WORKSHOP PAPERS (continue)

Workshop on Marine Bioprospecting Synopsis (continue)

Bioprospecting and the genetic resources of hydrothermal ents on the high seas. What is the existing legal position? Where are we heading and what are our options?

D.K. Leary
Centre for Environmental Law, Division of Law
Macquarie University
Balaclava Rd, North Ryde Sydney, NSW 2109, Australia.
<[email protected]>

“It's sort of frustrating…Because there's this wonderful world down there, and it's just so hard to get to. It's an inaccessible place nobody ever goes to-so nobody cares, because nobody knows anything about it. It's kind of depressing”.

G. Richard Harbison, Woods Hole Oceanographic Institute, quoted in Kunzig (2000).

1. INTRODUCTION: FROM SEA MONSTERS TO COMMERCIAL OPPORTUNITY

For many thousands of years humanity's attitude to the deep sea was shaped largely by myth and fuelled by ignorance. Across recorded history, across all cultures and continents, humanity has traditionally characterized the deep sea as an evil foreboding place (Sweeney 1972). Throughout time one word has been used to describe the deep sea more than any other. That word, “resonating with sinister energy” is the “abyss” from the Greek words a, without, and byssos, bottom - a synonym for dark infinities and primal chaos. It was unknown and unknowable, unconnected to anything remotely human (Broad 1997). It was the home of sea monsters.

While it is a cold and dark place, contrary to popular myth it is a truly beautiful and amazing place. There are no sea monsters, just an amazing diversity of truly ingenious and adaptive life. The deep sea is the largest area of the planet that supports complex life, constituting somewhere between 78.5 percent and 97 percent of the global biosphere (Broad 1997). As such it constitutes the most typical environment and its inhabitants, the typical life forms of planet earth (Gage and Tyler 1991).

As technology has developed so has our understanding of the biodiversity of the deep sea. Increasingly the deep sea, and beyond it the deep biosphere, are of increasing interest to both science and industry. Until recently most bioprospecting¹ in the oceans had been confined to the shallower waters of the coastal and near coastal zones. A lack of knowledge of the biodiversity of the deep sea², together with logistical difficulties of working in environments of high pressure and total darkness associated with the deep sea, have meant that bioprospecting in the deep sea was unknown.

¹ There have been many attempts to define ‘bioprospecting’. As Jeffery notes all “such definitions denote an activity that involves the search of biodiversity (sometimes termed nature or natural sources) for resources, be they genetic or biochemical or both, for use in purely scientific and or commercial endeavours”. This is a useful description for the purposes of this paper (Jeffery 2002).

² Although several different definitions of the deep sea have been proposed, for present purposes a useful definition is that which has been provided by Butler and Koslow et al. (2001) who suggest that the deep sea can be defined as the area beyond the edge of the continental shelf, greater than 200 m in depth, including the continental slopes, continental rises, and abyssal plains as well as topographic features such as seamounts, volcanic ridges and trenches.

A range of biological communities and habitats in the deep sea including hydrothermal vents, deep-sea sediments, methane seeps and even the deepest points in the ocean such as the Mariana Trench (a depth of 11 035 m), are of interest to science and industry alike and have been sampled with an eye to their biotechnology potential.

This paper focuses on one particularly important deep-sea habitat, namely hydrothermal vents or deep-sea hot springs. It examines a number of key questions in relation to bioprospecting at hydrothermal vents and addresses a number of questions on the high seas with a view to making a contribution to the ongoing debate as to whether, if, and how we can or should regulate access to hydrothermal vents on the high seas. It begins by briefly introducing the hydrothermal vent ecosystem. The paper then outlines the nature and extent of bioprospecting and commercial research activity in relation to the genetic resources of hydrothermal vents. Who is this research being carried out by? Is it primarily industry, academia or a combination of both? To what extent has such research been commercialized? What products derived from hydrothermal vent genetic resources are on the market?

The paper then examines the extent to which existing international law regulates bioprospecting at hydrothermal vent sites on the high seas. This includes an examination of the recent Study of the Relationship between the Convention on Biological Diversity (CBD)³ and the 1982 United Nations Convention on the Law of the Sea (LOSC)⁴ with regard to the conservation and sustainable use of genetic resources on the deep seabed. This study was considered at the CBD Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) meeting in Montreal in March 2003. The ongoing work of the International Seabed Authority (ISA) in relation to biodiversity of the deep-sea and hydrothermal vents is also reviewed.

³ Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, entered into force 29 December 1993, 31 I.L.M. (1992).

⁴ United Nations Convention on the Law of the Sea, Montego Bay, 10 December, 1982 entered into force 16November 1994, 21 I.L.M. (1982).

To the extent that there are gaps in the law the paper goes on to consider the need for regulation. In essence why should we bother? Some of these broader issues are introduced in general terms and some alternate sources of relevant law are discussed. Although there are clearly significant gaps in the major treaties, the LOSC and the CBD, it is argued that there are other sources of law that, to a limited extent, have the potential to provide for regulation of bioprospecting and other activities at hydrothermal vent sites on the high seas.

2. THE HYDROTHERMAL VENT ECOSYSTEM

2.1 Formation of hydrothermal vents

More than 100 hydrothermal vent sites have been identified around the world (Ré2000). The most studied sites are located in the eastern Pacific (principally the East Pacific Rise and the Juan de Fuca, Gorda, and Explorer Ridges) and the north-central Atlantic (principally the Mid-Atlantic Ridge) (Van Dover 2000). Recently hydrothermal vents have been discovered at twelve sites located on the Gakkel Ridge (which runs under the Artic Ocean from north of Greenland to Siberia) (Reuters 2001) and thirteen sites have also been identified within northern waters of New Zealand's Exclusive Economic Zone (EEZ) (New Zealand Institute of Geological and Nuclear Sciences 2002). Given that the mid-ocean ridges are known to circle the globe for some 75 000 km it is reasonable to speculate that many more, possibly thousands, of hydrothermal vent sites lie hidden below the deep sea, waiting to be discovered. Little work, if any, has been done in the southern oceans close to Antarctica. Given the size of the ridge system associated with the Antarctic and Australian Plates it is reasonable to expect that significant numbers of hydrothermal vent sites lie on, or are adjacent to, the boundaries of these plates.

Hydrothermal vents generally form at mid-oceanic ridges⁵ due to interaction of sea water with magma associated with the generation of new lithosphere. They are formed due to the close proximity of heat-laden magma chambers to the seafloor in conjunction with tectonic plate movement, which causes the convective circulation of dense, cold seawater through the cracked and fissured upper portions of the lithosphere (Lutz and Kennish 1993). Sea water penetrates down to the magma chamber and heats up (Ré 2000). The seawater is believed to penetrate to between 1.6 and 2.4 km below the sea floor (Humphris et al. (Eds) 1995). Heat transfers from the magma to the water. As the fluid circulates within the crust it interacts with basaltic rock at high temperatures. This causes clay and sulfate minerals to precipitate from the seawater resulting in a modified fluid with little to no magnesium or sulphate. As temperatures increase metals, silica and sulfide are leached from the rock, resulting in a hot, acidic fluid rich in silica, hydrogen, sulfide and metals relative to seawater (Tivey 1991).

⁵ Some sites have also been identified at back-arc and fore-arc spreading centres. Back-arc spreading centres form behind island arcs where old lithosphere is subducted beneath a continental plate moving in the same direction. The sinking slab [sic] of lithosphere pulls on the edge of the overlying plate splitting it open and forming a zone of extension. If sufficient heat is generated magma wells up in this zone, providing the heat source required for the formation of hydrothermal vents. Hydrothermal vents have also been found associated with seamounts. This occurs where there is sufficient heat and porosity to drive hydrothermal convection. Similarly they have been found in the centre of plates where there are active submarine volcanoes. Several sites have also been found associated with areas of high sediment deposition including those in the Guaynas Basin in the Gulf of California, Middle Valley of the Juan de Fuca Ridge and in the Escanaba Trough of the Gorda Ridge (Van Dover 2000).

Due to intense pressure on the deep ocean floor the temperature of the fluid can be as high as 350°C without boiling. At such an extreme temperature the water is buoyant and when it finds a path through the sea floor it rises rapidly to the surface of the ocean floor (Tivey 1991). As the fluid exits, it passes from the seafloor to the surrounding seawater at high velocity. The mixing of the fluid with the surrounding seawater causes changes in pH and temperature and the precipitation of minerals (Tivey1991). Sulphide minerals crystallize onto the volcanic rocks forming a columnar chimney-like structure on the fissure (Ré 2000). At the same time fine-grained sulfide and oxide minerals precipitate from the resulting solution, appearing as black smoke (Tivey 1991). Hence these columnar chimney structures are often called “black smokers”(Van Dover 2000).

Although columnar chimney black-smoker forms are common, not all hydrothermal vents fit this description. Apart from black smokers, complex sulphide mounds are perhaps the most impressive form of hydrothermal vent structure. These are typically huge structures, often towering metres above the adjacent ridge axis. Examples include several located at the Endeavour hydrothermal field on the Juan de Fuca Ridge. These are freestanding sulphide mounds 10–30 m in diameter and up to 40 m or more in height. One such mound known as “Godzilla”, because of its height, towers some 45 m above the ocean floor. These huge structures also typically have multiple black smoker chimneys projecting from them (Van Dover 2000).

There are several other variations of morphology and mineral composition, including white smokers, beehives, flanges and massive sulfide deposits. Massive in a geological sense means material made up entirely of sulphide minerals. The term massive does not refer to the size or volume of such a deposit. As such, a small-black smoker chimney can be a massive sulphide deposit (Van Dover 2000).

2.2 A species-rich ecosystem

The deep sea is a species rich environment, although many of these species are spread over amongst the vast expanse of the soft sediments of the sea floor (Butler et al. 2001). In contrast to the sparsely populated soft-sediments of other areas of the deep sea, hydrothermal vents have been found to literally teem with life (Van Dover 2000), hosting one of the highest levels of animal abundance on earth (WWF & IUCN 2001), as well as one of the highest levels of microbial diversity on earth (Dept of Fisheries and Ocean Canada 2001). It is hardly surprising, therefore, that terms such as “oases of the abyss”(Ré 2000), the “Oceanic Gardens of Eden”(Allen 2001), and “biological islands”(Baker et al. 2001) have been applied to describe these amazing deep-sea communities.

Hydrothermal vents exhibit a unique range of habitat diversity with species so adapted to their particular niches that they are not paralleled at other sites on earth (Baker et al. 2001). They support amazingly diverse and rich ecosystems with high levels of biodiversity and high levels of endemism. Of the approximately 500 species discovered around hydrothermal vents to date between 80 percent (Dando and Juniper 2001) to 90 percent (Baker et al. 2001) are endemic to hydrothermal vents and new to science.

Three phyla dominate vent fauna and constitute 92 percent of the species identified: molluscs (34percent), anthropods (35 percent) and annelids (23 percent) (Tunnicliffe, McArthur and McHugh 1998). In addition 32 octopus and fish species have also been observed in and around hydrothermal vents (Baker et al. 2001). Other species include giant clams, mussels, the giant tube worm, brachyuran crabs, galatheid crabs, turrid gastropods, limpets, polychaetes, pink bythitid vent fish, barnacles, brittle stars, sea stars, anemones, sponges, soft corals (Lutz and Kennish 1993) and jellyfish (Ballard 2000).

