4 Living Resources and Protection of the Environment on the Continental Shelf Beyond 200 Nautical Miles
- Natural resources — Biodiversity — Fisheries — Marine living resources — Pollution — Coastal states — Continental shelf — UNCLOS (UN Convention on the Law of the Sea)
(p. 93) 4 Living Resources and Protection of the Environment on the Continental Shelf Beyond 200 Nautical Miles
The coastal State has jurisdiction over sedentary species found on the continental shelf. As set out in Chapter 2, sedentary species can include corals, sponges, tubeworms, molluscs, crustaceans and even microbes. They may be found on seamounts, at hydrothermal vents or any part of the continental margin. To the extent that the individual species within the ecosystem are sedentary, they come within the coastal State’s jurisdiction. However, other species that are part of the same ecosystem will be non-sedentary. Within the exclusive economic zone (EEZ), the coastal State has control over conservation and exploitation of all aspects of the ecosystem in the water column and on the sea floor. Beyond 200 nm, the State has sovereign rights only in respect of the sedentary species. Of course, focusing on ‘sedentary species’ tends to gloss over the fact that these species are part of an ecosystem.
This distinction between sedentary and non-sedentary species is likely to cause some difficulties in practice. The nature and source of the environmental obligations on coastal States in relation to sedentary species will be different to the obligations in relation to the non-sedentary species above the continental shelf beyond 200 nm. For example, the coastal State has responsibility to protect biodiversity and the marine environment within its jurisdiction under the Convention on Biological Diversity (CBD)1 and the Law of the Sea Convention (LOSC).2 Conservation of the non-sedentary species under these conventions is possible and recommended, but States will need to cooperate and work through international agreements in relation to species found in the high seas. The dual legal character of the ecosystem means that a coastal State will be advised to work closely with other States and international organizations in order to protect the ecosystem as a whole.
References(p. 94) The definition of sedentary species is difficult to apply in a modern context. It made sense when States were negotiating the Continental Shelf Convention,3 when the main focus was on commercial fisheries such as oysters. It seemed a practical solution when the intention was to allocate rights to major fish species on the sea floor as opposed to in the water column. However, the development of scientific understanding about shelf ecosystems, the broadening of commercial interest to include genetic resources and modern obligations to protect marine biodiversity mean that the artificial distinction between sedentary and non-sedentary species makes management of the living resources of the continental shelf beyond 200 nm complex.
One purpose of this chapter is to highlight the international environmental obligations that exist in relation to sedentary species on the extended continental shelf. In most respects, these obligations are the same for the continental shelf within 200 nm. However, it is important that coastal States consider their obligations in relation to the extended shelf. Also, the coastal State’s jurisdiction is much more limited on the extended continental shelf where it cannot infringe on the exercise of high seas freedoms such as fishing. The obligation not to cause transboundary harm or harm to areas beyond national jurisdiction will be particularly important beyond 200 nm because activities directed at the continental shelf will be taking place in the high seas—a commons area.
The second part of the chapter explores the legal regime for the exploitation of living resources in the context of biotechnology and genetic resources. The fact that coastal State rights relate to sedentary species is a significant limitation on the coastal State’s ability to regulate bioprospecting beyond 200 nm because sessile species generally spend a part of their life cycle in the water before settling onto the sea floor as adults. This chapter discusses some of the important considerations for coastal States in regulating the uses of genetic resources on their extended continental shelves.
The third part of the chapter deals with fisheries. It is fairly unlikely that commercially exploitable sedentary species will be located on most States’ extended continental shelves. There will be some exceptions: for example, there have been scallop and crab fisheries operating on the Canadian extended shelf, which led to disputes with the United States in 1994 and 2001.4 However, the issue that is more likely to arise in relation to fishing on the extended shelf is where foreign vessels target high seas species using bottom-fishing techniques that have a destructive impact on benthic communities containing sedentary species.
References(p. 95) A. Environmental Obligations in Relation to the Extended Continental Shelf
There are several sources of obligations on coastal States to protect the marine environment. Despite the fact that Part VI of the LOSC contains no explicit obligation to conserve the resources of the sea floor, coastal States do have obligations to protect the marine environment on the continental shelf beyond 200 nm. These obligations can be found in the LOSC, in multilateral conventions, customary international law and other instruments.
(1) Law of the Sea Convention
The LOSC contains a number of obligations for States to conserve the marine environment and living resources. Part VI of the LOSC—which deals with the continental shelf—is comparatively silent about environmental principles compared to other Parts dealing with other maritime zones. However, there are obligations that can be found in the LOSC that apply to sedentary species on the continental shelf.
(a) Part VI of the Law of the Sea Convention: The continental shelf
Compared to the legal regime for the EEZ, Part VI of the LOSC does not directly oblige coastal States to conserve the living resources of the continental shelf. In this regard, two aspects of the EEZ regime are not reflected in Part VI. First, article 61 requires coastal States to ensure that the living resources of the EEZ are not endangered by over-exploitation. Coastal States must maintain or restore harvested species to levels that produce the maximum sustainable yield and consider the effects on associated or dependent species. There is no equivalent requirement in relation to the sedentary species of the continental shelf in Part VI. Secondly, the sovereign rights of the coastal States in the EEZ are ‘for the purposes of exploring and exploiting, conserving and managing the natural resources’. The rights in relation to the resources of the continental shelf are ‘for the purpose of exploring it and exploiting its natural resources’. No reference is made to conservation and management.
The EEZ gives rights to coastal States over the seabed and subsoil, as well as the water column.5 It might be tempting to argue that this means that the sustainability provisions of the EEZ also apply to the continental shelf. However, this argument is ruled out by Part V itself. Article 56(3) states that the rights set out in respect of the seabed and subsoil shall be exercised in accordance with Part VI. Article 68 makes the position even clearer by stating that Part V ‘does not apply to sedentary species as defined in article 77, paragraph 4’. Therefore, sedentary species are not covered by the sustainability obligations in relation to the EEZ.
References(p. 96) The explanation for this narrower focus for continental shelf resources is not spelt out in the LOSC but is related to the history of Part VI, which was heavily based on the Continental Shelf Convention. In 1958, environmental concerns were not high on the international agenda and instead the focus was on the exclusive right of the coastal State to exploit the resources of the shelf. Rothwell and Stephens suggest the continental shelf regime does not contain a general duty to conserve resources because the concept of the continental shelf is based on a natural prolongation of land territory.6 In contrast to the sedentary species, the fisheries resources in the water column of the EEZ often migrate across boundaries and into the high seas. In some circumstances, coastal States are required to provide access to the fisheries resources of the EEZ to other States.7 Therefore, the international community has more interest in the sustainable use of fish in the water column than in sedentary species.8
Another question is the significance of the fact that rights over continental shelf resources are ‘for the purposes of exploring it and exploiting its natural resources’. There is no reference to conservation and management as set out in relation to the sovereign rights in the EEZ.9 Although it may seem unusual, these factors do raise a question whether the coastal State can exercise rights to conserve the living resources of the continental shelf.
It is doubtful that any reasonable argument could be made that coastal States are forbidden from exercising their sovereign rights to conserve the living resources of the continental shelf.10 First, the exclusive right to exploit a resource implicitly involves the right not to exploit it. A coastal State that chooses not to exploit its oil and gas reserves, for whatever reason, does not lose exclusive rights to those reserves.11 Penick asserts that the rights to resources on the continental shelf are similar to property rights, and so the limitation of rights to those of exploration and exploitation is not to be interpreted strictly.12 He argues that the words ‘for the purpose of exploring and exploiting’ were intended to preserve the freedoms of the high seas: ‘so long as these traditional freedoms are preserved, the coastal State may exercise any right … in the natural resources of the continental shelf which will facilitate their development’. Although his argument relates to whether States References(p. 97) could assign property rights in shelf resources, it could also be extended to a right to conserve those resources.
The focus on exploration and exploitation dates back to the 1958 Continental Shelf Convention.13 O’Connell argued that the purpose of the use of these terms was to limit the power of the coastal State to the seabed and leave the waters untouched.14 The use of ‘for the purpose of’ was not intended to qualify the rights of the coastal State, but to indicate their location.15 It is fair to assume that the intention in relation to Part VI of the LOSC was similar and therefore not intended to limit the way in which the State dealt with its resources. A State that has sovereign rights over resources must have the right to manage those resources consistently with its policy and international law obligations.
