Reflections on the conservation and sustainable use of genetic resources in the deep seabed beyond the limits of national jurisdiction

Ocean Development and International Law

Volumn 39, Issue 2, 2008, Pages 129-149

  Tanaka, Yoshifumi ^a  

^a UNIVERSITY OF WESTMINSTER   (United Kingdom)

Author keywords

Common heritage of mankind; Deep seabed; Genetic resources; The Area

Indexed keywords

ENVIRONMENTAL LEGISLATION; GENETIC RESOURCE; INTERNATIONAL LAW; MARINE POLICY; MARINE RESOURCE; NATURE CONSERVATION; SUSTAINABLE DEVELOPMENT;

EID: 46749120645     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320802013719     Document Type: Article

References (180)

1. Eighth Conference of the Parties of the Convention on Biological Diversity 2006, Decision VIII/21, Marine and Coastal Biological Diversity: Conservation and Sustainable Use of Deep Seabed Genetic Resources Beyond the Limits of National Jurisdiction, para. 1, states that: Deep seabed ecosystems beyond the limits of national jurisdiction, including hydrothermal vent, cold seep, seamount, coldwater coral and sponge reef ecosystems, contain genetic resources of great interest for their biodiversity value and for scientific research as well as for present and future sustainable development and commercial applications. For factual and scientific information on biodiversity and marine ecosystems beyond national jurisdiction, see United Nations General Assembly, Report of the Secretary-General, Oceans and the Law of the Sea, U.N. Doc. A/59/62, 4 March 2004, pp. 59-63, paras. 229-249.
2. K. Lochte, "The Deep Sea Floor: New Discoveries and Visions," in Marine Issues, ed. P. Ehlers, E. Mann-Borgese and R. Wolfrum (The Hague: Kluwer, 2002), 233-240.
3. and D. K. Leary, International Law and the Genetic Resources of the Deep Sea (Leiden: Nijhoff, 2007), 10-17.
4. L. Glowka, "The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area," Ocean Yearbook 12 (1996): 159.
5. and W. T. Burke, "State Practice, New Ocean Uses, and Ocean Governance Under UNCLOS," in Ocean Governance: Strategies and Approaches for the 21st Century, ed. T. A. Mensah (Honolulu: The Law of the Sea Institute, University of Hawai'i, 1996), 229.
6. See also Eighth Session of the Assembly of the International Seabed Authority, 2002, Summary Presentations on Polymetallic Massive Sulphide Deposit and Cobalt-Rich Ferromanganese Crusts, Doc. ISBA/8/A/1, 9 May 2002, p. 5, para. 19.
7. Glowka, supra note 2, pp. 159-161.
8. C. H. Allen, "Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource Conservation and Management," Georgetown International Environmental Law Review 13 (2000-2001): 584-585.
9. and Leary, supra note 1, pp. 158-164. Marine genetic resources already have significant commercial value. It is estimated that worldwide sales of all marine biotechnology-related products was $US100 billion for the year 2000. Eleventh Meeting of the Subsidiary Body in Science, Technical and Technological Advice (SBSTTA) of the Convention on Biological Diversity, 2005, Marine and Coastal Biological Diversity: Status and Trends of, and Threats to, Deep Seabed Genetic Resources Beyond National Jurisdiction, and Identification of Technical Options for Their Conservation and Sustainable Use, UNEP/CBD/SBSTTA/11/11, 22 July 2005, p. 8, para. 22. Concerning marine biotechnology.
10. see B. Cicin-Sain et al, "Emerging Policy Issues in the Development of Marine Biotechnology," Ocean Yearbook 12 (1996): 179-206.
11. I. Mgbeoji, "(Under) Mining the Seabed? Between the International Seabed Authority Mining Code and Sustainable Bioprospecting of Hydrothermal Vent Ecosystems in the Seabed Area: Taking Precaution Seriously," Ocean Yearbook 18 (2004): 423-424 and Glowka, supra note 2, pp. 159-161.