While the total number of new species discovered is high, at individual vent sites local species diversity is typically low with dominance by only a few species. Over 75percent of vent species occur at only one site (Butler et al. 2001). This endemism may mean that species are restricted to individual vent sites. It also appears as if different oceans support quite different biological communities. For example, vent sites in the Atlantic Ocean are characterized by an abundance of shrimp whereas those in the Pacific are dominated by vestimentiferan tubeworms. Few species have been found in more than one ocean (Baker et al. 2001).

2.3 The base of the ecosystem: Bacteria and Archaea

The food chain of hydrothermal vent ecosystems is based upon chemosynthetic microbial processes rather than photosynthesis (Baross and Hoffman 1986). In essence it is the geological and geochemical processes responsible for forming the mid-oceanic ridges and hydrothermal vents that provide the food upon which the associated ecosystem thrives.

At hydrothermal vents these microbial forms of life oxidize sulphides, together with other chemicals released from hydrothermal vents, such as hydrogen, iron or manganese. These microbes thus serve as the base of the hydrothermal vent food chain (Prieur, Erauso and Jeanthon 1995). Many of these microbes have formed symbiotic relationships with several other species. Examples of such species include the tubeworms and some species of clams and mussels (Van Dover 2000). The tubeworm, which has no eyes, mouth or digestive tract, relies on these symbiotic bacteria to survive. They absorb oxygen and other inorganic compounds from the water, with the microbes living inside them then using the absorbed compounds for chemosynthesis. Tubeworms, therefore, are often found just above vent openings clustering in thickets to direct the exiting fluids past their tubes tips (Ballard2000).

Black smokers are also known to generate plumes that provide an additional distinctive microbial habitat. Plumes are important as zones of chemical reaction between vent fluids and seawater and as habitat and resources for micro-organisms zooplankton. They also have a role to play in dispersal stages of vent biota (Van Dover 2000).

3. BIOPROSPECTING, RESEARCH AND PRODUCT DEVELOPMENT

Biotechnology interest in hydrothermal vents centres mainly on these microbes. It has been suggested that these organisms and their derivatives have a range of applications from molecular biology, to the food processing, fabric and chemical industries. The ability of some of these organisms to survive extreme temperature and other extreme conditions make them prime candidates for research with potential for discovery of new DNA repair mechanisms that could be of use in medicine. In addition, it is suggested that they offer new opportunities in developing biotechnology with beneficial applications in bioremediation (Butler and Koslow 2001).

So far sample collection from hydrothermal vents is exclusively conducted by scientific research institutions. There are numerous national research institutions involved in research in relation to hydrothermal vents. These include the Japan Marine Science and Technology Centre (JAMSTEC), Australia's Commonwealth Scientific Industrial and Research Organisation (CSIRO), Institut français de recherche (IFREMER), the Korean Ocean Research and Development Institute (KORDI), the Woods Hole Oceanographic Institute, and the New Zealand Institute of Geological and Nuclear Sciences to name a few.

Commercial interests gain access to samples either collected through research collaboration with such institutions, or through national culture collections where samples are deposited by research institutions. There are a number of examples of scientific research institutions, universities, and national culture collections that are involved in collaborative research with industry. For example, the Frontier Research programme for extremophiles at JAMSTEC collaborates with industry on the development of biotechnology from extremophiles collected by JAMSTEC through its Bioventure Centre.

There is no substantiated evidence that any company has mounted their own dive to hydrothermal vents for sample collection purposes (as distinct from those in collaboration with scientific research institutions). There is anecdotal evidence, though, that at least one company is planning its own series of dives, independent from any research institution. It is unknown what the purposes of these dives are or indeed whether such dives have taken place (A. Adamczewska, InterRidge Tokyo interview 17 September 2003).

While both the full extent of scientific and commercial research interest in extremophiles from the deep sea (including hydrothermal vents) has not yet been quantified, there is a substantial body of evidence to show strong scientific and commercial interest in relation to the commercial and industrial uses of extremophiles more generally, and hydrothermal vent thermophiles and hyperthermophiles in particular. At a superficial level the interest in this field is clearly demonstrated by the wealth of scientific literature, including a specialized journal Extremophiles. In 2003 alone two major international conferences, the 6thInternational Marine Biotechnology Conference in Chiba, Japan (and its associated satellite symposia Marine Microbes and Extremophiles) (<http://www.tuat.ac.jp/%7emarine/>) and Thermophiles 2003 (<http://www.ex.ac.uk/thermophiles/ welcome.htm>) considered papers and presentations in relation to marine biotechnology and extremophiles from the deep sea in particular.

Derivatives from thermophiles and hyperthermophiles from sources other than hydrothermal vents, such as terrestrial hot springs, are already utilized in a wide range of industrial processes. Of particular significance have been a number of enzymes useful in industrial processes requiring high temperatures. Examples of some of the known uses of thermophile and hyperthermophile derivatives are listed in Table 1.

Table 1
Examples of thermophile and hyperthermophile dervivatives and their applications Adapted from Maloney (2003), Schiraldi and De Rosa, (2002), Aguilar, Ingemansson and Magnien. (1998), Blochlet al. (1995), Cowan (1995) and Deming 1998)

Research and product development in similar fields is also under way with respect to hydrothermal vent thermophile and hyperthermophile derivatives. To date research and product development have centred mainly on development of novel enzymes for use in a range of industrial and manufacturing process, and DNA polymerases for use in research and diagnostics. More recently, research has been directed towards pharmaceutical and therapeutic applications such as antifungals.

A least seven biotechnology companies are currently involved in collaboration with research institutions with a view to product development of derivatives of thermophiles and hyperthermophiles from hydrothermal vents. Three of these companies, Diversa Corporation, New England Biolabs Inc., and Invitrogen Corporation already market products derived from hydrothermal vent thermophiles and hyperthermophiles. Other companies are also involved in research in relation to biotechnology involving hydrothermal vents species other than bacteria and archaea. (Table 2).

4. EXISTING POSITION OF HYDROTHERMAL VENTS UNDER INTERNATIONAL LAW

4.1 The 1982 Convention on the Law of the Sea

Two major international treaties are relevant to the legal status of hydrothermal vents and access to their associated genetic resources for bioprospecting, the 1982 Convention of the Law of the Sea (as modified by the 1994 Agreement on the Implementation of Part XI of the LOSC) and the CBD.

The LOSC divides ocean space into a number of jurisdictional zones. For present purposes the most significant zones are the 12 nautical mile territorial sea, the 200nautical mile EEZ, the Continental Shelf, the High Seas and that portion of the seabed beyond national jurisdiction on the High Seas known as the Area. The Area is defined in Article 1(1) of the LOSC as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.

Within the territorial sea, coastal states posses sovereign rights to regulate all access to and exploitation of all resources located within the territorial sea and seabed. Within the EEZ, coastal states possess sovereign rights for the purposes of exploring, exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the EEZ. Within the EEZ, coastal states also have jurisdiction with respect to, inter alia, marine scientific research and the protection and preservation of the marine environment.

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

(Information from individual company web sites, annual reports and literature as cited)

This means that the coastal state has the right under international law to regulate activities at hydrothermal vent fields within their EEZ and territorial sea. Thus measures such as those implemented at the Endeavour hydrothermal field within Canada's EEZ (Leary 2002), at the Lucky Strike and Menez Gwen hydrothermal fields within the Portuguese EEZ, and the access regime currently being developed by Papua New Guinea, are entirely consistent with those countries' rights and obligations under the LOSC and the CBD as discussed below (Leary 2003b).

The extent to which a coastal state can regulate bioprospecting at hydrothermal vents on its continental shelf is unclear. Pursuant to Article 77(1), the coastal state has sovereign rights to explore and exploit the natural resources of the continental shelf. The term “natural resources” as used in Part VI is defined in Article 77(4) of the 1982 Convention as the “mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species”. That is, “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.”

In considering the rights of the coastal state to regulate access to hydrothermal vent sites on the Continental Shelf (including for bioprospecting), a key issue therefore is whether or not species (and importantly bacteria and archaea) associated with hydrothermal vents are sedentary species. However, as Allen (2001) notes, the definition of sedentary species “has little or no relationship to biological taxonomy”. Working out whether hydrothermal vent species fall within the definition of sedentary species presents a number of problems. First, there are clearly difficulties in identifying the harvestable stage of many hydrothermal vent species. Indeed bacteria and archaea are not collected in a way that can be regarded as harvesting (Allen 2001).

More problematic is the requirement that such species be either immobile on, or under, the seabed, or unable to move except in constant physical contact with the seabed or the subsoil. Some species found at hydrothermal vent arguably meet this requirement (e.g. molluscs, gastropods and possibly tubeworms), while others such as fish and octopus species, are clearly capable of movement through the water without being in constant physical contact with the seabed and therefore fall outside the definition (Allen 2001).

Given the different miens in which microbes are found at vents sites some, such as those found in hydrothermal plumes, arguably fall outside the definition of sedentary species while others, such as those under the seabed, may arguably fall within the definition of ‘immobile at the harvestable stage’. Therefore, within the one ecosystem there will be both macrofauna and microfauna that meet the test for sedentary species and fall within the Continental Shelf Regime, as well as macrofauna and microfauna that will not fulfil the definition of sedentary species, and thus fall outside the Continental Shelf Regime (Allen 2001).

Korn, Friedrich and Feit (2003) have suggested that since many species fall outside the sedentary species definition, this leads to a “fractured regulatory approach regarding management and conservation” of hydrothermal vents and their associated biological resources. Does the failure of some macrofauna and microfauna to fall within the definition of sedentary species really matter? Is the consequence as significant as Korn, Friedrich and Feit. and Allen's detailed analyses suggest? Perhaps not when one looks at the consequences for the ability of the coastal state to regulate activities in relation to hydrothermal vents.

If the particular macrofauna or microfauna do not fall within the definition of sedentary species, but are located within the coastal states EEZ, then the coastal state nonetheless has the sovereign right to explore, exploit, conserve and manage such macrofauna or microfauna as natural resources under Article 56(1)(a) of the LOSC, and the jurisdiction to take measures, such as requiring benefit sharing, and measures for the protection and preservation of such living resources, as part of the marine environment under Article 56(1)(iii). That is to say, if such species are found within the EEZ and are not sedentary species, then the EEZ regime applies.

If the particular macrofauna or microfauna fall within the definition of sedentary species and are located within the coastal states EEZ and its continental shelf, then the coastal state has the sovereign right to explore and exploit such natural resources under Article 77. These rights are expressed as sovereign rights. Such sovereign rights include the right to prohibit any form of exploitation and, or, the right to make exploitation for any purpose subject to, or conditional on, compliance with measures to protect and preserve individual vent sites or to minimize the environmental impact of such activities. Although such measures are not specifically mentioned, they would constitute a legitimate exercize of sovereign rights with respect to such resources.

The only situation where the distinction might matter is where a hydrothermal vent site is found outside the EEZ but on the continental shelf. That is, where a state claims a continental shelf that extends beyond the limit of the EEZ. However, by operation of Article 76(3) of the LOSC, hydrothermal vent sites associated with the mid-ocean ridges (where the majority of hydrothermal vent sites discovered have been located) would be excluded from the Continental Shelf Regime anyway as Article 76(3) specifically excludes oceanic ridges of the deep ocean floor from the Continental Shelf Regime.