It must also be remembered that coastal States have environmental obligations that derive from other parts of the LOSC, as well as multilateral environmental treaties and customary international law. These obligations require a coastal State to protect the marine environment, despite the absence of an express requirement in Part VI.
(b) Part XII of the Law of the Sea Convention: Protection and preservation of the marine environment
A number of environmental obligations are contained in Part XII of the LOSC, which deals with the protection and preservation of the marine environment. It is important to note that Part XII binds all States, including coastal States and flag States. Foremost amongst the obligations in this Part is the general obligation to protect and preserve the marine environment.16 This has been described as a positive obligation to take active measures to protect and preserve the marine environment and a negative obligation not to degrade the marine environment.17 In addition, article 193 requires States to exercise their sovereign rights to exploit their natural resources ‘in accordance with’ their duty to protect and preserve the marine environment. Article 193 links the obligations in Part XII to the sovereign rights of coastal States, including Part VI relating to the continental shelf. This means that all sovereign rights in the LOSC must be exercised consistently with the obligations in Part XII.18 At the very least, coastal States must consider their obligations to protect and preserve the marine environment when exercising their sovereign rights. Where a State fails to exercise appropriate control over its nationals to prevent them References(p. 98) from causing significant harm to the marine environment, it will have breached the LOSC.19
Although Part XII is primarily aimed at preventing and mitigating pollution, it contains obligations that are relevant to the living resources on the extended continental shelf. Coastal States are required to prevent, reduce and control pollution of the environment from any source and coastal States will be conscious of the effect of pollution on the resources of the continental shelf.20 Article 206 imposes a requirement on all States to conduct assessments where they ‘have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment’. Although the article does not refer to an ‘environmental impact assessment’ as used in modern environmental management practice, it is the basis for an obligation to conduct environmental impact assessments where the threshold in article 206 is met.21 The obligation applies to areas within and beyond national jurisdiction and extends to activities that not only cause pollution, but also activities that cause significant and harmful changes to the marine environment.22 In the South China Sea case, the Arbitral Tribunal found that a State must not only prepare an environmental impact assessment, but also communicate it to the relevant international organizations.23 The obligation to conduct environmental impact assessments has been developed as a principle of customary international law by the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS), and is discussed in further detail later in this chapter.
States are also required, under article 204 of the LOSC, to monitor the effects of activities they undertake. This is also reflected in customary international law in that the obligation of due diligence also requires ongoing monitoring in relation to potential transboundary harm.
As mentioned above, the obligations in Part XII apply to flag States. In the Advisory Opinion on IUU fishing, the ITLOS found that article 192 imposed obligations on flag States to ensure their vessels comply ‘with the relevant conservation measures concerning living resources enacted by the coastal State for its exclusive economic zone because … they constitute an integral element in the protection and preservation of the marine environment’.24 The Tribunal was quite clear that this References(p. 99) obligation is independent of the obligation to comply with coastal State regulation in articles 58(3) and 62(4). Therefore it is arguable that article 192 imposes an obligation on flag States to comply with coastal State regulation aimed at protecting the marine environment on the continental shelf beyond 200 nm even if this restricts in some way the exercise of high seas freedoms. Of course, this does not remove the requirement for coastal States not to infringe or unjustifiably interfere with high seas freedoms.
(2) Multilateral treaties
A range of multilateral environmental treaties impose legal obligations on States to take steps to preserve the marine environment. The most relevant in this context is the CBD.
The CBD requires States to develop national plans for the conservation and sustainable use of biodiversity.25 States are encouraged to establish systems of protected areas and take other measures to seek compatibility between uses of biodiversity and the conservation and sustainable use of its components.26 The CBD provides a much more detailed requirement to conduct impact assessments than article 206 of the LOSC.27 Environmental impact assessments are required when projects ‘are likely to have significant adverse effects on biological diversity’. The CBD applies to areas within the limits of national jurisdiction and to activities and processes under the jurisdiction or control of the State in areas beyond national jurisdiction.28 States are instructed to implement the Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.29 Therefore, the provisions of the CBD are applicable to coastal States and flag States, so long as they are compatible with the LOSC.30 Coastal States will need to consider how the provisions of the CBD will apply to the extended continental shelf.
The CBD parties have been working on how to achieve the goal of establishing representative marine protected areas (MPAs) set at the Johannesburg World Summit on Sustainable Development in 2002.31 In 2004, the Conference of the Parties (COP) committed to establishing ‘marine and coastal protected areas that are effectively managed, ecologically based and contribute to a global network of marine and coastal protected areas’.32 That decision endorsed the 2002 commitment References(p. 100) to establishing representative networks of MPAs by 2012.33 Target 11 of the Aichi Biodiversity Targets, agreed in 2010, reaffirmed the call that by 2020, at least ‘10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures’.34
During this time, the parties developed criteria to identify Ecologically and Biologically Significant Areas (EBSAs), which could be used to identify possible sites for MPAs. This work was approved in 2008 and State parties were urged to use the scientific criteria to identify EBSAs.35 A number of regional expert workshops were held to assist States in identifying EBSAs and build capacity for this work.36 EBSAs will be identified in a CBD EBSA repository and on the CBD website.37 Designation of a site as an EBSA carries no legal consequences but can be used to promote conservation measures in domestic law or international organizations including, but not limited to, the establishment of MPAs. All of these moves require parties to the CBD to consider the option of establishing MPAs on the extended continental shelf as it is also an area within national jurisdiction.
Many regional fisheries management organizations (RFMOs) are taking measures to protect the benthic marine environment by creating areas closed to bottom fishing,38 or ‘move-on’ rules that require a vessel to move on a certain distance when by-catch indicates a vessel is fishing above a vulnerable marine ecosystem.39 There is potential for RFMOs to develop rules responding to coastal State concerns about bottom fishing above coastal States’ extended continental shelves where vulnerable ecosystems are identified.
Other related treaties are directly targeted at reducing environmental harm, including MARPOL40 and the London Dumping Convention.41 Both Conventions are relevant to the extended continental shelf without containing specific provisions regarding this area. Additionally, in theory a coastal State could, through the International Maritime Organization (IMO), seek particular protection for the References(p. 101) outer continental shelf, for example, through seeking the designation of a vulnerable area as a particularly sensitive sea area.42
(3) Customary international law
In addition to those obligations imposed by treaties, there are also two significant customary international law obligations that will apply to a coastal State’s actions on the extended continental shelf. The first is the principle that a State should not allow its territory to be used to cause harm to another State or to areas beyond national jurisdiction. Associated with this principle is a general obligation to prevent harm to the environment and to reduce, limit or control harmful activities. Secondly, States have an obligation to undertake due diligence to meet their environmental obligations.
A fundamental international environmental obligation in customary international law is that a State must not allow activities under its jurisdiction to cause serious harm to the environment of another State.43 This principle is articulated in Principle 21 of the Stockholm Declaration44 and Principle 2 of the Rio Declaration.45 These two principles are almost identical in form. The Rio Declaration provides that:46
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 developmental 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.
This principle (often referred to as the prohibition on transboundary harm) reflects two important concepts, which are echoed in the LOSC. First, States have the sovereign right to exploit their resources. For the continental shelf, this principle is reflected in article 77 of the LOSC, which confirms that coastal States have exclusive rights to the living and non-living resources of the continental shelf.47 Secondly, States have an obligation not to cause damage to the environment of other States or of areas beyond national jurisdiction. Article 194(2) provides that coastal States must prevent, reduce and control pollution of the marine environment and References(p. 102) ensure that activities under their jurisdiction do not cause pollution damage that spreads ‘beyond the areas where they exercise sovereign rights in accordance with’ the LOSC. Although the Stockholm and Rio Declarations were non-binding under international law, the prohibition on transboundary harm they expressed has been held to be customary international law. In the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ confirmed that48
The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.
