Biosprecting-Issuepaper

BIOPROSPECTING IN THE GLOBAL COMMONS: LEGAL ISSUES BRIEF

Co-Authors: Lydia Slobodian, Rémy Kinna, Alphonse Kambu and Lara Ognibene

United Nations Environment Programme- Division of Environmental Law and Conventions

Environmental Law and Governance Branch P.O. Box 305521 Nairobi, Kenya Tel: +254 20 7624011,Fax: +254 20 7624300

E-Mail Address: [email protected]

1. Introduction The most serious legal issue facing bioprospecting in the Global Commons, areas beyond national jurisdiction internationally recognised as the shared resources of humankind, is the lack of clear rules and guidelines. Various environmental, trade, and geographically-specific agreements currently offer incomplete, ambiguous, or conflicting provisions relating to bioprospecting activities. Consequently, there are no clear rules on ownership, access, benefit-sharing, and environmental responsibility for bio-prospecting in the Global Commons. Lack of clarity and distinct gaps in the existing laws encourages bioprospecting by companies keen to exploit the fragmented legal frameworks and policies for their own commerical benefit. It also obstructs the participation of developing States in explora-tion and use of the rich biological resources in areas designated as the Global Commons, such as the High Seas and the Deep Seabed. This is due to the inherent financial resources and tech-nical capacity required for scientific research in extreme marine environments as well as for commercial development of biologi-cal materials. Hence, equitable access to and sharing of benefits from bioprospecting is a critical aspect of many proposed solu-tions to this burgeoning international environmental law issue.

2. Bioprospecting: what is it, and why is it an issue?

2.1 Definition of Bioprospecting

The Convention on Biological Diversity (CBD) Secretariat defines bioprospecting as ‘the exploration of biodiversity for commer-cially valuable genetic and biochemical resources.1 However, its

definition varies in scope between countries, with some defining bioprospecting narrowly to include only the search for valuable genetic materials, whereas others encompass the development andapplication of such materials.2 Hence, the commercialisation aspects of bioprospecting and potential profitablity remain the critical impasse regarding its legal definition. In particular, where the distinction lies between Marine Scientific Research (MSR)3

and bioprospecting, as concerns any property rights arising from the intended future development of marine genetic resources dis-covered on scientific expeditions, is the subject of ongoing debate.

2.2 Process of Bioprospecting

Extreme environments in Antarctica and the High Seas, especially the Deep Seabed, provide habitats for “extremophiles”, organisms with unique characteristics developed for survival. The biologi-cal processes and materials which enable these extremophiles to survive in extreme temperatures, pressures, salinity levels, pH levels, and other unique conditions are sources of great potential for scientific advancement and commercial application.4 Enzymes derived from extremophiles have been used in detergents, food processing, cleaning, dyeing, medical diagnosis, skin protection products, and forensics.5 Bioprospecting of marine environments is conducted almost exclusively in regions at extreme depths in the High Seas or on the Deep Seabed below, specifically around sub-marine trenches, cold seeps, seamounts and hydrothermal vents. As a process, it generally consists of four phases: • Phase 1: on-site collection of samples; • Phase 2: isolation, charactisation and culture of specific com-pounds;

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• Phase 3: screening for potential uses, such as pharmaceutical or other uses; and,• Phase 4: product development and commercialisation, including patenting, trials, sales and marketing.6’ Due to their location and characteristics, these organisms are dif-ficult and expensive to access and study. Pure research projects have difficulty financing expeditions. Companies can be unwilling to undertake the financial risks of exploration in the absence of clear rules regarding ownership of the genetic resources in these areas. The significant expenses involved have led to a number of public/private partnerships in which private companies finance public research expeditions, which in-turn pass on samples to the companies for commercial research. This mix of purely scientific and commercially-oriented research further complicates the appli-cable legal issues, specifically ownership and intellectual property rights.