4.2 Hydrothermal vents and Part XI of the 1982 UN Convention on the Law of the Sea

Pursuant to Article 136 of the LOSC the Area and its “resources” are declared the common heritage of mankind [sic]. In addition Article 137 of the LOSC provides:

1. No State shall claim or exercize 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. No such claim or exercize of sovereignty or sovereign rights nor such appropriation shall be recognized.
2. All rights in the resources of the Area are vested in mankind [sic] as a whole, on whose behalf the [International Seabed] Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with [Part XI] and the rules, regulations and procedures of the [International Seabed Authority].
3. No State or natural or juridical person shall claim, acquire or exercize rights with respect to the minerals recovered from the Area except in accordance with [PartXI]. Otherwise, no such claim, acquisition or exercize of such rights shall be recognized [sic].”

Article 138 provides that the general conduct of all States in relation to the Area must be in accordance with the provisions of Part XI, “the principles embodied in the Charter of the United Nations and other rules of international law in the interests of maintaining peace and security and promoting international co-operation and mutual understanding”. Article 140 also requires that such activities be carried out for the “benefit of mankind” and Article 141 requires the Area to be used exclusively for peaceful purposes.

A novel feature of Part XI of the LOSC is that, under Article 156, it created a specific entity with responsibility for regulating activities associated with deepsea mining in the Area, namely the ISA. Under Article 156(2), all parties to the LOSC are ipso facto members of the ISA. Article 157(1) of the LOSC specifically provides that the ISA is the organization through which state parties shall “organize and control activities in the Area, particularly with a view to administering the resources of the Area”. However the expression “activities in the Area” used so liberally in many provisions of Part XI⁶ is narrowly defined in Part 1, Article 1(3) to mean

⁶These provisions include the requirement that activities in the Area be conducted for the benefit of mankind [sic] under Article 140(1), the requirement of equitable sharing of financial and other economic benefits derived from activities in the Area under Article 140(2), and provisions dealing with transfer of technology and scientific knowledge under Article 144(1)(a).

“all activities of exploration for, and exploitation of, the resources of the Area”.

More significantly, “resources” are defined under Article 133(a) of the LOSC as

“all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”.

This means that, until such time as a wider mandate is conferred on the ISA, the ISA's current mandate with respect to regulation of activities in the Area extends only to regulating activities associated with the exploration for, and exploitation of, the mineral resources of the Area. As Glowka (1996) has pointed out the ISA's current mandate does not extend to bioprospecting.

The situation is further complicated by the fact that the LOSC and the Part XI Agreement specifically recognize the rights of all state parties and scientific research institutions to carry out research on the High Seas and in the Area. The right to carry out research on the high seas is expressly recognized as a high seas Freedom under Article 87(1)(f) of the LOSC. Similarly Article256 recognizes that all States have the right to conduct research in the water column beyond the limits of the EEZ. Article 257 recognizes that all States and competent international organisations have the right to conduct research in the Area, provided such research is conducted in conformity with the provisions of Part XI of the LOSC. This right is also recognized by Article 143(3).

Under Article 143(2) the ISA is entitled to carry out research in the Area and in relation to its resources (as that term is defined in Article 133(a)) the ISA may enter into contracts for that purpose. Where research involves prospecting and exploration for mineral resources such applied research would be subject to the approval and control of the ISA (Churchill and Lowe 1999). Under Article 240(d) the ISA clearly has the mandate to implement measures to regulate research associated with the mineral resources of the Area. Such activity clearly falls within the definition of “activities in the area” contained in Article 1(3).

However, this authority does not appear to extend to other forms of research including bioprospecting associated with such research. Given that research cruises in relation to hydrothermal vents often involve research relating to mineral deposits, biology, microbiology and bioprospecting, then some research will be regulated and some will not. The possible exception to this is where such research interferes with “activities in the area”, that is to the extent of interference with activities for the exploration for, and exploitation of, the mineral resources of the Area. Thus, not only does the 1982 Convention fail to give a mandate to the ISA to regulate bioprospecting, in fact, specific provisions clearly recognize states and national research institutions as having the right to carry out research including bioprospecting in the Area.

4.3 United Nations Convention on Biological Diversity

The provisions of the LOSC and the Part XI Agreement must also be read in conjunction with the provisions of the CBD. Article 22 of the CBD makes clear that in the event of conflict between the provisions of the CBD and the LOSC, the 1982 Convention prevails.

The CBD has three main objectives: the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. It establishes a framework of general flexible obligations aimed at implementing these objectives. These include obligations to create plans, strategies, or programmes for conservation and sustainable use of biodiversity (Article 6). States must also identify and monitor components of biodiversity important for its conservation and sustainable use, and identify processes and categories of activities which have, or are likely to have, significant adverse impacts on the conservation and sustainable use of biodiversity (Article 7). States also have an obligation to take steps to regulate activities that threaten biodiversity, including measures such as systems of protected areas to conserve biodiversity (Articles 8, 9, 10 and 11).

Article 15 of the CBD is of particular relevance to bioprospecting and deals with access to genetic materials, including a requirement that access shall be on mutually agreed terms and subject to prior informed consent. The implementation of these provisions has been further clarified following the adoption of the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising out of their Utilisation (Jeffery 2002). However, these obligations are subject to several significant qualifications. First, the CBD is a framework treaty. It sets out overall goals and policies and general obligations with respect to biodiversity conservation and only provides a limited structure for technical and financial cooperation. Responsibility for achieving its goals is left to the individual state parties.

This view is reinforced by Article 3 of the CBD, which recognizes that:

“States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Obligations under the CBD are subject to, and therefore secondary to, each state's sovereign right to exploit their own resources and set their own environmental policies. Of even more significance is the limitation imposed by Article 4 under which the Convention's provisions only apply, in relation to each contracting party:

1. In the case of components of biological diversity, in areas within the limits of its national jurisdiction; and
2. In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.”

This means that the coastal state is obliged to implement its obligations under the CBD in its inland waters, territorial sea, contiguous zone, within its EEZ and parts of its continental shelf (de Fontaubert, Downes and Agardy 1998). Beyond their national jurisdictions the state parties may only regulate the activities of their own nationals to achieve the objectives of the CBD. Thus, under the existing provisions of the CBD access to, and use of, the genetic resources of the oceans and the deep sea beyond national jurisdiction is unregulated except where individual states regulate the activities of their nationals. So far, no state has implemented measures specifically regulating activities of their nationals at hydrothermal vents on the high seas.

As Glowka (1996) notes, this is ironic because the most immediately exploitable and lucrative resources of the deep sea are arguably its genetic resources, yet such resources fall outside of the main legal regime applicable to the deep sea, the deep-sea mining regime under Part XI of the LOSC, and the main treaty dealing with biodiversity conservation - the CBD.

Despite this significant lacuna in the law, this issue has been subject to only scant consideration by the main organs of the CBD. The two most important meetings that have considered the genetic resources of the deep sea (including those associated with hydrothermal vents) were the meetings of the Conference of Parties (COP) in Jakarta in November 1995 and the meeting of the SBSTTA in Montreal in March 2003.

4.4 Jakarta 1995

At the Jakarta meeting in 1995 the COP agreed on a programme of action for implementing the CBD with respect to marine and costal biodiversity now known as the Jakarta Mandate on Marine and Coastal Biological Diversity (de Fontaubert, Downes and Agardy 1998).

A number of states consistent with the Jakarta Mandate, including Canada, Portugal and Papua New Guinea, have begun to design and implement measures regulating access to particular hydrothermal vent sites within their territorial sea and EEZ. In the case of Canada this has included the establishment of the Endevour Hydrothermal Vent Marine Protected Area, which was formally proclaimed in March 2003. However, Canada's regulation of access to the Endeavour Hydrothermal Vent Marine Protected Area does not include any specific provision regulating bioprospecting and there is no requirement for benefit sharing (Leary 2002).

Portugal proposes to prohibit bioprospecting in the proposed marine protected area for the Lucky Strike and Menez Gwen hydrothermal vents. Research will be permitted, but subject to regulation. It is unclear what are the implications where samples collected are subsequently provided to third parties and the derivatives are commercialized (Leary 2003b). Papua New Guinea is currently developing an access and consent regime for research and bioprospecting that will involve informed prior consent for access for research, bioprospecting and benefit sharing (Leary 2003b).

Significantly, in paragraph 12 of decision II/10 adopted at the COP meeting in Jakarta in 1995, the COP requested the Executive Secretary of the CBD, in conjunction with the United Nations Office for Ocean Affairs and the Law of the Sea, to:

“undertake a study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Seas with regard to the conservation and sustainable use of genetic resources on the deep seabed, with a view to enabling the Subsidiary Body on Scientific, Technical and Technological Advice to address at future meetings, as appropriate, the scientific, technical, and technological issues relating to bioprospecting of genetic resources on the deep seabed.”

The study requested by COP II/10 took nearly eight years to prepare and was finally published in February 2003. Prior to the report's preparation a preliminary assessment of the areas that might be considered in the final study was published in an unofficial report in 1996. In some respects this preliminary assessment reflects the ultimate conclusions and recommendations of the study requested by COP II/10 released in 2003. In particular, the preliminary assessment concurred with Glowka's assessment noted above, recognising that the genetic resources of the deep seabed are “unregulated resources”. However, given the lack of information on the commercial potential of deep-sea genetic resources, the preliminary assessment concluded that the knowledge base on which to make informed and appropriate decisions about how this area might be controlled was then almost non-existent (CBD SBSTTA 1996).

Despite this obvious and significant absence of a knowledge base the preliminary report suggested several “foreseeable scenarios” as to how bioprospecting in relation to these resources could develop. These are:

1. “leaving marine genetic resources unregulated and freely available to those who spend the resources to collect them;
2. bringing them within the regime governing the Area and the [International Seabed Authority's] authority;
3. bringing them within the CBD regime; and
4. establishing an entirely new regime to deal with these special and new resources”(CBD SBSTTA 1996).

These “foreseeable scenarios”, with the exception of the last one, were endorsed by the final study released in 2003.

4.5 The SBSTTA Study on the relationship between the LOSC and the CBD

The SBSTTA study released in early 2003 confirmed the existence of a lacuna in the law with respect to the genetic resources of the deep sea as first identified by Glowka. The study concluded that there are three options available for a regime to manage activities relating to genetic resources beyond national jurisdiction. They are:

1. maintaining the statu quo
2. application of the regime under Part XI of [the LOSC], currently limited to the management of mineral resources and
3. application of the regime of conservation and sustainable use of genetic resources under the Convention on Biological Diversity.

The study noted that the last two of these options are not mutually exclusive and could be integrated (CBD SBSTTA 2003).

The SBSTTA study also noted two additional options for regulation that were not examined in detail or referred to in the study's conclusion and recommendations. These were the potential roles of marine protected areas on the high seas and intellectual property rights as incentives for benefit sharing and sustainable use of deepsea genetic resources. It is unclear from the report why these alternatives were ruled out without further consideration. It seems inappropriate for a study of options to rule out two possible options without detailed consideration. This is especially so given the wealth of literature and interest in both options. Marine protected areas, especially on the high seas, have been the subject of detailed consideration at a number of international forums recently (Gjerde and Breide 2003).

