USING A NETWORK OF MARINE PROTECTED AREAS AND THE EXAMPLE OF THE OSPAR CONVENTION AS A POTENTIAL MECHANISM FOR REGULATING BIOPROSPECTING AT HYDROTHERMAL VENTS IN AREAS BEYOND NATIONAL JURISDICTION
I INTRODUCTION
The oceans cover approximately 70 per cent of the Earth’s surface and are now believed to be the home of more than 90 percent of our entire planet’s biosphere. The oceans regulate global temperatures, provide food and oxygen and support the livelihood of hundreds of millions of people. Although the oceans have been, and continue to be readily exploited by humans, for centuries, the ocean depths were unchartered territory, considered lifeless and uninhabited. It has not been until the last few decades that scientists have discovered that the deep-sea abyss is abundant with life and home to a major part of Earth’s biodiversity.

Until recently, there had been no reason for international lawyers, policy makers and nation states to concern themselves with the deep sea. However, as technology develops, previously unknown oceanic areas and biological species continue to be discovered. For example, scientific exploration has lead to the discovery of extremophiles – microorganisms which have developed unique biological and physiological properties to survive in extreme environmental conditions. These extremophiles can be found in habitats in the deep seas including hydrothermal vents, deep-sea sediments, methane seeps and seamounts and are believed to hold significant biotechnological potential.

Although little is known about the environmental impact of scientific exploration in the deep sea, it has been documented that the exploitation of natural resources such as hydrocarbons and minerals, along with the laying of pipelines and cables has damaged vulnerable ecosystems. Pollution resulting from the ever increasing industrialisation and globalisation of world trade has put further stress on the world’s oceans. It is believed that this pollution risks the accelerated extinction of marine species, including those found in habitats in the deep sea. With respect to deep sea habitats, where often little is known about the specific features and functioning of those ecosystems, it is particularly important to safeguard against irreversible biodiversity loss, not only to protect those species and resources currently known to mankind, but also to protect the yet to be discovered resources that may exist. International lawyers, policy makers and Sovereign Nations face new challenges in relation to their obligation to conserve and ensure the sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ).

This paper focuses on the legal principals governing human activities in ABNJ and examines the Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention) as an example of a coordinated and collaborative regional approach to conservation and sustainable use of marine areas in the ABNJ. The paper begins by briefly introducing the geographical nature of the hydrothermal vent ecosystem and goes on to explore the definition of bioprospecting and the current legal framework that governs bioprospecting in the ABNJ. The paper then examines key legal and policy considerations relating to marine protected areas (MPAs) and explores the efforts of the OSPAR Convention with respect to developing a global framework for the regulation of human activity, including bioprospecting, in marine areas including hydrothermal vents in ABNJ. Ultimately, the paper concludes that a coordinated and coherent application of the OSPAR approach in other regions will ensure the conservation and sustainable use of the world’s oceans albeit acknowledging the inherent difficulties with establishing and implementing a global legal and policy framework.

II WHAT ARE HYDROTHERMAL VENTS?
Hydrothermal vents typically form along mid-ocean ridges as a result of the interaction between cold seawater and heat-laden magma chambers found just below the Earth’s crust. As tectonic plate movement occurs, cold seawater enters through cracked and fissured upper portions on the sea floor and heat transfers from the magma to the water. Due to the extreme pressure on the deep sea ocean floor and the extreme heat of the magma, the water that circulates through the magma and re-enters the ocean can reach temperatures as high as 350oC, bringing with it mineral substances found under the Earth’s surface. Hydrothermal vents are therefore characterised by extreme high pressure due to the depth at which they are located, by extreme high temperatures and pH values, and by extreme salinity and toxicity due to the minerals that escape from the Earth’s crust.

Hydrothermal vents exhibit a unique range of habitat diversity, including extremophiles so adapted to their particular habitats that they exhibit characteristics unparalleled anywhere else on the planet. Hydrothermal vents support amazingly diverse and rich ecosystems with high levels of biodiversity and endemism. Approximately 80 to 90 percent of species found at hydrothermal vents are endemic and are a completely new discovery in science. These species are characterised by their tolerance to extreme conditions and their unique adaptive physiology that allows them to survive in a hydrothermal vent ecosystem. It is these characteristics that are of particular interest to the scientific and commercial industries and, whilst the full extent of interest in these extremophiles has not yet been quantified, there is a substantial body of evidence showing strong interest in the commercialisation and industrial use of these species.

A number of biotechnology companies are currently actively involved in product development and/or collaboration with research institutions in relation to extremophiles extracted from hydrothermal vents. Although beyond the scope of this dissertation, some examples of scientific and commercial use of extremophiles found at a hydrothermal vents include the product Vent R® DNA Polymerase, developed by New England Biolabs Inc for molecular biology research; and Diversa Corporation’s Pyrolase® cellulose, an enzyme employed in industrial applications involving high pH levels and high temperatures.

Sampling from hydrothermal vents is largely isolated to scientific research institutions such as the the Japan Agency for Marine Earth Science and Technology, Australia’s Commonwealth Scientific Industrial and Research Organisation, Institut Français de Recherche, the Korean Ocean Research and Development Institute, the Woods Hole Oceanographic Institute, and the New Zealand Institute of Geological and Nuclear Sciences, to name a few. Although biotechnology companies generally gain access to samples gathered at hydrothermal vents through research collaborations or national culture collections where research samples are deposited, biotechnology companies have and will continue to mount private expeditions. Given increased likelihood of bioprospecting and the fact that the lines are often blurred between pure scientific research and applied scientific research, the potential for irreversible damage to the biodiversity found at hydrothermal vents is ever increasing.

