Category: Uncategorised

By Chetana Rukshani Karunatilaka and Cristian Heredia Ligorria, PhD Candidates at the UWE Bristol Law School.

On Wednesday, 7^th of February 2024, the Environmental Law and Sustainability Research Group (ELSRG) hosted a roundtable discussion on environmental crime. The event consisted of two sessions, with a total of five speakers covering various topics related to environmental crime in the UK and worldwide.

An experienced environmental Barrister, Brendon Moorhouse from 6 Pump Court Chambers (London) spoke about environmental crimes in the UK, specifically related to water. He discussed the challenges faced by the Office of Environmental Protection and the practical issues surrounding sewer outflows, including the differences between dry and rainy weather conditions. Moorhouse also explained the role and powers of the Water Services Regulatory Authority (Ofwat) and the Environment Agency, the primary water utility regulators in the UK. During his presentation, Mr. Moorhouse shared real-world examples of criminal prosecution and control by the Environment Agency, including permits, enforcement undertakings, and civil sanctions. He highlighted the difficulties in bringing evidence to prove environmental harm and explained the elements of prosecution, including proving unlawful water discharge or breaches of permit conditions. Additionally, he discussed cases of water pollution in tourist destinations like Cornish beaches.

Dominic Dyer, a Board Member of Wildlife & Countryside Link and Chair of Wildlife Crime Group, gave an insightful talk about the importance of addressing wildlife crime in Britain. He emphasized the need for the UK to lead the fight against illicit wildlife trade around the world. He pointed out that most wildlife crimes in England and Wales are not recorded centrally and criticized some of the outdated legislation for prosecuting wildlife criminals. Dyer discussed the significance of the Wildlife & Countryside Act 1981 as the primary legislation for safeguarding key species and biodiversity in the UK. He provided real-life examples of wildlife crimes in the UK, such as the persecution of badgers and raptors, along with issues related to fox hunting. Towards the end of his talk, he highlighted the interconnection between protecting wildlife and human lives. He called for better enforcement of existing laws rather than new legislation.

Following the presentation, the floor was open for discussion and comments. The chair for the session, Professor Jona Razzaque, led the discussion. A number of questions were raised by the participants and the panellists as well as other experts who attended the event contributed to the fruitful discussion on the crimes related to water sewer outflows and wildlife crimes in the UK.

The second session of the roundtable commenced with a presentation on illegal wildlife trade in a global context delivered by Chetana Rukshani Karunatilaka, a PhD candidate at the Bristol Law School, UWE, who is also a member of the Environmental Law and Sustainability Research Group (ELSRG). She started the presentation by providing a brief explanation of what illegal wildlife means in a global context. She flagged illegal wildlife trade as a unique crime based on two arguments, namely the impact it creates on the world and the victims of the crime. Karunatilaka discussed the international legal framework for regulating illegal wildlife trade, including binding multilateral environmental treaties and non-binding United Nations regulations. She also mentioned a proposed binding protocol that could fill the gaps in the existing treaties. However, there are opposing opinions between the Global North and the Global South due to their diverse priorities. Karunatilaka emphasized the need for a multifaceted solution to this wildlife crime that balances the competing interests of the Global North and the Global South.

During the second session, Sue Miller, Head of Global Networks at the Stop Ecocide Foundation, discussed the importance of establishing ecocide as an international crime to address environmental damage. She defined ecocide as any unlawful acts that result in severe and widespread or long-term environmental damage. She argued that criminalizing ecocide would create personal liability and deterrence, unlike corporate fines. It could also lead to questioning the accountability of politicians and corporations for mass environmental destruction. Finally, Miller emphasized the role of civil society and politicians in supporting the ecocide movement to prevent environmental crimes.