The SBSTTA study stops short of endorsing any one option, but it appears from the tone of the report that it supports an expanded mandate for the ISA as a preferred option. There are immediately obvious benefits associated with such an option. Expanding the mandate of an existing international institution might be more efficient than establishing an entirely new institution with possibly overlapping mandates. Although it has only been operational since 1994, the ISA has accumulated a considerable level of expertise and data on the deepsea environment.

Significant issues would need to be considered before proceeding with such an option. Some, but by no means all, of these issues, include the following.

1. To what extent will there need to be changes to the ISA's existing structure? The ISA has been designed to regulate a deepsea mining industry and its structure reflects many interests including producers and consumers of minerals.⁷ This structure effectively ensures that no decisions can be pushed through the Council of the ISA against the will of any one interest group. This is further complicated by the general rule decision-making in the organs of the ISBA (French 2002).
2. To what extent do the interests of the biotechnology industry and the scientific community differ from those reflected in the ISA's existing structure?
3. To what extent will the principles embodied in the CBD and the principals of international environmental law more generally be reflected in any amended structure?
4. How will the proposed regime deal with the question of benefit sharing?
5. Should the genetic resources of the deep sea be regarded as the common heritage of mankind?
6. Finally, to what extent would a new regime attempt to distinguish between research and bioprospecting? Is it even feasible to attempt such a distinction in law when at times it is almost impossible to distinguish the two in practice?

⁷ The Council of the ISA consists of 36 members of the ISA who are elected in accordance with a formula set out in the Part XI Agreement. This formula (Annex, Section 3, paragraph 15) provides for the Council to be composed of 36 members elected as follows:

• Four members from among the states that are the major consumers of the categories of minerals to be derived from the Area. These four members must include one state which is the largest consumer in Eastern Europe (effectively Russia) and upon its accession to the LOSC, the USA
• Four members from among the eight state parties who have made the largest investment in preparation for mining
• Four members from among state parties that are the major net exporters of the categories of minerals to be derived from the Area, including at least two who are developing states whose exports of such minerals have a substantial bearing upon their economies
• Six members from developing state parties representing special interests. The special interests are defined as states with large populations, landlocked or geographically disadvantaged states, island states, states that are major importers of the categories of minerals to be derived from the Area, states which are potential producers of such minerals and least developed states and
• Eighteen members elected according to the principle of ensuring an equitable representation for each geographical region of the world. The regions are Africa, Asia, Eastern Europe, Latin America and the Caribbean and Western Europe and Others.

Such issues will need to be addressed if such a proposal is to be advanced. However, this presupposes the ISA, and in particular member states, are willing to consider an expanded mandate for the ISA in the first place. However, as recent discussion on the issue of biodiversity at the ISA seems to indicate that an expanded mandate for the ISA currently has minimal support.

4.6 Repeating the mistake of the sedentary species definition?

The SBSTTA study contained an important qualification in the following terms:

“that the studies recommendations addresses only the “biological resources attached to the ocean floorand not the free swimming fish above, which fall within the regime of fisheries on the high seas, covered by Articles 116–119 of the Convention, as well as by the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995) Fish Stocks Agreement) where appropriate”(CBD SBSTTA 2003).

COP Decision II/10, which authorized the preparation of the study, made no mention of resources “attached to the ocean floor”. It speaks only of the “genetic resources on the deep seabed”. Is there any difference between genetic resources “on” or “attached to” the deep seabed? Perhaps, parts of the above extract suggests the intention is merely to exclude fisheries and this particular statement may have been included to allay concerns that this report had any relevance to high-seas fisheries, a contentious issue.

However, there will be a significant defect in any future regime if it only applies to the resources “attached to the ocean floor”. A regime along those lines would exclude integral components of the hydrothermal vent ecosystem. For example, it would exclude the genetic resources associated with microbes found in the hydrothermal plume. Likewise microbes that have formed symbiotic relationships with other species not necessarily attached to the seabed such as shrimp, crabs, etc. would also be excluded. It seems a somewhat arbitrary distinction that fails to take account of the entire ecosystem, of which those resources attached to the seabed only form part. It is inconsistent with an ecosystem based approach and is reminiscent of the sedentary species definition under the continental shelf regime discussed above.

4.7 The environmental mandate of the ISA

It is significant that the study implies that the ISA currently has a wide mandate to regulate the environmental impact of human activities in the deep sea. In that respect the study notes:

“A substantial proportion of the regulatory responsibility of the Authority relates to the protection and preservation of the marine environment. The mandate for the Authority's work in this field is established both by the United Nations Convention on the Law of the Sea, which stipulates that the Authority shall adopt appropriate rules, regulations and procedures to ensure the effective protection of the marine environment and by the Authority's Regulations for Prospecting and Exploration for polymetalic Nodules in the Area, which also require the adoption of rules, regulations and procedures for environmental protection”(CBD SBSTTA 2003).

Similar comments are made elsewhere in the study, such as in the context of considering the advantages of utilising the ISA's existing structure because it

“is already operational and has already a mandate relating to the protection and preservation of the Area's marine environment”(CBD SBSTTA 2003).

In light of these comments it is useful to consider the mandate of the ISA with respect to the deep-sea environment, and its work in this regard to date.

The relevant provision of the LOSC is Article 145, which requires that necessary measures be taken with respect to activities in the Area to “ensure effective protection for the marine environment from harmful effects which may arise from such activities”. Under Article 145 the ISA is specifically required to adopt appropriate rules, regulations and procedures with respect to:

1. the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation and maintenance of installations, pipelines and other devices related to such activities
2. the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment”.

A similar requirement is also found in the LOSC, Annex III, Article 17, paragraph1(b) (xii), which requires the ISA to adopt and apply rules, regulations and procedures for the exercise of its functions in relation to “mining standards and practices, including those relating to operational safety, conservation of the [mineral] resources and protection of the marine environment”.

Likewise Annex III, Article 17, paragraph 2(f) of the LOSC requires rules regulations and procedures to be drawn up:

“in order to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area or from shipboard processing immediately above a mine site of minerals derived from that mine site, taking into account the extent to which such harmful effects may directly result from drilling, dredging, coring and excavation and from disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents”.

The provisions of the Part XI Agreement have further elaborated these requirements. In the interim period from the entry into force⁸ of the deep-sea mining regime until the approval of the first plan of work for exploration, the ISA is required to, inter alia, focus on the adoption of rules, regulations and procedures incorporating applicable standards for the protection and preservation of the marine environment pursuant to Part XI Agreement, Annex, Section 1, Paragraph 5 (g).

⁸ The regime entered into force on 28 July 1996.

So far the only regulations adopted by the ISA dealing specifically with environmental issues are the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Nodule Prospecting Regulations) (ISA 2000). Adoption of the Nodule Prospecting Regulations cleared the way for the ISA to enter into the first contracts for exploration. The first contract was signed with the state enterprise Yuzhmorgeologia (Russian Federation) on 29March2001. Since then similar exploration contracts have been signed with Interoceanmetal Joint Organization (a consortium formed by Bulgaria, Cuba, the Czech Republic, Poland, the Russian Federation and Slovakia), the Republic of Korea, the China Ocean Mineral Resources Research and Development Association (China), Deep Ocean Resources Development Company (Japan), Institut français de recherche pour l'exploitation de la mer Association français pour l’étude et la recherche des nodules (France) and the government of India (ISA 2002).

These regulations include some curious provisions. For example, Regulation 2(2) provides that “Prospecting shall not be undertaken if substantial evidence indicates the risk of serious harm to the marine environment”. Serious harm to the marine environment is defined in the Regulations as “any effect from activities in the Area on the marine environment which represents a significant adverse change in the marine environment determined according to the rules, regulations and procedures adopted by the Authority on the basis of internationally recognized standards and practices”. So far no such rules or regulations or procedures have been prepared.

The requirements for “substantial evidence”, “serious harm” and “significant adverse change” would appear to be at odds with a precautionary approach, as reflected in Principle 15 of the Rio Declaration and subsequent instruments. The use of these terms is even more curious given that specific provisions of the regulations dealing with protection and preservation of the marine environment contained in Part V of the Regulations seem to make application of a precautionary approach mandatory. Thus Regulation 31(2) provides:

“In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring states shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration, to such activities”.

4.8 Regulations for prospecting at hydrothermal vents

The ISA has recently commenced consideration of the appropriate type of regulation for prospecting for polymetalic sulphides associated with hydrothermal vents and cobalt-rich ferromanganese crusts following a request from the Russian Federation. It is not yet clear to what extent provisions of these regulations will mirror the Nodule Prospecting Regulations.

The Legal and Technical Commission of the ISA is currently working on drafts of these regulations. In accordance with its programme of work agreed upon during the eighth session of the ISA, the members of the Legal and Technical Commission convened informal working groups to consider certain aspects of the rules and regulations including one working group charged with analyzing

“Considerations relating to the development of environmental rules, regulations and procedures relating to prospecting and exploration for polymetalic sulphides and cobalt-rich crusts”(ISA 2003a).

This working group has produced a preliminary draft of regulations relating to the protection and preservation of the marine environment during prospecting and exploration, which will be considered further at the Commission's next session in 2004. In the course of its work, the working group indicated that it is appropriate for the draft regulations to reflect

“developments in international environmental law achieved since the adoption of the Convention in 1982”(ISA 2003a)

The Legal and Technical Commission, in the context of its work on these regulations and “working within its mandate”, has acknowledged that it needs to know more about seabed and deep-ocean biodiversity. Accordingly, at its most recent meeting the commission has requested one of its members, Helmut Beiersdorf, to draw up a proposal for a seminar on seabed and deep-ocean biodiversity relevant to mineral resource prospecting and exploration with participation by members of the Legal and Technical Commission and experts in the field. Another member of the Legal and Technical Commission, Frida Mara Armas Pfirter is to co-ordinate the preparation of a paper on legal issues “to ensure the Commission remained within its mandate” under the LOSC. The Legal and Technical Commission will also review the idea of establishing a working group to study the issue further (ISA 2003b).

With environmental issues, and particularly protection of deep-sea biodiversity including hydrothermal vents, are increasingly of interest to the ISA, it is also clear that the ISA (and most member states) appear to want to confine its work within is existing mandate. Indeed, at its most recent session concerns were expressed by several states lest the ISA go beyond this mandate and in debate during the closing session of the Assembly of the ISA, a number of states expressed their concern that the ISA not exceed its mandate.

For now it appears as if the ISA intends to confine its consideration of deep-sea biodiversity strictly to the terms of its existing mandate. The implications of this were summarized by the Secretary-General of the ISA to the meeting of the final session of the Assembly in 2003. In relation to the ISA's work on biodiversity Ambassador Nandan stated:

“Our purpose is not to deal with it in a comprehensive way; our purpose is to deal with it in a manner which would be of interest to the authority”[i.e. in regard to the regulation of deep-sea mining] “We are not looking to control or manage or regulate marine scientific research. We are not looking to licence bioprospectors or to deal with the patent rights of bioprospectors”(ISA 2003c).

Thus, while the SBSTTA study suggests an expanded mandate for the ISA as a preferred option for regulating access to hydrothermal vents for bioprospecting, it appears that such a proposal currently lacks support amongst members of the ISA.

