano, Italy

Appendices 283

Title of Invention

Heat-stable DNA Polymerase of Archaeo Bacteria of Genus Pyrococcus SP

Process for Producing Electrical Energy with the aid of a Fuel Cell

Thermostable DNA Polymerase from Anaerocellum Thermophilum

Thermstable Protolytic Enzymes and uses thereof in Peptide and Protein Synthesis

Mining Hydrothermal Vents

Patent Number

US6,673,585

US6,686,075

US6,692,932

US6,743,618

GB2,391,881A

Appendix 2 (cont.)

Michael Eugene Kavanagh

University of Florida Research Foundation, Inc.

Ankenbauer and Schmitz-Agheguin et al.

dmc2 Degussa Metals Catalysts Cerdec AG

Appligne-Oncor S.A.

Assignee (Owner of the Patent Right) Pyrococcus SP. GE5

Pyrococcus Furiosus

Anaerocellum Thermophilum SUP.1

Method of mining Not applicable

Derivative

Derivative

Process utilising Carboxidothermus thermophilic Hydrogenoformans micro-organisms

Derivative

Micro-organism, Source derivative or Micro-organism process North-Fiji Basin in the South Paciﬁc

Location of Source Micro-organism (if stated)

Product as Marketed

284 Appendices

Professor Kim Juniper

Prof Dr Ricardo Serrao Santos

Dr Peter Nichols

18 June 2003, High Seas Biodiversity Workshop, Cairns, Australia

19 and 20 June 2003, High Seas Biodiversity Workshop, Cairns, Australia

12 November 2003, CSIRO, Hobart, Australia

Project Leader, Marine Products, CSIRO Marine Products, Hobart, Tas, Australia

Director, Department of Oceanography and Fisheries, University of the Azores

Centre for Research in Geochemistry and Geodynamics, Université du Québec á Montreal

Senior Principal Research Scientist, CSIRO, North Ryde, NSW, Australia.

Position & Research Institution

Thermophile microbiology.

Aquatoxicology of hydrothermal vent organisms including mussels, shrimp, limpets, crabs and ﬁsh associated with hydrothermal vents. DNA repair mechanisms of some hydrothermal vent species. Development of technology to collect specimens for other studies

Understanding hydrothermal vent faunal communities. Hydrothermal vent food chain. Hydrothermal vent microbiology and biochemistry.

Geology of modern day hydrothermal systems. Understanding formation of ore bodies in hydrothermal vent systems

Current area of hydrothermal vent research interest

Manus Basin PNG

Azores, Mid-Atlantic ridge

North East Paciﬁc, Juan de Fuca Ridge, Explorer and Gorda Ridges (USA & Canada)

Manus Basin PNG, Vanuatu, Solomon Islands and Indonesia

Location of recent research

A number of other scientists engaged in related areas of research were also interviewed informally. Although not involved in hydrothermal vent research these scientists did give invaluable information on scientific research techniques and details of further useful contacts. Their contribution is greatfully acknowledged at the beginning of this book.

Dr Timothy F. McConachy

10 April, 2003, CSIRO North Ryde, Australia

31

Name of scientist interviewed

Date of Interview/ Location of interview

Table 4. Scientists engaged in hydrothermal vent research interviewed for the purposes of this study.31

APPENDIX 3

Appendices 285

Name of scientist interviewed

Dr Alex Malahoff

Dr Cornel de Ronde

Dr Roberto Anitori

Date of Interview/ Location of interview

25 November 2003. Institute of Geological & Nuclear Sciences, Lower Hutt, New Zealand

25 November 2003. Institute of Geological & Nuclear Sciences, Lower Hutt, New Zealand

11 September 2004. Macquarie University.

Appendix 3 (cont.)

Post-doctoral fellow, Australian Centre for Astrobiology and School of Biological Sciences, Macquarie University

Principal Scientist, New Zealand Institute of Geological and Nuclear Sciences

Chief Executive, New Zealand Institute of Geological and Nuclear Sciences

Position & Research Institution

Microbiology of extremophiles including hydrothermal vent thermophiles. Extreme environments as analogues for life on other planets.

Geology of hydrothermal systems.

Current area of hydrothermal vent research interest

Kermadec arc (New Zealand), Tonga, PNG, Mariana arc and Solomon islands.