12. According to Burke, supra note 2, pp. 229-230, a principal reason for this large potential is that these organisms exist and thrive at extremely high temperatures. It is said that those organisms, called "archaebacteria" or "archaea," have capacity to grow at temperatures over 100 degrees centigrade.
13. Glowka, supra note 2, pp. 160-161.
14. 2004 Report of the Secretary-General, supra note 1, p. 63, para. 247.
15. SBSTTA, 2005, Marine and Coastal Biological Diversity, supra note 3, p. 27, para. 27.
16. U.N. General Assembly Resolution 58/240, Oceans and the Law of the Sea, U.N. Doc. A/RES/58/240, 5 March 2004, adopted 23 December 2003, p. 10, para. 52.
17. U.N. General Assembly Resolution 60/30, Oceans and the Law of the Sea U.N. Doc. A/RES/60/30, 8 March 2006, adopted 29 November 2005, p. 13, para. 73.
18. Article 1(1) of the 1982 United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397, defines "Area" as being the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.
19. Ibid.
20. T. Scovazzi, "The Evolution of International Lawof the Sea: NewIssues,NewChallenges," Recueil des Cours de l'Acad;́emie de Droit International 286 (2000): 217.
21. J.-P. Levy, "La premier decennie de l'Autorit;́e internationale des fonds marins," Revue Ǵen;́erale de Droit International Public 109 (2005): 119.
22. Glowka, supra note 2, p. 155.
23. Eighth Session of the Assembly of the International Seabed Authority, 2002, 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, ISBA/8/A/5, 7 June 2002, p. 8, para. 33.
24. and T. Scovazzi, "Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority," International Journal of Marine and Coastal Law 19 (2004): 384.
25. Article 2 of the Convention on Biological Diversity, 1760 U.N.T.S. 79, defines the term "sustainable use" as "the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations." In relation to this, it is to be noted that the concept of conservation does not mean the prohibition of the exploration and exploitation of natural resources concerned. The concepts of "conservation" and "sustainable use" are intimately intertwined. Furthermore, according to the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), marine genetic resources may be defined as "marine plants, animals and microorganisms, and parts thereof containing functional units of heredity that are of actual or potential value." SBSTTA, Marine and Coastal Biological Diversity supra note 3, p. 6, para. 10.
26. For pioneering academic studies on this subject, see Scovazzi, supra note 15, pp. 383-409.
27. T. Scovazzi, "Bioprospecting on the Deep Seabed: A Legal Gap Requiring to be Filled," in Biotechnology and International Law, ed. F. Francioni and T. Scovazzi (Oxford and Portland, OR: Hart, 2006), pp. 81-97.
28. T. Scovazzi, "Biodiversity in the Deep Seabed," 7 Yearbook of International Environmental Law 7 (1996): 481-487.
29. Glowka, supra note 2, pp. 154-178.
30. L. Glowka, "Genetic Resources, Marine Scientific Research and the International Seabed Area," Review of European Community and International Environmental Law 8 (1999): 56-66.
31. L. Glowka, Beyond the Deepest of Ironies: Genetic Resources, Marine Scientific Research and International Seabed Area," in New Technologies and Law of the Marine Environment, ed. J.-P. Beurier, A. Kiss, and S. Mahmoudi (The Hague: Kluwer, 2000): 75-93.
32. Allen, supra note 3, pp. 565-660.
33. N. Matz, "Marine Biological Resources: Some Reflections on Concepts for the Protection and Sustainable Use of Biological Resources in the Deep Seabed," Non-State Actors and International Law 2 (2002): 279-300.
34. A.G. Oude Elferink, ";The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas," International Journal of Marine and Coastal Law 22 (2007): 143-176 (in particular, 162-166).
35. and Leary, supra note 1.