III WHAT IS BIOPROSPECTING?
Although there is no universally accepted legal definition of bioprospecting, it is generally known to be commercial in nature, an undertaking in applied research. Bioprospecting essentially consists of sourcing, gathering and analysing organisms from the natural environment with the purpose of extracting compounds for further investigation in an attempt to identify potentially marketable products for use in therapeutic or industrial applications. On the other hand ‘pure scientific research’ is considered research undertaken for non-commercial purposes, a pursuit for scientific knowledge for the benefit of all mankind, as opposed to the exploration and exploitation of natural resources.

Given the enormous cost and expertise required to conduct research at hydrothermal vents in the High Seas, partnerships between research institutions and private companies are often formed to make such expeditions viable. Even in situations where research institutions undertake expeditions to hydrothermal vents independent of any private partnership, often the samples are then made available to private companies to recoup costs associated with research. Given the practicalities of such expeditions, it is often difficult to differentiate between bioprospecting and pure scientific research, which can be critical in determining the legal status applicable to the expeditions and the resources extracted from hydrothermal vents.

Notwithstanding the absence of a definition of bioprospecting in both the Convention of Biological Diversity (CBD) and the United Nations Convention on the Law of the Sea (UNCLOS), there are a number of instances where bioprospecting is noted and defined. For example, the CBD Secretariat defined bioprospecting as “the exploration of biodiversity for commercially valuable genetic and biochemical resources” and further as “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products.” Further, several domestic laws go some way in providing clarity as to the definition of bioprospecting, ranging from restrictive definitions limited to the search for resources to broader definitions encompassing collection and application of the resources extracted through bioprospecting. The UNU-IAS Report summarises these domestic approaches and notes that under New Zealand’s Biodiversity Strategy, bioprospecting is “the search among biological organisms for commercially valuable compounds, substances or genetic material.” Within the context of the European Community, bioprospecting “entails the search for economically valuable genetic and biochemical resources from nature.” The South African Biodiversity Act 2004 defines bioprospecting as “any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application (...).” The 2001 Philippines’ Wildlife Resources Conservation and Protection Act defines bioprospecting as the “research, collection and utilization of biological and genetic resources for purposes of applying the knowledge derived there from solely for commercial purposes.” Fiji’s draft Sustainable Development Bill refers to bioprospecting as “any activity undertaken to harvest or exploit biological resources for commercial purposes... [including] investigative research and sampling.”

Notwithstanding the absence of a clear definition of bioprospecting in either of the two major international treaties relevant to hydrothermal vents in ABNJ, empirically it is now an accepted purpose for which the High Seas may be utilised and the trend towards growth in activities of applied scientific research is clear and will only continue to grow, increasing the need for a mechanism of regulation.

IV CURRENT LEGAL STATUS OF BIOPROSPECTING AT HYDROTHERMAL VENTS IN AREAS BEYOND NATIONAL JURISDICTION
There are two fundamental components of international law of the sea that are particularly relevant when considering conservation and sustainable use of marine biodiversity found at hydrothermal vents in ABNJ. The first is the legal regime that governs the High Seas and the second is the principle of common heritage of mankind.

UNCLOS and the High Seas

UNCLOS provides for an area-based legal regime to govern the world’s oceans. There are a number of maritime zones that are defined under UNCLOS which delineate a States’ access and use of the seas and the resources contained therein. For the purposes of this paper the most significant zones are the 12 nautical mile territorial sea, the 200 nautical mile Exclusive Economic Zone (EEZ), the Continental Shelf, the High Seas and that portion of the sea-bed beyond national jurisdiction on the High Seas commonly known as the Area.

Coastal states exercise sovereignty over their territorial sea and can regulate all access to and any exploitation of all resources contained in the territorial sea and seabed within that zone. Coastal states also exercise sovereign rights and sole jurisdiction within the EEZ which includes exploring, exploiting, conserving, managing, researching and enforcing its custom and immigration laws. As such, coastal States have the right under UNCLOS to regulate activities including bioprospecting at hydrothermal vents within their EEZ and territorial sea. The area of water beyond the EEZ (or the territorial sea where no state claims an EEZ) is known as the ‘High Seas’. Article 86 of UNCLOS refers to this area as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”.

The basic premise that underpins the legal regime of the High Seas is freedom. All states, under certain conditions inferred by Art. 87 paragraph 2 of UNCLOS, enjoy the freedom of navigation, use and access of the airspace above the high seas, the laying of submarine cables and pipelines, fishing and marine scientific research (MSR). The freedom of the High Seas is an important international norm but must be balanced with other collective interests, such as the protection of the marine environment and the sustainable use of marine resources as they concern the international community as a whole. Accordingly, despite the principal of freedom of the High Seas, under Art 87 paragraph 2 of UNCLOS, a State cannot rely on its right to engage in specific marine activities without providing further justification to the International Seabed Authority (ISA) and without considering the interests of other concerned States.

UNCLOS and the concept of Common Heritage of Mankind

The concept of the common heritage of mankind was introduced by the representative of Malta, Mr. Arvid Pardo, in his speech to the United Nations General Assembly (UNGA) on 1 November 1967. The context in which Mr Pardo’s speech was made was a situation where the imminent commercial exploitation of polymetallic nodules lying on the surface of the deep sea may have resulted in significant political tension, economic injustice and risk of pollution. Whether States applied the scheme of sovereignty in an attempt to extend the accepted limits of national jurisdiction, or whether they relied of the freedom of the High Seas to exploit the valuable minerals found therein, the consequences of both possible scenarios would have been equally undesirable.