Hawaii (USA), PNG, Kermadec Arc (New Zealand)

Location of recent research

286 Appendices

Index A Adventure Diving tourism, as form of, 24 Agenda 21 soft law, as, 59 Antarctic Treaty System Antarctic Specially Protected Areas, 72–73 bioprospecting, regulation of, 73 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 70–71 environmental impact assessment, 72 hydrothermal vents, application to, 69 Madrid Protocol, 71–73 Antarctic Specially Protected Areas, 72–73 Australia, implementation in, 201–203 environmental impact assessment, 199–201, 228 Management Plans under, 72 measures in, 71–73 Antarctica bioprospecting, 164 Australia Antarctica, implementation of model for environmental impact assessment, 201–203

Azoic zone concept of, 13

B Biodiversity conservation, 8 importance of, 100 marine protected areas as tools for, 153 Convention for the Protection of the Marine Environment on the North-East Atlantic, 67 Convention. See UN Convention on Biological Diversity deep sea, of, 2, 13–17 conservation of, 26–27 International Seabed Authority, interest of, 218–219 New Zealand, strategy of, 135–136 Noumea Convention, 69 Biogeography of Deep-Water Chemosynthetic Ecosystems, 185–186 Bioprospecting Antarctic, in, 73, 164 commercial potential, 23 deep sea, in, 100 deep-sea genetic resources, use for,

288

Index

commercial interests, involvement of, 167 isolation, characterisation and culture-collaboration between academia and industry, 167–169 overview of process, 164–165 product development, 169 sample collection, 165–166 uses, screening for, 169 deﬁnitions, 157–158 Endeavour marine protected area, in, 122–123 environmental impact, 156 regulation of, 223 high Seas, on, 73 hydrothermal vents subject to, reasons for, 158–164 Kermandec ridge hydrothermal vents sites, at, 124 Lucky Strike hydrothermal vent site, at, 154 Menez Gwen hydrothermal vent site, at, 154 nature and extent of, 24 New Zealand, strategy of, 135–136 processes, 157–158 threat of, 26–27 Biotechnology bioprospecting. See Bioprospecting deep-sea genetic resources, use of, 155 DNA, discovery of, 158 enzymes for use in industrial and manufacturing processes, 160–162 hyperthermophiles, use of, 164 life forms, signiﬁcant, 159 marine environment, potential of, 159 modern developments, 158 patents, Budapest Treaty, 172–174 global commons trust funds, link with, 178 grant of, 278–284 international patent treaty system, 172 microorganisms, requirements for, 173–174 patentability, 171–172 Polymerase Chain Reaction, invention of, 158

polymerases for use in research and diagnostics, 162 research companies, 271–277 therapeutic and pharmaceutical research, 162–164 thermophile and hydrothermophile microorganisms, derivatives, 159–160 Biotechnology industry emergence of, 158–160 Brundtland Commission, 30, 176

C Canada biodiversity policies, 107 Canadian Remotely Operated Platform for Ocean Studies, 105 Endeavour ecosystem, activities and stakeholders, 105–107 hydrothermal vent sites, 104–105 Main ﬁeld, 105 marine protected areas, 113–116 Overview, 113–114 research, 106 environmental impact of scientiﬁc research, regulation of, 203–205 exclusive economic zone (EEZ), mineral scientiﬁc research in, 123 Integrated Management Plans, 109–112 marine protected areas, deﬁnition, 112 designation, 112 Endeavour. See Endeavour marine protected area enforcement, 119–120 ﬁrst, 112 policies, 112–113 stakeholder involvement, 113–114 marine scientiﬁc research in, 190 proposal for regulating, 193 maritime borders, 108 military forces, area of operation, 106 Oceans Act, 108 Oceans Management Strategy, 109–112 Oceans Policy, 107 oceans surrounding, 104 territorial sea, 108 UN Convention on Biological Diversity, party to, 107

Index UN Law of the Sea Convention, party to, 107 Census of Marine Life key components of, 185–186 Challenger Expedition, 14 Common heritage of mankind agreed deﬁnition, lack of, 96 Baslar, study by, 96 common elements, 96–98 Convention on Biological Diversity, concept not included in, 97 divergence of views on, 97 future debate, 101 mineral resources of deep sea beyond national jurisdiction, Area of, 45 moon, resources on, 97–98 passing of time for, 99 resources to which applied, 97 sustainable development, common goals of, 100 Commons Trust Funds proposals for, 177–179 Conservation biodiversity, of, 8 marine protected areas as tools for, 153 deep sea, of, 8 deep-sea habitats, of, 9 exclusive economic zone (EEZ), in, 35 Continental shelf coastal state, rights of, 36 continental margin, 36 Convention, 88–93, 190–191 deﬁnition, 35, 95 exploration and exploitation, 36 Gulf of Paria Treaty, 85 hydrothermal vent sites in, 38 ILC, position of, 89–92 legal notion, origins of, 84–88 marine scientiﬁc research in, 48–50, 190–191 natural resources, deﬁnition, 93 exploitation of, 95 Regime. See Continental Shelf Regime sedentary ﬁsheries, position of, 3, 83, 90–92 sedentary species, fusion of law of, 93–94 sovereign rights, 88–89, 91 tourism on, 51