4.9 SBSTTA Meeting Montreal, March 2003

The SBSTTA study was presented for consideration at the eighth meeting of the SBSTTA in Montreal from 10 to 14 March 2003. The subsequent debate on the report at the meeting revealed further significant differences on this issue. For example, Brazil, Argentina, Columbia, Peru and several other developing states objected to the competence of both the SBSTTA and the CBD to deal with issues related to the deep seabed beyond national jurisdiction (Earth Negotiations Bulletin 2003). In contrast the European Union, Greece and the Seychelles felt these issues fell within the CBD's mandate under Articles 3 and 4. In addition, they noted that the SBSTTA was competent to deal with its scientific aspects under Decision II/10 on marine and coastal diversity (Earth Negotiations Bulletin 2003). Canada objected to a recommendation encouraging Parties to start working through the ISA on issues related to conservation and sustainable use of genetic resources as they felt this may prejudice the outcome of more considered deliberations (Earth Negotiations Bulletin 2003).

The Montreal meeting made three main recommendations to the COP. These recommendations were as follows.

1. That the Executive Secretary, in consultation with parties and other governments and in collaboration with relevant international organisations⁹, compile and synthesize information on the status and trends of deep seabed genetic resources and on methods to identify, assess and monitor genetic resources of the deep seabed in areas beyond the limits of national jurisdiction. This is to include identification of threats to such genetic resources and the means for their protection, with a view to addressing processes and activities under Article 4(b) of the CBD, and to report on progress thereon to the SBSTTA, which will prepare recommendations for the consideration of the COP at its eighth meeting.
2. Invite the UN General Assembly to call upon relevant organisations¹⁰ to review issues relating to the conservation and sustainable use of genetic resources of the deep seabed beyond the limits of national jurisdiction and make appropriate recommendations to the General Assembly regarding appropriate actions.
3. Invite parties and other states to identify activities and processes under their jurisdiction or control which may have significant adverse impacts on deep seabed ecosystems and species beyond the limits of national jurisdiction, in order to comply with Article 3 of the CBD.

⁹ Namely the United Nations Division for Ocean Affairs and the Law of the Sea, the United Nations Environment Programme, the ISA and the Intergovernmental Oceanographic Commission of the United Nations Educational, Cultural and Scientific Organization.

¹⁰ Specifically the United Nations Environment Programme, the International Maritime Organisation, the ISA, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, the International Hydrographic Organisation, the World Meteorological Organisation, the Secretariat of the Convention on Biological Diversity, and the United Nations Division for Ocean Affairs and the Law of the Sea.

These recommendations are to be considered at the seventh meeting of the COP in Kuala Lumpur, Malaysia in March 2004.

5. WHY BOTHER?

“Hyperthermophiles are not likely to generate the passionate lobbying support enjoyed by charismatic mega-vertebrates, like whales or elephants”(Sochaczewski and Hyvarinen 1996).

5.1 Defining the problem for the law to address

After an eight year study it is disappointing that the SBSTTA study has not advanced in the consideration of this issue. The study has largely done no more than re-state what was first identified by Glowka, i.e. there is a significant gap in international law. Add to that the significant qualification contained in the SBSTTA report, i.e. the ISA appears to be reluctant to consider an expanded mandate at the moment, and it appears that little real progress has been made in the last eight years.

A significant problem in the approach of both the SBSTTA and the ISA to this issue is that they both narrowly define the problem that they seek to address. For SBSTTA, the issue is defined in terms of regulating access to hydrothermal vents by bioprospectors seeking genetic resources, albeit with the underlying goal of conservation of biodiversity. In the case of the ISA, the issue is minimizing the environmental impact of mining on the biodiversity of the deep sea.

The issue of regulating access to hydrothermal vents on the high seas, and within territorial waters and the EEZ, is far more complicated than just these two issues, and deep-sea mining and bioprospecting are only two of several, at times conflicting, uses of the deep sea. Human activities at hydrothermal vents include research, bioprospecting, mining and tourism. These activities pose a vaguely quantified threat to the biodiversity of hydrothermal vents (Dando and Juniper 2001, Leary 2002). Add to these impacts pollution and the risk of introducing alien invasive species and the question of regulating access to hydrothermal vents becomes more complicated.

5.2 The economic value of hydrothermal vents

Hydrothermal vents are of interest because of their associated mineral deposits. As for the biotechnology potential of hydrothermal vents, it is difficult to speculate on the economic significance of mineral deposits such as polymetalic sulphide deposits associated with hydrothermal vents based on existing data. Based on the limited information now available, it has been suggested that such deposits may contain concentrations of metals that are comparable to those found in ores from massive sulphide mines on land. (Herzig, Peterson and Hannington 2002).

Approximately 200 sites of seafloor hydrothermal mineralisation have been identified. Of these, only about ten sites may have sufficient size and grade justify future mining (Herzig, Peterson and Hannington 2002). Most of these sites are located within the territorial sea and, or, the EEZs of coastal states, areas that are outside the jurisdiction of the ISA.

Thus, most commercial interest has been confined to sites located within the territorial waters or the EEZ of coastal states. Both Papua New Guinea and New Zealand have granted exploration and prospecting permits in relation to hydrothermal vent mineral deposits within their territorial waters and EEZ. Proposals for mining at the site in PNG are advanced with prefeasibility studies and selection of mining technology now complete (Heydon 2003b) so that the first deep-sea mining associated with hydrothermal vents may not be in an area subject to control by the ISA.

One permit granted to Nautilus Minerals Limited for deposits in the Manus basin in Papua New Guinea has lead to concerns within the scientific community as to their impact on the ability to conduct research in PNG waters subject to the permit (Leary 2003a). This is but one example of the potential conflict between multiple users of hydrothermal vents. Companies signature to this agreement have also applied for similar exploration licences in the territorial waters of Fiji and Tonga (Heydon 2003a). So far no mining, exploration or prospecting activities have been licensed by the ISA with respect to such minerals. This is mainly because the ISA has not yet developed regulations governing prospecting at hydrothermal vents.

Hydrothermal vents as a tourist destination.

The deep sea is not typically regarded as a prime holiday destination. For those tourists jaded by the world's other travel destinations until recently the only remaining frontier destinations were Antarctic and outer space. Now thousands of tourists visit Antarctica each year. The deep sea, and in particular hydrothermal vents, are also emerging as an adventure tourist destination. A number of research vessels have taken tourists to hydrothermal vent sites, though so far the numbers appear to be small. One example was a cruise offered in June 2002 which, for $55000 offered deep-sea tourists a month long cruise on the R.V. Akademik Keldysh, a Russian research vessel, and dives to several hydrothermal vent sites near the Azores (<http://www.halyava.ru/bioch/ mikehydrot2.htm>). The $55000 fee included participation as an observer on three Mir submersible scientific dives to three different hydrothermal vent sites which included Snake Pit, TAG, Broken Spur, Lost City and Lucky Strike hydrothermal vent sites. Russian scientists are also known to have taken deepsea tourists to the Rainbow hydrothermal vent site (Dando and Juniper 2001).

It appears that so far the tourist dives are only operated by scientific research vessels and are intended as a source of additional funding for the research undertaken by these vessels. As these dives are a recent phenomena it is unclear what their economic value will be, but they do represent a potentially new economic activity associated with hydrothermal vents.

Geothermal energy

A further theoretical, but as yet unrealized, economic resource associated with hydrothermal vents is their potential used for generating hydrogen fuel (Bubis and Molochnikov 1993).

5.3 Marine Scientific Research and hydrothermal vents

Apart from bioprospecting, hydrothermal vents are also of great value to other fields of science. Conflict has arisen between the objectives of different forms of research at hydrothermal vents. In some areas as research shifts towards long term observation these conflicts have become more pronounced (Mullineaux, Desbruyeres and Juniper 1998). In designing a legal regime to regulate research at hydrothermal vents such conflicting objectives must be reconciled. Some of the ongoing research is outlined briefly below.

Earth sciences

Geological and geochemical research at hydrothermal vent sites is providing better understanding of the genesis of ore deposits and providing improved models for exploration for ore on land. Such research may also provide new geological knowledge about the formation, structural deformation and ageing of the Earth's volcanic ocean crust and associated sediments (Dando and Juniper 2001).

Biological sciences

Research into hydrothermal vent biology, microbiology and ecology has already lead to exciting discoveries and further research will expand knowledge of biological systems and physiological processes of vent species and other species living in extreme environments (Dando and Juniper 2001). Coastal species living at shallow vent sites have adapted to toxic conditions and high temperatures. Study of these organisms could help predict how coastal ecosystems may respond to increasing anthropogenic pollution and global warming (Dando and Juniper 2001).

Research into the role of hydrothermal vents in maintaining the chemistry of the oceans

Hydrothermal vents play an important role in maintaining the geochemical balance of the planet as a result of their output of chemicals. Dando and Juniper (2001) estimate that all seawater re-circulates through the vents on average every 107–108 years. They also suggest that hydrothermal vents contribute to ocean productivity and the local circulation of seawater.

Scientific research on the origin of life

One interesting development to have arisen as a consequence of the discovery of hydrothermal vent ecosystems is the debate as to the origin of life on earth and the search for possible life elsewhere in the universe. The question remains unanswered, but the discovery of hydrothermal vent ecosystems, driven by chemosynthetic microrganisms, has prompted an interesting theory that life on earth could have originated and evolved in association with hydrothermal vents in the primeval ocean during the early Archaean period approximately 4 000 million years ago (Baross and Hoffman 1986).

This theory is supported by comparison of the RNA sequences of hydrothermal vent thermophiles, which suggests that the heat-loving bacteria and archaea associated with hydrothermal vents are nearest to the common ancestor of all life on earth. This suggests that hydrothermal systems may have been a cradle for early biosphere evolution. Modern hydrothermal vents therefore may serve as refuges for close relatives of ancient forms of life (Farmer 2002). The implications for humanity in discovering how life began would be profound. That hydrothermal vent species and, in particular, bacteria and archaea, may answer these questions means that hydrothermal vents and the microbes that inhabit them are organisms of potentially great importance! This provides strong justification for a strict application of a precautionary approach - hydrothermal vents and their associated microbial communities may be the common heritage of all life!

5.4 Hydrothermal vents and conservation of marine biodiversity

The conservation of biodiversity has been recognized as a desirable objective in its own right. This is a fundamental principle underlying the CBD. The CBD recognizes the intrinsic value of biological diversity. The recognition of the intrinsic value of biological diversity is significant because it may be seen as acknowledging the inherent right of all components of biodiversity to exist independent of their value to humankind (Glowka, Burhenne-Guilmin and Synge1994).

As the deep sea constitutes the most typical habitat on earth and is where literally millions of species live, we should take steps to conserve the biodiversity of this habitat, particularly where specific threats have been identified. Simply put, we should be concerned about the loss of species in the deep sea and at hydrothermal vents just as much as in any other region or habitat on earth. With an emerging awareness that threats do exist, the agreed objectives of biodiversity conservation and the intrinsic right of such species to exist recognized by the CBD and other international instruments, provides a strong justification for a shift in focus to the deep sea and hydrothermal vent ecosystems in particular.