2.3 Added potential environmental impacts of bioprospecting Bioprospecting has the added potential to cause negative impacts on delicate ecosystems of the deep seabed and Antarctica. In situ experiments in and around the Deep Seabed can introduce light and noise or change water temperature, which, in-turn, can affect pro-creation and the survival of organisms in these areas. Bioprospect-ing activities can also produce pollution in the form of debris or discharge from vessels and equipment. Additionally, inadvertant movement of organisms through disrupting currents or discarding of scientific samples can lead to biological contamination. Finally, there is the usual possibility of over-exploitation in harvesting or-ganisms in these regions and the flow on environmental impacts. Yet, this aspect is unclear due to the lack of information about eco-systems in these marine habitats. In this respect, the precaution-ary principle7 would seemingly apply to any future environmental regulations developed to govern bioprospecting activities in the High Seas and Antarctica.The Millenium Ecosystem Assessment (‘the Assessment’) est-mates that the current and projected future impact of bioprospect-ing on ecosystems is low, because the amount of material that needs to be harvested is normally small.8 The Assessment also states that there is a strong synergy between biodiversity preser-vation and bioprospecting, since the latter benefits from preserv-ing the former. However, it warns that great uncertainty remains about the potential impact of bioprospecting activities.9 As the projected impact is minimal, although uncertain, bioprospecting does not presently implicate provisions of international agree-ments which regulate actions likely to have serious adverse en-vironmental impacts in the commons. The legal implications of any potential environmental impacts from bioprospecting are not explored in detail through this issue brief, but must be a consid-eration for decision-makers in drafting future laws and policies to regulate this activtity. materials between States, particularly for developing nations. Additionally, there are no clear guidelines on the environmental standards bioprospecting expeditions must meet. The content and interplay between the existing laws governing bioprospecting in the High Seas and Antarctica are examined below, along with the legal gaps and uncertanties this exposes in the current framework. 3.Analyzing current laws regulating bioprospecting

Under the current legal regimes there is a vacuum of regula-tions for bioprospecting activities in the Global Commons, specifically the High Seas and Antarctica. Foremost, legal dis

Figure 1: An example schema of the bioprospecting processes to commerical development

Source: Newman, D.J. and Cragg, G.M. ‘Political, Legal, Scientific and Financial Aspects of Marine Biodiscovery Programmes’ 2004, In Shotton, R. (Ed) 2005. Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries, Conference Poster Papers (1–5 December 2003, Queenstown) and Workshop Papers (27–29 November, 2003 Dunedin), New Zealand. FAO Fish.


tinctions between MSR and bioprospecting remain undefined or ambiguous under applicable regimes. More broadly, there are no well-ing currents or discarding of scientific and equipment. Additionally, inadvertant movement of organisms through dis-rupting currents or discarding of scientific samples can lead to biological contamination. Finally, there is the usual possibility of over-exploitation in harvesting organisms in these regions and the flow on environmental impacts. Yet, this aspect is unclear due to the lack of information about ecosystems in these marine habitats. In this respect, the precautionary principle would seem-ingly apply to any future environmental regulations devel oped to govern bioprospecting activities in the High Seas and Antarctica are examined below, along with the legal gaps and uncertanties this exposes in the current framework. 3.1 International laws regulating bioprospecting In analysing the existing legal frameworks which govern bio-prospecting, specifically in the High Seas and Antartica, it is per-tinent to briefly outline the laws that pertain to these areas. Treaty/Convention law is the prevailing source of international law which takes the form of a codified agreement between two or more

States, often with binding obligations. The marine regions of the High Seas10 and The Area11 are broadly governed by convention law. Concurrently, Customary International Law (CIL) is another form of binding of international law. It is derived from the gener-ally accepted practice of States, accompanied by an acknowledge-ment that States are acting out of a belief that such actions are required of them by law. The content of CIL can sometimes be difficult to precisely define due to its practical component, but it has an important normative role to play in developing treaties/conventions to address emerging legal issues.Sovereign rights and duties are laws specifically governing each State, predomi-nantly within its own borders, such as as in Territorial Waters. Yet, these rights and duties have a role to play in international law as they are also applicable to an extent regarding the EEZ as national vessels or persons in areas beyond national jurisdiction such as the High Seas. The geographical overlay of these vari-ous laws governing marine environments is depicted in Figure 4.