It is important to emphasize that the obligation applies not only to areas in other States’ jurisdiction, but also to the areas beyond such jurisdiction including the high seas and the Area.49 This aspect becomes particularly significant for the coastal State in relation to the extended continental shelf that lies beneath the high seas. The interconnected nature of the ecosystems located on or near the seabed means that there is a high degree of probability that any activities on the extended continental shelf will affect areas beyond national jurisdiction. Almost any activity targeting the extended continental shelf takes place in the high seas. However, the principle will not be invoked for minor or temporary harm to the areas above or near the extended shelf. Most commentators agree that the threshold of the obligation is transboundary harm that is ‘serious’ or ‘significant’.50 Therefore, not all activities on the shelf will trigger this obligation and its consequences.51
The duty to prevent damage to the environment is closely related to the obligation not to cause transboundary harm; however, the duty of prevention can apply to areas within national control, as well as beyond national jurisdiction.52 It has been suggested that the obligation to prevent harm arises once evidence demonstrates that harm to the environment will occur.53 This obligation is often discussed in conjunction with the obligation not to cause transboundary harm.54
References(p. 103) (b) Obligation to exercise due diligence
Increasingly, international dispute settlement bodies are referring to the duty to prevent harm to the environment as an obligation on States to exercise due diligence in implementing their obligations. This does not impose a duty to avoid all harm, but a State must take measures within its legal system that are ‘reasonably appropriate’ to fulfil its obligations.55 In the Pulp Mills case, the ICJ considered the obligation of States under a bilateral treaty for the use of a river on the border of the two countries.56 The treaty stated that the parties were to adopt appropriate rules and measures to protect and preserve the aquatic environment of the river and to prevent pollution.57 What is notable about the decision is that the ICJ based much of its reasoning on the existence of customary international law principles, giving the case significance for other environmental issues.58 The Court affirmed the customary international law status of the preventative and transboundary harm principles, and stated that these were linked to the obligation of due diligence.59 The ICJ stated that due diligence is:60
[a]n obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators.
The due diligence obligation was applied by the ITLOS in its advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.61 In that case, the Tribunal found that an obligation to ensure that activities in the Area are carried out in accordance with the LOSC62 was not an obligation to make that occur in every instance. Instead, the Tribunal stated that due diligence was ‘an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain the result’.63 According to References(p. 104) the ITLOS, the obligation of due diligence is variable and may change over time and in relation to the risks of the activity.64 Therefore, the standard of due diligence is more severe for riskier activities.
Both the ICJ and ITLOS have emphasized that due diligence involves some specific procedural requirements. The most significant of these is the obligation to conduct an environmental impact assessment where there is a risk that a proposed activity may have a significant adverse impact in a transboundary context,65 or on resources that are the common heritage of mankind.66 Although in both cases the governing treaties did contain obligations to conduct environmental impact assessments, the judges expressly noted that the obligation also arose as a customary principle of international law.
The customary rule does not extend to prescribing the scope and content of the environmental impact assessment.67 In Pulp Mills, the ICJ acknowledged that the United Nations Environment Programme Guidelines and Principles should be taken into account by the parties because the treaty required them to consider appropriate rules of international law.68 However, the Court decided that it was up to each State to determine the content of the environmental impact assessment in light of the nature of the project.69
The obligation to conduct an environmental impact assessment needs to be more than a post hoc assessment. In the Nicaragua v Costa Rica case, the ICJ criticized the actions of Costa Rica in purporting to conduct an environmental assessment.70 Costa Rica had undertaken studies evaluating the effects of a road that had already been built. The ICJ stated that the environmental impact assessment must be done prior to commencing the project and must evaluate the risk of future harm.71
In the Advisory Opinion, the ITLOS suggested that the precautionary approach is also an integral part of the obligation of due diligence.72 It defined the precautionary approach in terms set out in Principle 15 of the Rio Declaration, which describes the approach as ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation’. The Tribunal stated that the incorporation of the precautionary approach into a range of treaties and instruments reflects a ‘trend towards making this approach part of customary international law’.73
References(p. 105) The precautionary approach is likely to play an important role in coastal State decision-making because of the paucity of information that is likely to exist in relation to ecosystems on the continental shelf beyond 200 nm. This principle puts the onus on the coastal State to consider protective measures if they seem likely to be necessary, even if full information is not available immediately.
(4) United Nations General Assembly resolutions and other non-binding instruments
Over a period of time, the United Nations General Assembly has repeatedly expressed a view that urgent action needs to be taken by States and international organizations to protect vulnerable marine ecosystems, including those on the seabed. The General Assembly has listed a range of activities that could have an impact on vulnerable marine ecosystems. These include over-utilization of living marine resources, the use of destructive fishing practices, the introduction of alien invasive species and pollution, the loss or release of fishing gear and the dumping of hazardous waste.74 In 2006, Resolution 61/105 called on States individually to take action to ‘sustainably manage fish populations and protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain’. The General Assembly also called on RFMOs to take similar steps.75 More recently, the General Assembly has endorsed the Food and Agriculture Organization (FAO) International Guidelines for the Management of Deep-sea Fisheries in the High Seas.76
In some cases, vulnerable marine ecosystems will exist on the extended continental shelf of a coastal State. The General Assembly has stated in its resolutions that nothing in Resolution 61/105 prejudices sovereign rights over continental shelves or the exercise of the jurisdiction of coastal States with respect to their continental shelf under article 77 of the LOSC.77 This reinforces that the coastal rights over the sedentary species of the extended continental shelf are exclusive, but does not excuse coastal States from the general call to protect vulnerable marine ecosystems on the continental shelf.
The FAO has issued guidelines for the management of deep-sea fisheries in the high seas, in part as a result of the focus on vulnerable marine ecosystems in the General Assembly. The FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas are designed to assist States in implementing General Assembly Resolution 61/105.78 The Guidelines apply to fisheries beyond national jurisdiction which are likely to come into contact with the sea floor in the normal course of fishing operations. References(p. 106) The Guidelines specifically state that they are not intended to prejudice the sovereign rights of the coastal State over the shelf. However, it is open to coastal States to apply a similar approach to areas within national jurisdiction and the Guidelines can be used as grounds for arguing in favour of the establishment of fisheries restrictions above the extended continental shelf.
Under the Guidelines, States and RFMOs should adopt measures in accordance with the precautionary approach and ecosystems-based approaches, identify areas where vulnerable marine ecosystems are likely to be present and take action using the best information available. The Guidelines help to define concepts such as ‘vulnerable marine ecosystems’ and ‘significant adverse impacts’. They also identify the need for data collection and reporting from fishing vessels. Overall, the Guidelines are very detailed and provide significant guidance for managing deep-sea fisheries, some of which will take place above continental shelves beyond 200 nm.
Broadly speaking, the coastal State has the following obligations in relation to the continental shelf:
• to protect and preserve the marine environment79
• to take steps to preserve marine biodiversity80
• to ensure that activities within its jurisdiction and control do not cause significant harm to the environment of other States, the high seas or the Area81
• to exercise due diligence in implementing its environmental obligations82
• to conduct environmental impact assessments where there is a risk of significant harm to the marine environment, a risk of transboundary harm, or risk of harm to areas beyond national jurisdiction83
• to apply the precautionary approach84
• to take steps to protect vulnerable marine ecosystems.85
These obligations are particularly relevant to the extended continental shelf. Ecosystems on the continental shelf beyond 200 nm will be subject to two jurisdictional regimes: the high seas in the case of non-sedentary species, and the continental shelf in the case of sedentary species. This makes the need for prior assessment more acute as the harm to the surrounding environment could involve harm to the global commons rather than another area within the coastal State’s jurisdiction. States References(p. 107) must exercise due diligence to avoid or mitigate harm to the marine environment, which will include taking steps to implement effective decision-making processes. Therefore, States will be obliged to have regulatory mechanisms for monitoring and evaluating the environmental impact of activities on the extended continental shelf.
Although the majority of obligations to protect the marine environment on the extended continental shelf are owed by coastal States, it should not be forgotten that other States are also under treaty and customary obligations to protect the environment. The Tribunal in the South China Sea arbitration found that Part XII applies to all States with respect to the marine environment in all maritime areas.86 States whose vessels operate in the vicinity of the continental shelf will be obliged to ensure that their vessels comply with international standards such as those contained in IMO conventions and RFMO measures, as well as more general obligations contained in the LOSC and applicable coastal State laws.