The final speaker at the event was Professor Gerhard Kemp, who is a Criminal Law Professor at Bristol Law School, UWE. He spoke about reflections on individual and systemic environmental crimes in regional and international criminal justice. Building upon the arguments made in the previous presentation, Professor Kemp critically discussed the definition of ecocide and the challenges of harmonizing legal standards. He analysed the implications of incorporating recklessness as a standard for prosecuting international environmental crimes and argued that severe environmental harm is a public health emergency. He suggested that aligning it with existing crimes against humanity, such as murder and extermination, could help address the climate crisis. Finally, he proposed a realistic approach to prosecuting crimes against humanity using existing international legal frameworks.

After the presentations in the second session, Evadne Grant, the chairperson, opened the floor for discussion and feedback. The participants were particularly interested in the ecocide movement and how it could bring changes to the existing international environmental laws. The audience provided proactive feedback on the presentations made during the second session of the roundtable, which led to interesting discussions. This successful roundtable discussion was well-attended by undergraduate and postgraduate students, alumni, academics, NGOs, and professionals from various industries.

Guillermo Moya Barba, PhD Student at Rey Juan Carlos University, Member of ELSRG 

On 4 October 2023, the European Commission announced the initiation of investigations in the framework of an anti-subsidy proceeding concerning imports of electric vehicles from China. This news brings into question the coherence between the common European market policy and the objective of achieving a sustainable and low-carbon Union.

The goal of a sustainable European Union

The European Union can be seen as an economic, monetary, security or even legal union. In addition, the European Union has shown that it also wants to be seen as an energy union and a sustainable union, which wants to ensure environmental protection throughout its territory. This path towards a sustainable Union began in the 1970s, in an international context marked by the preparations for the 1972 Stockholm Convention. Over the years, many Community legislative instruments have emerged within the Union. One of the most well-known was the European Green Pact, which is the cornerstone of current European environmental and sustainability policy. It is a road map that has been taken into consideration for the creation of sectoral policies, where one of the main objectives is the creation of an energy union, sustainable and low carbon, able to fight climate change.

China as a trade rival

Over the years, the European Union has found a serious trade rival: the People’s Republic of China. This has led the Union to adopt numerous anti-dumping and anti-subsidy measures[1] against certain Chinese imports. Although not all of them are integrated into the so-called environmental dumping, [2] in recent years these measures have acquired particular importance. This is because the Union’s objective of becoming a sustainable energy union has been hampered by events such as the Covid-19 pandemic, which has seriously damaged national economic structures, and the war in Russia and Ukraine, which has exposed the Union’s energy dependence on Russia. The most recent example is found in the anti-subsidy investigation opened by the European Union concerning imports of electric vehicles from China.

However, the use of anti-dumping by the Union is seen by several analysts as harmful, as they consider that it is used disproportionately and excessively, with a clear predominance of industrial strategies, and to the detriment of economic and commercial needs.[3] We therefore consider it vital to carry out a comprehensive study of the Community’s anti-dumping policy to take account of the environmental point of view, that is to say to analyse whether the European institutions take into account the and to what extent environmental policy has been developed over the years.

The question is the following: is the Union’s environmental policy consistent with the anti-dumping and anti-subsidy measures imposed on imports of certain products from China? In order to answer this question, we must look at some cases of corrective measures imposed on certain key products in the pursuit of the objective of a sustainable and low-carbon Union: solar panels and electric vehicles.

Anti-dumping on solar panels of Chinese origin

In 2012 the European Commission initiated an anti-dumping investigation concerning imports of photovoltaic modules from China,[4] which ended in June 2013 with Regulation (EU) No 513/2013[5] and in December with Implementing Regulation (EU) No 1238/2013.[6]

However, in 2018 the Union ceded ground to China and decided to remove trade barriers to the marketing of such products.[7] The reason for this change is due to the failure of the anti-dumping measures as they did not elicit a significant response from the European producers;[8] China, on the other hand, continued to establish itself in this market while improving the quality of its solar panels. There is currently an excess of solar panel stock in Europe, as European producers cannot compete with low prices for panels from China, which in turn have high quality.[9]

The anti-subsidy investigation of Chinese electric vehicles

The opening of investigations into imports of Chinese electric vehicles was led by France, which has started its own crusade against the sale of such vehicles when they come from China. Other countries, such as Germany, do not fully agree with this measure.[10] The opening of investigations was based on the fact that the production of these cars in China received a large amount of subsidies which made it possible to sell them in Europe at a price much lower than the prices offered by European manufacturers.