6. SOME ALTERNATE SOURCES OF LAW

6.1 Light and noise pollution in the deep sea

One impact of human activities in the deep sea is the introduction of light to an otherwise totally dark environment. There is evidence that the introduction of light to the deep-sea hydrothermal-vent environment may lead to blindness in the associated shrimp species whose eyes are adapted to total darkness (Herring and Gaten 1998). Light is introduced by research in the deep sea, by bioprospecting and in the course of deepsea tourism. Although deep-sea mining has not yet commenced, the introduction of light energy into the deepsea environment may also be an associated environmental impact. Likewise, little is yet known about the impact of noise pollution in the deep sea and on hydrothermal vent ecosystems in particular. A precautionary approach should be adopted pending further scientific research.

The most comprehensive provisions of the 1982 Convention dealing with protection of the marine environment relate to pollution. Article 1(4) of the LOSC defines “pollution of the marine environment” as:

“the introduction by man [ sic], directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”

While this definition includes more typical pollution such as oil, polychlorinated biphenyls and heavy metals (Churchill and Lowe 1999), the definition has a potentially wider scope. The reference to “energy” could cover all forms of energy including noise (Dotinga 2000) and light. The definition of pollution in Article 1(4) is based on an earlier version prepared by the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) (Dotinga 2000). The original definition referred only to the introduction of substances, but the term “energy” was added following concerns about thermal pollution (Dotinga 2000). The definition was therefore not drafted with either noise or light pollution in mind, but a wide interpretation of the term “energy” could include such types of pollution as they are forms of energy.

The use of the expression “results or is likely to result” in Article 1(4) indicates that the deleterious effects need not have manifested yet, but can be expected to occur (Dotinga 2000). Even in the absence of certainty as to whether deleterious effects have occurred or are about to occur, there is a need to act with caution and not delay preventative action where the circumstances require such (Dotinga 2000) as is consistent with the precautionary principle.

So far, no steps taken to implement measures to regulate the introduction of light or noise into the deepsea environment. However, the use of the term “energy” in Article 1(4) provides a basis for the adoption of such regulations in the future, either pursuant to Article 209 of the LOSC in respect of mining activities in the Area, or under the obligation imposed on States to adopt measures to prevent, reduce and control pollution of the marine environment under Article 194 of the 1982 Convention.

In addition to the LOSC, Article 1(4) has been incorporated into many other instruments dealing with the protection of the marine environment (Dotinga 2000). These include the OSPAR Convention, the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area, the 1992 Convention of the same name, and most of the framework treaties adopted under the UNEP Regional Seas Programme including some protocols dealing with specific sources of marine pollution (Dotinga 2000). There is, therefore, currently a sound legal basis under the LOSC and many of these treaties for adoption of specific measures to deal with light and noise pollution in the deep sea.

6.2 Can the ISA create de facto marine protected areas under Article 162 of the LOSC and Regulation 31(7) of the Nodule Prospecting Regulations?

Article 162(2) (x) of the LOSC provides that the Council of the ISA may

“disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment”

In his recent statement to the Fourth Meeting of the United Nations Open-ended Informal Consultative Process on Oceans and Law of the Sea. the Secretary-General of the ISA suggested that

“There is no reason why, pursuant to this provision, the Council [of the ISA] should not develop criteria for the identification of particularly sensitive areas to be reserved for detailed scientific study as environmental baselines or as reference areas”(ISA 2003d)

The Secretary-General's comments suggested that the Council could designate sensitive areas that would act as environmental baselines and also as de facto marine protected areas. This is re-enforced by the provisions of Regulation 31(7) of the Nodule Prospecting regulations, which provides:

“If the Contractor applies for exploitation rights, it shall propose areas to be set aside and used exclusively as impact reference zones and preservation reference zones. Impact reference zones means areas to be used for assessing the effect of each contractor's activities in the Area on the marine environment and which are representative of the environmental characteristics of the area. Preservation reference zones means areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the flora and fauna of the marine environment.”

It can also be argued that the ISA has a discretionary power to designate particular parts of the Area as sensitive no-mining areas in the context of fulfilling its mandate under Article 145 of the LOSC to protect and preserve the marine environment from the impact of deepsea mining (Leary 2003b), also effectively creating de facto marine protected areas. Indeed one site has already been suggested as a possible candidate site by WWF. This is the Logatchev vent field in the mid-Atlantic (Schmidt et al. 2003).

6.3 Convention for the Protection of the Marine Environment of the North-East Atlantic (The OSPAR Convention)

Under Article 1 the OSPAR Convention applies to a significant portion of the maritime area of the North East Atlantic and Artic Oceans including the internal waters and the territorial seas of the Contracting Parties. It also applies to the sea beyond and adjacent to the territorial sea under the jurisdiction of the coastal state to the extent recognized by international law, and to the high seas, including the sea bed of all those waters and its sub-soil within certain defined limits. There are at least four known hydrothermal vent fields in the OSPAR maritime area; the Menez Gwen, Lucky Strike, Saldanha and Rainbow vent fields (Gubbay et. al 2002).

Under Article 2(1)(a) of the OSPAR Convention contracting parties are obliged to

“take all possible steps to prevent and eliminate pollution and [obliges parties to] take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected”.

Under Article 2(1)(b) contracting parties are obliged, individually and jointly, to adopt programmes and measures and to harmonize their policies and strategies. In that context the parties are also obliged to apply the precautionary principle and “the polluter pays principle”.

Annex V of the Convention deals specifically with the protection and conservation of the ecosystems and biological diversity of the maritime areas to which the OSPAR Convention applies. Annex V and the accompanying Sintra Statement, which provides a strategy for implementation of Annex V, includes provisions requiring an assessment of the species and habitats that may need protection as well as human activities that are likely to adversely effect such species and habitats (Gubbay et al. 2002).

Following the Sintra Statement OSPAR has committed to promoting “the establishment of a network of marine protected areas to ensure the sustainable use and protection and conservation of marine biological diversity and ecosystems.” Work is now being carried out by parties to the OSPAR Convention and other interested parties such as the WWF, to design mechanisms to implement these obligations. The most significant of these is development of an overall framework for marine protected areas (MPAs) within the context of the OSPAR Convention (Leary 2001). Possible marine protected areas candidate sites within the area of the Convention include the Lucky Strike (Christiansen 2001) and Rainbow fields (Christiansen and Gjerde 2002).

Measures could be adopted under these provisions to regulate activities at hydrothermal vents such as bioprospecting given that it has been suggested bioprospecting is one threat to hydrothermal vent ecosystems. A range of activities including bioprospecting at these hydrothermal vent sites could be regulated in the context of a system of MPAs. The obvious problem with any such measures will be that they could not apply to nationals of non state parties to the OSPAR Convention on the high seas.

6.4 Noumea Convention

The Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea Convention)¹¹ aimed contributing to the care and responsible management of the special hydrological, geological and ecological characteristics of the South Pacific Region. It also recognizes the threats to the marine and coastal environment, their ecological equilibrium, resources and legitimate uses posed by pollution and by the insufficient integration of an environmental dimension into the development process (Noumea Convention, Preamble).

¹¹ Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Noumea, 24 November 1986, in force 22 August 1990, (1990) ATS 31.

Article 2 of the Noumea Convention defines the Convention Area as the EEZs of American Samoa, Australia (East Coast and Islands to eastward including Macquarie Island), Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia and Dependencies, New Zealand, Niue, Northern Mariana Islands, Palau, Papua New Guinea, Pitcairn Islands, Toeklau, Tonga, Tuvalu, Vanuatu, Wallis and Futuna and Western Samoa. The Convention Area also extends to include the areas of the high seas that are enclosed from all sides by the EEZs of these States. Within the Convention Area, Papua New Guinea, New Zealand, Fiji, Solomon Islands and Tonga are at various stages of considering development of resources, especially mineral resources, associated with hydrothermal vents within their territorial sea and, or, EEZ.

Under the Noumea Convention the state parties have assumed a number of significant obligations which provide the legal basis to conserve, sustainably manage and use the resources of hydrothermal vent fields found within the Convention Area. Under Article 4 of the Noumea Convention the parties are obliged to endeavour to conclude bilateral or multilateral agreements, including regional or sub-regional agreements, for the protection, development and management of the marine and coastal environments of the Convention Area. Similarly under Article 5, the parties are obliged, either individually or jointly, to take appropriate measures in conformity with international law and the provisions of the Noumea Convention to prevent, reduce and control pollution of the Convention Area from any source and to ensure sound environmental management and development of natural resources.

Article 8 specifically addresses pollution from seabed activities, obliging all parties to take

“all appropriate measures to prevent, reduce and control pollution in the Convention Area, resulting directly or indirectly from exploration and exploitation of the sea-bed and its subsoil.”

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

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

The Noumea Convention also recognizes specially protected areas as a means of biodiversity conservation. Thus Article 14 provides

“The Parties shall, individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems, depleted, threatened or endangered flora and fauna as well as their habitat in the Convention Area. To this end, the Parties shall, as appropriate, establish protected areas, such as parks and reserves, and prohibit or regulate any activity likely to have adverse effects on the species, ecosystem or biological processes that such areas are designed to protect.”

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

6.5 The Antarctic Treaty system

So far no hydrothermal vent sites have been identified in the vicinity of Antarctica or within Antarctic waters. Nonetheless the possible discovery of such sites cannot be ruled out. If so, the Antarctic Treaty system may provide a means of regulating access and activities in relation to hydrothermal vents. The most relevant instruments are the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)¹² and the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).¹³

¹² Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, in force 7April 1982; 19 I.L.M (1980).

¹³ Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991, entered into force 14January 1998; 30 I.L.M. (1991).

CCAMLR

Under Article I (1) the CCAMLR applies to

“the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem”.

Article II (2) defines Antarctic marine living resources to mean

“the population of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence.”

Arguably, species of molluscs and crustaceans associated with hydrothermal vents would fall within this definition. Other species, including bacteria and archaea found at hydrothermal vents, fall within the definition of “other species of living organisms”. These species, if they exist within the area defined in Article I(1), would form part of the Antarctic marine ecosystem, which is defined in Article I(3) as

“the complex of relationships of Antarctic marine living resources with each other and with their physical environment.”

Therefore CCAMLR should apply to hydrothermal vents in areas covered by the treaty.

Article II(1) states that the objective of CCAMLR is the conservation of Antarctic marine living resources. Conservation is defined in Article II(2) as including “rational use” of Antarctic marine living resources. As such, harvesting of marine living resources and any associated activities must be conducted in accordance with a number of principles of conservation set out in Article II (3) of CCAMLR. These are

• prevention of decrease in the size of any harvested population to levels below those which ensures its stable recruitment
• maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations to defined levels and
• prevention of changes or minimisation of the risk of changes in the marine ecosystem, which are not potentially reversible over two or three decades, taking into account the state of available knowledge of the direct and indirect impact of harvesting, the effects of the introduction of alien species, the effects of associated activities on the marine ecosystem and the effects of environmental changes, with the goal of sustained conservation of Antarctic marine living resources.