3.2 United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) does not directly regulate activities involving living resources on

Figure 2: Some existing markets for marine bio-based products demonstrating the potential commerical value that could be derived from bioprospecting

Source: SCI website at: http://www.soci.org/Chemistry-and-Industry/CnI-Data/2010/2/Out-of-the-blue


the seabed. It contains certain provisions relating to the seabed, the high seas, marine scientific research, and protection of the marine environment which may be relevant to bioprospecting activities. However, these provisions do not amount to a comprehensive or unambiguous regime. Part XI of UNCLOS deals with ‘the Area’, defined as ‘the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction’.12 Part XI establishes a regu-latory regime for “resources” in the Area, which it defines ‘for the purposes of this Part’ as ‘all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed’13. Therefore, living marine resources are, inter alia, not covered by this regime.

Part XI also includes several provisions which pertain to ‘activi-ties in the Area’, which provide for capacity building to enable participation of developing States, non-discriminatory sharing of financial and other economic benefits, and laws and regulations to protect the marine environment from these activities.14 Article 1 defines “activities in the Area” as ‘all activities of exploration for, and exploitation of, the resources of the Area’. Elsewhere, Article 1 refers to ‘living resources’, so there is an argument that this definition of ‘activities in the Area’ includes exploration for living resources. However, this provision is generally read together with Article 133 to include exploration for mineral resources only.15

Figure 3: Cross-section of legal regimes governing marine resources in geographical zones

Source: Canadian Department of Fisheries and Oceans website at: http://www.charts.gc.ca/about-apropos/fs-fd/008-eng.asp


Article 136 states: ‘The Area and its resources are the common heritage of mankind’. Article 137 expands on this, whereby ‘No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof’. If the biological resources which inhabit the Deep Seabed are part of the Area, then appropriation of them in the form of patenting their genetic mate-rial could violate these provisions.16 Part VII covers the High Seas, as defined as ‘all parts of the sea that are not included in the exclu-sive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’.17 This area is ‘open to all States, whether coastal or land-locked’18. All States may exercise ‘freedom of the High Seas’ which com-prises: freedom of navigation; overflight; fishing; scientific research; construction of cables, pipelines, and artificial islands; and, other installations, subject to international law and the condi-tions laid down by UNCLOS, and with regard for the interests of other States.19 Though harvesting of living resources on the seabed is not enumerated in this provision, it may still be included in this freedom by analogy to scientific research or fishing or an expan sive interpretation of freedom of the High Seas which understands the listed freedoms as non-exclusive. If bioprospecting is included in the freedom of the High Seas, this could pose an obstacle to international regulation.Under Part VII, States are specifically directed to cooperate with each other in the conservation and management of living resourc-es in the High Seas, and to take measures with respect to their nationals necessary for the conservation of living resources. 20

Part XIII of UNCLOS governs MSR. This Part provides that: all States and competent international organizations have the right to conduct MSR, including in the Area; MSR shall not constitute the legal basis for any claim to any part of the marine environ-ment; and, the results of such research must be made available by publication and dissemination.21 Based on these provisions, bioprospecting is generally not considered MSR under UNCLOS, since by its very nature it involves legal claims to parts of the marine environment, and its results are necessarily not freely available but protected by patents.22 Part XII imposes a general obligation to protect and preserve the marine environment.23 States are directed to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, particularly to ensure that pollution arising from activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights.24 States are particularly directed to monitor activities under their jurisdiction or control, or activities which they permit or engage in

to determine whether they are likely to cause significant pollution, and if so to communicate the results of these determinations. 25

Pursuant to these provisions, a State has an obligation to cooper-ate with other States and to monitor and regulate bioprospect-ing activities by its nationals or under its control to the extent that such activities are likely to pollute the marine environ-ment or threaten living resources of the High Seas. There is an argument that patenting genetic material derived from living resources on and around the Deep Seabed as part of commercial bioprospecting violates the principle of the Common Heritage of Mankind.26 There is another argument that regulation of exploration for and harvesting of marine genetic resources in the High Seas violates the freedom of the High Seas.