Although the transport sector has been one of the priority sectors in Community environmental policy since the early 1980s; the Commission in its opening announcement made no explicit statement on the Union’s environmental policies and described the electric vehicle sector as a strategic sector in terms of innovation, added value and employment.[11]

Conclusion

Anti-dumping remains a mechanism for monitoring the stability of the common market and is therefore based on economic and industrial criteria and demands. In this respect, it would be advisable for the Commission, when imposing anti-dumping duties on certain products that are key to achieving a sustainable Union, to base its decision on economic, industrial and environmental terms.

The decision taken by the Union on imports of Chinese electric cars could have serious consequences for consumers themselves in the face of a reduction in their choice and, above all, given the lack of possibility of obtaining this class of vehicles at low prices. The injection of Chinese capital into this class of products (solar panels and electric vehicles) has increased its level of specialisation to levels to which the Union has difficulty reaching. If the Union wants to compete with China in the trade of these kinds of products, rather than declare war on China (with a high probability of victory), the strategy should be specialisation and support for small producers. At the end of the road should not be found the dispute, but the understanding.

This blog post builds upon the author’s dissertation.

[1] Corrective measures aimed at protecting the European common market from disturbances from imports of goods which are normally priced below the normal value of other similar products.

[2] This concept refers to the use of looser national environmental legislation to obtain competitive advantages over other countries with stricter environmental legislation. Rafael Muñoz de Bustillo y Rafael Bonete. “Introducción a la Unión Europea: un análisis desde la economía”, Alianza Editorial, 2ª Ed, 2000, p. 277.

[3] Jorge Alonso Rodrigo. “La política antidumping de la Unión Europea ¿Instrumento de defensa comercial o herramienta proteccionista al servicio de los grupos de interés?” Universidad de Zaragoza, 2018, p. 30.

[4] European Commission, C 269/5 Notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e., cells and wafers) originating in the People’s Republic of China.

[5] Regulation (EU) No 513/2013 of 4 June 2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (such as cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making imports of those products originating in or consigned from the People’s Republic of China subject to registration.

[6] Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and definitively collecting the provisional duty on imports of crystalline silicon photovoltaic modules and key components (namely cells) originating in or consigned from the PRC.

[7] Official Journal of the European Union. C 310, Volume 61.

[8] Bloomberg. “Look East for Solar”, 2018. Disponible en https://www.bloomberg.com/news/articles/2018-09-07/look-east-for-solar?utm_content=business&utm_source=twitter&utm_campaign=socialflow-organic&cmpid=socialflow-twitter-business&utm_medium=social&embedded-checkout=true

[9] Xataka. “China has cut the price of solar panels in half. Europe and the US only have to specialize or throw in the towel”, 2024. Available in https://www.xataka.com/energia/china-ha-bajado-precio-paneles-solares-a-mitad-a-europa-eeuu-solo-les-queda-especializarse-tirar-toalla

[10] Forbes. “French Desire for EU Protection From China’s Electric Cars Irks Germany”, 2023. Available in https://www.forbes.com/sites/neilwinton/2023/06/26/french-desire-for-eu-protection-from-chinas-electric-cars-irks-germany/?sh=70459cee5c78

[11] European Commission, C/2023/160 Notice of initiation of an anti-subsidy proceeding concerning imports of new battery electric vehicles designed for the transport of persons originating in the People’s Republic of China.