To give effect to these principles CCAMLR established the Commission for the Conservation of Antarctic Marine Living Resources. Among powers conferred on the Commission, Article IX(1)(f) grants the Commission power to formulate, adopt and revise conservation measures on the basis of the best scientific evidence available, subject to compliance with the Agreed Measures for the Conservation of Antarctic Fauna and Flora adopted by the Consultative Parties to the Antarctic Treaty. Pursuant to Article IX(2) these conservation measures can include

• designation of the quantity of any species which may be harvested in the area to which CCAMLR applies
• designation of regions and sub-regions based on the distribution of populations of Antarctic marine living resources
• designation of the quantity which may be harvested from the populations of regions and sub-regions
• designation of protected species
• designation of the size, age and, as appropriate, sex of species which may be harvested
• designation of open and closed seasons for harvesting
• designation of the opening and closing of areas, regions or sub-regions for the purposes of scientific study or conservation, including special areas for protection and scientific study
• regulation of the effort employed and methods of harvesting, including fishing gear, with a view, inter alia, to avoiding undue concentration of harvesting in any region or sub-region and
• taking of such other conservation measures as the Commission considers necessary for the fulfilment of the objectives of CCAMLR, including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than harvested populations.

If hydrothermal vents were found within the CCAMLR area then the provisions of this treaty could be applied to regulate activities associated with them. However, as with the continental shelf regime under the LOSC, there may be a number of problems presented by the terminology used in this convention. For example, in the context of hydrothermal vent species, do terms such as “harvesting”, “harvested population” and “fishing gear” have any real meaning?

More significantly, given that so little is known about the hydrothermal vent ecosystem and the life span of individual hydrothermal vent fields, is it possible to identify “changes in the marine ecosystem which are not potentially reversible over two or three decades” as required by the principles of Conservation under Article II(3) of CCAMLR ?

Similarly, questions would remain about the applicability of such measures to non-party states on the high seas. However, unlike fisheries measures, most of the states active in hydrothermal vent research and bioprospecting are parties to CCAMLR. This includes countries such as South Korea, France, Australia,Germany, United Kingdom, Japan, USA and New Zealand. CCAMLAR therefore may offer a further source of law and an institution that could regulate activities at hydrothermal vents.

Madrid Protocol

The Madrid Protocol serves as a framework convention, which provides the basic features of the regime for environmental protection in Antarctica (Redgwell 1994).

Article 3(1) of the Madrid Protocol provides

“the protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.”

To this end Article 3(2) requires that activities in the Antarctic Treaty area shall be

“planned and conducted so as to limit adverse impacts on the Antarctic environment and dependent and associated ecosystems”.

As such, pursuant to Article 3(2)(b), activities in the Antarctic Treaty Area must be planned and conducted so as to avoid inter alia:

• significant changes in atmospheric, terrestrial (including aquatic), glacial or marine environments
• detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and flora or
• degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance.

Significantly, Article 3(2)(c) also requires all activities to be “planned and conducted on the basis of information sufficient to allow prior assessments of, and informed judgements about their possible impacts on the Antarctic Environment”. These principles apply to all activities in Antarctica (Harris and Meadows 1992). To the extent that specific activities are not regulated by the Annexes to the Protocol, these fundamental principles provide a benchmark against which all activity must be assessed.

One significant innovation of the Madrid Protocol is the requirement for environmental impact assessments to be undertaken for activities in Antarctica. Under Article 8 activities undertaken in the Antarctic Treaty Area pursuant to scientific research programmes, tourism and all other governmental activities are subject to prior assessment of the “impacts of those activities on the Antarctic environment or on dependent or associated ecosystems according to whether those activities are identified as having

1. less than a minor transitory impact
2. a minor or transitory impact; or
3. more than a minor or transitory impact”.

The procedure for this prior assessment is set out in Annex I to the Madrid Protocol and requires that the environmental impacts of proposed activities be considered in accordance with appropriate national procedures. By virtue of Annex I, Article 1(2), if an activity has less than a minor or transitory impact such activity may proceed. However, if a proposed activity will have more than a minor or transitory impact then compliance with the environmental impact assessment provisions of Articles 2 and 3 of Annex I become mandatory.

Article 2 of Annex 1 requires that, unless an activity will have less than a minor or transitory impact or unless a Comprehensive Environmental Evaluation is prepared under Annex I, Article 3, an Initial Environmental Evaluation (IEE) must be prepared. An IEE must contain sufficient detail to assess whether a proposed activity may have more than a minor or transitory impact. By virtue of Article 2(2) of Annex I if the IEE indicates that the proposed activity is likely to have no more than a minor or transitory impact then the activity can proceed. However, this is subject to implementation of appropriate procedures, including monitoring, to assess and verify the impact of the activity. Annex 3(1) of Annex I requires that if an IEE indicates or if it is otherwise determined that a proposed activity is likely to have more than a minor or transitory impact, a Comprehensive Environmental Evaluation (CEE) must be prepared.

The final decision on whether to allow an activity to proceed rests with the Antarctic Treaty Consultative Parties acting on the advice of the Committee for Environmental Protection, a permanent body established pursuant to Articles 11 and 12 of the Madrid Protocol. The comprehensive provisions requiring environmental impact assessment would provide a sound basis for assessing the potential environmental impact of activities such as bioprospecting and research at hydrothermal vents and for regulating such activities.

In addition, Annex V to the Madrid Protocol provides a mechanism for establishing protected areas and the regulation of activities in particular areas, which could also be used to regulate access to hydrothermal vents. Thus Article 2 of Annex V provides that any area

“including any marine area, may be designated as an Antarctic Specially Protected Area or an Antarctic Specially Managed Area”.

Antarctic Specially Protected Areas (ASPAs) can be designated to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research under Annex V Article 3(1). Article 3 of Annex V specifically requires parties to identify within a systematic environmental and geographical framework specific categories of areas to be established as ASPAs. Categories that are relevant to hydrothermal vents include

• representative examples of major terrestrial and marine ecosystems (Annex V, Article3(2)(b))
• the only known habitat of any species (Annex V, Article 3(2)(d))
• areas of particular interest to ongoing or planned scientific research (Annex V, Article3(2)(e)) and
• and examples of outstanding geological or geomorphological features (Annex V, Article3(2)(f)).

Under Annex V Article 4(1) Antarctic Specially Managed Areas can be established in areas where activities are being conducted or may be conducted in the future so as to assist in the planning and co-ordination of activities, avoid possible conflicts, improve co-operation between parties or minimize environmental impacts. ASMAs may also include areas where activities pose risks of mutual interference or cumulative environmental impacts (Article4(2) (a)).

Antarctica as a model for regulating bioprospecting on the high seas.

The similarities between Antarctica and the deep ocean floor of the high seas are striking. Both are harsh environments. The ecosystems of both are heavily dependent on one form of life; in the case of Antarctica it is krill, for hydrothermal vents it is bacteria and archea. Both occur in areas beyond national jurisdiction, both are of interest to science and both have resources that many wish to exploit.

So far no measures have been implemented to specifically regulate bioprospecting in Antarctica or within Antarctic waters (Rothwell 2003). However, the legal instruments discussed above could be used in designing a regime to regulate bioprospecting in Antarctica. Any future high-seas regime could draw on the experience in Antarctica. Developments in relation to regulating bioprospecting in Antarctica should be watched closely as they may provide an example for regulating activities in other parts of the high seas including at hydrothermal vents

7. CONCLUSIONS

Access for bioprospecting at hydrothermal vents on the high seas is currently unregulated. The CBD (and contracting states) appear to have made little progress on this issue. Despite an eight-year study the response to the SBSSTA has resulted in only further recommendations for yet further studies. On the other hand, the ISA and some member states seem to be reluctant to contemplate anything more than operating within the limits of the existing mandate of the ISA.

There are many reasons why activities at hydrothermal vents should be regulated, not least the importance of their biodiversity and the threats posed by human activity in the deep sea. This paper has outlined a number of possible options beyond the ISA and the CBD that could be explored. As activities such as bioprospecting occur more frequently in the deep sea, we need to take effective measures to ensure protection of the unique biodiversity of one component of the most typical habitat of our planet. As interest in the potential of biotechnology from the deep sea grows, so the need to take effective measures is becoming ever more urgent.

8. ACKNOWLEDGEMENTS

The author gratefully acknowledges assistance for the author's participation in the Marine Bioprospecting workshop and Deep Sea 2003 provided by the conference organizers. I also gratefully acknowledge assistance provided by Ms Leanne Mumford in reviewing and proof reading drafts of this paper.

9. LITERATURE CITED

Aguilar, A., T. Ingemansson & E. Magnien 1998. Extremophile microorganisms as cell factories: support from the European Union. Extremophiles 2: 367–373.

Allen, C.H. 2001. Protecting the Oceanic Gardens of Eden: International Law Issues in Deep Sea Vent Resources Conservation and Management. Georgetown International Environmental Law Review 13: 563–660.

Baker, C.M., B.J. Bett, D.S.M. Billett & A.D. Rogers 2001. An environmental perspective In WWF/ IUCN. The status of natural resources on the high seas. Gland, Switzerland, WWF/IUCN.

Ballard, R.D. 2000. The Eternal Darkness: A Personal History of Deepsea Exploration. Princeton, Princeton University Press 408 pp.

Baross, J.A. & S.E. Hoffman 1986. Submarine Hydrothermal Vents and Associated Gradient environments as sites for the origin and evolution of life. Naval Research Reviews 2: 2–12.

Blöchl, E., G. Burggraf, G. Fiala, G. Lauerer, R. Huber, A. Rachel, A. Segerer, K.O.Stetter & P.Völkl 1995. Isolation, taxonomy and phylogeny of hyperthermophilic microorganisms. World Journal of Microbiology and Biotechnology 11:9–15.

Broad, W. J. 1997. The Universe Below: Discovering the Secrets of the Deep Sea. New York, Simon & Schuster 432 pp.

Bubis, Y.V., Z.N. Molochnikov & Y.V. Bruyakin 1993. Hydrogen Fuel Production in the Ocean using the Energy of “Black Smokers”. Marine Georesources and Geotechnology 11:259–261.

Butler, A.J., J.A. Koslow, P.V.R. Snelgrove & S.K. Juniper 2001. A Review of the Biodiversity of the Deep Sea. Canberran Environment Australia.

Canada, Department of Fisheries and Oceans 2001 Endeavour Hydrothermal Vents Marine Protected Area Management Plan

CBD-SBSTTA Convention on Biological Diversity, Subsidiary Body on Scientific, Technical and Technological Advice 1996. Bioprospecting of Genetic Resources of the Deep Sea Bed, Note by the Secretariat, U.N. Doc. UNEP/CBD/SBSTTA/2/15.

CBD-SBSTTA Convention on Biological Diversity, Subsidiary Body on Scientific, Technical and Technological Advice. 2003. 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 No.UNEP/CBD/SBSTTA/8/INF/3.Rev.1

Churchill, R.R. & A.V. Lowe 1999. The Law of the Sea. Manchester, Manchester University Press. 494pp.

Christiansen, S. 2001. Lucky Strike. A potential MPA, WWF North-East Atlantic Programbriefing note available at <http://www.ngo.grida.no/wwfneap/overview/overfset.htm> (last accessed 30 May 2003).

Chistiansen, S & K. Gjerde 2002. Rainbow - A Potential MPA, WWF North-East Atlantic Program briefing note available at <http://www.ngo.grida.no/wwfneap/overview/overfset.htm> (last accessed 30 May 2003).

Cowan, D.A. 1995. Hyperthermophilic enzymes: biochemistry and biotechnology In Parson, L.M., C.L. Walker & D.R. Dixon 1995. Hydrothermal Vents and Processes, 351–363.

