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Exploration and Exploitation of Marine Genetic Resources in Areas beyond national Jurisdiction and Environmental Impact Assessment

Published online by Cambridge University Press:  20 January 2017

Arianna Broggiato
Arianna Broggiato*
Affiliation:
BIOGOV Unit, Centre for the Philosophy of Law (CPDR), Université catholique de Louvain, Belgium
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Type
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European Journal of Risk Regulation , Volume 4 , Issue 2 , June 2013 , pp. 247 - 251
Copyright
Copyright © Cambridge University Press 2013

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References

1 Data released by the UNESCO International Oceanographic Commission: http://ioc-unesco.org/

2 This discovery has been identified as one of the most important pieces of progress of oceanography in the Twentieth Century, Paul Dando and S. Kim Jupiter, Management and Conservation of Hydrothermal Vent Ecosystems, Report from an InterRidge Workshop, Sidney (Victoria), B. C. Canada 28–20 September 2000.

3 Leary, David Kenneth, International Law and the Genetic Resources of the Deep Sea, (Leiden: Martinus Nijhoff Publishers, 2007), at p. 12.Google Scholar

4 Maria C. Baker “An Environmental Perpective” in WWF/IUCN, The Status of Natural Resources on the High Seas, (2001), at p. 5; “The deep ocean floor is one of the richest, but at the same time one of the least known, ecosystems in the planet”, 1999 U.N. Secretary General Report on Oceans and the Law of the Sea, U.N. GAOR, 54th Session, Agenda Item 40 (a), (c), 78, 509, U.N. Doc. A/54/429 (1999).

5 Maria C. Baker “An Environmental Perspective” in WWF/IUCN, The Status of Natural Resources on the High Seas, (2001), at p. 16.

6 Ecosystem and Biodiversity in Deep Waters and High Seas, UNEP Regional Seas Report and Studies No. 178 (2006).

7 Sophies Arnaud-Haond, Jesus M. Arrieta, Carlos M. Duarte, “Marine Biodiversity and Gene Patents”, 331 Science, 25 March 2011.

8 The study refers to marine genes in general without being able to make the distinction between marine genes coming from areas beyond national jurisdiction and the ones coming from areas within national jurisdiction.

9 USA, Germany and Japan.

10 Broggiato, Arianna, “Marine Biological Diversity Beyond Areas of National Jurisdiction”, 38(4) Environmental Policy and Law (2008), at p. 182.Google Scholar

11 UNGA Resolution 66/288 of 27 July 2012, “The future we want”, § 162.

12 Environmental Impact Assessment is defined as “a process of evaluating the likely environmental impacts of a proposed project or development taking into account inter-related socio-economic, cultural and human health impacts, both beneficial and adverse”, Voluntary Guidelines on biodiversity-inclusive impact assessment, §5, Annex to CBD COP 8 Decision VIII/28 on Impact Assessment.

13 Convention on Biological Diversity, article 2.

14 This paper will not touch upon the distinction between marine scientific research and bioprospecting (“generally understood, among researchers as the search for biological compounds of actual or potential value to various applications, in particular commercial applications” General Assembly Resolution A/62/66 Oceans and the Law of the Sea – Report of the Secretary General (March 2007), para. 150”) because it does not concern the scope of environmental impact assessment.

15 Marjo Vierros, Gwenaëlle Hamon, David Leary, Salvatore Arico and Catherine Monagle, “An Update on Marine Genetic Resources: Scientific Research, Commercial Uses and Database on Marine Bio-prospecting”, paper presented at the United Nations Informal Consultative Process on Oceans and the Law of the Sea Eight Meeting, United Nations, New York, 25–29 June 2007.

16 Beyond being marginal, the exact amount of MGRs taken beyond national jurisdiction that have been exploited and commercialized cannot be estimated. In fact, when resources (or a process derived from a resource) are patented, there is no legal obligation to declare where the resources have been taken from. Therefore, it is quite difficult to determine the market of MGRs beyond national jurisdiction.

17 For example, the English biotechnology company Aquapharm declared that in the year 2007, 10% of the genetic material used for research was collected in marine areas beyond national jurisdiction, and it estimated that this percentage will increase in the next years. Postnote of the Parliamentary Office of Science and Technology, UK New Industries in the Deep Sea 288 (London, July 2007).

18 Kim Juniper, “Technological, Environmental, Social and Economic Aspects of Marine Genetic Resources”, IUCN Information Paper to be presented at the Intersessional Workshop on Marine Genetic Resources beyond National Jurisdiction, United Nations, New York 2/3 May 2013.

19 The world's first regional-scale underwater ocean observatory network, available at <http://www.neptunecanada.com/about-neptune-canada/> (last accessed on 14 May 2013).

20 Kim Juniper, “Technological, Environmental, Social and Economic Aspects of Marine Genetic Re-sources”, IUCN Information Paper to be presented at the Intersessional Worskhop on Marine Genetic Resources beyond National Jurisdiction, United Nations, New York 2/3 May 2013.

