Maritime Law

[Name of the Institute]

Maritime Law

Introduction

Knowledge of the genetic resources of the seabed beyond national jurisdiction was almost non-existent during the negotiations in the 1970s for the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Hence that convention lacks any specific provision on the exploration and exploitation of these resources. During the 1980s and 1990s, important scientific projects were carried out in the Pacific and the Atlantic Oceans. They resulted in the discovery of new living organisms, particularly around certain hydrothermal vents. Some of these organisms depend for their survival on warm water produced by hydrothermal vents and bacteria existing there at depths of up to 4000 metres. Their unique features, and particularly their ability to survive in extreme cold or heat, have prompted speculations about their enormous importance for science, great economic value and immense potential in pharmaceutical and biological sectors. The general understanding is that, compared to deep-seabed mineral resources, these genetic resources are of immediate economic interest, and their exploitation is technically and financially more viable.

The 1997 CEDE report outlined some of the main legal aspects of the management of these new resources. One such aspect was the legal status of the said organisms. They live under the seabed, are in frequent contact with the seabed and at times float in the water column. UNCLOS has differing regimes for living resources in the water and those considered to be sedentary. The same applies to the bacteria that are vital to life-support systems and reside in the columns thrown up from the seabed. They can also be regarded as part of the seabed or as organisms in the water column.3 The 1997 report considered the legal status of these genetic resources, bacteria and their habitats to be unclear. One concern expressed at that time was that, if patent issuance for such resources was uncoordinated among countries, it might jeopardise their rational and sustainable use and limit the possibility of access by other countries for marine scientific research purposes.

It is demonstrated that the expansion that until then had masked these collapses was southward (from northern temperate and boreal fishing grounds toward subtropical and tropical areas and onto the Southern Hemisphere), into deeper waters, and toward species previously not exploited and generally lower in the food webs, this last process being known as “fishing down marine food webs.”

We examine these trends in some detail for shelves, where most of the world catches are taken, “transition areas” (fronts, upwellings, seamounts), and oceanic waters, each characterized by a different productivity regime, determined mainly by the mechanism that lifts deep, nutrient-rich waters into the illuminated surface layers. Overcoming these trends will involve a rethinking of the resource allocation that is underlying current exploitation patterns, which presently treat the fishing industry as quasiowner of marine resources that are, in reality, public property. Other allocation issues involve the relationship between small-scale and large-scale fisheries and the wisdom of subsidizing fisheries.

To fully understand the scale of these problems, however, ...