Dando, P. & S.K. Juniper 2001. Management and Conservation of Hydrothermal Vent Ecosystems: Report from an InterRidge Workshop. Sidney (Victoria) B.C., Canada, Institute of Oceans Sciences.

de Fontaubert, A.C, D.R. Downes & T.S. Agardy 1998. Biodiversity in the Seas:Implementing the Convention on Biological Diversity in Marine and Coastal Habitats Georgetown International Environmental Law Review X(3):753–854.

Deming, J.W. 1998. Deep ocean environmental biotechnology. Current Opinion in Biotechnology 9:283–287.

Dotinga, H.M. & A.G. Oude Elferink 2000. Acoustic Pollution in the Oceans: The Search for Legal Standards Ocean Development and International Law 31:151–182.

Earth Negotiations Bulletin 2003. Summary of the Eighth Session of the Subsidiary Body on Scientific, Technical and Technological Advice of the Convention on Biological Diversity 10–14 March 2003, Earth Negotiations Bulletin 9(252).

Farmer, J.D. 2000. Hydrothermal Systems: Doorways to Early Biosphere Evolution. GSAToday 7:1–9.

French, G. 2002. The International Seabed Authority (ISBA) and the regulation of the Area, paper presented at Oceans Management in the 21stCentury: Institutional Frameworks and Responses under the Law of the Sea Convention Workshop, University of Sydney, Sydney, Australia, 22–23 November 2002.

Gaill, F., M. Voss-Foucart, B. Shillito & G. Goffinet 1995. In situ Biodegradation Experiments of Chitinous Exoskeletal Structures of Crabs and Vestimentiferans Coming from Deep Sea Hydrothermal Vents. Advances in Chitin Science I: 143–148.

Gage, J.D. & P.A. Tyler 1991. Deep-Sea Biology: A natural history of organisms at the deep-sea floor. Cambridge, Cambridge University Press. 504pp.

Gjerde, K & C. Breide 2003 Towards a Strategy for High Seas Marine Protected Areas: Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas, 15–17 January 2003, Malaga, Spain. IUCN, Gland Switzerland. 80pp.

Glowka, L, F. Burhenne-Guilmin and H. Synge 1994. A Guide to the Convention on Biological Diversity. Environmental Policy and Law Paper, no 30. Gland: IUCN - the World Conservation Union.

Glowka, L. 1996. The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area. Marine Science and Technology, 154–178.

Gubbay, S., M. Baker, B. Bett & G. Konnecker 2002. The Offshore Directory, Review of a selection of habitats, communities and species of the north-east Atlantic, WWF.

Harris, C.M. & J. Meadows 1992. Environmental Management in Antarctica: Instruments and Institutions. Marine Pollution Bulletin 25:239–249.

Herring, P.J., E. Gaten & PMJ. Shelton 1998. Are vent shrimps blinded by science? Nature 398:116.

Herzig, P.M., S. Petersen & M.D. Hannington 2002. Polymetalic Massive Sulphide Deposits at the Modern Seafloor and their resource potential In International Seabed Authority, Polymetalic Massive Sulphides and Cobalt-Rich Ferromanganese Crusts: Status and Prospects. ISA technical study No. 2, Kingtson Jamaica, International Seabed Authority.

Heydon, D. 2003a. Key Steps towards commercial exploitation of seafloor massive sulphides in Yeats, C.J. (Ed) 2003. Seabed hydrothermal systems of the Western Pacific: Current research and new directions-Conference Presentation, CSIRO Exploration and Mining report 113F, CD-ROM.

Heydon, D. 2003b. A pre-feasibility engineering study of mining massive sulphides at 2300m below sea level in Yeats, C.J. (Ed) 2003. Seabed hydrothermal systems of the Western Pacific: Current research and new directions-Conference Presentation, CSIRO Exploration and Mining report113F, CD-ROM.

Humphris, S.E., R.A. Zierenberg, L.S. Mullineaus & R.E. Thompson (Eds) 1996. Seafloor Hydrothermal Systems: Physical, Chemical, Biological, and Geological Interactions. Washington, D.C., American Geophysical Union. 91. 466pp.

ISA 2000. Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, UN Doc. ISBA/6/A/18, adopted by the Assembly of the ISBA on 13July2000. International Seabed Authority.

ISA 2002. Report of the Secretary-General of the International Seabed Authority under Article 166. Paragraph 4 of the United Nations Convention of the Law of the Sea, 7 June 2002, UN Doc. ISBA/8/A/5. International Seabed Authority.

ISA 2003a, Report of the Chairman of the Legal and Technical Commission on the work of the Commission during the ninth session, UN Doc No. ISBA/9/C/4. International Seabed Authority.

ISA 2003b. Press Release, UN Doc No. SB/9/7. International Seabed Authority 2003c. Press Release, 7 August 2003, UN. Doc no.SB/9/13. International Seabed Authority.

ISA 2003d. Statement by the Secretary-General of the International Seabed Authority to the Fourth Meeting of the Informal Consultative Process of the United Nations Convention on the Law of the sea, available from<http://www.isa.org.jm> (last accessed 7November 2003). International Seabed Authority.

Jeffery, M.I. 2002. Bioprospecting: Access to Genetic Resources and Benefit Sharing under the Convention on Biodiversity and the Bonn Guidelines. Singapore Journal of International and Comparative Law 6:747–808.

Jannasch, H.W., C.O Wirsen, S.J Molyneaux & T.A. Langworthy 1992. ComparativePhysiological Studies on Hyperthermophilic Archaea isolated from Deep-Sea Hot Vents with emphasis on pyroccus strain GB-D, Applied and Environmental Microbiology, 3472–3481.

Korn, H., S. Friedrich & U. Feit 2003. Deep Sea Genetic Resources in the Context of the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea. Bonn, German Federal Agency for Nature Conservation.

Kunzig, R. 2000. Mapping the Deep. The extraordinary story of ocean science. London, Sort of Books. 432pp.

Leary, D.K. 2001. Recent developments in international law relating to activities around hydrothermal vent ecosystems, InterRidge News, 10(2):23–26.

Leary, D. K. 2002. Law Reaches New Depths: The Endeavour Hydrothermal Vents Marine Protected Area, in Proceedings of the World Congress on Aquatic Protected Areas, In Print.

Leary, D.K. 2003a. The International Seabed Authority and designation of sensitive no mining areas for the conservation of hydrothermal vent ecosystems on the high seas: Legal and practical realities, paper prepared for the WWF/IUCN Experts Workshop on High Seas Marine Protected Areas, 15–17 January 2003, Malaga, Spain, unpublished paper.

Leary, D.K 2003b. Emerging Legal Regimes regulating bioprospecting for thermophiles and hyperthermophiles of hydrothermal vents, In Proceedings of the 6thInternational Marine Biotechnology Conference - Chiba, Japan, 21–27 September 2003, submitted for publication 27October 2003.

Lutz, R.A. & M.J. Kennish 1993b. Ecology of deep-sea hydrothermal vent communities: A review. Reviews of Geophysics 31(3):211–242.

Maloney, S. 2003. Extremophiles. Bioprospecting for antimicrobials. <http://www.mediscover.net/ Extremophiles.cfm>.

Mullineaux, L., D. Desbruyeres & S.K. Juniper 1998. Deep-Sea Hydrothermal Vent Reserves: A Position Paper. InterRidge News 7.1:15–16.

New England Biolabs Inc. 2002a. Vent ®R DNA Polymerase Technical Bulletin #M0254 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New England Biolabs Inc. 2002b. Vent ®R (exo-) DNA Polymerase Technical Bulletin #M0257 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New England Biolabs Inc. 2002c. Deep Vent ®R DNA Polymerase Technical Bulletin #M0258 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New England Biolabs Inc. 2002d. Deep Vent ®R (exo -) DNA Polymerase Technical Bulletin #M0259 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New England Biolabs Inc. 2002e. 9°Nm™ DNA Polymerase Technical Bulletin #M0260 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New England Biolabs Inc. 2002f. Therminator™ DNA Polymerase Technical Bulletin #M0261 (26/8/02) available from <http://www.neb.com> (last visited 4/10/02).

New Zealand Institute of Geological and Nuclear Sciences 2002. <http://www.gns.cri.nz/news/release /hotsprings.html> (last visited 2/7/02).

Phoebe, C.H., J. Combie, F.G. Albert, K. Van Tran, J. Cabrera, H.J. Correira, Y. Guo, J. Lindermuth, N. Rauert, W. Galbraith & C.P. Selitrennikoff. 2001. Extremophilic Organisms as an Unexplored Source of Antifungal Compounds. The Journal of Antibiotics 54(1):56–65.

Perler, F.B, D.G. Comb, W.E. Jack, L.S. Moran, B. Qiang, R.B. Kucera, J. Benner, B.E.Slatko, D.O.Nwankwo, S.K. Hempstead et al. 1992. Intervening sequences in an Archaea DNA polymerase gene. Proc. Natl. Acad. Sci. USA. 89:5577–5581.

Prieur, D., G. Erauso & C. Jeanthon 1995. Hyperthermophilic life at deep-sea hydrothermal vents 43 (1/2) Planetary and Space Science 115.

Ré, P. Deep-Sea Hydrothermal Vents “Oasis of the Abyss”, In Beurier J. & S. Mahmoudi (Eds) 2000. New Technologies and the Law of the Marine Environment. The Hague, Kluwer Law.

Redgwell, C. 1994. Environmental Protection in Antarctica: The 1991 Protocol. International and Comparative Law Quarterly. 43:599–634.

Reuters 2001. Life, but not as we know it, on the boiling bed of a frozen ocean. Sydney Morning Herald, 30thNovember.

Rothwell, D. 2003. Bioprospecting in the Southern Ocean under International Law, powerpoint presentation, Bioprospecting in Antarctica, An Academic Workshop, Gateway Antarctica, University of Canterbury, Christchurch, New Zealand, 7–8 April 2003, available at <www.anta.canterbury.ac.nz> (last accessed 30 May 2003).

Schiradi, C., M. De Rosa 2002. The production of biocatalysts and biomoloeclues from extremophiles. Trends in Biotechnology 20 (12):515–521.

Schmidt, S., S. Christiansen, A. Gebruk, K. Gjerde & D. Leary 2003. Logatchev-A Potential MPA, WWF North-East Atlantic Programme briefing note available at <http://www.ngo.grida.no/ wwfneap/overview/overfset.htm> (last accessed 7 Nov. 2003)

Sochaczewski, P.S. & J. Hyvarinen 1996. Down Deep: Environmentalists Fight to Protect The Fantastic Microscopic Creatures That Dwell on the Ocean's Bottom. The Environmental Magazine 7:15–21.

Sweeney, J.B. 1972. A pictorial history of sea monsters and other dangerous marine life.New York: Bonanza 314pp.

Tivey, M.K. 1991. Hydrothermal Vent Systems. Oceanus 34(4):68–74.

Tunnicliffe, V., A.G. McArthur & D. McHugh 1998. A biogeographical perspective of the deep-sea hydrothermal vent fauna. Advances in Marine Biology 34:355–442.

Van Dover, C.L. 2000. The Ecology of Deep-Sea Hydrothermal Vents. Princeton, Princeton University Press. 352pp.

WWF/IUCN 2001. The status of natural resources on the high seas. Gland, Switzerland, WWF/IUCN. 94pp.