Sustainable seas inquiry 2
Written evidence submitted by Olivier N. Yambo, PhD Candidate and Research Assistant, Nottingham Trent University.
1. Executive Summary
1.1. This submission gives the author’s view and opinion on the following question: What outcomes and protections should the UK Government be pushing for at the forthcoming UN negotiations on the conservation and sustainable use of marine biological diversity in the world’s oceans?
1.2. Despite work undertake to date by United Nations Convention on the Law of the Sea regarding unregulated activities at sea, especially in areas beyond national jurisdiction (ABNJ) further work is required.
1.3. Specific issues must be resolved with work required to create the best vehicle to manage and oversee the commercial exploitation of marine genetic resources in ABNJ. This submission will outline and critique the options available to the UK and other sovereign powers.
2. About the Author
2.1. Olivier N. Yambo is a PhD candidate at Nottingham Law School, coordinator and research assistant for the Centre for Marine Ecological Resilience and Geological Resources. His doctoral research investigates whether the terms conservation and sustainable use reflect a single norm of customary international law when applied in the context of marine biodiversity in areas beyond national jurisdiction. Oliver has a strong research interest with respect to issues related to conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.
3. Submission
3.1. What outcomes and protections should the UK Government be pushing for at the forthcoming UN negotiations on the conservation and sustainable use of marine biological diversity in the world’s oceans?
3.2. The last decade and a half has been marked by tangible efforts on the part of the world community to address unregulated activities at sea, especially in areas beyond national jurisdiction (ABNJ). The outcome of these efforts has been reflected in the ongoing negotiations on the development of a legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS). The future instrument, which is currently developed at the United Nations General Assembly (UNGA), aims to provide a legal framework for the conservation and sustainable use of marine biodiversity in ABNJ.
3.3. Although significant progress has been made as part of the negotiations in the UNGA, there are still important issues that need to be addressed. One of these issues is that it is not yet clear whether a new entity should be created under the future instrument, instead of expanding the mandate of one, which already exists, to manage and oversee the commercial exploitation of marine genetic resources in ABNJ as well as the sharing of benefits arising from such activity.
3.4. While, on the one hand, the creation of a new body can provide a valuable solution in terms of administrative and bureaucracy efficiency, on the other hand, it can be very time-consuming (e.g. long and arduous negotiation process) and onerous (e.g. building a new facility and recruiting new staff), making it a less cost-effective option. Conversely, while the designation of an existing intergovernmental organisation can save time, reduce costs, and accelerate the negotiating process because it is already established and internationally recognised by a number of countries, it can also create additional workload and reduce administrative efficacy.
3.5. In the present context, there are several possible scenarios [1], one of which is to design and empower the International Seabed Authority (ISA) to administer and manage the commercial exploitation of marine genetic resources from the deep seabed in ABNJ. ISA is indeed recognized as the organization through which States Parties are required to “organize and control activities in the Area, particularly with a view to administering the resources of the Area” [2]. However, it is only competent to address and manage deep-sea mining-related activities in the international seabed area. It has been suggested that the mandate of ISA should be expanded to also include the marine genetic resources of the deep ocean floor [3]. Although this is a possibility, it is an unlikely scenario. Firstly, ISA is ill-equipped to deal with the management of deep sea living resources and the sharing of benefits arising from their utilizations [4]. Secondly, and perhaps the decisive element to argue against this scenario, is the lack of consensus on the legal status of marine genetic resources in ABNJ [5]. Yet, even if ISA was granted such an expanded role, marine genetic resources collected from the water column above the seabed would still fall outside its powers and functions [6].
3.6. Among other possible scenarios is that instead of having one body with exclusive competence such as the Authority, multiple authorities could be designated to manage the different aspects of access and benefit-sharing relating to marine genetic resources in ABNJ. For instance, the Food and Agricultural Organization (FAO) could be designated for managing and overseeing access to marine genetic resources sourced from ABNJ; the Convention on Biological Diversity (CBD) could be responsible for developing and maintaining a global mechanism for benefits-sharing; and the World Trade Organization (WTO) could be competent for addressing intellectual property-related issues.
3.7. Another possibility that could also be envisaged is the establishment of a new authority under the future instrument to UNCLOS that would benefit from the joint-expertise of relevant organisations such as ISA, the CBD, the FAO, and the WTO [7].
3.8. Each of these scenarios should be carefully balanced during the negotiations of the future instrument in the UNGA. At this stage of the negotiations, it is still impossible to predict the scenario that will be retained. But even more importantly, there is no guarantee that the future instrument will be able to cope effectively with the major challenges regarding the access to marine genetic resources in ABNJ and the sharing of benefit arising from their use. Faced with this uncertainty, alternative options to create an access and benefit-sharing regime outside the IA should also be considered.