Gerald Carter, LLB student 

Firstly, why do Articles 35 & 55 of Additional Protocol I to the 1949 Geneva Convention[1] exist? Art. 35 & 55 were created in response to the toxic herbicide known as Agent Orange. Used during the Vietnam War as a means to flush out the enemy, it consequently led to ‘massive deforestation and chemical contamination’[2] of the natural environment. The primary purpose of said Articles was to prevent such a catastrophe from occurring again or at least limit the possible damage needed to oblige the aggressor state to ameliorate the environmental damage caused, however, it is important to note that the protection is not unlimited.  Initially praised by academics for being the first set of legal provisions to protect the environment without the need for human detriment,[3] it has since attracted a less favourable reputation.  Over the years it has grown increasingly obvious that no State wishes, let alone can, use said Articles; this is partially due to its precise nature and the incredibly high threshold that has been set. In an attempt to create legislation to prevent environmental damage during armed conflict, the drafters have subsequently limited the range and scope of the Articles to that of a way of limiting the use of herbicides, or as one author put it:

It seems primarily directed to high-level policy decisionmakers and would affect such unconventional means of warfare as the massive use of herbicides or chemical agents which could produce widespread, long-term and severe damage to the natural environment.[4]

Essentially, unless the damage caused is of a liking to the herbicides used during the Vietnam War; ‘Widespread, long-term, and severe damage’[5], it will more than likely not be categorised within the niche criteria of Articles 35 & 55. This brings us to our next hurdle – to understand what is ‘widespread’, ‘long-term’, and ‘severe damage’ to the natural environment.[6]

‘Widespread’ correlates to the geographical scope of the damage, however, there is little agreement on how far the said scope must measure. Where some authors believe it needs to spread over several thousand kilometres, others believe under several hundred sq. km could suffice.[7] The first obvious problem is that, if even the academics differ on the meaning, how is one to enforce the policy accurately? Moreover, if one is to accept that the damage needed must spread over several thousand kilometres, then how is this provision meant to be applied in situations of conflict-related environmental damage less than several thousand kilometres? In practice, such a criterion would be inapplicable to most environmental damage caused by armed conflict.

For ‘long-term’, the drafters of Protocol I referred to a ‘scale of decades, twenty or thirty years as being a minimum’[8]. However, one author suggests that damage spanning a length of longer than two years could, in selected cases, qualify as ‘long-term’.[9] Either way, the method for calculating the ‘long-term’ damage is often faced with scientific difficulty as, at present, there is no accurate way of determining whether the damage was a direct consequence of the conflict or by way of a novus actus interveniens, an intervening act.[10]  

Lastly, ‘severe damage’ relates to the degree of actual damage caused, yet, like ‘long-term’ it is often faced with scientific difficulty, for how does one judge if the environmental damage caused is a result of the armed conflict? Furthermore, once confirmed that the environmental damage was a result of the armed conflict, the damage must then be seen as severe. A prerequisite that has proven to have forged a near-unreachable threshold, further decreasing the effectiveness of the Articles.

However, it is the view of Hulme[11] that problems persisting past the initial human victim could fulfil the requirements of severe damage. Such instances are, but not limited to, congenital, mutagenic, teratogenic, or carcinogenic defects.[12] This, in theory, could allow for inheritable diseases to be classified as ‘severe damage’. The reasoning behind such a claim comes from the prevalent ailments symptomatic of the herbicide, known as Agent Orange, used during the Vietnam War,[13] the main drive for the creation of Art. 35 and 55. Essentially, as the Articles were created largely in response to Agent Orange, and all its horrors, it is Hulme’s opinion that this therefore creates a precedent for future cases concerning inheritable diseases,[14] allowing for the scope of ‘severe’ to, in fact, broaden.    

Nevertheless, the threshold for all three requirements is often seen as too high and since Art. 35 & 55 require a triple cumulative standard, no State involved in armed conflict, as of writing, has successfully fulfilled the legal parameters to enforce the said Articles.     