289

Truman Proclamation, 86–88 unilateral declarations, 87 Continental Shelf Regime historical origins, 80–88, 94 hydrothermal vent sites, application to, 3 mare clausum vs mare liberum, 80–82 sedentary species, sovereign rights in, 82–84 UN Law of the Sea Convention, regime under, 35–36 Convention for the Protection of the Marine Environment on the North-East Atlantic (OSPAR Convention) ecosystems and biological diversity, protection and conservation of, 67 hydrothermal vent ﬁelds, obligations, 66–67 Convention on Biological Diversity common heritage of mankind concept, exclusion, 97 intellectual property rights, and, failure to address, 174–175 missing link, 170 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) application of, 70 Commission, establishment of, 70 objective, 70 obligations, 71 terminology, 71 Customary international law high seas freedoms under, 58 hydrothermal vents, application to, 58 Precautionary Principle, 32

D Deep Sea abyss, as, 7–8 biodiversity of, 13–17 conservation of, 26–27 commercial activities, 100 conservation agenda, on, 8 diversity of life in, 8 experience of, 8 ﬂoor, investigation of, 14 human activity, threat from, 8 light and noise pollution in, 40–41. See also Marine pollution species in, 13–17

290

Index

sustainable management, global body for, 225–226 Deep seabed common heritage of mankind. See Common heritage of mankind private enterprise, market for, 99 status of, 96 Deep-sea genetic resources bioprospecting, use of, commercial interests, involvement of, 167 isolation, characterisation and culture-collaboration between academia and industry, 167–169 overview of process, 164–165 product development, 169 sample collection, 165–166 uses, screening for, 169 biotechnological uses, bioprospecting. See Bioprospecting commercially useful extremophiles, extent of, 155 economic value, 155 preliminary assessment, 155 commercial interests in, 181 legal regime, proposal for, 1 protection of, 58 regulating access to, 209 sharing beneﬁts of, 175–176, 181 Deep-sea habitats conservation, 9 Deep-sea Hydrothermal vents. See Hydrothermal vents Deep-sea mining see also Nautilus Minerals, Papua New Guinea, Neptune resources and New Zealand commercial potential, 23 environmental regulation, 153 International Seabed Authority. See International Seabed Authority LOSC regime, 45 polymetallic sulphides, for, 212–214 potential impact of, 44–45 regulation of, 209. See also International Seabed Authority risk of serious harm to environment, causing, 211 threat of, 26–27

Deep-sea sediments biotechnology potential, 2 DNA discovery of, 158 polymerases for use in research and diagnostics, 162

E Ecosystem approach adoption of, 33 environmental issues, to, 32–33 Endeavour marine protected area Area, 116 education and outreach strategy, 120 enforcement, 119–120 establishment of, steps towards, 113–116 High Rise ﬁeld, 119 hydrothermal vent regulations, 116–118 management committee, 121 Management Plan, 113, 118–121 marine protected areas, 113–116 mineral resources, access to, 115 national security provisions, 121–122 overall management 120 Overview, 113–114 prohibited activities, 116–117 Recommendations Document, 114 Sawlty Dawg ﬁeld, 118–119 scientiﬁc research in, 115, 117–118 stakeholders, attitude to, 120 unresolved issue bioprospecting, 122–123 zoned management areas, 118 Environmental economics analytical tool, as, 17–18 Environmental impact assessment Antarctica, in, 72 implementation of model, 201–203 Madrid Protocol, 199–201, 228 Canada, in, 203–205 International Seabed Authority regulations, 215–218 model procedure, 206 protocol, 198 use of, 199 Environmental issues ecosystem approach, 32–33 Enzymes extremophiles, from, 161

Index industrial and manufacturing processes, for use in, 160–162 meaning, 160 microbial, 161 thermostable, 160 European Union Biotechnology Programme, 167 Industry Platform for Microbiology, 167 Exclusive economic zone (EEZ) conservation and management in, 35 extent of, 34–35 hydrothermal vent sites in, 38 regulation of access to, 103 marine scientiﬁc research in, 48–50 regime, 35 rights of coastal state in, 35