36. Convention on Biological Diversity, supra note 16.
37. Although the LOSC does not provide a clear definition of marine scientific research, in the ordinary meaning, the term may be defined as any scientific study or related investigation, wherever conducted, having the marine environment as its object. The term "marine environment" is understood to cover three elements (i.e., the seabed and the subsoil, the adjacentwater column, and the atmosphere above the sea). Furthermore, the marine environment contains marine life. It would seem to follow that the concept of marine scientific research covers any scientific investigation, however and wherever, that concerns themarine environment as well as its organisms. A. H. A. Soons, "Marine Scientific Research Provisions in the Convention on the Law of the Sea: Issues of Interpretation," in The UN Convention on the Law of the Sea: Impact and Implementation, Proceedings of Law of the Sea Institute Nineteenth Annual Conference, ed. E. D. Brown and R. R. Churchill (Honolulu: University of Hawai'i, 1987), 366.
38. See also A. H. A. Soons, Marine Scientific Research and the Law of the Sea (Antwerp: Kluwer, 1982), 6-7, 124 and T. Treves, "Marine Research," in Encyclopaedia of Public International Law, ed. R. Bernhardt (Amsterdam: Elsevier, 1997), 295.
39. 2004 Report of the Secretary-General, supra note 1, p. 62, para. 245.
40. B. J. Bett, "The Deep-Ocean Environment and the Protection of Its Biodiversity: High-Seas Habitats: Biodiversity, Exploitation and Conservation," in International Seabed Authority, Proceedings of the Tenth Anniversary Commemoration of the Establishment of the International Seabed Authority (Kingston, Jamaica: International Seabed Authority, 2004), 157.
41. 2002 Report of the Secretary-General of the ISA, supra note 15, p. 12, para. 50.
42. 2004 Report of the Secretary-General, supra note 1, pp. 62-63, paras. 245-246.
43. The Authority is the competent international organization for the purposes of Article 256. Soons, Marine Scientific Research, supra note 19, p. 227.
44. 2002 Report of the Secretary-General of the ISA, supra note 15, p. 9, para. 39.
45. R.-J. Dupuy, "La notion de patrimoine commun de l'humanit;́e appliqu)ac;ee aux fonds marins," in R.-J. Dupuy, Dialectiques du droit international: Souverainet;́e des Etats, communaut;́e internationale et droits de l'humanit;́e (Paris: Pedone, 1999), 189-194.
46. Soons, Marine Scientific Research, supra note 19, p. 229.
47. Scovazzi, supra note 12, pp. 218-219.
48. and Scovazzi, supra note 15, p. 398.
49. The same obligation is in Section 1(5)(h) of Annex to the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, International Legal Materials 33 (1994): 1309. Yet, this obligation was limited to the period between the entry into force of the LOSC and the approval of the first plan of work for exploitation.
50. Eleventh Session of the Assembly of the International Seabed Authority, 2005, 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, ISBA/11/A/4 and Corr.1, 13 July 2005, p. 9, para. 42 and p. 12, para. 59.
51. 2002 Report of the Secretary-General of the ISA, supra note 15, p. 9, para. 38. Further, the Secretary-General announced the establishment by the Authority of a trust fund to promote marine scientific research and to provide opportunities for scientists from institutions in developing countries to participate in research activities conducted by international scientists at sea or in the laboratories of scientific institutions.
52. See United Nations, Report of the Ad Hoc Open-ended InformalWorking Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction, U.N. Doc. A/61/65, 20 March 2006, p. 5, para. 11.
53. Twelfth Session of the Assembly of the International Seabed Authority, 2006, 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, ISBA/12/A/2, 26 June 2006, p. 17, para. 69.
54. Ibid.
55. Ibid., p. 19, para. 77. The three projects, which are directly related to the work of the Authority, are the Chemosynthetic Ecosystems Group, the Seamounts Group, and the Census of Diversity of Abyssal Marine Life.
56. Ibid., p. 9, para. 39 and p. 13, paras. 53-54. For example, in 2002, the Authority convened a workshop on the prospects for international collaboration in marine scientific research, and discussed four key issues: (a) levels of biodiversity, species range, and gene flow in abyssal nodule provinces; (b) disturbance and recolonization processes at seafloor following mining track creation and plume resedimentation; (c)mining plume impacts on thewater column ecosystems; and (d) natural variability in nodule province ecosystems.