This is why many authors believe that Art. 35 & 55 require reform. Simonds suggests changing ‘and’ to ‘or’ eliminating the triple cumulative standard and in turn lowering the threshold.[15] Whereas, others recommend the creation of a permanent UN monitoring body to address violations and award compensation, with a summary report made on the environmental impacts of armed conflicts, presented on an annual basis to the UN General Assembly.[16]  

In conclusion, Art. 35 & 55 are impressive, revolutionary provisions allowing for the protection of the natural environment in times of war without the need for human detriment. However, due to the nature of their creation, they are eternally bound to environmental disasters that take a similar look to that of the Vietnam War. This fundamental flaw allows for little deviation in the scope and way in which other types of conflict-related environmental damages are caused. On the one hand, the use of herbicides during armed conflict, in theory, is well protected. Yet, if it does not match up to the scale of its predecessor or the damage caused is by another means of warfare, the environment is unlikely to receive legal protection in the form of Art. 35 & 55. Hence, many authors claim that the current state of said Articles does not effectively protect the environment during armed conflict and therefore, requires an urgent reform.[17] 

[1] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.

[2] David Jensen and Silja Halle (eds), Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law (UNEP 2009).

[3] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004) 96 & 98; Ines Peterson,

‘The natural environment in times of armed conflict: a concern for international war crimes law?’, L.J.I.L. 2009, 22(2), 325-343, 325.

[4] M. Bothe, K. Partsch & W. Solf, New rules for victims of armed conflict: Commentary on the two 1977 protocols additional to the Geneva Conventions of 1949, (1982), 10-11.

[5] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.

[6] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.

[7] P. Antoine, ‘International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict’, (1992) 32 International Review of the Red Cross 517, 526. And Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), 191. And Y. Dinstein, “Protection of the Environment in International Armed Conflict’, (2001) 5 Max Planck Yearbook of United Nations Law 524, 542.

[8] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004), 94.

[9] S. Witteler, Die Regelungen der neuen Verträge des humanitären Völkerrechts und des Rechts der Rüstungsbegrenzung mit direktem Umweltbezug. Waffenwirkung und Umwelt II (1993), 389-95.

[10] Ibid., 391-2.

[11] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004).

[12] Ibid… 96 & 98.

[13] Ibid.

[14] Ibid.

[15] Stephanie N. Simonds, ‘Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform’, [1992] 29 Stan. J. Int’l L, 165, 211.

[16] David Jensen and Silja Halle (eds), Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law (United Nations Environment Programme, 2009).

[17] Stephanie N. Simonds, ‘Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform’, [1992] 29 Stan. J. Int’l L, 165. Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law, United Nations Environment Programme, 2009, Series editors: David Jensen and Silja Halle. K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004).

How would you describe your volunteering experience?

Volunteering allowed me as an individual with cerebral palsy to become an advocate for my community. By sharing my personal stories, raising awareness, and educating others, I was able to help promote understanding, inclusion, and equal opportunities for people with disabilities. Volunteering offered the opportunity for me to inspire and empower others who may be facing similar challenges which I encountered whilst volunteering as many individuals had disabilities or long-term illnesses. By actively participating in volunteer activities, I hope that I was able to show that disability does not limit one’s ability to contribute positively to society.

Volunteering provided me with a platform to engage with the local community. It allowed me to build connections, develop friendships, and foster a sense of belonging. Through my involvement, I was able to challenge stereotypes and change perceptions about disability. Engaging in volunteer work enhanced my personal growth and development. This is because it offers opportunities to learn new skills, improve self-confidence, and develop a sense of purpose. Additionally, volunteering unequivocally provided a sense of fulfilment, knowing that one’s contributions are making a positive difference in the lives of others.

I am also extremely grateful that organisations and communities offer adaptive volunteering opportunities designed to accommodate individuals with disabilities. These opportunities often involve accessible venues, assistive technology, or modified tasks that allow individuals with disabilities to actively participate and contribute.

What skills have you learnt through volunteering?

Living with cerebral palsy requires constant adaptation to different environments and situations. Through volunteering, I have further honed my adaptability by navigating various tasks, projects, and social dynamics. I have learned to adjust to different circumstances and find creative solutions to challenges that may arise.