F Freedom of the seas doctrine, 79 Grotius, work of, 80–82 sedentary ﬁsheries, position of, 83 studies, 80–82 Frontier Research Program for Extremophiles, 168, 186

G Geothermal energy commercial potential, 23, 26 Global commons trust funds biotechnology patents, link with, 178 global environment facility, funding, 179–181 royalty, amount of, 179 Global environment facility establishment of, 180 funding, 179–181 Gulf of Paria Treaty, 85

H High seas deﬁnition, 36 freedom of, 37 marine protected areas (MPA), 54, 57 marine scientiﬁc research on, 50 tourism on, 51 UN Law of the Sea Convention, regime under, 36–37

291

Hydrothermal vent ecosystems activities with environmental impact on, 2 chemosynthesis, driven by, 20 food chain, 16 importance of, 2, 17–27 marine scientiﬁc research, threat posed by, 183. See also Marine scientiﬁc research mid-oceanic ridge system, formation, 10–12 preservation of, 17–18 sedentary species, 38–40 size and age, 12–13 threats to, 26 Hydrothermal vents biodiversity, conservation of, 26–27 bioprospecting. See Bioprospecting Canada, in. See Canada diversity of life found at, 9 domestic regimes, lessons of, 151–154 ecosystem. See Hydrothermal vent ecosystems Endeavour ecosystem, in, 105 formation of, 10–11 habitat diversity, 15 Juan de Fuca Ridge, along, 104 life of, 13 life, teeming with, 14–16 local species found at, 15 microbial communities, diversity of, 159 microbial diversity, 16–17 multiple and conﬂicting uses, accommodation of, 152 New Zealand, in. See New Zealand origin of life, and, 18–22 Papua New Guinea, in. See Papua New Guinea plate tectonics, relationship with, 10–12 Portugal, in. See Portugal regional treaties applying to, 65 Antarctic Treaty System, 69–74. See also Antarctic Treaty System Convention for the Protection of the Marine Environment on the North-East Atlantic, 66–67 further scope for, 77–78 NEAF Convention, 74–76 Noumea Convention, 68–69 World Heritage Convention, 77

292

Index

research, companies involved in, 271–277 resources, potential economic value of, 23–26 seamounts, associated with, 12 search for life in outer space, and, 22 sites, 12 sustainable management, 63 need to justify, 17–18 structural impediments to, 220–223 territorial waters, within, regulation of access to, 103 thermophile and hydrothermophile microorganisms, derivatives, 159–160 tourism potential, 23–25 tubeworm colonies, 163 UNCIPLOS, consideration by, 61–63 United National General Assembly resolutions, 60 value of resources, 18

de-factor marine protected areas, and, 219–220 decision-making organs, 221 environmental mandate, environmental impact assessment, 215–218 expansion of, 224, 227 overview, 210–212 polymetallic sulphides prospecting regime, 212–214 precautionary approach, 212 rules, regulations and procedures, adoption of, 210 mandate, 46 members of, 46 relevance of, 223 sustainable management of hydrothermal vents, structural impediments to, 220–223 InterRidge Code of Conduct marine scientiﬁc research, for, 196–198

I Intellectual property rights Convention on Biological Diversity, missing link with, 170, 174–181 hydrothermal vents, access to genetic resources, 154 patents. See Patents Intergenerational equity concept of, 31 International law customary. See Customary international law hydrothermal vents, application to, 29 International Law Commission continental shelf, position as to, 89–92 International Ocean Space Institution organs of, 192 proposed, purposes of, 191 register, 192 International Seabed Authority beneﬁt-sharing, no expertise with, 222 biodiversity issues, emerging interest in, 218–219 bioprospecting, regulation of environmental impact of, 223 commercial mining of deep-sea resources, facilitation of, 46–47 creation of, 46

J JAMSTEC Frontier Research Program for Extremophiles, 168, 186 marine scientiﬁc research vessels, 187 scientiﬁc research, range of, 187 Juan de Fuca Ridge hydrothermal vents along, 104

L Law of the sea development of, 79 Life on earth ancient pyritic ﬁlaments, discovery of, 21–22 common ancestor, 19, 21 origin of, 18–22 primary kingdoms, 21 Lithosphere creation of, 10 Lucky Strike hydrothermal vent site activities and stakeholders, 139–140 bioprospecting in, 154 discovery of, 138 fauna, 138–139 ﬁshing activities, 140 marine protected area, as, 137, 140–142