The five elements of the regime of common heritage of mankind are the prohibition of national appropriation; use of the High Seas only for peaceful purposes; any use and exploitation of the resources are to be for the benefit of mankind as a whole (with particular consideration to developing countries); the protection and preservation of the marine environment; and the establishment of an international organisation with a mandate to act in the interests of mankind in the exercise of rights over the resources found in the High Seas. Mr Pardo’s speech and the accompanying proposal made by Malta lead to Resolution 2749 (XXV) adopted on 17 December 1970.

These concepts were subsequently codified and are now found in Part XI of UNCLOS. Pursuant to Article 136 of UNCLOS, the Area and the resources found therein have been declared the common heritage of mankind. Further, under Article 137 of UNCLOS, any and all claims or attempts to claim sovereignty or exercise sovereign rights over any part of the Area or any of the resources found therein are expressly prohibited. Article 156 created the ISA charging it with the responsibility of regulating activities associated with deep-sea mining in the Area.

The ISA and bioprospecting at hydrothermal vents beyond national jurisdiction

The ISA was established to ensure that any benefits from activities associated with deep-sea mining in the Area are shared equitably with particular consideration of the interests and needs of developing countries. Article 157(1) of UNCLOS provides a clear mandate that the ISA is the organisation through which States shall ‘organise and control activities in the Area, with a view to administering the resources of the Area’. The ISA also has the responsibility of ensuring that effective measures are in place for the protection of the marine environment. However the expression ‘activities in the Area’ used so liberally throughout Part XI of UNCLOS is defined in Part I Article 1(3) to mean ‘all activities of exploration and exploitation of the resources in the Area’. Further, the term ‘resources’ is defined under Article 133(a) of UNCLOS as ‘all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed’. Accordingly, the ISA’s mandate relating to the regulation of activities of the Area is limited to mineral resources and arguably does not cover bioprospecting. Ambiguity with respect to bioprospecting in the High Seas is further magnified by the recognition that all state parties and scientific institutions have the right to conduct MSR. In fact, Article 87(1)(f) of UNCLOS expressly recognises States Parties rights to carry out MSR as a freedom of the High Seas and Article 256 further enshrines this right with respect to the water column beyond the limits of each respective States’ EEZ. Article 257 goes on to provide that all States and competent international organisations have the right to conduct MSR in the Area, provided that such research meets the obligations created under Part XI of UNCLOS. Under Article 143(2) the ISA is also entitled to conduct its own MSR in the Area and may enter into commercial contracts for the exploitation of resources.

Under the ISA mandate, research involving prospecting for and exploration of mineral resources (as opposed to pure scientific research) are subject to approval and control by the ISA, as such activities clearly fall within the broad definition of ‘activities in the area’. However the authority given to the ISA does not extend to bioprospecting, that is, to activities involving commercial pursuits beyond ‘resources’ as defined under Article 133(a) of UNCLOS. As stated earlier, given the multi-purpose expeditions often undertaken which include not only research in relation to mineral deposits, but also biological research, it would seem that some research can be regulated by the ISA and others would not be covered under the ISA’s mandate. Accordingly, Part XI of UNCLOS fails to provide the ISA with the mandate to regulate bioprospecting but does recognise states and national institutions’ right to carry our MSR, further complicating the legal status of bioprospecting particularly given the ambiguity with respect to the definition as it relates to MSR.

The CBD and bioprospecting at hydrothermal vents beyond national jurisdiction

In reviewing the current legal status of bioprospecting at hydrothermal vents in ABNJ, the provisions contained in UNCLOS must be read in conjunction with the CBD. The CBD has three main objectives, which are the conservation of biological diversity, the sustainable use of its components and the fair and equitable distribution of the benefits arising out of the utilisation of genetic resources. The CBD as a framework treaty establishes general obligations and policies aimed at implementing its three main objectives without the structure for technical and financial cooperation between states. The CBD does however expressly mandate the establishment of marine protected areas (MPAs) and recognises that the conservation of biological diversity is a common concern of mankind. Notwithstanding, since the provisions of the CBD do not directly apply to biological diversity in ABNJ, the responsibility of achieving its goals is left to individual State parties. Article 3 of the CBD recognises the sovereign right of each State party to exploit their own resources pursuant to their respective environmental policies and also notes the responsibility to ensure activities within the jurisdiction or control do not cause damage to the environment of other states and to that of ABNJ. The express limitations contained under Article 4 of the CBD further restrict the obligation of state parties to inland waters, territorial seas, contiguous zone within the EEZ and parts of the continental shelf. Accordingly, whilst the provisions of the CBD do not directly apply to biological diversity in ABNJ they do apply to states parties nationals, processes and activities carried out under a state’s jurisdiction or control in ABNJ. Although ‘protected areas’ fall within the ambit of the CBD under the existing provisions, a collaborative framework managing access to and use of the genetic resources of the oceans and the deep-sea in ABNJ does not exist.