Recent attention has turned to the value of MPAs as a tool for protecting marine habitats and biodiversity. The term ‘marine protected area’ covers a range of different types of protected area: from no-take zones to areas where certain activities are managed. The key commonality is that it involves ‘a clearly defined geographical space, recognised, dedicated and managed … to achieve the long-term conservation of nature with associated ecosystem services and cultural values’.87
As mentioned above, the international community has set a number of goals for the creation of MPAs in all parts of the ocean. In 2006, the parties to the CBD agreed that ten per cent of the world’s ecological regions should be effectively conserved and that areas of particular importance to biological diversity should be protected.88 In 2010, the parties agreed to protect ten per cent of coastal and marine areas through networks of MPAs and other effective measures by 2020.89
Continental shelves are highly geologically diverse and support a range of types of habitat.90 Many cold seeps and hydrothermal vent ecosystems are of very high scientific value, and calls have been made for their protection under national legislation.91 The differences in depth and geomorphology across the entire continental (p. 108) shelf lead to a high level of diversity among the species found there. In a recent study, scientists compared the genetic make-up of two species found across a range of benthic habitats and found that there were significant genetic differences between one of the species found on seamounts and on continental slopes.92 The authors concluded that the design of MPAs on the continental shelf should reflect the likelihood of differences in benthic communities in different depths and habitats.93 It has been argued that only spatial management and the use of MPAs will be effective at protecting vulnerable sea floor organisms in the deep sea.94 In addition, the growth of interest in the use of genetic resources may lead to a consideration that MPAs are also needed to protect potential genetic resources from exploitation by foreign researchers.95
It is therefore probable that many coastal States will, consistent with the CBD global targets, seek to put in place MPAs on the extended continental shelf where conservation and ecosystem values mean it is important to protect the benthic environment. It is likely that more than one MPA will be needed across the entire continental shelf to protect representative areas of the marine environment, and any network should arguably include areas on the extended continental shelf.
One option for the coastal State is to unilaterally declare the existence of an MPA on its extended continental shelf and rely on its sovereign rights under the LOSC to protect the area. This may be successful to a certain extent. The coastal State has exclusive rights over the exploitation of the resources of the shelf, and so can be certain that mining and hydrocarbon extraction will not occur in the MPA. However, not all potentially damaging activities come within the exclusive jurisdiction of the coastal State. For example, other States have the right to fish in the water column above the extended shelf and to conduct scientific research there. A coastal State may be concerned that such activities will cause environmental harm to the benthic environment. Another problem could be caused by discharges and the disposal of wastes from shipping. Again, the coastal State has no jurisdiction over these activities under Part VI of the LOSC. It may be possible for the coastal State to undertake limited interference with some high seas activities with the most impact on the shelf resources, and this is discussed in Chapter 7.
It would be more effective for a coastal State to cooperate with relevant international organizations who can then assist the coastal State to reinforce its conservation goals through the imposition of rules adopted by those organizations with which other States will be obliged to comply.96 There are a number of possible References(p. 109) partners for coastal States. These include regional seas arrangements, which often focus on cooperation relating to pollution and other activities.97 In addition, the IMO can establish rules for navigation and pollution in particularly sensitive sea areas.98 Finally, RFMOs may have authority to put in place conservation measures that would limit destructive fishing practices on or close to the extended shelf of States.
One of the first examples of a network of MPAs in areas beyond national jurisdiction involved cooperation between a coastal State wishing to protect areas of its extended continental shelf, and international organizations. Portugal is a member of the OSPAR Commission99 and has identified a number of areas on its extended continental shelf as suitable for inclusion in a network of MPAs. These include a hydrothermal vent field and seamounts.100 The parties to the OSPAR Commission have established, at Portugal’s request, MPAs in respect of the high seas above these sensitive areas of the extended continental shelf.101 At the same time, Portugal has implemented domestic legislation creating MPAs in respect of the seabed and subsoil of these areas.102
However, OSPAR’s competence is limited to environmental protection and does not extend to sectoral activities such as fishing or shipping. Fishing in the OSPAR areas that are beyond national jurisdiction is managed through the North East Atlantic Fisheries Commission (NEAFC).103 NEAFC has worked on plans to protect vulnerable marine ecosystems since 2004 and, following discussions with the References(p. 110) OSPAR Commission, a number of areas were subsequently closed to bottom fishing. Kvalvik notes that the areas closed by NEAFC only partially overlap with the OSPAR MPAs, and further cooperation will be needed to streamline the protection of these areas.104
The work of Portugal, OSPAR and NEAFC provides a possible model for future development of MPAs on and above the extended continental shelf of coastal States. International cooperation is the best way to deal with the limitations facing coastal States seeking to protect the marine environment on the extended continental shelf. The disadvantages of relying on international cooperation include the need to achieve consensus on the need for protective measures, and the existence of competent organizations in the relevant geographical areas. These issues, and Portugal’s work to establish MPAs, are discussed further in Chapter 9.
It is likely that marine bioprospecting on the extended continental shelf will take place in the near future.105 Coastal States will need to consider how to deal with applications for marine bioprospecting. One of the first issues is whether to treat such applications as marine scientific research or as an extractive activity.
Secondly, coastal States must consider not just the provisions in the LOSC but also the CBD. The rights and obligations of States in relation to the exploitation of living resources of the continental shelf beyond 200 nm are the same as within 200 nm. However, when considering how to exercise these obligations, including obligations to protect marine biodiversity, the State must take into account the fact that it must not infringe or unjustifiably interfere with the rights and freedoms of other States on the high seas.106
One of the key concerns for coastal States who wish to control or even refuse requests for scientists to sample marine organisms on the continental shelf beyond 200 nm is to determine whether the request is for marine scientific research or an exploitative activity. The reason this is important is because, if the activity is marine scientific research, then article 246(6) of the LOSC restricts the ability of the coastal State to refuse permission on the basis that the project is of direct significance for the exploration or exploitation of natural resources. Coastal States can only prohibit such research in areas that have been designated as areas in References(p. 111) which exploration or exploitation will be occurring within a reasonable period of time.107 From the perspective of the coastal State, it would be convenient to characterize bioprospecting as distinct from marine scientific research because it would then fall within the coastal State’s exclusive jurisdiction to determine the use and exploitation of the living resources of the extended continental shelf. The scientific community, on the other hand, would prefer bioprospecting to be defined as marine scientific research with its greater freedoms.108
Bioprospecting is not defined in the LOSC, and it is difficult to locate a universally agreed definition of the activity. One useful definition is ‘the scientific investigation of living organisms for commercially valuable genetic and biochemical resources’.109 A question that sometimes arises is whether the definition includes the entire process of commercializing a product. The Secretary-General of the United Nations has suggested that this is not the case:110
[T]he term is generally understood, among researchers, as the search for biological compounds of actual or potential value to various applications, in particular commercial applications. This involves a series of value-adding processes, usually spanning several years, from biological inventories requiring accurate taxonomic identification of specimens, to the isolation and characterization of valuable active compounds. As a mere prospecting activity, bioprospecting is only the first step towards possible future exploitation and stops once the desired compound or specific property has been isolated and characterized.
Marine scientific research has also not been defined in the LOSC and a debate has ensued about whether it includes research conducted for commercial purposes or not. Many scholars agree that applied research with no commercial intention is included in marine scientific research, but that applied research with a commercial intention is not.111 In light of this, it has been suggested that the distinction between bioprospecting and marine scientific research turns on the commercial intent of the researchers. This is because marine scientific research is expected to be transparent and open, with an obligation to disseminate information and data and the References(p. 112) subsequent publication outlining the results of the research.112 Because researchers who intend to seek a patent or other intellectual property rights will not publish the results of their research until such protection is obtained, it is argued that the research cannot be considered as part of the marine scientific research regime.113 Commercially focused research is closer to exploitation than research. Therefore, the intention of the researchers becomes the critical criteria for assessment.114
Some commentators have questioned the utility of distinguishing between bioprospecting and marine scientific research based on intention.115 Scovazzi argues that a research endeavour organized with the intent to increase human knowledge may well result in the discovery of commercially valuable information. It is impossible to establish a clear-cut distinction between one activity and the other and between one purpose and the other.116 Research trips are expensive, and may be funded by a range of organizations. Some research institutions may receive funding from commercial interests for their dives, resulting in a mix of ‘commercial’ and ‘non-commercial’ research.117 In other cases, a research trip with non-commercial intentions may take samples that are later accessed for commercial purposes by other researchers.118
Despite these difficulties, it appears that many States are opting to make the distinction between bioprospecting and scientific research based on the intention of the researchers, although these regulations are primarily driven by the provisions of the CBD rather than the LOSC. In both Australia and the Philippines, regulations distinguish between the collection of specimens for commercial or non-commercial purposes.119 In Australia’s case, collection for commercial purposes creates obligations to enter into benefit-sharing agreements, whereas collection for non-commercial purposes must be accompanied by a declaration outlining the lack References(p. 113) of commercial intent and controls on later commercial use.120 In light of the practice in this area, this chapter will consider bioprospecting activities with a commercial purpose on the basis that they do not fall within the regime of marine scientific research under the LOSC.