Index marine scientiﬁc research in, 142 tourist dives, 140

M Mariana Trench biotechnology potential, 2 Marine environment pollution. See Marine pollution protection and preservation of, 37–38 Marine pollution measures to prevent, 42 noise and light, from, 40–41 sea-bed, of, activities beyond national jurisdiction, from, 43–44 regimes applying, 43 sources of, 42 types of, 40 UN Law of the Sea Convention, regime under, 40–42 Marine protected area (MPA) biodiversity conservation, as tools for, 153 Canada, in. See Canada high seas, on, 54, 57 International Seabed Authority, regulation by, 219–220 Lucky Strike hydrothermal vent site, 137, 140–142 Menez Gwen hydrothermal vent site, 137, 140–142 national jurisdiction, beyond, 57 Marine scientiﬁc research (MSR) applied and pure, 49 Area of mineral resources of deep sea beyond national jurisdiction, in, 50 associated tourism, 50–51 Canada, in, 190 regulation in, 203–205 Canadian proposals, 193 coastal State, rights of, 48–50 companies involved in, 271–277 continental shelf, on, 48–49, 190–191 Endeavour marine protected area, in, 115, 117–118 environmental impact, 183, 189–190 assessment, 198–199, 228–229 exclusive economic zone, in, 48–50 high seas, on, 50, 191

293

hydrothermal vent sites, at, 152 hydrothermal vents, involving, areas of, 184–188 ecosystem, threat to, 183 geological and geochemical, 185 geology and geophysics of, 184–185 international co-operative programmes, 186 large scale, 185 methodology, 184 nature of, 188 size and scale of, 186–188 technology, 187–188 imposition of regime on, 195 InterRidge Code of Conduct, 196–198 Law of the Sea Convention Part XIII, 47–50 licensing, proposed system, 192 Lucky Strike hydrothermal vent site, at, 142 Maltese proposal for, 191–193 Menez Gwen hydrothermal vent site, at, 142 NEAF Convention, application of, 76 Papua New Guinea, in, 148–149 regulation, 25–26 debate on, 190–196 right to conduct, 47–48 scientists interviewed, 285–286 stiﬂing, concerns as to, 194 tourism, and, 25 vessels, 187 Menez Gwen hydrothermal vent site activities and stakeholders, 139–140 bioprospecting in, 154 fauna, 139 ﬁshing activities, 140 location, 138 marine protected area, as, 137, 140–142 marine scientiﬁc research in, 142 Methane seeps biotechnology potential, 2 Microbial diversity Hydrothermal vent sites, at, 16–17 Mid-Atlantic Ridge Ecosystem project, 186 Mid-oceanic ridge system hydrothermal vents, formation of, 10–12 Mineral resources of deep sea beyond national jurisdiction, Area of

294

Index

activities in, regulation of, 46–47 common heritage of mankind. See Common heritage of mankind marine scientiﬁc research in, 50 mining in, 1 use of, 45 Moon Treaty common heritage of mankind, 97–98

N National security deﬁnition, 121 hydrothermal vents, and, 121–122 Nautilus Minerals exploration licence, 146–147 key partners, 147–148 Manus Basin hydrothermal vent site, work in, 144–145 plans, scepticism for, 146–147 potential customers, 148 Worley’s study for, 147 NEAF Convention hydrothermal vent ecosystems, application to, 76 marine scientiﬁc research, not regulating, 76 non-contracting parties, promotion of compliance by, 76 North-East Atlantic and Arctic oceans, application to, 74 North-East Atlantic Fisheries Commission, establishment of, 75 Neptune resources prospecting licence, 126–129 New International Economic Order agenda, 99 claims of, 98 New Zealand biodiversity strategy, 135–136 Crown Minerals, 128 exclusive economic zone (EEZ), 123 hydrothermal vents legislation, 131 hydrothermal vents sites, discovery of, 123 Kermandec ridge hydrothermal vents sites, activities and stakeholders, 124 bioprospecting, 124 discovery of, 123 ﬁshing industry, interest of, 124 Maoris, interests of, 125

Neptune resources prospecting licence, 126–129 oceans, economic opportunities in, 133–135 oceans governance, 125 oceans policy, development of, 129–133 North-East Atlantic Fisheries Commission see also NEAF Convention establishment of, 75 recommendations, 75 Noumea Convention aim of, 68 biodiversity conservation, 69 development of resources, 68 obligations, 68–69