57. Tenth Session of the Assembly of the International Seabed Authority, Report of the Secretary-General of the International Seabed Authority under Article 166, para. 4, of the United Nations Convention on the Law of the Sea, ISBA/10/A/3, 31 March 2004, p. 41, para. 128.
58. Ibid., pp. 39-44. paras. 122-136.
59. See also Ninth Session of the Assembly of the International Seabed Authority, 2003, Report of the Chairman of the Legal and Technical Commission on the Work of the Commission During the Ninth Session, ISBA/ 9/C/4, 1 August 2003, p. 5, para. 15 and Scovazzi, supra note 15, pp. 397-399.
60. This distinction dates back to the 1958 Geneva Convention on the Continental Shelf, 499 U.N.T.S. 311, Article 5(1) which provides that the exploration and the exploitation of the continental shelf must not result in "any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication," while Article 5(8) stipulates that the consent of the coastal states is to be obtained in respect of "any research concerning the continental shelf and undertaken there." Article 5(8 further adds that such consent is not to be "normally" withheld "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." See L. Caflisch and J. Piccard, "The Legal R;́egime of Marine Scientific Research and the Third United Nations Conference on the Law of the Sea," Zeitschrift f;̈ur ausl;̈andisches;̈offentliches Recht und V;̈olkerrecht 38 (1978): 849.
61. Article 246 (3) of LOSC, supra note 10.
62. R. Churchill and V. Lowe, The Law of the Sea, 3d ed. (Manchester: Manchester University Press 1999), 405-406.
63. With respect to the distinction between the fundamental research and applied research, see Caflisch and Piccard, supra note 36, pp. 848-853 and Soons, Marine Scientific Research, supra note 19, pp. 6-7 and p. 124.
64. Soons, Marine Scientific Research, supra note 19, p. 7.
65. Ibid., p. 367.
66. Fifth Conference of the Parties of the Convention on Biological Diversity, 2000, Progress Report on the Implementation of the Programmes of Work on Biological Diversity of Inland Water Ecosystems, Marine and Coastal Biological Diversity and Forest Biological Diversity, UNEP/CBD/ COP/5/INF/7, 8 December 1999, p. 2, para. 6. With respect to the process of bioprospecting for deep sea genetic resources, see Leary, supra note 1, pp. 164-169.
67. 2004 Report of the Secretary-General, supra note 1, p. 66, para. 261-262.
68. Ibid.
69. 2002 Report of the Secretary-General of the ISA, supra note 15, p.12, para. 51.
70. Mgbeoji, supra note 4, p. 436.
71. Leary, supra note 1, pp. 167-168.
72. Eighth Meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the Convention on Biological Diversity, 2003, Marine And Coastal Biodiversity: Review, Further Elaboration and Refinement of the Programme of Work, UNEP/CBD/SBSTTA/8/INF/3/Rev. 1, 22 February 2003, p. 14, para. 50.
73. Soons, Marine Scientific Research, supra note 19, p. 7, pointed out that, in practice, it is often difficult to distinguish marine scientific research from exploration and exploitation since the techniques used may sometimes be identical. Arguably, the same is true of the distinction between marine scientific research and bioprospecting.
74. See Glowka, supra note 2, p. 173.
75. Scovazzi, supra note 15, p. 402, argues that any kind of marine scientific research in the Area, including what is called bioprospecting, might fall under the general obligation in Article 143(1) of the LOSC to ensure the benefit of mankind as a whole.
76. See also Scovazzi, "Bioprospecting on the Deep Seabed," supra note 17, p. 85.
77. SBSTTA, 2003 Marine and Coastal Biological Diversity, supra note 47, p. 29, para. 111.
78. 2004 Report of the Secretary-General of the ISA, supra note 34, p. 43, para, 133. The Secretary-General of the Authority has stated that: "The essential problem for the Authority is that the same hydrothermal vent sites that are being targeted by scientific researchers and bioprospectors are also of considerable interest to prospective seabed miners. There is therefore considerable overlap, as well as potential for conflict, between the Authority's responsibilities in respect of the marine environment and activities directed at bioprospecting." 2002 Report of the Secretary-General of the ISA, supra note 15, p. 12, para. 51.