4.2 Antarctic Treaty System

The Antartic Treaty, the Madrid Protocol on Environmental Protection (Madrid Protocol), and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) regulate expeditions to and within Antarctica, but do not specifi-cally address bioprospecting. Provisions on conservation, scien-tific investigation, and claims to sovereignty are relevant, but do not clearly implicate bioprospecting activities. The Antarctic Treaty requires Parties to notify other Parties of ‘all expeditions to and within Antarctica, on the part of its ships or nationals’.27 The Madrid Protocol requires that all ‘activities in the Antarctic Treaty area shall be planned and conducted on the basis of information sufficient to allow prior assessments of, and informed judgments about, their possible impacts on the Antarctic environment’.28

Procedures for assessment are set out in Annex I of the Madrid Protocol, and apply to ‘any activities undertaken in the Antarctic Treaty area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities29 in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty, including associated logistic support activities’. This assessment is to be ongoing, facilitated by ‘regular and effective monitoring’.30 Activities with-in this scope shall ‘be modified, suspended or cancelled if they result in or threaten to result in impacts upon the Antarctic envi-ronment or dependent or associated ecosystems inconsistent with [the principles in this Article]’.31 The principles referred to include ‘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’. 32

CCAMLR provides additional principles of conservation which


govern ‘any harvesting and associated activities’ pertaining to ‘Antarctic marine living resources’.33 Antarctic marine living resources are defined as ‘the populations of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence’.34 Article II(3) provides that principles governing harvesting and associated ac-

tivities include ‘(a) prevention of decrease in the size of any har-vested population to levels below those which ensure its stable recruitment’, and ‘(c) prevention of changes or minimisation of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades.Given the small amounts of material normally harvested in bioprospecting, the first principle

Figure 4: Legal regimes and concepts applicable to bioprospecting

• Open-access regime: refers to the system of law in which no sovereign state controls the resource or area in question, yet they are free to exploit and profit from these resources/areas so long as they adhere to generally accepted principles and obligations of international law. Under UNCLOS, marine resources found in the High Seas commonly fall within such a regime.

• The Global Commons: also known as ‘the Commons’, is a term used to describe domains where common pool resources are found. The Global Commons specifically refers to domains which do not fall within the jurisdiction of any one nation, thus all states have legal access. The High Seas and Antartica are both considered part of the Global Commons.

• Common Heritage of Mankind (CHM): this legal concept dictates that certain resources/areas are the communal property of all humankind. Hence, no person or state has exclusive legal rights to these resources/areas in so far as all uses and benefits must be shared equally for the benefit of current and future generations. Part XI of UNCLOS deems ‘the Area’, the Deep Seabed under the High Seas, to be the CHM.

• Access and benefit-sharing (ABS): commonly describes legal regimes that seeks to aportion equitable rights to both developed and developing states regarding the exploitation and any derivate benefits from scientific research and commercial development of biological resources. Development of an ABS regime has been proposed as potential solution for the current legal uncertainty concerning marine bioprospecting in the High Seas and Antarctica.

• The High Seas: The water column and marine environment beyond the Territorial Waters (TWs) and Exclusive Economic Zones (EEZs) of coastal States. Activities in the High Seas are broadly regulated by UNCLOS, yet many aspects are left to the jurisdiction of Flag States (States which have vessels carrying their flag and are subsequently responsible for the actions of vessels and crew).

• The Area: a legal term delineating the Deep Seabed under the High Seas which is beyond any national jurisdiction. Activities in the Area are regulated under Part XI of UNCLOS. Yet, emerging issues such as bioprosecting are not specifically addressed with respect to the Area.