O Ocean Development Tax problems with, 177 proposals for, 176–177 Ocean management ethical viewpoint, 18 Oceans enclosure of, 44–45 Oceans Governance, 225–226 Origin of life cosmic proportion, signiﬁcance of, 23 Darwin, work of, 19–20 debate on, 19 hydrothermal vent ecosystems, and, 18–22 new theory of, 20 Outer space cosmic proportion, signiﬁcance of, 23 search for life in, 22

P Papua New Guinea developing policy regimes, 145–148 Manus Basin hydrothermal vent site, activities and stakeholders, 143–145 discovery of, 142 fauna, 143 location, 142–143 microbes, work on, 144 minerals, concentration of, 144 Nautilus Minerals, work of, 144–145 research, 143–144 Vienna Woods ﬁeld, 143 marine scientiﬁc research, 148–149

Index mining activities, 145–146 Nautilus Minerals, exploration licence, 146–147 offshore mining policy, 149–151 Patents administrative requirements, 173 biotechnology, global commons trust funds, link with, 178 grant of, 278–284 international patent treaty system, 172 microorganisms, requirements for, 173–174 patentability, 171–172 Budapest Treaty, 172–174 disclosure requirements, 173 hydrothermal vents, access to genetic resources, 154 international treaty system, 172 justiﬁcation, 170 sovereign act, grant as, 170 Pearl ﬁsheries access to, 82–84 Plate techtonics hydrothermal vents, relationship with, 10–12 Polymerase Chain Reaction invention of, 158 polymerases for use in research and diagnostics, 162 Polymetallic sulphides prospecting for, environmental impact assessment, 215 marine protected areas, 219–220 regulation, 212–214 Polysaccharides meaning, 162 microbial, 162–163 therapeutic and pharmaceutical research, 162–164 Portugal Azores archipelago, 137–139 hydrothermal vent sites, activities and stakeholders, 139–140 Lucky Strike. See Lucky Strike hydrothermal vent sites, Menez Gwen. See Menez Gwen hydrothermal vent sites,

295

workshop, 141 Spain, division of oceans with, 80–81 Poultry industry enzymes from hydrothermal vent species, use of, 161 PP Shirshov Institute of Oceanography scientiﬁc research expedition, 25 Precautionary Principle customary international law, in, 32 formulation, 31 nature of, 32 Rio Declaration, 31 State practice, reﬂected in, 31

R Rio Declaration Precautionary Principle, 31 soft law, as, 59

S Sea-bed pollution of, activities beyond national jurisdiction, from, 43–44 regimes applying, 43 rights in, 35 Seamounts hydrothermal vents associated with, 12 Sedentary species continental shelf, fusion of law of, 93–94 deﬁnition, 38 actual problem of, 154 application of, 94 ﬁsheries, access to, 83–84 hydrothermal vent species, 38–40 application of regime to, 80 macrofauna and microfauna, 39 non-sedentary species distinguished, 39 SBSTTA Study, 55 sovereign rights in, 82–84 Soft law Agenda 21, 59 meaning, 59 principles of, 59 Rio Declaration, 59 Stockholm Declaration, 59 Spain Portugal, division of oceans with, 80

296

Index

Stockholm Conference on Environment and Development international environmental law, as beginning of, 30 Stockholm Declaration, 30, 59 Submarine volcanic springs. See Hydrothermal vents Sustainable development Brundtland Report, 30, 176 common heritage of mankind, common goals of, 100 deﬁnition, 30 funding, 228 World Summit, objectives, 59 Plan of Implementation, 59–60, 65

T Territorial sea Canada, of, 108 hydrothermal vents within, regulation of access to, 103 Tourism Adventure Diving, 24 continental shelf, on, 51 deep-sea, commercial potential, 23–25 threat of, 26 high seas, on, 51 marine scientiﬁc research, and, 50–51 regulation of, 50–51 Truman Proclamation, 86–88 Tubeworms artiﬁcial blood, use in making, 163–164

U UN Convention on Biological Diversity Canada as party to, 107 coastal State, obligations of, 52 framework treaty, as, 52 genetic resources beyond national jurisdiction, no regulation of, 52 Jakarta, COP meeting in, 53–54 LOSC, relationship with, 53 SBSTTA Study, 54–58 objectives, 51–52 overview, 51–53 SBSTTA Study, consideration of, 56–58