79. Scovazzi, supra note 15, pp. 403-404.
80. and Mgbeoji, supra note 4, pp. 438-439.
81. During discussions in the 2006 Ad Hoc Open-ended Informal Working Group, it was emphasized that the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction should be approached through integrated ocean management. Report of the Ad Hoc Open-ended Informal Working Group, supra note 30, p. 3, para. 5.
82. See also 2002 Report of the Secretary-General of the ISA, supra note 15, p. 12, para. 51 and Mgbeoji, supra note 4, p. 437.
83. Article 194 (5) of the LOSC, supra note 10.
84. See SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 22, para. 84.
85. Scovazzi, supra note 15, p. 403.
86. Ibid., pp. 392-396.
87. Article 1, para. 1 (3) of the 1982 LOSC, supra note 10.
88. See Scovazzi, supra note 15, p. 393.
89. 2002 Report of the Secretary-General of the ISA, supra note 15, p. 12, para. 52.
90. See also United Nations General Assembly, 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, U.N. Doc. A/59/122, 1 July 2004, p. 17, para. 66.
91. 2004 Report of the Secretary-General of the ISA, supra note 34, p. 43, para, 133.
92. 1994 Agreement, supra note 28.
93. See also section 1(5)(k) of Annex, to the 1994 Agreement, supra note 28. In addition, it should be noted that Article 206 of the LOSC, supra note 10, provides an obligation concerning assessment of potential effects of activities on the marine environment in a general manner.
94. Sixth Session of the Assembly of the International Seabed Authority, Decision of the Assembly Relating to the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area, ISBA/6/A/18, adopted 13 July 2000 and reproduced in E. D. Brown, Sea-Bed Energy and Minerals: the International Legal Regime, Vol. 3 (The Hague: Nijhoff, 2001), 256-310.
95. For an overview of the Mining Code, see M. Bothe, "The Protection of the Marine Environment Against the Impacts of Seabed Mining: An Assessment of the New Mining Code of the International Seabed Authority," in P. Ehlers et al., supra note 1, pp. 221-232.
96. Scovazzi, supra note 15, p. 396.
97. and Leary, supra note 1, pp. 219-220.
98. Scovazzi, supra note 15, p. 394. The U.N. General Assembly Resolution 60/ 30, supra note 9, p. 7, para. 26, states "the importance of the ongoing elaboration by the International Seabed Authority ("the Authority"), pursuant to article 145 of the Convention [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 prevention of damage to its flora and fauna from harmful effects that may arise from activities in the Area."
99. Article 162(2)(a) of the LOSC, supra note 10.
100. See also Article 18 of Annex III of the LOSC, supra note 10.
101. Article 162(2)(x) of the LOSC, supra note 10.
102. See S. Marr, The Precautionary Principle in the Law of the Sea (The Hague: Kluwer, 2003), in particular, 46-99.
103. and P.-M. Dupuy, "Le principe de pr;́ecaution et le droit international de la mer," in La mer et son droit, M;́elanges offerts;̀a Laurent Lucchini et Jean Pierre Qu;́eneudec (Paris: Pedone, 2003), 205-220.
104. It has been suggested that less than 0.1% of abyssal plains have been subject to scientific study and less than 200 of the estimated 30,000 seamounts have been sampled. SBSTTA, 2005, Marine and Coastal Biological Diversity, supra note 3, p. 6, para. 12.
105. Mgbeoji, supra note 4, pp. 442-443 and Bothe, supra note 64, p. 228.
106. Pascale Martin-Bidou, "Le principe de pr;́ecaution en droit international de l'environnement," Revue G;́en;́erale de Droit International Public 13 (1999): 647.