Four aspects of the LOSC are important in respect of marine bioprospecting. First, the LOSC establishes the rights that each State may exercise in maritime zones from the territorial sea to the high seas. Within national jurisdiction, coastal States exercise significant control over the harvesting of living resources, including marine genetic resources. Beyond national jurisdiction, the prevailing legal principle is that of freedom to exploit the living resources of the high seas. The intersection of these principles can be complicated in the case of bioprospecting.
The second important aspect is that the LOSC regulates marine scientific research. If research is conducted into genetic resources without a commercial intent, the activity will be marine scientific research. Where marine scientific research projects are directly relevant to the exploitation of living resources, coastal States have a significant level of control over projects in their EEZ and on their continental shelf.121 However, as discussed in Chapter 6, on the extended continental shelf States are restricted in their ability to refuse consent for research that has implications for resources.122 Where there is no commercial purpose to the research, the provisions of the LOSC applicable to marine scientific research will apply.
Thirdly, the LOSC contains provisions requiring States to protect and preserve the marine environment.123 Although the majority of these provisions focus on the prevention of pollution, there are provisions relating to the protection of the environment generally, including the requirement to conduct prior assessment of activities that may cause significant and harmful changes to the marine environment.124 Also, although it is usually accepted that bioprospecting does not generally involve great risks to the marine environment, as the samples taken are small, there may still be some disturbance of the environment which needs to be evaluated.125 If the biotechnology process subsequently requires harvesting of marine organisms on a larger scale, the environmental effects of such activity will need to be assessed.
Finally, it is important to remember that States only have jurisdiction over the sedentary species on the extended continental shelf. The main problem is how to determine whether a particular species is ‘sedentary’, because species that populate hydrothermal vents and seamounts may not fit into the traditional categories References(p. 114) established by State practice under the Continental Shelf Convention or the LOSC. Allen points out that there is a range of species often found at hydrothermal vents, including tubeworms, clams, mussels, barnacles, snails, anemones, limpets, shrimp, fish and a biomass of microbes. For some species there will be no doubt that they are sedentary—for example, tubeworms and molluscs.126 For others there will be debate. Two main features of the sedentary species definition are likely to be problematic: what is the ‘harvestable stage’ of such species; and how do they move?
The ‘harvestable stage’ element was included in the definition to make it clear at what point the sedentary character of a species is to be ascertained.127 This is because most marine species spend part of their time in the water column before reaching maturity. There is no interest in harvesting an oyster until it is mature. When considering that genetic material may be obtainable from organisms at any stage of their development, the definition becomes much harder to apply. Allen suggests that one approach would be to consider the capability of movement at the time it is collected, which would be easier to determine; that is, the harvestable stage is when the organism is collected, not when it is mature.128 This approach would also make sense when the organism could be new to science and little is known about its life cycle.129 An alternative would be to require extensive research to determine whether a particular organism is sedentary or not.
Focusing on mobility at the time of collection is not favourable to coastal States, given that most sedentary species are mobile at early stages of their lives. If this is the case, then a researcher could legitimately collect and use eggs and larvae of a species such as tubeworms or mussels whilst they are in the water column, even though they would come under the coastal State’s jurisdiction if they are collected as adults. However, the alternative, as already mentioned, would be to invest considerable time and effort in determining the status of the adult organism. It is difficult to imagine how the coastal State could insist on information being shared by researchers who collect organisms in the water column of the high seas when such organisms might not be easily or immediately classifiable as sedentary species.
Allen has identified the particular difficulties in classifying marine microbes under the LOSC. Microbes might be found inside the vents; suspended above the vents; located in mats growing on rock, chimneys, sediment or even other organisms; or as symbiotic with other, larger species such as tubeworms or clams.130 Some microbes are capable of self-locomotion; others are immobile. Allen suggests that microbes harvested from ‘mats’ on rocks or sediment, as well as on sedentary species, would be considered sedentary species. On the other hand, microbes collected from the water column in or near a vent would not be sedentary, even if they References(p. 115) are incapable of independent motion.131 As Allen notes, the application of the sedentary species definition is ‘poorly suited’ to vent ecosystems. However, coastal States will need to work with this definition to determine the resources over which they can exercise jurisdiction.
It is clear that the definition of sedentary species is not particularly useful in the context of bioprospecting on seamounts and at hydrothermal vents. The coastal State may wish to ensure it has information about the species collected so that it can come to a view as to which species are sedentary or non-sedentary. Therefore, the conditions that a State imposes on the activity could include requesting information to allow the State to make its own determination. This will be difficult in cases where the bioprospecting activity is directed at both seabed and swimming organisms. It will be almost impossible legally to impose obligations on researchers who take samples of sedentary organisms while they are at juvenile stages and dispersed in the water column. However, researchers may prefer to accept such limitations in return for access to other living continental shelf resources.
The Convention on Biological Diversity 1992 (CBD) is aimed at conserving biological diversity, ensuring the sustainable use of its resources and the fair and equitable sharing of the benefits arising out of the use of genetic resources.132 The latter objective arose out of developing States’ concerns that they were losing control over genetic resources that were developed by biotechnology companies, with no benefits returned to the State in which the resources were found. Therefore, the CBD confirmed that genetic resources are under the control of the State in which they are located.133 States are obliged to facilitate access to genetic resources by researchers in other States, but such access is to be on mutually agreed terms, based on prior informed consent, and the benefits of commercialization of genetic resources should be shared in a fair and equitable way.134
Article 4 of the CBD states that it applies to ‘the components of biological diversity, in areas within the limits of [States’] national jurisdiction’. Therefore, the CBD will apply to marine genetic resources found in the territorial sea, in the EEZ and on the continental shelf. The CBD also applies to processes and activities carried out under the jurisdiction or control of the State, whether they are carried out within its national jurisdiction or beyond the limits of national jurisdiction. This means that the CBD has potential application to activities carried out on the high seas or in the Area.
The question of what amounts to facilitation of access, and to fair and equitable benefit sharing, has occupied the parties to the CBD for many years as States have struggled to establish appropriate legislative and regulatory frameworks.135 References(p. 116) A number of attempts to clarify these requirements have been made by working groups established under the Conference of the Parties (COP). In 2002, the COP adopted the voluntary Bonn Guidelines to clarify policies on access and benefit sharing (ABS).136 These Guidelines established expectations to be fulfilled by countries of origin, users of genetic resources, providers of genetic resources and user States in relation to prior informed consent, mutually agreed terms, provision of ABS. However, it was considered that the Guidelines did not adequately clarify the relationship between important concepts and procedures. The non-binding nature of the Guidelines was also problematic.
Soon after the conclusion of the Bonn Guidelines, the parties to the CBD agreed to work towards an international treaty on ABS. The Nagoya Protocol was adopted in 2010.137 It establishes procedures that provide clarity and certainty to those seeking access to genetic resources. Parties must cooperate to build capacity in developing States. As with the CBD, many of the obligations are qualified by such words as ‘as far as possible’ or ‘where applicable’.