Kuala Lumpur meeting, considered at, 57 Montreal meeting, presented at, 56 relationship with LOSC, on, 54–55 sedentary species deﬁnition, 55 UN Law of the Sea Convention Canada as party to, 107 conﬂicting principles, reconciliation of, 79 Continental Shelf Regime. See Continental shelf deep-sea mining, regulation of, 209 disputes, resolving, 217 EEZ regime, 35. See also Exclusive economic zone (EEZ) high seas regime. See High seas hydrothermal vents, application to, 34 Implementation Agreement, 1 International Seabed Authority. See International Seabed Authority jurisdictional zones under, 34–35 marine environment, protection and preservation of, 37–38 marine scientiﬁc research under. See Marine scientiﬁc research new technology, challenges of, 80 oceans, enclosure of, 44–45 oceans governance, maintaining base of, 230 Part XI, revision of, 227 pollution of marine environment, protection against. See Marine pollution ratiﬁcation, 34 regime under, 34 regulation of ocean space, framework for, 34 regulatory objectives, watering down, 99 seabed and subsoil, right sin, 35 UN Convention on Biological Diversity, relationship with, 53 SBSTTA Study, 54–58 United National General Assembly resolutions, 60 United Nations Informal Consultation Process on the Law of the Sea (UNICPLOS) Ad Hoc Working Group, 62–63 hydrothermal vents, consideration of, 61–63 recommendations, 61–62

Index

W World Environmental Organisation proposals for, 226 World Heritage Convention

objective, 77 World Oceans Organisation proposals for, 226

297

Publications on Ocean Development 1.

R.P. Anand: Legal Regime of the Sea-Bed and the Developing Countries. 1976 ISBN 90-286-0616-5

2.

N. Papadakis: The International Legal Regime of Artificial Islands. 1977 ISBN 90-286-0127-9

3.

S. Oda: The Law of the Sea in Our Time. Volume I: New Developments, 1966-1975. 1977 ISBN 90-286-0277-1

4.

S. Oda: The Law of the Sea in Our Time. Volume II: The UN Seabed Committee, 19681973. 1977 ISBN 90-286-0287-9

5.

C.O. Okidi: Regional Control of Ocean Pollution. Legal and Institutional Problems and Prospects. 1978 ISBN 90-286-0367-0

6.

N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contribution of the African States to the 3rd UN Conference on the Law of the Sea. 1980 ISBN 90-286-0639-4

7.

R.P. Anand: Origin and Development of the Law of the Sea. History of International Law Revisited. 1983 ISBN 90-247-2617-4

8.

A.M. Post: Deepsea Mining and the Law of the Sea. 1983

ISBN 90-247-3049-X

9.

S.P. Jagota: Maritime Boundary. 1985

ISBN 90-247-3133-X

10. A.O. Adede: The System for Settlement of Disputes under the UN Convention on the Law of the Sea. A Drafting History and a Commentary. 1987 ISBN 90-247-3324-3 11. M. Dahmani: The Fisheries Regime of the Exclusive Economic Zone. 1987 ISBN 90-247-3374-X 12. S. Oda: International Control of Sea Resources. Reprint with a New Introduction. 1989 ISBN 90-247-3800-8 13. D.G. Dallmeyer and L. DeVorsey, Jr. (eds.): Rights to Oceanic Resources. Deciding and Drawing Maritime Boundaries. 1989 ISBN 0-7923-0019-X 14. B. Kwiatkowska: The 200 Mile Exclusive Economic Zone in the New Law of the Sea. 1989 ISBN 0-7923-0074-2 15. H.W. Jayewardene: The Regime of Islands in International Law. 1990 ISBN 0-7923-0130-7 16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solutions. 1990 ISBN 0-7923-0862-X 17. J.A. de Yturriaga: Straits Used for International Navigation. A Spanish Perspective. 1991 ISBN 0-7923-1141-8 18. C.C. Joyner: Antarctica and the Law of the Sea. 1992

ISBN 0-7923-1823-4

Publications on Ocean Development 19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime/Le Plateau continental et la Zone économique exclusive: Délimitation et régime juridique. 1993 ISBN 0-7923-2056-5 20. F. Laursen: Small Powers at Sea. Scandinavia and the New International Marine Order. 1993 ISBN 0-7923-2341-6 21. J. Crawford and D.R. Rothwell (eds.): The Law of the Sea in the Asian Pacific Region. 1995 ISBN 0-7923-2742-X 22. M. Munavvar: Ocean States. Archipelagic Regimes in the Law of the Sea. 1995 ISBN 0-7923-2882-5 23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. 1995 ISBN 0-7923-3052-8 24. A.G. Oude Elferink: The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. 1994 ISBN 0-7923-3082-X 25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Convention and Beyond. 1994 ISBN 0-7923-3212-1 26. T.O. Akintoba: African States and Contemporary International Law. A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone. 1996. ISBN 90-411-0144-6 27. J.A. Roach and R.W. Smith: United States Responses to Excessive Maritime Claims. Second Edition. 1996 ISBN 90-411-0225-6 28. T. Treves (ed.): The Law of the Sea. The European Union and its Member States. 1997 ISBN 90-411-0326-0 29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf. 1997 ISBN 90-411-0333-3 30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the Presential Sea. 1997 ISBN 90-411-0365-1 31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South China Sea. 1997 ISBN 90-411-0411-9 32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime. 1997 ISBN 90-411-0473-9 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8