21 la Calle, Fernando de, “Marine Genetic Resources. A Source of New Drugs The Experience of the Biotechnology Sector”, 24(2) The International Journal of Marine and Coastal Law (2009), pp. 209–220.Google Scholar

22 Marjo Vierros, Gwenaëlle Hamon, David Leary, Salvatore Arico and Catherine Monagle, “An Update on Marine Genetic Resources: Scientific Research, Commercial Uses and Database on Marine bioprospecting” paper presented at the United Nations Informal Consultative Process on Oceans and the Law of the Sea Eight Meeting, United Nations, New York, 25–29 June 2007.

23 Kim Juniper, “Technological, Environmental, Social and Economic Aspects of Marine Genetic Re-sources”, IUCN Information Paper to be presented at the Intersessional Workshop on Marine Genetic Resources beyond National Jurisdiction, United Nations, New York 2/3 May 2013.

24 For example, only less than 2% of the world's ocean microorganisms can be cultivated with the available laboratory techniques.

25 Metagenomics is “the application of modern genomics techniques to the study of communities of microbial organisms directly in their natural environments, bypassing the need for isolation and lab cultivation of individual species”. Kevin Chen and Lior Pachter, “Bioinformatics for Whole-Genome Shotgun Sequencing of Microbial Communities”, 1(2) PLoS Computational Biology (2005), e24. doi:10.1371/journal.pcbi.0010024.

26 That can produce huge numbers of DNA reads at an affordable cost.

27 Graham Shimmield, “Extent and Types of Research, Uses and Application”, IUCN Information Paper to be presented at the Intersessional Workshop on Marine Genetic Resources beyond National Jurisdiction, United Nations, New York 2/3 May 2013.

28 The precautionary principle has been defined as follows in Principle 15 of the Rio Declaration on Environment and Development: “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 full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.” UN Doc. A/CONF.151/26/Rev.1, Report of the UNCED, vol. 1 (New York).

29 Kim Juniper, “Deep-Sea Hydrothermal Vent Ecosystems – Arguments for Conservation”. Paper presented at the Third Global Conference on Oceans, Coasts and Small Islands. Available at <http://www.globaloceans.org/globalconferences/2006/materials.html> (last accessed on 14 May 2013).

30 The complexity of this issue goes beyond the scope of this paper.

31 Within a small number of regional frameworks such as the Antarctic Treaty System, the OSPAR Convention, the Secretariat of the Pacific Regional Environmental Programme and the Barcelona Regional Seas Conventions.

32 Druel, Elisabeth, “Environmental Impact Assessments in areas beyond national jurisdiction”, 1 IDDRI (2013), p. 42 et sqq.Google Scholar

33 Seabed activities other than mining, (e.g. cable and pipelines, seabed installations, marine scientific research, bioprospecting, seabased tourism); high seas activities other than dumping and some fishing (e.g. shipping, marine scientific research, floating installations (e.g. wave, nuclear, CO2 mixers)); impacts of high seas fishing activities on outer continental shelves of coastal nations (e.g. deep-sea fishing impacts on sedentary species and resources, vulnerable benthic ecosystems); impacts of outer continental shelf activities on high seas (e.g. seismic testing noise); military activities; new or emerging uses of the seas. Kristina Gjerde et al., “Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction”, IUCN, (Gland, Switzerland, 2008) p. 8.

34 CBD COP 11, Decision XI/18 on Marine and Coastal Biodiversity.

35 UNEP/CBD/SBSTTA/16/INF/16, 11 April 2012. Background on the Development of Voluntary Guidelines for the Consideration of Biodiversity in Environmental Impact Assessments (EIAs) and Strategic environmental assessments (SEAs) in marine and coastal areas.

36 Ibid.

37 InterRidge is a non-profit international organization, comprised of 30 member nations and 2500 member researchers, concerned with promoting all aspects of mid-ocean ridge research.

38 L. Godet, K.A. Zelnio and C.L. Van Dover, “Scientists as stakeholders in conservation of hydrothermal vents”, 2 Conserv Biol. (2011), pp. 14–22. 164 individuals from 26 different countries answered to the survey (out of more or less 3000 people reached by the survey query): 82% of them were aware of the InterRidge statement; the rate of compliance according to a self evaluation was higher for certain countries (Spain 100% and Portugal 96%) than in others (29% unsure in New Zealand and 14% unsure in Japan); less than 50% were confident in their colleagues’ attitudes and compliance with the statement. Few respondents changed their behavior after reading the statement.

39 Marjo Vierros, Gwenaëlle Hamon, David Leary, Salvatore Arico and Catherine Monagle, “An Update on Marine Genetic Resources: Scientific Research, Commercial Uses and Database on Marine bioprospecting” paper presented at the United Nations Informal Consultative Process on Oceans and the Law of the Sea Eight Meeting, United Nations, New York, 25–29 June 2007.

40 Gwénaëlle Le Gurun, “Environmental Impact Assessment and the International Seabed Authority”, in Bastmeijer, C.J. and Koivurova, Timo (eds.), Theory and Practice of Transboundary Environmental Impact Assessment (Leiden: Martinus Nijhoff, 2007), at p. 221.Google Scholar Postdoctoral researcher, BIOGOV Unit, Centre for the Philosophy of Law (CPDR), Université catholique de Louvain, Belgium.