• Precautionary Principle: an approach which dictates that in absence of adequate scientific evidence, decision-makers must err on the side of caution and adopt laws/policies that prevent suspected risks of harm to the environment or human health.

is probably not implicated. Though introduction of light, noise, or pollution through bioprospecting activities could lead to changes in the marine ecosystem, these changes are not likely to be ir-reversible given the short duration of exposure during an expedi-tion.The Antarctic Treaty provides for ‘[f]reedom of scientific inves-tigation in Antarctic’ and dissemination of scientific observationsand results from such investigation.35 Bioprospecting probably

does not fall under these provisions because of its inherently pro-prietary component.The Antarctic Treaty further states that while it does not constitute a renunciation of previously asserted claims to sovereignty in Ant-arctica, no new claims to territorial sovereignty shall be asserted while it is in force. 36

Apart from the requirement for environmental impact assessment and prior notification of bioprospecting expeditions, the Antarctic


Treaty System, the name given to this collective body of international law governing the Antarctic, creates no clear obligations or rights with respect to bioprospecting.

4.3 Convention on Biological Diversity

The CBD includes conservation sustainable use as well as access and benefit sharing obligations with regards to biological diver-sity. However, it is not clear that these obligations apply to bio-prospecting in the commons, given its low estimated environmen-tal impact and lack of proprietary states or peoples.The CBD imposes a general obligation on Parties to cooperate in conserving and sustainably using biodiversity in areas beyond national jurisdiction.37 A series of provisions directs Parties to identify, monitor, regulate, and exchange information on activi-ties undertaken by Parties or under their jurisdiction or control which have or are likely to have significant adverse impacts on biological diversity.38 One of the objectives of the CBD is ‘the fair and equitable sharing of the benefits arising out of the utiliza-tion of genetic resources’. 39 The Convention provides that Parties should endeavor to create conditions to facilitate access to genetic resources.40 In pursuance of this, they should undertake to share

the benefits arising out of the use of genetic resourse as well to facilitate transfer of technologies that use genetic resources, par-ticularly to developing countries.41 Technology transfer should be consistent with IP rights, but Parties should cooperate to ensure that IP rights do not run counter to the objectives of the CBD.42The Nagoya Protocol further provides for technology transfer to devel-oping country Parties to enable access to genetic resources. 43

The Nagoya Protocol in its article 10 also directs Parties to ‘con-sider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and tra-ditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent’.44 It states that the benefits shared through the mechanism shall be used to support the conservation and sustainable use of biological diversity and its components. Such a mechanism could provide the needed framework to ad-dress benefit-sharing of genetic resources in the global commons.

Figure 5: Map of the global areas of the High Seas and Exclusive Economic Zones (EEZ)


4.4 International IP Framework: TRIPS and WIPO

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides that ‘patents shall be available for any inventions, whether products or processes, in all fields of technol-ogy, provided that they are new, involve an inventive step and are capable of industrial application’.45 Members may exclude from patentability ‘plants and animals other than micro-organisms, and essentially biological processes for the production of plants or ani-mals other than non-biological and microbiological processes’.46 Read together, these provisions indicate that patents must be avail-able for micro-organisms and microbiological processes which are new, inventive, and capable of industrial application. Genetic materials from bioprospecting would seem to fit into this category. TRIPS further states that ‘patents shall be available and patent rights enjoyable without discrimination as to the place of invention .47 If the location of the source of genetic material is analogous to the place of invention, this provision suggests that Members may not decline to patent genetic material because it originates in the commons.The discussion over the patentability of biological materi-als focuses on whether they are novel and involve an inven-tive step.48If patents on biological materials are allowed under TRIPS, patenting of genetic materials in the commons could create a conflict with UNCLOS provisions that the High Seas and deep seabed are the common heritage of mankind, and the CBD objective of benefit sharing of genetic materials. Even if patents are restricted to products and processes derived from ge-netic material, questions of equity and benefit-sharing are raised.