3.9. In the present context, it is rather unlikely that the issue of access and benefit sharing of marine genetic resources in ABNJ would be addressed through an internationally legally-binding agreement other than the future instrument to UNCLOS. Otherwise stated, this means that the issue of access and benefit-sharing would not be solved until the instrument is fully developed and adopted.
3.10. An alternative solution to this problem would be to dissociate the access and benefit-sharing topic from the future instrument to UNCLOS and to tackle it through a non-legally binding political instrument in the form of a declaration or protocol. This solution offers several benefits. The first is that it avoids reopening discussions and creating uncertainty vis-à-vis institutional and administrative arrangements under the future instrument. The second is that it creates the opportunity to put the debate on marine genetic resources in ABNJ aside and postpone it until enough evidence is available to support the argument that the biotechnological industry is making huge profits from the commercial exploitation of deep-sea genetic resources. The third is that it reduces the risk of slowing down the progress towards the achievement of other key objectives under the instrument package deal including areas-based management tools such as marine protected areas, environmental impact assessments, capacity-building, and transfer of marine technology. The fourth and certainly the most obvious is that it makes it possible to accelerate the negotiating process leading to the adoption of the instrument and ensuring the legal protection of marine biodiversity in ABNJ.
3.11. Further to that, non-binding political instruments, as opposed to legally binding agreements (e.g. treaties), have the advantage that they can be negotiated and concluded rapidly (e.g. no need for domestic treaty ratification process). Because they are devoid of any legal effect (e.g. legal commitment and non-compliance sanctions), States are more inclined to sign such instruments [8]. The conclusion of a “Declaration/Protocol on Access and benefit-sharing for marine genetic resources in ABNJ” could encourage countries like the USA to join and adhere to its principles. The USA is one of the world leaders in marine biotechnology [9]. Its participation is of paramount importance when it comes to designing a new access and benefit-sharing regime. However, in order to secure such participation, the Declaration/Protocol would need to operate independently and autonomously from the future instrument to UNCLOS or any other international agreement. It is indeed highly unlikely that the USA would sign such a Declaration/Protocol, especially if a connection exists with treaties or conventions, of which it is not a state party.
3.12. In terms of institutional arrangements, the Declaration/Protocol could take inspiration from the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea (Hamilton Declaration) [10]. The Hamilton Declaration is a non-legally binding political statement [11]. It is designed with the aim of promoting collaboration between States, regional and international organizations for the conservation of the Sargasso Sea biodiversity in ABNJ. To achieve its goals, the Hamilton Declaration establishes institutional arrangements in order to promote and monitor a wide range of cooperative activities. The Sargasso Sea Commission, which encourages and facilitates voluntary collaboration toward the conservation of the Sargasso Sea, is the institutional cornerstone of the Hamilton Declaration [12]. The main peculiarity of the Commission lies in the fact that it is an informal intergovernmental organization (IIGO). An IIGO is an organisation without legal personality [13]. This means that the Commission is not capable of bearing rights and duties (e.g. treaty-making capacity, privileges and immunities, capacity to bring claims before international courts). It also means that it does not have a legal autonomy or a separate will (e.g. capacity to pursue its own objectives) [14]. Unlike a formal intergovernmental organization (FIGO), an IIGO is not formed by an internationally recognized treaty and relies mostly on a very weak organizational structure. [15].
3.13. Clearly, the Sargasso Sea Commission is formed under a non-legally binding political statement and is only supported by a small secretariat, the Commission Secretariat. Furthermore, an IIGO only exists because of the explicitly shared expectation of its members to act together to better respond to common challenges. In this respect, it provides for regular meetings (e.g. annual meetings which do not necessarily follow a fixed schedule) that enable IIGO members to “discuss common concerns, share information, build consensus, and possibly agree on joint action” [16]. In the case of the Sargasso Sea Commission, it has been established to achieve the common vision of Signatory States, namely to collaborate toward the conservation of the Sargasso Sea ecosystem for the benefit of present and future generations [17]. The activities and functionalities of the Commission are further overseen by the Meeting of Signatories (another institutional arrangement under the Hamilton Declaration), composed of representatives from each Signatory States which meet either virtually or physically at regular interval [18]. Despite its very limited nature, an IIGO like the Sargasso Sea Commission has considerable benefits. First of all, it provides Signatory States with greater flexibility than a FIGO [19]. For instance, States do not have to make strong commitments and have enough leeway to cope with unexpected changes or events [20]. Secondly, it enhances voluntary collaboration between governments, national, regional and international organizations and facilitates the exchange of information and data. [21]. Thirdly, it minimizes organizational structures and staffs, which in turn reduces costs [22].