V MARINE PROTECTED AREAS IN AREAS BEYOND NATIONAL JURISDICTION
Historical Development and Concept of an MPA

An MPA is a term commonly used to describe an area of water that is delimited within precise boundaries which enjoys a higher degree of protection than in the surrounding area because of its significance for ecological, biological, scientific and cultural importance. Approximately 5,800 MPAs exist covering over 4.2 million kilometres or less than 1.5% of the world’s oceans. The vast majority of MPAs are located along coasts and within national jurisdictions whilst less than 0.5% cover ABNJ. The broad concept of an MPA is not materially different from the definition of a “protected area” provided under Art. 2 of the CBD which defines a protected area as a “geographically defined area which is designated or regulated and managed to achieve specific conservation objectives”. The establishment of an MPA is intended to protect, conserve and restore species, habitats and ecological processes that are adversely affected by human activities and to prevent degradation by following the precautionary principle.

International cooperation for the protection and preservation of the marine environment has proliferated in recent decades with the establishment of MPAs on the political agenda since the 1990s. In fact the international community at the 1992 Rio Summit adopted Chapter 17 of Agenda 21 and committed itself to establishing a representative network of marine protected areas. Albeit focused on management of fisheries, the mandate to identify and protect by way of designated protected areas, marine ecosystems exhibiting high levels of biodiversity and other critical habitats was clear. That is, all States are under an obligation to protect and preserve the marine environment under Art. 192 of UNCLOS and customary international law. This obligation applies to all areas of the world’s oceans including to those in ABNJ. An important means to comply with the general obligations under customary international law and UNCLOS is by way of the area-based management tool of MPAs. Art. 194 of UNCLOS states that measures taken to protect and preserve the marine environment “shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”.

Legal basis for MPAs in ABNJ

The debate with respect to MPAs has largely taken place within the framework of the UNGA with particular consideration of the provisions of the CBD. There are a number of decisions by the Conference of the Parties (COP) to the CBD that address MPAs in ABNJ. These decisions recognise UNCLOS as the primary, relevant legal framework upon which the establishment of MPAs in the High Seas should be considered. At the ninth COP to the CBD held in May 2008, the COP adopted scientific criteria for identifying areas in need of protection in open-ocean waters and deep-sea habitats. This included scientific guidance for designing networks of MPAs. The COP also agreed to convene an expert workshop that would provide further information and guidance to signatory states of the CBD and the UNGA in identifying important areas that need protection in ABNJ as well as the use and further development of biogeographic classification systems.

The UNGA has also considered the issue of MPAs in ABNJ in its recent resolutions on oceans and the law of the sea, particularly Resolution A/RES/63/111 of December 2008. At paragraph 134 of that resolution the UNGA called for the ‘the need for States to continue and intensify their efforts, directly and through competent international organizations, to develop and facilitate the use of diverse approaches and tools for conserving and managing vulnerable marine ecosystems, including the possible establishment of marine protected areas, consistent with international law, as reflected in the Convention, and based on the best scientific information available, and the development of representative networks of any such marine protected areas by 2012.’ That is, the UNGA specifically recognised that the protection of the marine environment in ABNJ requires the involvement of all relevant global and regional bodies and that existing treaties and other relevant instruments can be used consistently with international law, in particular with the UNCLOS.

Despite the call for the establishment of MPAs in ABNJ to be consistent with existing international law, including UNCLOS, there has not been any detailed consideration by the UNGA as to a general legal framework agreement relevant to MPAs in ABNJ. This debate has predominantly taken place in the Ad Hoc Open-ended Informal Working Group (AHOIWG) established in 2004 by UNGA Resolution 59/24. The AHOIWG’s mandate is to study issues relating to the conservation and sustainable use of marine biological diversity in ABNJ and the implications of UNCLOS and international law generally. The fifth meeting of the AHOIWG took place from 7 to 11 May 2012 in New York, in accordance with General Assembly resolution 66/231 of 24 December 2011, paragraph 168. The AHOIWG has not made any significant progress relating to the establishment of a general legal framework for MPAs in ABNJ much beyond the broad notions contained in the UNGA Resolutions. A number of suggested avenues to the management of MPAs in ABNJ have been advanced by delegations at the meetings of the Working Group which broadly fall within two approaches: firstly, multi-purpose MPAs as a key tool to manage biodiversity beyond national jurisdiction; and secondly using the framework of existing regulatory regimes. The first approach would require an implementing agreement under UNLCOS that would, among other specific resolutions, include a completely new regime that would govern the establishment and management of MPAs in ABNJ. The second approach focuses on the mandate of existing bodies such as the International Maritime Organisation (IMO), the Authority created by the ISA, the CBD and other regional conventions such as the OSPAR Convention as a means to govern the establishment and management of MPAs in ABNJ. It has been recognised that despite which approach is considered suitable to manage MPAs in ABNJ, there are fundamental differences between the various regions in the Area and that any area-based management tool implemented would need to appreciate those regional differences and that a case-by-case basis would be the only appropriate way forward. In line with the above mentioned approaches, delegations in the AHOIWG discussed the possibility of either the UNGA playing a leading role in the coordination between the various relevant bodies dealing with MPAs in ABNJ, or existing regional bodies [such as the OSPAR Commission] considering issues of designation, development, monitoring and enforcement of applicable measures and management objectives. The following sections of this paper focus on the second approach.

VI THE OSPAR CONVENTION
The OSPAR Convention is a significant advancement towards the establishment of MPAs that can be used to regulate bioprospecting at hydrothermal vents in ABNJ. The maritime areas falling under the scope of the OSPAR Convention are defined as those parts of the Atlantic Ocean which lie north of the 36° north latitude and between 42° west longitude and 51° east longitude (from the Strait of Gibraltar in the south, to the North Pole in the north, to Greenland in the west) and also include the high seas beyond the EEZ which account for about 40% of the OSPAR Convention area (OSPAR Maritime Area). The Lucky Strike, Menez Gwen and Rainbow hydrothermal vents are all within the OSPAR Maritime Area although they are all now considered within the jurisdiction of individual states.