Effective communication is a valuable skill that I have developed through my volunteering experiences. Whether it’s expressing my thoughts and ideas to fellow volunteers, sharing my story during advocacy efforts, or engaging with the community, I have become adept at conveying your message and connecting with others.

As someone with personal experience of living with cerebral palsy, I have developed a deep sense of empathy and understanding towards others facing similar challenges. Volunteering has allowed me to extend this empathy to a broader range of individuals and communities. I have learned to listen attentively, offer support, and advocate for inclusivity.

Volunteering often presents situations that require problem-solving skills. As an individual with cerebral palsy, I have encountered unique obstacles that demanded creative solutions. Through volunteering, I have further honed my problem-solving abilities by identifying innovative ways to overcome barriers and achieve desired outcomes.

Balancing volunteering commitments with personal responsibilities such as health appointments requires effective time management. As an individual with cerebral palsy, I have become skilled at managing your time efficiently, prioritising tasks, and maintaining a schedule. This skill is valuable not only in my volunteer work but also in other areas of life.

Living with cerebral palsy often involves facing physical and emotional challenges. Through volunteering, I have demonstrated resilience and perseverance by consistently pursuing my goals despite obstacles. I have learned to adapt, bounce back from setbacks, and maintain a positive attitude. Volunteering often involves working with diverse groups of people toward a shared objective. As an individual with cerebral palsy, I have embraced collaboration and teamwork, recognising the value of collective efforts. I have learned to contribute your unique perspectives while respecting and appreciating the contributions of others.

Would you recommend volunteering to other students?

Volunteering offers valuable opportunities for personal growth and development. By engaging in volunteer work, students can enhance their interpersonal skills, broaden their perspectives, and develop a sense of empathy and compassion. It provides a chance to step outside their comfort zones, learn from diverse experiences, and gain a deeper understanding of social issues.

Volunteering allows students to acquire and refine a wide range of skills that can be beneficial in various aspects of life. These may include communication, teamwork, problem-solving, adaptability, time management, and organisation. Volunteering provides a practical platform to apply and strengthen these skills, which can be advantageous in future academic, professional, and personal endeavours.

Volunteering provides an excellent opportunity to build meaningful connections and expand one’s network. By engaging with organisations, fellow volunteers, and community members, students can establish valuable relationships that may lead to mentorship, internships, or future career opportunities. Additionally, active involvement in the community fosters a sense of belonging and allows students to make a positive impact on the lives of others.

Volunteering can serve as a gateway for students to explore various career paths and gain insights into different industries and sectors. By volunteering in areas of interest, students can gain hands-on experience, develop a better understanding of their own passions and strengths, and make informed decisions about their future career paths. Volunteering can also provide valuable references and experiences to include on resumes and job applications. Volunteering instils a sense of social responsibility and encourages active citizenship. By giving back to the community and addressing societal challenges, students become agents of positive change. Volunteering helps foster a sense of empathy, respect for diversity, and commitment to making a difference, which are essential qualities for responsible and engaged members of society.

Katerina Tschausovska, LLM student

In March 2023 at the United Nations in New York, history has been written for the least explored region on earth: the waters beyond national jurisdiction are to be newly governed under a multilateral agreement to ensure the protection of marine biodiversity.[1] And with this agreement, hope is given that one of the valuable resources the deep seabed has to offer – Marine Genetic Resources (MGR) – will be protected and sustained.