107. See D.M. Dzidzornu, "Four Principles in Marine Environment Protection: A Comparative Analysis," Ocean Development and International Law 29 (1998): 99
108. L. Lucchini, "Le principe de pr;́ecaution en droit international de l'environnement: Ombres plus que lumi;̀eres," Annuaire Fran;̧cais de Droit International 45 (1999): 727-729.
109. The difficulty in implementing the precautionary approach is demonstrated by the fact that international courts have been prudent in applying it in disputes. See Y. Tanaka, "Regulation of Land-Based Marine Pollution in International Law: A Comparative Analysis Between Global and Regional Legal Frameworks," Zeitschrift fur ausl;̈andisches;̈offentliches Recht und V;̈olkerrecht (2006)
110. 560-561 and Dupuy, supra note 70, pp. 215-220.
111. Convention on Biological Diversity, supra note 16.
112. The Convention on Biological Diversity has been examined by many writers, including: M.-A.Hermitte, "La convention sur la diversit;́e biologique," Annuaire Francais de Droit International 38 (1992): 844-570.
113. F. Burhenne-Guilmin and S. Casey-Lefkowitz, "The Convention on Biological Diversity: A Hard Won Global Achievement," Yearbook of International Environmental Law 3 (1992): 43-59.
114. C. de Klemm, Biological Diversity Convention and the Law: Legal Mechanisms for Conserving Species and Ecosystems (Gland: IUCN-The World Conservation Union, 1993).
115. M. Chandler, "The Biodiversity Convention: Selected Issues of Interest to the International Lawyer," Colorado Journal of International Environmental Law and Policy 4 (1993): 141-175.
116. A. E. Boyle, "The Rio Convention on Biological Diversity," in International Law and the Conservation of Biological Diversity, ed. C. Redgwell and M. Mowman (The Hague: Kluwer, 1995), 33-49.
117. A. A. Yusuf, "International Law and Sustainable Development: The Convention on Biological Diversity," African Yearbook of International Law (1995): 109-137.
118. reproduced in P. M. Pevato (ed.), International Environmental Law, Vol. II, (Dartmouth: Ashgate, 2003), 167-195.
119. F. McConnell, The Biodiversity Convention: A Negotiating History (The Hague: Kluwer, 1996).
120. C. Wold, "The Futility, Utility, and Future of the Biodiversity Convention," Colorado Journal of International Environmental Law and Policy 9 (1998): 1-41.
121. Secretariat of the Convention on Biological Diversity, Handbook of the Convention on Biological Diversity (London and Sterling: Earthscan, 2001).
122. and A. H. Ansari, and P. Jamal, "The Convention on Biological Diversity: A Critical Appraisal with Special Reference to Malaysia," Indian Journal of International Law 40 (2000): 137-177.
123. Article 4 of the Convention on Biological Diversity, supra note 16.
124. Glowka, supra note 2, p. 168 and SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 19, para. 70.
125. See Principle 21 of the Stockholm Declaration of 1972, International Legal Materials 11 (1972) 1416 and Principle 21 of the Rio Declaration, International Legal Materials 31 (1992) 874.
126. The customary law character of this rule was confirmed by the International Court of Justice in The Advisory Opinion Concerning Legality of the Threat or Use of Nuclear Weapons, [1996] I.C.J. Reports, pp. 241-242, para. 29.
127. This view was echoed by The Gab.;́cikovo-Nagymarous Project Case, [1997] I.C.J. Reports, p. 41, para. 53.
128. Seventh Conference of the Parties of the Convention on Biological Diversity, 2004, Decision VII/5, Marine and Coastal Biological Diversity: Review of the Programme of Work on Marine and Coastal Biodiversity, p. 141, para. 60.
129. 2006 COP, Decision VIII/21, Marine and Coastal Biological Diversity, supra note 1, para. 2. The Report of the Ad Hoc Open-ended Informal Working Group, supra note 30, p. 6, para. 18 indicates that it was considered essential to build a stronger scientific basis on marine biological diversity beyond areas of national jurisdiction in order to facilitate the adoption and implementation of improved sustainable management and conservation measures of those marine resources.