The OSPAR Convention has 16 contracting parties including all the coastal states in the North-East Atlantic, the European Community and three land-locked states located upstream on watercourses reaching the OSPAR Maritime Area. Although beyond the scope of this dissertation, it is worth noting that several contracting parties to the OSPAR Convention have filed submissions to the UN Commission on the Limits of the Continental Shelf under UNCLOS with respect to the outer limits of their continental shelf leading to a significant reduction in the percentage of ABNJ to which the OSPAR Convention applies.

In any case, the OSPAR Convention provides for a regional approach to preventing and eliminating pollution in the North-East Atlantic Sea and is implemented through a hierarchy of decisions, recommendations and other associated agreements. It provides a set of rules and principles that are detailed in five Annexures and three accompanying Appendices and overall operates under the ‘ecosystem approach’ to an integrated management of human activities in the OSPAR Maritime Area. This approach is further supported by the general obligation of contracting parties to apply the precautionary approach, the polluter pays principle, the best available techniques and best environmental practice approaches. These principles are made operational by strategies designed to address the main threats of eutrophication, hazardous substances, offshore industry and radioactive substances to biodiversity and ecosystems in the OSPAR Maritime Area.

Annex 5 to the OSPAR Convention on the Protection and Conservation of the Ecosystems and Biological Diversity in the Maritime Area calls on the contracting parties to take necessary steps to protect and conserve the ecosystems and biodiversity in the maritime areas against any adverse effects of all human activities and to restore marine areas that have been adversely affected. Art. 3, para 1(b)(ii) imposes the obligation on the OSPAR Commission to “develop means, consistent with international law, for instituting protective, conservation, restorative or precautionary measures related to specific areas or sites related to specific species or habitats”. The spirit of cooperation built into the decisions and recommendations of the OSPAR Commission along with the need for consistency with international law, the broad mandate of the OSPAR Convention covering all human activities and the spatial overlaps with other international legal instruments inherent in the OSPAR Maritime Area, makes the OSPAR Convention conducive to an integrated, cross-sectoral ecosystem-based ocean management system. Unlike the general principles outlined under UNCLOS and the CBD outlined earlier, the operational decisions and recommendations of the OSPAR Commission call for the involvement of third party states and competent international organisations with a view to promoting the delivery of the conservation principles and objectives found in the OSPAR Convention. For example, under Annex V Art.4, where the OSPAR Commission considers particular action required within the OSPAR Maritime Area with respect to fisheries management, the Commission shall bring those issues to the attention of relevant competent authorities such as the North-East Atlantic Fisheries Commission (NEAFC). Further, in the case of maritime transport, contracting parties to the OSPAR Commission under Annex V Art.4.2 shall endeavour to cooperate with the International Maritime Organisation (IMO) to achieve an appropriate response. The ISA, in dispensing its authority and mandate under the CBD, has also maintained a dialogue with the OSPAR Commission since 2008, illustrating the intention of the OSPAR Commission to include other international agreements and competent organisations in its deliberations. The cooperative arrangements between competent international authorities on the management of the OSPAR Marine Area, particularly with respect to MPAs in ABNJ, are discussed below.

The OSPAR Convention and MPAs in ABNJ

The contracting parties to the OSPAR Convention adopted OSPAR Recommendation 2003/3 at the OSPAR Ministerial Meeting in 2003 where it was agreed to establish a network of ecologically coherent and well-managed marine protected areas. The aims of the OSPAR MPA Network agreed to by the Contracting Parties were to protect, conserve and restore species, habitats and ecological processes which have been adversely affected by human activities; to prevent degradation of, and damage to, species, habitats and ecological processes, following the precautionary principle; and to protect and conserve areas that best represent the range of species, habitats and ecological processes in the maritime area. At that same meeting, the OSPAR Commission also adopted the Guidelines of the Identification and Selection and the Guidelines for the Management of MPAs in the OSPAR Maritime Area (the Guidelines). In 2010, Recommendation 2003/3 was amended by Recommendation 2010/2 specifically noting further efforts of establishing MPAs in the North-East Atlantic, in particular through inclusion of areas in deeper water. A clear mandate was adopted requiring contracting parties to the OSPAR Convention to a) contribute to the assessment (under the above mentioned guidelines); and b) put forward proposals for the establishment of OSPAR MPAs in ABNJ. To that end, the contracting parties established six MPAs in the OSPAR Maritime Area in ABNJ in 2010 along with recommendations on the management of each of the six MPAs guided by Art. 2 of the OSPAR Convention. It is also worth noting that proposals for MPA sites in ABNJ can also be made by observers i.e. non-contracting parties but the support of at least one Contracting Party is required before the proposal is considered by the OSPAR Commission. For example, WWF has presented proposals for MPAs in ABNJ since the turn of this century which were designed to illustrate various relevant MPA selection criteria thought important, such as the uniqueness of the marine area, the area’s importance for threatened habitats and species and its vulnerability to human intervention. Two formal proposals for MPAs in ABNJ made by WWF are discussed below.