5.Issues with the Existing Legal Framework

5.1 Summary, Gaps, and Conflicts

Under the existing legal framework, there is a general obligation to cooperate in ensuring conservation in areas of the Global Com-mons.49 States are obligated to assess and monitor possible envi-ronmental impacts from their activities and activities under their control, and in some cases notify other States of these potential impacts.50 In certain cases, States may be required to regulate ac-tivities which threaten pollution or significant environmental im-pacts.51 There is some obligation to facilitate access to biological resources in the Global Commons, or at least not to obstruct such access.

No claims of territorial sovereignty in the High Seas and the Deep Seabed, and no new claims in Antarctica will be recognized. 52 States may be required to facilitate participation by developing countries in exploration of genetic resources in the Global Com-mons.53 Certain provisions support sharing of benefits of bioprospecting, but there are no firm obligations regarding areas beyond national juridisction. CBD provides for transfer of technology, including biotechnology, in pursuance of its general objective of benefit-sharing.54 Both the UNCLOS and the Antarctic Treaty mandate direct sharing of results of scientific research, though it is not clear that this includes bioprospecting.55 There are potential conflicts between the various international regimes. The UNCLOS principle of CHM and the CBD objec-tive of equitable benefit sharing of genetic resources potentially conflict with the UNCLOS principle of freedom of the High Seas and TRIPS patentability requirements. In Antarctica, the Antarctic Treaty and UNCLOS principles of encouraging and freely sharing scientific research potentially conflict with the TRIPS objectives of protection of intellectual property rights, particularly where pri-vate funding is necessary to adequately support scientific research.Additionally, the lack of clarity and distinct gaps regarding the aforementioned international legal frameworks could actually en-courage private companies to conduct bioprospecting whilst there is sufficient scope for them to exploit marine genetic resources on the High Seas and in Antarctica with little or no regulation. Com-pounding this impact is that the exisitng legal conflicts and gaps are a major impediment to developing laws and policies for the equitable sharing of benefits of the Global Commons and securing access and participation by developing countries. Hence, there is an urgent need to assess the fragmentation and lack of clarity un-derpinning international laws and concepts relating to bioprospect-ing in the Global Commons. as it is an obstacle to further scientific research and informed conservation in these poorly understood areas of the world. 6.How to improve laws governing bioprospecting in the Global Commons

Whilst some States regard the current regime governing bio-prospecting in the Global Commons as sufficient, these are gener-ally developed nations who wish to protect open access regimes such as that of the High Seas. Alternatively, developing nations commonly argue that the marine genetic resources from bio-prospecting in the Global Commons should be subjected to the CHM principle so that they too can share in the MSR and com-mercial benefits from these activities. Despite these polarised


standpoints, what is clear is that if the status quo is maintained, the fragmentation and lack of clarity regarding the laws outlined will create further problems for the institutional and legal frameworks governing bioprospecting in the Global Commons.From 1995 when the issue of bioprospecting was first raised at the UN General Assembly, the international community has taken important steps to convene stakeholders to seek some clarifica-tion regarding bioprospecting in the Global Commons. Since then, there have been significant deliberations by those involved in the development of proposed solutions to the current lack of clarity on these issues. In 2004, Parties to the CBD agreed to conduct studies and research on the status of, trends, and threats to, genetic resources in areas beyond national jurisdiction, as well as regions within Parties’ national jurisdiction where activities could have a significant impact on marine ecosystems.56 During the same year, the UN General Assembly resolved at its 59th session to form an Ad Hoc Open-ended Informal Working Group to investigate issues and undertake research into the sustainable use and conservation of marine genetic resources in zones beyond national jurisdiction.57 As a result of these ongoing efforts, several propositions have been posited regarding possible methods of achieving clarification of laws and strengthened governance in relation to bioprospecting in Global Commons.