Publications on Ocean Development 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002 ISBN 90-411-1976-0 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002 ISBN 90-411-2015-7 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003 ISBN 90-04-13669-X 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3 48. Zou Keyuan: China’s Marine Legal System and the Law of the Sea. 2005 ISBN 90-04-14423-4 49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of Research Vessels an Other Platforms in International Law. 2005 ISBN 90-04-14521-4 50. Guifang Xue: China and International Fisheries Law and Policy. 2005 ISBN 90-04-14814-0 51. Aldo Chircop and Olof Linden (eds.): Places of Refuge for Ships. Emerging Environmental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X 52. Tore Henriksen, Geir Hønneland and Are Sydnes: Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes. 2006 ISBN 90-04-14968-6

Publications on Ocean Development 53. Rainer Lagoni and Daniel Vignes (eds.): Maritime Delimitation. 2006 ISBN 90-04-15033-1 54. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.): Unresolved Issues and New Challenges to the Law of the Sea. Time Before and Time After. 2006 ISBN 90-04-15191-5 55. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001. 2006 ISBN 10: 90 04 15273 3 ISBN 13: 978 90 04 15273 1 56. David Kenneth Leary: International Law and the Genetic Resources of the Deep Sea. 2006 ISBN 10: 90 04 15500 7 ISBN 13: 978 90 04 15500 8

Mexico and the Law of the Sea (Publications on Ocean Development)

The European Community and Marine Environmental Protection in the International Law of the Sea (Publications on Ocean Development)

Unresolved Issues And New Challenges to the Law of the Sea: Time Before And Time After (Publications on Ocean Development) (Publications on Ocean Development)

International Law and the Genetic Resources of the Deep Sea (Publications on Ocean Development)

Mexico and the Law of the Sea (Publications on Ocean Development)

China's Marine Legal System and the Law of the Sea (Publications on Ocean Development)

Bringing New Law To Ocean Waters (Publications on Ocean Development)

Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Publications on Ocean Development)

Functional Jurisdiction in the Law of the Sea (Publications on Ocean Development)

The European Community and Marine Environmental Protection in the International Law of the Sea (Publications on Ocean Development)

Unresolved Issues And New Challenges to the Law of the Sea: Time Before And Time After (Publications on Ocean Development) (Publications on Ocean Development)

Maritime Delimitation (Publications on Ocean Development, 53)

Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Publications on Ocean Development)

Marine Scientific Research: The Operation And Status of Research Vessels And Other Platforms in International Law (Publications on Ocean Development)

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And The Deep Blue Sea

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And the Deep Blue Sea

And the deep blue sea

The Deep End of the Ocean

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The Deep End of the Ocean

The Deep End of the Ocean

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And the Deep Blue Sea

And the Deep Blue Sea

The Deep End of the Ocean

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The Deep End of the Ocean

The Deep End of the Ocean

The biology of the deep ocean

Wonders of the Sea: Merging Ocean Myth and Ocean Science

Development and the Law

International Law and the Genetic Resources of the Deep Sea (Publications on Ocean Development)

Mexico and the Law of the Sea (Publications on Ocean Development)

China's Marine Legal System and the Law of the Sea (Publications on Ocean Development)

Bringing New Law To Ocean Waters (Publications on Ocean Development)

Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Publications on Ocean Development)

Functional Jurisdiction in the Law of the Sea (Publications on Ocean Development)

The European Community and Marine Environmental Protection in the International Law of the Sea (Publications on Ocean Development)

Unresolved Issues And New Challenges to the Law of the Sea: Time Before And Time After (Publications on Ocean Development) (Publications on Ocean Development)

Maritime Delimitation (Publications on Ocean Development, 53)

Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Publications on Ocean Development)

Marine Scientific Research: The Operation And Status of Research Vessels And Other Platforms in International Law (Publications on Ocean Development)

And The Deep Blue Sea

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And the deep blue sea

And the Deep Blue Sea

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And the Deep Blue Sea

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Wonders of the Sea: Merging Ocean Myth and Ocean Science

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