The Rainbow Hydrothermal Vent and OSPAR

The formal nomination by WWF in March 2005 of the MPA of the Rainbow Vent Field (RVF) to the OSPAR Commission is of particular note. At that time, it was assumed that the RVF was in an ABNJ and presented to the OSPAR Commission as the first proposal of a potential pilot MPA in the OSPAR Maritime Area in ABNJ. WWF’s proposal was expected to initiate the creation of a network of OSPAR MPAs in ABNJ and be used as a good example of regional cooperation. The establishment of the RVF MPA was intended to achieve a set of key objectives, including preserving the unique and vulnerable ecosystem of the Rainbow vent field; monitoring the state of the ecosystem; ensuring the coordinated conduct and long-term sustainable scientific research, including bioprospecting; following the precautionary principle, preventing unsustainable damage caused by other human activities; and ensuring that the increasing scientific knowledge contributes to public education. Coincidentally in the same year that WWF made its formal nomination, the Task Group for the Extension of the Portuguese Continental Shelf was created in Portugal with the view of re-mapping the boundaries of its extended continental shelf to include an area in which the RVF was located. Although the UN Commission for the Limits of the Continental Shelves (UNCLCS) had not made its final determination with respect to Portugal’s claim to extend its continental shelf, the Portuguese Government formally announced RVF as being subject to its jurisdiction based on overwhelming scientific evidence that ‘the sea-bed of the natural submerged prolongation of the landmasses of the Archipelago of Azores (approximately 35 miles beyond the outer limits of the Portugal’s EEZ) were within the juridical continental shelf generated by the Azores Islands.’ Although the recognition of Portugal’s jurisdiction over the RVF is limited to the OSPAR contracting parties until such time that the UNCLCS make their formal determination, Portugal effectively took responsibility of the RVF acknowledging its responsibilities under Article 192 of UNCLOS to the ‘precautionary approach’ and to the protection and preservation of the marine environment. Portugal, as a contracting party, then nominated RVF as an MPA to the OSPAR Commission in 2007 and it was subsequently unanimously accepted as a part of the OSPAR MPA network. The example of the RVF goes some way in providing a successful multi-lateral approach involving a competent international organisation and contracting parties, all with a view of promoting the delivery of the conservation principles and objectives under the OSPAR Convention.

Charlie Gibbs Fracture Zone and OSPAR

Charlie Gibbs Fracture Zone (CGFZ) was the last of five representative and ecologically significant proposals made by WWF to OSPAR for an MPA in an ABNJ. WWF’s proposal to the OSPAR Commission with regard to the CGFZ was intended to be a pilot to testing and developing a selection process and application of the OSPAR procedures involving international governance and management considerations in the OSPAR Maritime Area in ABNJ. The WWF proposal received strong political support from the Netherlands in 2007 and the support of Germany, France and Portugal followed in 2008. The CGFZ proposal passed all technical requirements as set by the OSPAR Commission and two further scientific analyses by the International Council for the Exploration of the Seas. During the 2008 OSPAR Commission meeting, the CGFZ was approved as a potential MPA in ABNJ as a component of the OSPAR network of MPAs.

The deliberations of the OSPAR Commission, from the first research expeditions into the CGFZ in 2004 through to the proposal made by WWF in 2006 and up until April 2009, presumed that the area in question would not be concerned with the extension of any coastal states’ continental shelf. In 2009 however, Iceland made a submission to the CLCS regarding the outer limits of the continental shelf beyond 200 nautical miles under Article 76 Annex II of UNCLOS, which would overlap the northern part of the WWF proposal for the CGFZ MPA. At the 2010 OSPAR Ministerial Meeting, a commitment was made to resolve any outstanding issues with respect to ABNJ regarding the northern area of the original WWF proposed CGFZ MPA. Given the structure and breadth of detail in the commitment made at the 2010 meeting, this ‘road map’ would not only be relevant in determining the CGFZ North MPA but could also be applied for other MPA proposals in the OSPAR Maritime Area. In any case, the road map required the involvement of other international competent organisations including, inter alia, NEAFC, IMO and the Authority of the ISA in order to ascertain any further relevant information regarding use of the CGFZ and any available measures of resolution under their respective mandates. As such, it was established that any further evaluation as to the suitability of CGFZ MPA under the OSPAR Convention would need to consider the responses to such a proposal by other competent organisations, particularly with respect to considerations such as the conservation objectives, protective management measures and monitoring requirements. Further, the OSPAR Meeting in 2011 initiated a process that would advance the consideration of designating an MPA in the CGFZ North area in a manner that would not undermine the sovereign rights of any coastal state. Ultimately, the scientific justification for the designation of the CGFZ North MPA was agreed by the Biodiversity Committee (BDC) in February 2012. On this basis, measures for the establishment and management of the CGFZ North MPA were forwarded to the OSPAR Commission in 2012 and at the annual general meeting the Contracting Parties collectively agreed upon OSPAR Decision 2012/1 for the designation of the CGFZ North MPA. The decision came into force on 14 January 2013. In resolving the matters relating to the CGFZ North MPA, significant advancements were made as a step towards a coordinated and successful approach to regulating hydrothermal vents in ABNJ. As the example of the CGFZ has shown, putting in practice the UNCLOS and UNGA resolutions for the cooperation and coordination between international parties has ensured a consistent approach to the management and protection of marine environments with respect to human activities including bioprospecting.