130. Articles 12(b) and (c), Convention on Biological Diversity, supra note 16. The Convention does not draw a distinction between marine scientific research and bioprospecting. SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 26, para. 102.
131. SBSTTA, 2005, Marine and Coastal Biological Diversity, supra note 3, p. 3, para. 6.
132. 2004 COP, Decision VII/5, Marine and Coastal Biological Diversity, supra note 82, p. 140, para. 54.
133. Article 1 of the Convention on Biological Diversity, supra note 16.
134. The Secretary-General of the International Seabed Authority stated that: "One of the key practical questions that arise in this context is how to ensure the fair and equitable distribution of the benefits from such research without creating unreasonable obstacles to such activities as commercial biotechnological development and without limiting unreasonably commercial incentives, such as intellectual property rights, for work undertaken on the genetic resources of the Area." 2002 Report of the Secretary-General of the ISA, supra note 15, p. 9, para. 39.
135. 2006 COP, Decision VIII/21, Marine and Coastal Biological Diversity, supra note 1, para. 9.
136. R. Wolfrum, "The Protection and Management of Biological Diversity," in International, Regional and National Environmental Law, ed. R. L. Morrison and R.Wolfrum (The Hague: Kluwer, 2000), 367.
137. Article 16(2) of the Convention on Biological Diversity, supra note 16.
138. See Boyle, supra note 78, p. 46 and SBSTTA, 2003.
139. Marine and Coastal Biological Diversity, supra note 47, pp. 24-25, para. 95 and para. 98.
140. Leary, supra note 1, pp. 278-286, lists patents granted in relation to biotechnology derived from hydrothermal vent microbes and other inventions.
141. SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 49, para. 49. 94.
142. 2004 Report of the Secretary-General, supra note 1, pp. 65-66, para. 259; SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 25, para. 98.
143. and Glowka, supra note 2, pp. 174-175.
144. 2000 Mining Code, supra note 64.
145. See R.Wolfrum and N. Matz, "The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity," Max Planck Yearbook of United Nations Law 4 (2000): 445-480.
146. and G. Cataldi, "Biotechnology and Marine Biogenetic Resources: The Interplay Between UNCLOS and the CBD," in Francioni and Scovazzi, supra note 17, pp. 99-109.
147. Fifth Meeting of State Parties to the United Nations Convention on the Law of the Sea, 1996, Report of the Secretary-General under Article 319 of the United Nations Convention on the Law of the Sea, SPLOS/6, 11 April 1996, p. 11, para. 46.
148. The 2004 Report of the United Nations Open-ended Informal Consultative Process, supra note 60, p. 24, para. 90, points out that there are complementarities between the LOSC and the Convention on Biological Diversity because both instruments emphasized the fair and equitable distribution of benefits from the resources.
149. Wolfrum and Matz, supra note 96, p. 476.
150. Scovazzi, supra note 15, p. 405.
151. and Scovazzi, "Biodiversity in the Deep Seabed," supra note 17, p. 485. See also Article 22 (2) of the Convention on Biological Diversity, supra note 16.
152. Churchill and Lowe, supra note 38, pp. 224-225.
153. Article 1 of the Continental Shelf Convention, supra note 36, stipulates that: "For the purpose of these Articles, the term 'continental shelf' is used 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."
154. See S. Oda, International Control of Sea Resources (Dordrecht: Nijhoff, 1989), 167. This interpretation of Article 1 of the Convention on the Continental Shelf was not free from controversy. Under Article 1, the scope of the continental shelf was limited to "areas adjacent to the coast."
155. It would seem inconceivable that all ocean floors are adjacent to certain coastal states. H. Takabayashi, International Law ofOcean Development (in Japanese) (Tokyo:YUshindoKobunsya, 1979), 186-187.