The most appropriate solution would be a clear, concise and com-prehensive framework or set of guidelines for bioprospecting in the Global Commons, specifically the High Seas and Antarctica. Any such regime should address the conservation, ABS, and intel-lectual property protection issues detailed above in this brief. Im-portantly, it should also incorporate capacity building mechanisms to enable developing country participation in management and exploration of the commons, specifically the commercial develop-ment of marine biological resources. Any proposed legal framework could be modelled on the UN-CLOS system for regulation of mineral exploration in the Area. It could include a multilateral benefit-sharing mechanism, such as the Nagoya Protocol58 to the CBD on ABS and traditional knowl-edge which sets out obligations for States in regards to genetic resources, and should also take into account the basic principles set out in the voluntary Bonn Guidelines 59 to the CBD.Other crucial issues highlighted by experts that should be con-sidered as part of any way forward towards strenthening laws governing bioprospecting in the Global Commons, include:

• Clarification of the legal definition of bioprospecting, especially in relation to MSR; • Establishing a ‘Global Common Fund’ as part of any ABS

scheme whereby a percentage of profits from the commercial development of marine genetic resources is used to assist in tech-nology transfer to developing States and address issues relating to• Mechanisms for collecting, storing and disseminating data from bioprospecting in the public domain so that all States can easily access and exchange MSR information; and, • Creating an over-arching institution to oversee the implementa-tion of international laws regulating bioprospecting in the High Seas and Antarctica in order to strengthen governance through a framework for compliance and enforcement.UNEP, through the Division of Environmental Law and Conven-tions (DELC), is engaged in activities aimed at improving Interna-tonal Environmental Governance (IEG). A key project within the IEG program seeks to strengthen governance of the Global Com-mons. DELC views bioprospecting in the Commons, specifically in the High Seas and Antartica, as a significant legal issue that needs to be urgently addressed, and hence discussed, by States as a priority in the follow up to Rio+20 in particular regarding biodi-versity in areas beyond national jurisdiction.

ENDNOTES

1. UNEP/CBD/COP/5/INF/7.2. For example, the New Zealand Biodiversity Strategy defines bioprospecting

as ‘the search among biological organisms for commercially valuable com-pounds, substances or genetic material’. The South African Biodiversity Act defines bioprospecting as ‘any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application’.

3. Under Art 241 of UNCLOS, ‘any part of marine environment and its resourc-es’ discovered through MSR cannot be subject to a claim for legal title, such as an intellectual property right.

4. See generally, Niehaus, F., Bertoldo, C., Kähler, M., & Antranikian, G. ‘Extremophiles as a source of novel enzymes for industrial application’ 1999 51(6) Applied Microbiology and Biotechnology 711; Salameh, M., & Wiegel, J. ‘Liapses from Extremophiles and Potential for Industrial Applications’ 2007 61 Advances in Applied Microbiology 253.

5. Ibid.6. Leroux, N., & Mbengue, M.M. ‘Deep-Sea Marine Bioprospecting Under

UNCLOS and the CBD’ (available at: http://www.gmat.unsw.edu.au/ablos/ABLOS10Folder/S3P1-P.pdf) citing, Leary, D.K. ‘Interational Law and the Genetic Resources of the Deep Sea’ (2007) Martinus Nijhoff Publishers; Leiden, Netherlands, at 157-158.

7. See Figure 4 for an explanation of this term.8. Millennium Ecosystem Assessment, Current States & Trends, Ch. 10, 18

(2005).9. Millennium Ecosystem Assessment, Current States & Trends, Ch. 10, 18

(2005).10. See Figure 4 for an explanation of this term.11. See Figure 4 for an explanation of this term.12. Art. 1.1(1) UNCLOS.13. Art. 133(a) UNCLOS.14. Arts. 140, 145, 148, 209 UNCLOS.15. E.g., Convention on Biological Diversity Subsidiary Body on Scientific,

Technical and Technological Advice, Study of the Relationship between the


Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with Regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, para. 34-36 (2003).