Within areas of national jurisdiction, the CBD and Nagoya Protocol establish obligations on States; these obligations apply to both coastal States (known as provider States in CBD terms) and the States whose nationals wish to access the genetic material (often referred to as user States). First, coastal States have obligations to develop national strategies for the conservation and sustainable use of biological diversity.138 This may involve identifying and monitoring biological diversity, and protecting it both in situ and ex situ.139 These States must also allow for the prior assessment of the impact of projects on biodiversity, usually through environmental impact assessments.140
Secondly, coastal States must ‘endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter’ to the objectives of the CBD.141 Access to resources should be based on the prior informed consent of the parties, and coastal States must take steps to share ‘in an equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources’ based on mutually agreed terms.142
This second aspect of the CBD has proven most controversial. As already mentioned, the concepts in the CBD were not well defined, and considerable subsequent effort has been put into clarifying the role of the provider and user States. The Nagoya Protocol is intended to assist States in implementing their obligations under the CBD. Coastal States will be required to identify clearly their domestic access and benefit-sharing rules and requirements and specify how to apply for References(p. 117) prior informed consent.143 This seeks to improve the ability of foreign researchers to apply for consent to access resources. In addition, each State must designate a national focal point and national authority on ABS. These focal points again are intended to facilitate ease of information and access to decision-making procedures within the coastal State. Where genetic resources are found within the territory of more than one State, those States shall endeavour to cooperate to implement the Protocol.144 Finally, the parties are to consider a global multilateral benefit-sharing mechanism to address the cases where genetic resources are present in transboundary situations.145
Of particular interest in this context is article 8, which calls on States to promote and encourage research including having simplified measures on access for non-commercial purposes. This might be seen as reflecting a similar policy goal to the LOSC, which in article 246(3) anticipates that coastal States will give their consent to research intended to increase scientific knowledge for all mankind. However, the Nagoya Protocol does not define ‘non-commercial research’.
The relationship between the CBD and the LOSC is outlined in article 22 of the CBD, which states that it shall not affect the rights and obligations of any State arising under existing international agreements, ‘except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity’. Contracting parties are instructed to implement the CBD ‘consistently with the rights and obligations of States under the law of the sea’. Therefore, if there is an inconsistency between the provisions of the CBD and the LOSC, those of the LOSC will prevail.146
To the extent possible, the legal regime under the LOSC must be reconciled with the CBD. The regimes are different in that the LOSC is predominantly focused on exploitation and allocation of rights, whereas the CBD is primarily focused on species and habitat conservation.147 However, in most respects the two conventions are compatible with each other because they encourage the facilitation of pure research and give coastal States discretion to refuse commercially focused research.148 One References(p. 118) difference between the two regimes is that the CBD requires States to facilitate access to genetic resources, whereas the LOSC assumes, if bioprospecting is treated as exploitation of living resources, that the coastal State has discretion as to how resources are to be accessed.149 This is not a true incompatibility. In essence, the LOSC confirms that the coastal State has sovereign rights (including sole rights of exploitation) over the resources of the seabed in a similar way as it has sovereignty over the resources found on land. That is the starting point. The CBD creates an additional layer of rights and obligations relating to the exploitation of all resources within national jurisdiction.
In the case of non-commercial projects that amount to marine scientific research, both regimes encourage access by researchers.150 The need for coastal State consent under the LOSC is similar to the requirement for prior informed consent under the CBD. However, the LOSC does not refer to the need for access to be on mutually agreed terms.151 Each Convention has different rules about the application for consent that will need to be reconciled by the coastal State.
Fedder has argued that the limitations on coastal State jurisdiction over marine scientific research in the LOSC mean that the CBD provides a stronger basis for refusing consent.152 This raises the possibility that a coastal State might strictly be required to grant consent to a marine scientific research project under the LOSC when it might have been able to refuse consent under the CBD. Given that the rights under the CBD have to be exercised consistently with the rights and obligations under the LOSC, is this likely to pose a problem? Assuming the coastal State wished to refuse consent for the (non-commercial) research into genetic resources on the basis that it had direct significance for the exploration or exploitation of living resources,153 the options for challenging the coastal State’s exercise of discretion is limited. Under the dispute settlement system in the LOSC, disputes over the coastal State’s application of article 246 cannot be subjected to third-party dispute settlement. The dispute can be taken to conciliation but the conciliation commission cannot question the State’s discretion to withhold consent under article 246(5).154 Therefore, in practice, any inconsistencies between the LOSC and the CBD are unlikely to pose any practical problems.
As a result of provisions in the LOSC, the CBD and the Nagoya Protocol, coastal States have obligations to establish processes for providing access to genetic resources by foreign researchers. This may require linking the regime for access to the continental shelf for marine scientific research to the regime for granting access under the CBD and the Nagoya Protocol. If coastal States believe that the marine scientific research regime is not appropriate for bioprospecting projects with a commercial purpose, there must be another, clear, route for foreign researchers to References(p. 119) seek approval for such research. This process need not differ substantially from the regime for granting consent in the EEZ and on the continental shelf, but in practice the provisions of the Nagoya Protocol are likely to impose additional procedural requirements.
There are significant complications involved in regulating bioprospecting on the continental shelf beyond 200 nm. Therefore, adopting a cooperative approach to facilitate inclusion in the research, for example by having national researchers on board the foreign research vessel, would be advisable as a way for coastal States to maximize the information available to the State about the resources of the continental shelf. Overall, the CBD and the Nagoya Protocol offer additional benefits for coastal States who wish to ensure that benefits from bioprospecting on the extended continental shelf will flow back to the coastal State through ABS arrangements.
Fishing above the continental shelf may target living resources that fall into the category of sedentary species, or it may target fish swimming in the water column above the shelf. In both cases, the methods used for such fishing may be the same—using bottom trawls that impact on the benthic environment. In both situations there will be a detrimental impact on the sea floor but there is a very different legal regime that applies to each situation. There are two issues that a coastal State may have to address when considering the management of fishing on its extended continental shelf.
First, it is possible (although unlikely in most cases) that there may be some stocks of commercially valuable sedentary species that may be targeted by fishermen on the shelf beyond 200 nm.155 One example where this has happened in the past is the fishing for scallops and crabs on the Canadian extended shelf. A coastal State will clearly have the right to regulate fishing for these species. As the fishery is governed by Part VI of the LOSC, rather than Part V, the provisions relating to the conservation and utilization of living resources contained in articles 61 and 62 do not apply to sedentary species.156 Nor do the obligations to share any excess total allowable catch (TAC) with land-locked and geographically disadvantaged States. The reason for this is that the rights and obligations from the Continental Shelf Convention in relation to sedentary species were more or less directly transferred into the LOSC and the earlier Convention had no provisions relating to conservation.
However, the coastal State is subject to a range of other obligations for environmental protection, as already outlined in this chapter. These include the obligation References(p. 120) to protect and preserve the marine environment in article 192 of the LOSC. In light of developments in environmental law and fisheries law, it would be difficult to argue that the coastal State was not required to take steps to conserve and manage the sedentary species of the extended continental shelf.
Sedentary species on the continental shelf may also be targeted where living resources are harvested in large amounts, not for consumption, but for the manufacture of products derived from the genetic structure of the organisms. This may be necessary in cases where large quantities of a substance are required but the relevant compounds cannot be synthesized in a laboratory. In this case, the coastal State is clearly able to regulate the exploitation of such materials in the same way as it regulates fishing.
A second, and more problematic, issue is the possibility that fishing methods targeting non-sedentary species may have a negative impact on the benthic marine environment on the extended continental shelf. Bottom trawling, for example, has been demonstrated to have significant impacts on species such as corals and sponges, which would be classified as sedentary species.157 A bottom trawl may destroy or collect sedentary species, even if the trawl is targeting high seas species. Assuming the coastal State wishes to protect benthic marine ecosystems, what measures can it take to protect them from destructive fishing practices? Recall that in deploying this fishing gear (such as trawl nets) the foreign fishing vessel is targeting species that are not primarily within the jurisdiction of the coastal State. The vessel is exercising the freedom of the seas subject to any conservation and management measures of any regional fisheries organizations. To what extent can a coastal State prevent the fishing vessel from deploying its gear on or above the continental shelf?
Coastal States may consider a range of options to protect sedentary species, including declaring MPAs or limiting fishing within a certain distance of the sea floor. The fundamental question is whether, in seeking to prevent vessels targeting high seas species from physically impacting on the shelf ecosystems, the coastal State is infringing or unjustifiably interfering with the vessels’ high-seas freedoms according to article 78(2) of the LOSC.158 The options for coastal States to unilaterally prevent such fishing are discussed further in Chapter 7. Coastal States must carefully weigh up the relevant interests involved before taking such measures. It is only if such measures are reasonable, necessary and proportionate that the coastal State would be considered to be acting lawfully under international law.