156. Churchill and Lowe, supra note 38, p. 225.
157. It has been recognized that the principle of the common heritage of mankindwas intimately linked to the New International Economic Order (NIEO).Within the framework of NIEO, developing countries were attempting to establish a new legal framework to ensure a more equitable share of benefits from natural resources in the areas beyond the limits of the national jurisdiction, that is to say, the deep seabed, outer space, and, to a lesser extent, the Antarctic. Regarding the relationship between theNIEO and the common heritage of mankind, see E.M. Borgese, "TheNewInternational Economic Order and the Law of the Sea," San Diego Law Review 14 (1976-1977): 584-596.
158. L. Juda, "UNCLOS III and the New International Economic Order," Ocean Development and International Law 7 (1979): 221-255.
159. T. Koh, "The International Seabed and the Third UN Law of the Sea Conference: Some NIEO Issues," in Legal Aspects of the New International Economic Order, ed. K. Hossain (London: Frances Pinter, 1980), 160-164.
160. F. H. Paollilo, "The Future Legal Regime of Seabed Resources and the NIEO: Some Issue," in ibid., 165-170.
161. B. Larschan and B. C. Bernnan, "The Common Heritage of Mankind Principle in International Law," Columbia Journal of Transnational Law 21 (1983): 310.
162. and K. Baslar, The Concept of the Common Heritage of Mankind in International Law (The Hague: Nijhoff, 1998), 210-216.
163. United Nations General Assembly Resolution 2749 (XXV), adopted 17 December 1970, Principle 1.
164. T. Kuwahara, Introduction to International Law of the Sea (in Japanese) (Tokyo: Shinzansya, 2002), 212.
165. Similarly, A. C. Kiss, "La notion de patrimoine commun de l'humanit;́e," Recueil des Cours de l'Acad;́emie de Droit International 175 (1982): 229-231, considered that the common interest of mankind was the foundation of the common heritage of mankind.
166. Kuwahara, supra note 106, p. 212. Article 150 of the LOSC, supra note 10, clearly provides that activities in the Area are to 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 overall development of all countries, especially developing states.
167. See Article 311 (6) of the 1982 LOSC, supra note 10.
168. Glowa, supra note 2, p. 161, indicates that the exploration and exploitation of the Area's genetic resources require: Physical access to living organisms, the ability to collect organisms and manipulate them in the laboratory under conditions comparable to those from which they were collected, and a critical mass of trained scientists.
169. See also Leary, supra note 1, pp. 187-188.
170. SBSTTA, 2003, Marine and Coastal Biological Diversity, supra note 47, p. 26, para. 100.
171. Glowka, supra note 2, pp. 170-171 and E.M.Borgese, "TheCommon Heritage of Mankind: From Non-Living to Living Resources and Beyond," in Liber Amicorum Judge Shigeru Oda, ed. N. Ando et al. (The Hague: Kluwer, 2002), 1326-1331.
172. See alsoMatz, supra note 17, p. 298. It has been suggested that developing states are supportive of the application of the principle of the common heritage of mankind to genetic resources in the Area. Levy, supra note 13, p. 120.
173. Scovazzi, supra note 12, p. 219.
174. and Scovazzi, supra note 15, p. 391.
175. 2004 Report of the United Nations Open-ended Informal Consultative Process, supra note 60, p. 23, para. 90.
176. 114. Report of the Ad Hoc Open-ended Informal Working Group, supra note 30, p. 9, para. 29 and p. 18, para. 71.
177. Other delegations stated that the resources were covered by the regime of the high seas under Part VII of the LOSC. Ibid., p. 9, para. 30.
178. Paragraph 5 of the Preamble of the LOSC, supra note 10.
179. Scovazzi, supra note 12, p. 219.
180. The applicability of the rule of the nonappropriation of marine genetic resources is open to discussion. Further consideration of equitable distribution of benefits associated with the exploitation of genetic resources in the Area is needed. Leary, supra note 1, pp. 176-181, examines several proposals including an ocean development tax as well as a global commons trust fund.