16. This issue has been debated by the UN Informal Consultative Process on the Law of the Sea, with delegates in favor of regulation of bioprospecting arguing that deep seabed biodiversity is inextricably related to the environ-ment of the Area and therefore part of the common heritage of mankind, and delegates opposed arguing that living resources are excluded from the regime of the Area entirely, and covered instead by the ‘freedom of the High Seas’ according to which they cannot be regulated. Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its eighth meeting, UN Doc. A/62/169 (2007).

17. Art. 86 UNCLOS.18. Art. 87.1 UNCLOS.19. Art. 87 UNCLOS.20. Arts. 117, 118 UNCLOS.21. Arts. 238, 241, 244, 256 UNCLOS.22. Ibid at para. 39.23. Art. 192 UNCLOS.24. Art. 194 UNCLOS.25. Arts. 204.2, 206 UNCLOS.26. Arts. 204.2, 206 UNCLOS.27. Art. VII(5) Antarctic Treaty.28. Art. 3(2)(c) Madrid Protocol.29. Art. 8(2) Madrid Protocol.30. Art. 3(2)(d) Madrid Protocol.31. Art. 3(4) Madrid Protocol.32. Art. 3(1)Madrid Protocol.33. Art. II(3) CCAMLR.34. Ibid.35. Arts. II, III(1)(c) Anatarctic Treaty.36. Art. IV Antarctic Treaty.37. Art. 5 CBD.38. Arts. 7, 8, 14 CBD. Reference to the precautionary principle in the preamble

of the Convention supports an argument that these provisions should apply in cases where there is uncertainty about the possibility of significant adverse impact, such as the case of bioprospecting. E.g. Convention on Biological Diversity Subsidiary Body on Scientific, Technical and Technological Advice, Study of the Relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with Regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, para. 81-82 (2003). In 2003, the CBD COP invited States to identify activities and processes under their jurisdiction or control which may have a significant adverse impact on deep seabed ecosystems. Decision VII/5 para. 56.

39. Art. 1 CBD.40. Art. 15(2) CBD.41. Art. 16 CBD.42. Arts. 16(2), 16(5) CBD.43. Art. 23 Nagoya Protocol.44. Art. 10 Nagoya Protocol.45. Art. 27(1) Nagoya Protocol.46. Art. 27(3)(b) TRIPS.47. Art. 27(1) TRIPS.48. World Intellectual Property Organization Intergovernmental Committee

on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 19th Session, Geneva, July 18 to 22, 2011, Draft Objectives and Principles Relating to Intellectual Property and Genetic Resources, WIPO/GRTKF/IC/19/6 Annex. Draft Objective 2, Option 5 states: ‘Ensure that no patents on life and life forms are granted for genetic resources and associated traditional knowledge, because they do not comply with the requirements of novelty and inventive step’. Other options would allow patenting of genetic resources only if they are novel or inventive in light of associated traditional knowledge.

49. Arts. 117, 118, 192 UNCLOS; Art. 3 Madrid Protocol; Art. 5 CBD.50. Arts. 204, 206 UNCLOS; Art. 3 Annex 1 Madrid Protocol; Arts. 7, 8, 14

CBD.

51. Art. 194 UNCLOS; Art. 3 Madrid Protocol; Art. 8, 14 CBD.52. Arts. 89, 137 UNCLOS; Art. IV Antarctic Treaty.53. Art. 15(2) CBD; Art. 23 Nagoya Protocol.54. Arts. 1, 16 CBD.55. Art. 143 UNCLOS; Art. III(1) Antarctic Treaty.56. Arico, S., and Salpin, C. ‘Bioprospecting of Genetic Resources in the Deep

Seabed: Scientific, Legal and Policy Aspects’ UNU-IAS Report, 2005, p.8.57. Ibid.58. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benefits Arising from their Utilization (ABS) to the CBD, adopted in Nagoya, Japan in 2010 (not yet in force).

59. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits to the CBD, adopted in Bonn, Germany in 2002.

Documents

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