3.14. A similar IIGO could be established under the Declaration/Protocol. However, given that the issue of access and benefit-sharing for marine genetic resources in ABNJ concerns most, if not all, countries worldwide, such an IIGO will need the necessary organizational adjustments in order to operate effectively. Alike the Sargasso Sea Commission [23], the IIGO could be composed of renowned scientists and other individuals of international repute that would serve in their personal capacity. This could also include highly-qualified experts in a variety of fields, including biotechnology, bioprospecting and intellectual property rights. As a first task, the newly-established IIGO could develop and promote a “Code of Conduct for Responsible Bioprospecting in ABNJ” comprising non-binding recommendations, guidelines and best practices on ABS. It could also monitor the scale and nature of bioprospecting activities in ABNJ through a web-based database platform.
3.15. Another important role for the IIGO is that it could serve as an international focal point for the gathering and exchange of information and data on Access and benefit-sharing practices. In addition to the IIGO, the establishment of other institutional structures would be required to further support and coordinate its activities.
3.16. In terms of practical arrangements, the Declaration/protocol could elaborate a multilateral system for access and benefit-sharing of marine genetic resources in ABNJ based partly on that of the FAO Treaty on Plant Genetic Resources for Food and Agriculture. The multilateral system could act as a common pool of ex-situ marine genetic resources. The idea of a common pool of ex-situ marine genetic resources has been proposed as a means of non-monetary benefit sharing. Facilitating greater access to ex-situ samples and related data, especially to those lacking the necessary resources to sample in these environments, is a laudable concept and one that would promote and encourage marine scientific research. It would multiply the potential for exploitation of these valuable resources and mitigate the environmental impact of sampling in unique and fragile marine environments by preventing unnecessary re-sampling at the same location. In practice, such a scenario would require those sampling marine genetic resources from ABNJ to deposit a duplicate sample together with all associated environmental data in a centralized or distributed (virtual) repository. While some national bio-repositories focused solely on MGRs already exist (e.g. MarBank, Norway’s national marine biobank, JAMSTEC AIMS), there are major questions regarding the potential feasibility of a single, centralized multinational bio-repository holding duplicates of all ABNJ-derived marine genetic resource. For instance, where such a repository would be based and how would samples be sub-sampled, maintained and transferred to it? Furthermore, sample collection methods and storage conditions would need to take account of all potential future applications. If, for example, a sample was taken and stored in a preservative medium with the intention of future taxonomic study, then use of that sample for biotechnology research may not be feasible, as more stringent storage conditions would be required. What requirements should be imposed concerning the quantity of sample to be deposited, given that the amount of biological material needed can vary broadly depending on the nature of the intended research?
3.17. The multilateral system developed under the Declaration/Protocol is unlikely to provide for effective monetary benefit-sharing mechanisms. At best, users could be encouraged to conclude a material transfer agreement (MTA) as an evidence of their best-practice. MTAs are already very widely used between research institutions worldwide. Such an agreement could provide for benefit-sharing trigger (e.g. patent rights on a product developed from the MLS resources) and require users to make voluntary or compulsory contribution to a fund mechanism (e.g. “Global Trust Fund”). Apart from the exchange of information, users could also be encouraged under the MTA to share, through the IIGO, other non-monetary benefits that could be similar to those of the standard material transfer agreement under the FAO Treaty. However, the major drawback of this option is that the decision to conclude such MTA is left to the discretion of the users. Yet, this possibility should not be excluded, especially given the high degree of discipline and cooperation which is exercised within the scientific community. Lastly, the elaboration of a non-legally binding instrument such as Declaration/Protocol on access and benefit-sharing of marine genetic resources in ABNJ represents a valuable alternative to an access and benefit-sharing regime under the IA. However, it also raises many issues and uncertainties. While it provides institutional solutions such as the creation of an IIGO, it is not clear how such an organization can be funded in practice. Neither is it clear how such an organization can effectively address the numerous challenges posed by access and benefit-sharing. Of course, the functioning and operation of the IIGO or any other structure established under the Declaration/Protocol could be funded through public and private funds. Yet, this option can fall short especially if not enough States (including key players) join and adhere to the Declaration/Protocol. In terms of practical arrangements, the Declaration/Protocol also suffers from the lack of access regulation and monetary benefit-sharing mechanisms. While the elaboration of multilateral system for access and benefit-sharing of marine genetic resources in ABNJ brings a very effective solution as a means of non-monetary benefit-sharing, it fails short to guarantee voluntary contribution from users making significant profits from the sales of products developed from multilateral system resources. Despite these difficulties, the option of developing a Declaration/Protocol is perhaps one of the most viable options that provide the closest fit with the scientific reality of bioprospecting and the benefits it can yield.