A coordinated approach between OSPAR and the ISA to regulate ABNJ

Further illustrating the collaborative approach to the establishment and management of the CGFZ MPA, the ISA, the OSPAR Commission and NEAFC were in consultation since 2008. The secretariats of the OSPAR Commission, the ISA and NEAFC agreed that the overlapping jurisdictions within the CGFZ and respective mandates of each organisation called for a collaborative approach to the issues discussed above relating to the designation and management of MPAs within the OSPAR Maritime Area. The consultation between the three organisations considered a) the rights and obligations of States under Part XI of UNCLOS; b) the rights and obligations as set out in each respective mandate; c) jurisdiction of the ISA; and d) the jurisdiction of the NEAFC with respect to fisheries management. In fact, during the deliberations of the CGFZ MPA, all three organisations provided information to each other with respect to issues pertaining to the relevant mandate of the respective organisation. For example, the OSPAR Commission provided information to both the ISA and NEAFC with regard to the rationale behind the designation of the CGFZ MPA and, similarly, the ISA provided information to the OSPAR Commission on the rules, regulations and procedures regarding bioprospecting and mineral exploration in ABNJ within the OSPAR Maritime Area to the OSPAR Working Group on MPAs, Species and Habitats at a meeting in Spain in October 2008 and during a seminar in France in December 2008, which related to the implementation of the European Union Marine Strategy Framework Directive in ABNJ.

As a further step towards cooperation and acknowledgement of overlapping jurisdictions, during its deliberations with regard the CGFZ MPA as discussed above, the OSPAR Commission acknowledged the mandate of the ISA as the only appropriate organisation to regulate deep seabed mining. Further, it was agreed by the OSPAR Convention Contracting Parties that a memorandum of understanding between the OSPAR Commission and the ISA would be an appropriate means to ensure effective coordination measures are put in place with respect to the OSPAR Maritime Area along the same lines of the memorandum of understanding already entered into with the NEAFC in 2008. The Assembly of the ISA welcomed this approach at their fifteenth session in 2009 and requested that the Secretary General of the ISA pursue further dialogue with the Executive Secretary of the OSPAR Commission with a view to formalising this agreement. During the 125th meeting of the ISA on 27 April 2010, not only were the terms of the memorandum of understanding approved, it was agreed to give the OSPAR Commission observer status. Following this approval by the ISA, at the next meeting of the OSPAR Commission heads of delegation in September 2010, the same observer status was afforded to the ISA and the terms of the memorandum of understanding were approved. It is also worth noting that in addition to the formal dialogue between the ISA and the OSPAR Commission, several informal meetings and workshops took place relating to the environmental management plan in the Clarion-Clipperton Zone and on the management of other ABNJ within the OSPAR Maritime Area.

Collective arrangement of all competent authorities in the OSPAR Maritime Area

A draft collective arrangement (DCA) between all competent authorities in the OSPAR Maritime Area was raised in 2009 by the Contracting Partiers to the OSPAR Convention. At the OSPAR Commission meeting in Portugal in 2010, it was established that a move from a sectoral to an integrated ecosystem-based approach was necessary given the multi-jurisdictional nature of the OSPAR Maritime Area. To that end, a call for a collective agreement between all competent authorities including the OSPAR Commission, the ISA, NEAFC, IMO, FAO, NAMMCO, NATO, NASCO, and DOALAS outlining general and specific management measures relating to biodiversity conservation was required. The OSPAR Commission adopted the terms of the draft collective arrangement in 2011 and it was agreed to circulate the DCA to all other relevant competent authorities for their consideration and review. The DCA would apply to all of the six MPAs (at the time of drafting but also includes the CGFZ North MPA) within the OSPAR Maritime Area that were also designated closed to fisheries by the NEAFC and subject to other human related activity management regimes by other organisations with the mandate to protect and preserve the OSPAR MPA Network. The DCA represents a further step towards a coherent and cooperative management regime for the OSPAR Maritime Area particularly with respect to ABNJ and outlines the joint responsibilities for the conservation and management of the OSPAR Maritime Area. The terms of the DCA take into consideration the continuing efforts of competent organisations in the OSPAR Maritime Area and notes the memorandums of understanding between the OSPAR Commission, ISA and NEAFC and the value and vulnerability principles under the CBD of the biodiversity found in the OSPAR Maritime Area. It further details the means of cooperation between the organisations including the exchange of standardised data, the sharing of databases, scientific information and environmental assessment and monitoring data and by the regular review of the progress made in connection to management measures. The ISA Council was invited to note the terms of the DCA at their meeting in June 2012 in Jamaica and the Secretary-General of the ISA was requested to further pursue dialogue with the Executive Secretary of the OSPAR Commission with a view to implementing the DCA as a means for consistent and comprehensive protection of the marine environment in the OSPAR Maritime Area.

This recommendation was met with some hesitation, particularly from Mexico who’s position was supported by Argentina and Brazil. Mexico made a statement to the effect that the adoption of the DCA and more broadly continuing collaboration between the ISA and the OSPAR Commission in relation to ABNJ in the OSPAR Maritime Area would be premature and impractical. The Mexican representative maintained that such an approach would compromise all the members of the ISA, including those which were not members of OSPAR. The Mexican delegate further cited the Rio +20 Conference on Sustainable Development where a call was made to the AHOIWG on Marine Biodiversity beyond national jurisdiction to urgently address the issue of conservation and the sustainable use of marine biodiversity in ABNJ and to take a decision on the development of an international instrument on the issue along the lines of UNCLOS. It was suggested by Mexico that more time should be given to the members of the ISA to consider and analyse any decision with respect to the cooperation between the ISA and the OSPAR Commission, postponing its possible adoption to the nineteenth session. The approach by Mexico lends support towards a process of establishing a new implementation agreement under UNCLOS that would cover the issues of conservation and sustainable use of marine biological diversity in ABNJ that would apply to all States in all ABNJ. Although some support has been forthcoming from States in the context of UNCLOS, such as the agreement reached at the 1992 Rio Summit and the adoption of Chapter 17 Agenda 21, they have been largely ‘in-principle’ agreements without any operational details or governance frameworks which lack financial and political commitments on the part of supporting States.