When broad margin States argued for extending the continental shelf beyond 200 nm, it is likely that few considered the living resources of the shelf to be of (p. 121) significance. This is because it is unlikely that commercial fisheries will target the sedentary species found on most continental shelves beyond 200 nm. However, the advancement of understanding about the ecological systems that exist on the continental shelf brings new opportunities to the fore. The most obvious of these is the potential value of genetic resources.
The legal regime that governs the high seas and the extended shelf is not particularly helpful for States that seek to manage the sampling of sedentary species for biotechnology purposes. One reason is that the definition of sedentary species in article 77(4) of the LOSC is written for the purposes of fishing, rather than for sampling marine organisms that may spend their adult lives on the seabed but which, during parts of their life cycle, will be found in the water column. In the EEZ, the coastal State has jurisdiction over the water column as well, but on the high seas the freedom of scientific research and of fishing will allow researchers to access the genetic material of a range of organisms, some of which may be sedentary species.
Where the genetic samples are obtained from organisms on or under the seabed, coastal States will be in a better position to regulate access to the material. However, practical difficulties still arise, particularly when species are discovered about which little is known in relation to their life cycle and movement. Who is to determine whether these species are sedentary or not? The coastal State may have observers on board the vessel but, if it does not, the researchers themselves will have the best—and sometimes only—information about the organisms. It may be that negotiations for an implementing agreement to the LOSC on the protection of marine biodiversity beyond national jurisdiction will develop a process for dealing with genetic resources found in the Area that could be applied to State’s extended shelves if they so choose.159 In the meantime, coastal States must ensure that any measures they adopt for the continental shelf beyond 200 nm are not an infringement on or unjustifiable interference with the freedoms of the high seas.
Coastal States must consider their environmental obligations in respect of their extended continental shelves. Although no express obligations in relation to environmental protection are found in Part VI of the LOSC, States still have obligations that derive from Part XII, other treaties and customary international law. The obligations require coastal States to consider the protection of biodiversity located on the continental shelf beyond 200 nm and to make decisions about how to ensure economic development is conducted sustainably. Amongst the range of options is the possibility of establishing MPAs to protect vulnerable marine ecosystems. There is no legal barrier to creating MPAs, although the management measures will need to be carefully designed so as not to infringe or unjustifiably interfere with the rights and freedoms of other States on the high seas. Other options include carefully planning economic activities, including fishing and oil and gas exploration, so that the effects on benthic ecosystems are minimized—something that coastal States will already be doing within 200 nm.
(p. 122) The peculiarity of the extended shelf is that it lies underneath the high seas. In this case, there is a particular need for coastal States to be aware of their customary international law duties to prevent significant adverse impact to the global commons (the high seas), to undertake environmental impact assessments and otherwise to exercise due diligence in evaluating activities on the continental shelf beyond 200 nm for their environmental impact.
4 JM Van Dyke, ‘Modifying the 1982 Law of the Sea Convention: New Initiatives on Governance of High Seas Fisheries Resources: the Straddling Stocks Negotiations’ International Journal of Marine & Coastal Law 10 (1995): pp. 219–27, pp. 221–2; R v Perry, 2003 Carswell Nfld 23, 222 Nfld & PEIR 313, 663 APR 313, 59 WCB (2d) 92.
8 Attard suggested that the omission of ‘conservation and management’ reflects the exclusive nature of continental shelf rights compared to the EEZ, where States are under an obligation to share the surplus total allowable catch with other States. David Attard, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987): p. 142.
10 This argument first appeared in Joanna Mossop, ‘Protecting Marine Biodiversity on the Continental Shelf Beyond 200 Nautical Miles’ Ocean Development and International Law 38 (2007): pp. 283–304, p. 289.
15 Ibid., p. 478.
19 South China Sea case, paras. 954–66. Among China’s actions that the Tribunal found were breaches of Part XII included: allowing the harvesting of endangered species on a large scale and the infliction of significant damage on rare or fragile ecosystems and habitat; failing to enforce rules against fishermen; and the construction of artificial islands in a manner that caused long-lasting damage to the marine environment.
21 South China Sea case, para. 948; Lingjie Kong, ‘Environmental Impact Assessment under the United Nations Convention on the Law of the Sea’ Chinese Journal of International Law 10 (2011): pp. 651–69, p. 658.
30 A Charlotte de Fontaubert, David R Downes and Rundi S Agardy, ‘Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats’ Georgetown International Environmental Law Review 10 (1997–1998): pp. 753–854, p. 756.
31 Para. 32(c), Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, 2002, A/CONF.199/20. The call was for ‘the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012’.
36 Daniel C Dunn et al., ‘The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas: Origins, Development, and Current Status’ Marine Policy 49 (2014): pp. 137–45; Nicholas J Bax et al., ‘Results of Efforts by the Conservation on Biological Diversity to Describe Ecologically or Biologically Significant Marine Areas’ Conservation Biology 30 (2015): pp. 571–81.
40 International Convention for the Prevention of Pollution from Ships, as Modified by the Protocol of 1978 (opened for signature 2 November 1971 and 17 February 1978, entered into force 2 October 1982) 1340 UNTS 62 (MARPOL 73/78).
42 See generally, Markus J Kachel, Particularly Sensitive Sea Areas: The IMO’s Role in Protecting Vulnerable Marine Areas (Springer, 2008); Hélène Lefebvre-Chalain, ‘Fifteen Years of Particularly Sensitive Sea Areas: A Concept in Development’ Ocean and Coastal Law Journal 13 (2007): pp. 47–69. See ch 9.
48 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)  ICJ Reports 266, para. 29 (emphasis added). See also Gabčíkovo-Nagymaros Project (Hungary v Slovakia)  ICJ Reports 7, para. 53.
50 Günther Handl, ‘Transboundary Impacts’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2008): pp. 531–49, p. 535. See also the ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.
53 Yoshifumi Tanaka, ‘Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of 1 February 2011’ Netherlands International Law Review 60 (2013): pp. 205–30.
56 See Donald K Anton, ‘Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment)’ Australian International Law Journal 17 (2010): pp. 213–23; Xiaopin Zhu and Jinlong He, ‘International Court of Justice’s Impact on International Environmental Law: Focusing on the Pulp Mills Case’ Yearbook of International Environmental Law 23 (2012): pp. 106–30.
60 Ibid., para. 197. See also International Law Commission draft articles on the Prevention of Transboundary Harm from Hazardous Activities and associated commentary, particularly article 3. ILC, ‘Report of the International Law Commission on the work of its fifty-third session’ Yearbook of the International Law Commission Part 2 (2001–2).
61 Advisory Opinion on Responsibilities of States. For commentary, see David Freestone, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ American Journal of International Law 105 (2011): pp. 755–60; Hui Zhang, ‘The Sponsoring State’s “Obligation to Ensure” in the Development of the International Seabed Area’ International Journal of Marine and Coastal Law 28 (2013): pp. 681–99; Tim Poisel, ‘Implications of Seabed Disputes Chamber’s Advisory Opinion’ Australian International Law Journal 19 (2012): pp. 213–33.
72 Advisory Opinion on Responsibilities of States, para. 131. Not all commentators share the Tribunal’s views in relation to the connection between due diligence and precaution. See Tanaka, ‘Reflections on the ITLOS Advisory Opinion’, p. 214.
73 Advisory Opinion on Responsibilities of States, para. 135. For a discussion of the ITLOS analysis of the precautionary approach, see Duncan French, ‘From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor—the Seabed Disputes Chamber’s 2011 Advisory Opinion’ International Journal of Marine and Coastal Law 26 (2011): pp. 525–68.
83 Article 206 of the LOSC and article 14 of the CBD apply to areas within and outside the jurisdiction; the customary principles apply to harm that occurs to other States or areas beyond national jurisdiction.