4. Recommendations
4.1. The UK should seize the opportunity of the forthcoming negotiations to:
4.2. Propose that the issue of access and benefit-sharing of marine genetic resources in ABNJ should be dissociated from the future instrument under UNCLOS.
4.3. Explore a range of alternative options for the elaboration of an access and benefit-sharing regime for marine genetic resources in ABNJ, including through a non-legally binding instrument in the form of a declaration or protocol.
4.4. Oppose any proposition aiming to expand the mandate of ISA on marine genetic resources of ABNJ.
References
[1] For further scenarios see E. Druel, K. Gjerde, ‘Sustaining marine life beyond boundaries: Options for an implementing agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention for the Law of the Sea’ (2014) 49 Marine Policy 90-97 at 93. See also M. W. Tvedt, A.E. Jorem, ‘Bioprospecting in the High Seas: Regulatory Options for Benefit Sharing’ (2013) 16 The Journal of World Intellectual Property 3-4, pp. 158-161
[2] Article 157(1) LOSC.
[3] M. W. Tvedt, A.E. Jorem, op.cit., p. 161. See also A. Bonfanti and S. Trevisanut, Supra note 81, p. 228; O. Yambo, ‘A critical analysis of the International Seabed Authority recent move to declare the establishment of marine protected areas on the high seas’ (Master Dissertation, University of Nottingham, 2013), p. 41.
[4] D. Leary, International Law and the Genetic Resources of the Deep Sea (Martinus Nijhoff, Leiden, 2007) p. 224.
[5] For further discussion on the on-going debate on the legal status of marine genetic resources in areas beyond national jurisdiction, see G. Wright, J. Rochette, S. Unger, K. Gjerde, J. Ardron., The Scores at Half Time : An update on the international discussions on the governance of marine biodiversity in areas beyond national jurisdiction (IDDRI, 2014), Study 2/14. See also D. Leary, ‘Moving the Marine Genetic Resources Debate Forward: Some Reflections’ (2012) 27 The International Journal of Marine and Coastal Law 435-448.
[6] Article 157(2) LOSC.
[7] A. Saravanan, D. Deepak, ‘Patenting trends in marine biodiversity: Issues and Challenges’ (2013) 7 Pharma Utility 4, p.8.
[8] M.D. Evans, International Law (Oxford University Press, third edition, New York, 2010) p.125.
[9] S. Kim, J. Vankatesan, Introduction to Marine Biotechnology in S. Kim (ed.), Springer Handbook of Marine Biotechnology, (Berlin, 2015), p. 7.
[10] Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, 11 March 2014 (hereafter Hamilton Declaration).
[11] D. Freestone, ‘The Sargasso Sea Alliance: Working to Protect the “Golden Floating Rainforest of the Ocean”’ (2014) 44 Environmental Policy and Law 1-2, p.156.
[12] Sargasso Sea Commission.
[13] For a frank discussion on international legal personality, see N. D. White I. Brownlie, “Principle of Public International Law”( 6th ed, Oxord University Press, UK, 2003). See also H. G. Schermers and N. M. Blokker, “Intenrational Institutional Law”, (4th rev. ed, Martinus Nijhoff, The Netherlands, 2003); J. Klabber, “An Introduction to international Institutional Law” (Cambridge University Press, UK, 2002).
[14] N.D. White, The United Nations System: Toward International Justice (Lynne Rienner Publishers, London, 2002), pp. 32-33. See also N. Shukalo, What is International Legal Personality and Why does it matter? (Fall Paper, University of Nicosia, 2011) pp. 2-3.
[15] F. Fabulas, D. Snidal, ‘Organizations without delegation: Informal intergovernmental organizations (IIGOs) and the spectrum of intergovernmental arrangements’ (2013) 8 Review of International Organization 193-220 at 197.
[16] Ibidem.
[17] Hamilton Declaration, paragraphs 1, 2 and 3.
[18] Hamilton Declaration, paragraph 5.
[19] F. Fabulas, D. Snidal, op. cit., pp. 209-210.
[20] Hamilton Declaration, paragraph 7.
[21] Hamilton Declaration, Annex II, i.
[22] F. Fabulas, D. Snidal, op. cit., p. 211.
[23] Hamilton Declaration, paragraph 6.