VII ISSUES WITH MPAS IN ABNJ
Although the approach by the OSPAR Commission in the establishment and management of the OSPAR MPA Network detailed in the previous section has made some significant advancements in international cooperation regarding protection and conservation of the marine environment ABNJ, there remain some major gaps that may prevent a coherent approach to the protection and conservation of marine areas in ABNJ on an international level.

Broadly speaking, these include inadequate data collection in ABNJ; lack of a universally agreed process for the designation of MPAs in ABNJ; lack of coordination between competent international organisations despite the commitment to create a global, ecologically-coherent and representative network of MPAs; lack of financial resources to meet the commitment of the establishment of MPA networks; regulatory gaps with respect to conventions governing marine areas such as UNCLOS, ISA, CBD, and OSPAR; and the lack of an international organisation capable of ensuring compliance and enforcement of a universal governance framework for MPAs in ABNJ. Two of the critical issues that fall outside the remit of international legal and governance framework matters (of which have been discussed at length in the previous sections of this dissertation) are data collection and financial resources.

Data Collection

The collection and collation of relevant and accurate data underpins the establishment of MPAs and provides for scientific justification in the policy making process. The scale of information required in designating MPAs is immense and is often difficult to ascertain in the first instance given the remoteness of some areas particularly with respect to ABNJ. Even when scientific data is collected it is often considered inaccurate or inadequate as a means of categorically defining a particular area that is in need of implementing conservation measures. Further, there is a general lack of integration, coordination and knowledge sharing across competent international organisations with a mandate relating to ABNJ. In an attempt to enhance the scientific basis for policymaking in marine areas, the UNGA established the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-Economic Aspects (the Regular Process) in 2005. A critical evaluation of the existing scientific assessments is being undertaken as part of the start-up phase of the Regular Process in accordance with paragraph 64 (a) of UNGA resolution 58/240 and is scheduled to conclude in 2014. Further, the UNGA established the Ad Hoc Working Group of the Whole to establish a clear mandate for the Regular Process and in 2011 recommended a series of workshops to help improve the capacity of individual states to carry out scientific assessments of marine areas. While the first full cycle of the Regular Process is ongoing, the workshops continue to be held, the next scheduled for late February 2013 in Brisbane, Australia. Despite this positive advancement towards the collection and collation of scientific data, the Regular Process will produce another report and a summary of the current state of play for decision-makers for their consideration while the potential for haphazard and unfettered bioprospecting in ABNJ continues.

Financial Resources

Some States, such as Portugal, and conservation non-government organisations, such as WWF, have invested significant amounts of money in the establishment and maintenance of MPAs both in coastal waters super-adjacent to a continental shelf and in ABNJ. However there is a significantly large disparity in the availability of finances for the process of establishing an MPA, from the scientific research required to mount a case initially, to the designation of MPAs and the continued governance enforcement and management measures. Continued efforts by organisations such as WWF, the International Union for Conservation of Nature (IUCN) and the Global Environmental Facility (GEF) do provide some financial support to States with regard to the conservation and protection of marine environments.

For example in November 2011, the GEF Council approved US$50 million for four projects to address loss of marine biodiversity and the threatening of marine ecosystems in ABNJ. The GEF states that their program has leveraged US$270M in co-financing from public and private partners including the World Bank, the UNEP, the Tuna and Deep Sea Regional Fisheries Management Organizations, the US National Oceanic and Atmospheric Administration, the International Coalition of Fisheries Associations, the International Seafood Sustainability Foundation, the South Indian Ocean Fisheries Agreement, Birdlife International, Conservation International, the International Union for Conservation of Nature, WWF, and the Global Ocean Forum.

Also the World Conservation Congress, at its session in Jeju, Republic of Korea on 6–15 September 2012 called on “States, acting individually or through multilateral organisations, to promote consistent, coordinated and coherent application of the best conservation and governance principles and approaches, through actions to promote the ocean and high seas component in the international waters focal area of the Global Environment Facility to finance ocean and regional seas conservation actions and particularly the sustainable management of marine areas beyond national jurisdiction, with priority given to seamounts, submarine canyons and other vulnerable marine ecosystems, or ecologically or biologically significant areas.” Albeit a positive move, the financial commitments required to establish a network of MPAs as a mechanism for regulating bioprospecting at hydrothermal vents in ABNJ needs to be significantly greater than is currently available.

VIII CONCLUSION
The ground-breaking efforts of the OSPAR Commission illustrate a workable approach to the management of hydrothermal vents in ABNJ on a regional level that could be applied in a broader context. The OSPAR approach goes some way in providing a general framework that ensures consistency while respecting the mandate and competence of other global and regional legal regimes and administering bodies. The implementation of an OSPAR approach framework at a global level will inevitably involve coherent and complimentary regional approaches since it would be impossible to envisage an all-encompassing framework that will cover the inherently complex issues at a global level. Whether other regional frameworks can emulate the OSPAR approach will depend on a number of factors, one of which includes the socio-economic development and political integration and cooperation in a designated region. In any case, the competent way in which this regional instrument approaches the issues of protection and conservation of the marine environment with coordination of different international organisations is unprecedented. A holistic and complementary application of the OSPAR approach in other regions will ensure the conservation and sustainable use of the world’s oceans including the abundant genetic resources found at hydrothermal vents in ABNJ.

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