87 IUCN World Commission on Protected Areas (IUCN-WCPA), Establishing Marine Protected Area Networks—Making it Happen (2008, Washington: DC). However, experts have warned that weak MPAs will be ineffective in achieving the goals of the CBD. See Alexis N Rife et al., ‘When Good Intentions Are Not Enough: Insights on Networks of “Paper Park” Marine Protected Areas’ Conservation Letters 6 (2013): pp. 200–12; Mark J Costello and Bill Ballentine, ‘Biodiversity Conservation Should Focus on No-take Marine Reserves: 94% of Marine Protected Areas Allow Fishing’ Trends in Ecology and Evolution 30 (2015): pp. 507–9.
92 EK Bors et al., ‘Patterns of Deep-Sea Genetic Connectivity in the New Zealand Region: Implications for Management of Benthic Ecosystems’ PLOS One 7(11) (2012): e49474. doi:10.1371/journal.pone.0049474.
93 Ibid., p. 14.
94 Malcolm R Clark et al., ‘The Impacts of Deep-Sea Fisheries on Benthic Communities: a Review’ ICES Journal of Marine Science 73 (Supp. 1) (2016) pp. i51–i69. doi: 10.1093/icesjms/fsv123. See ch 2 for a discussion about the impacts of bottom fishing on the benthic environment.
96 Cooperative approaches to regulating activities on the extended continental shelf are discussed in detail in ch 9.
98 See, e.g. Tullio Scovazzi, ‘Marine Protected Areas in Waters Beyond National Jurisdiction’ in Marta Chantal Ribeiro (ed), 30 Years after the Signature of the United Nations Convention on the Law of the Sea: the Protection of the Environment and the Future of the Law of the Sea (Coimbra: Coimbra Editoria, 2014): pp. 209–38, p. 218; Markus J Kachel, Particularly Sensitive Sea Areas: The IMO’s Role in Protecting Vulnerable Marine Areas (Springer, 2008); Hélène Lefebvre-Chalain, ‘Fifteen Years of Particularly Sensitive Sea Areas: A Concept in Development’ Ocean and Coastal Law Journal 13 (2007): pp. 47–69.
99 Established by the Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 32 ILM 1069. The OSPAR Convention is intended to provide environmental protection for an area of the North-east Atlantic Ocean. It has fifteen State parties. See www.ospar.org. Unusually for a regional seas convention, the OSPAR Convention covers areas beyond national jurisdiction, as well as areas within national jurisdiction. EJ Molenaar and AG Oude Elferink, ‘Marine Protected Areas in Areas Beyond National Jurisdiction: The Pioneering Efforts Under the OSPAR Convention’ Utrecht Law Review 5 (2009): pp. 5–20, p. 13.
100 OSPAR Commission, ‘2012 Status Report on the OSPAR Network of Marine Protected Areas’, p. 26. See also Marta Chantal Ribeiro, ‘The “Rainbow”: The First National Marine Protected Area Proposed Under the High Seas’ International Journal of Marine and Coastal Law 25 (2010): pp. 183–207.
102 Marta Chantal Ribeiro, ‘Marine Protected Areas: The Case of the Extended Continental Shelf’ in Marta Chantal Ribeiro (ed), 30 Years after the Signature of the United Nations Convention on the Law of the Sea: the Protection of the Environment and the Future of the Law of the Sea (Coimbra: Coimbra Editoria, 2014): pp. 179–208, p. 195.
103 There is significant overlap between the members and geographical coverage of the NEAFC Commission and the OSPAR Commission. See Ingrid Kvalvik, ‘Managing Institutional Overlap in the Protection of Marine Ecosystems on the High Seas: The Case of the North East Atlantic’ Ocean and Coastal Management 56 (2012): pp. 35–43.
104 Ibid., p. 37.
105 Parts of the following discussion were previously published in Joanna Mossop, ‘Marine Bioprospecting’ in DR Rothwell et al., The Oxford Handbook on the Law of the Sea (Oxford: Oxford University Press, 2015): pp. 825–42.
106 Article 78(2), LOSC. The interpretation of article 78(2) is discussed in ch 7.
107 See ch 6.
109 LA de La Fayette, ‘A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction’ International Journal of Marine and Coastal Law 24 (2009): pp. 221–80, p. 228.
110 UN Secretary-General, ‘Oceans and the Law of the Sea: Report of the Secretary-General’, UN Doc. A/60/63/Add.1 (2005), para. 202. This approach is not accepted by all scholars. See, e.g. D Leary, International Law and the Genetic Resources of the Deep Sea (Leiden: Martinus Nijhoff, 2007): p. 157.
111 See Ane Jørem and Morten Walløe Tvedlt, ‘Bioprospecting in the High Seas: Existing Rights and Obligations in View of a New Legal Regime for Marine Areas Beyond National Jurisdiction’ International Journal of Marine and Coastal Law 29 (2014): pp. 321–43, pp. 327–9, concluding that commercially oriented research is included in marine scientific research; compare Paul Gragl, ‘Marine Scientific Research’ in Malgosia Fitzmaurice and Norman A Martínez Gutiérrez (eds), The IMLI Manual on International Maritime Law: Volume I Law of the Sea (Oxford: Oxford University Press, 2014): pp. 396–429, p. 402 and Alfred HA Soons, Marine Scientific Research and the Law of the Sea (The Hague: TMC Asser Instituut/Kluwer, 1982): p. 125, arguing that data collection concerning resources with a view to the exploitation of the resource is not included in marine scientific research.
113 Study of the Relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with Regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1 (22 February 2003), para. 39.
114 See Report of the Secretary General on Oceans and the Law of the Sea A/60/63/Add.1 (2005), para. 202; Salvatore Arico and Charlotte Salpin, ‘Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects’ (UNU-IAS 2005) 34 http://moderncms.ecosystemmarketplace.com/repository/moderncms_documents/DeepSeabed.pdf.
116 Article 246, LOSC; T Scovazzi, ‘Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-bed Authority’ International Journal of Marine and Coastal Law 19 (2004): pp. 383–409, p. 403. See also CH Allen, ‘Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource Conservation and Management’ Georgetown International Environmental Law Review 13 (2001): pp. 563–660, p. 644.
119 Harlan Cohen, ‘Some Reflections on Bioprospecting in the Polar Regions’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Leiden: Martinus Nijhoff, 2010): pp 339–52, p. 342.
120 Cohen, ‘Some Reflections on Bioprospecting in the Polar Regions’, p. 342; Christian Prip et al., The Australian ABS Framework: A Model Case for Bioprospecting? (Oslo: Fridtjof Nansens Institute, 2014).
125 Robin Warner, ‘Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Regulation Beyond National Jurisdiction’ Ocean Yearbook 22 (2008): pp. 411–43, p. 416.
135 EC Kamau, B Fedder and G Winter, ‘The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider and User Countries and the Scientific Community?’ Law, Environment and Development Journal 6 (2010): pp. 246–62.
137 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (opened for signature 2 February 2011, entered into force 12 October 2014) www.cbd.int/abs/text (Nagoya Protocol).
138 Article 6, CBD. See Warner, ‘Protecting the Diversity of the Depths’, p. 425.
146 Fedder, Marine Genetic Resources, p. 59; DK Anton, ‘Law for the Sea’s Biological Diversity’ Columbia Journal of Transnational Law 36 (1998): pp. 341–71, p. 357. Not all authors agree. See A Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ International and Comparative Law Quarterly 54 (2005): pp. 563–84, p. 579.
147 Rüdiger Wolfrum and Nele Matz, ‘The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity’ Max Planck Yearbook of United Nations Law 4 (2000): pp. 445–80, p. 464.
148 Caroline von Kries and Gerd Winter, ‘Harmonizing ABS Conditions for Research and Development under UNCLOS and CBD/NP’ in Evanson Chege Kamau, Gerd Winter and Peter-Tobias Stoll (eds), Research and Development on Genetic Resources: Public Domain Approaches in Implementing the Nagoya Protocol (Routledge, 2015): pp. 75–90.
152 Ibid., p. 58.
153 Article 246(5), LOSC. For further discussion about the operation of article 246, see ch 6.
155 For the development and definition of sedentary species, see ch 3.
157 See ch 2 for a description of the environmental impacts of bottom fishing.
158 Daniel Owen, The Powers of the OSPAR Commission and Coastal State Parties to the OSPAR Convention to Manage Marine Protected Areas on the Seabed beyond 200 nm from the Baseline, Report for WWF Germany (2006): p. 41.
159 See ch 10.