Growing Interest in MGR

It is within human nature to explore new terrestrial areas. But the greater interest lies in the exploitation of newly discovered resources. The development of new technologies enabled mankind to explore and exploit the deep seabed.[2] Herein, a wealth of never-before-known resources, particularly genetic resources of living creatures, are to be found in abundance. The harsh conditions in the deep waters made the living creatures extraordinarily adapted to their environment.[3] Thus, the probability of finding valuable material through bioprospecting[4] is so high that the ratio for new resources is 1:1 for each genetic material taken from the waters.[5] The commercial use of this material raises significant interest from industrial sectors, especially the pharmaceutical sector.[6]

Deficiencies to Govern and Protect MGR

Obtaining MGR through bioprospecting is a process that follows a multilayered approach[7] and several legal frameworks are relevant. The main ones are the UNCLOS[8], CBD[9] and TRIPS[10]. While at first glance, it is to be assumed that all three treaties should be able to provide a solid ground for the protection of MGR, it quickly becomes apparent that each treaty targets bioprospecting and MGR from different angles.

Although the UNCLOS is the cornerstone for the codification of the sea,[11] it does not ensure that MGR is governed in a way that prevents over-exploitation.[12] Its provisions for the Highs Seas in Part VII and the Area in Part XI are lacking effective provisions in regards to MGR, not deciding under which regulatory framework – whether Part VII or Part XI – it is to be defined and thus giving hardly any rules on how the appropriation is to be managed. This, in turn, gives a lot of space for interpretation and practical solutions, having developed countries taking the lead.[13]

The CBD, on the other hand, was not specifically drafted for the waters beyond national jurisdiction.[14] It rather provides general provisions which aim to achieve the fundamental objectives of CBD.[15] And as such, its provisions do not oppose the preservation of MGR. However, CBD does not provide any limitations to the access and extraction of MGR because the targeted area is geographically limited to the coastal waters.[16] Primarily, the provisions apply to protect states’ sovereign rights over their genetic resources.[17]

On the other side of the spectrum of regulations for MGR is TRIPS. It sets the standard for a uniform intellectual property rights regime.[18] In contrast to UNCLOS and CBD, it does not target the protection of resources in the deep seabed. The focus is to be seen on the commercialization of MGR through obtaining patents for the commercialized product.[19]

It appears that the treaties lack a homogeneous approach. The `first come first serve` approach has evolved naturally over time.[20] The fragmentation is not only within the legal frameworks, but it drags along the policy level. All three conventions are governed by separate and independent regulatory bodies.[21] The conservation and the sustainable use of MGR can hardly be achieved under the current situation.

What is needed

The comparison of the regulatory frameworks displays that a multilateral approach to harness cooperation and capacities to exchange knowledge and technology is a vital attribute to any changes. This in turn should enable equal access to the resources and provide a system for a fair and equitable sharing of benefits that arise from the utilization of MGR. And through this, a functioning legal framework could sustain the use of MGR.

High Hopes for Biodiversity of Areas Beyond National Jurisdiction Treaty

Led by the auspices of the United Nations, the international legally binding treaty under UNCLOS for `the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction`[22] presents itself as the rescuer in distress. The Biodiversity of Areas Beyond National Jurisdiction Treaty (BBNJ) is a culmination of almost two decades of work.[23] It consists of 70 articles and two Annexes.[24] It explicitly includes MGR and questions around the aspect of benefit-sharing.[25] Measures are being considered such as area-based management tools[26] and the assessment of the environmental impact.[27] The treaty contains provisions on capacity-building and transfer of marine technology.[28]

The core elements of the treaty promise to give what is most needed to govern MGR: structure and guidelines. It encompasses all practices throughout the areas around the deep seabed and compounds elements of all three treaties – UNCLOS, CBD and TRIPS.

The provisions for capacity building and technology transfer highlight an effort to close the gap between developed and developing states.[29] Such provisions acknowledge that not all states have the capacity to participate in the activities around MGR. The transfer of scientific, technical and technological capacities aims to provide access to the resources in the deep seabed to all parties of the agreement.[30]

An innovative solution is presented by the new provisions within the regulatory sector. The new provisions focus on establishing a decision-making body – e.g. an Assembly or a Conference of Parties, subsidiary bodies to analyse technical and scientific elements of any process and provide issue recommendations, and a secretariat to be seen as an executive body to coordinate between states and international organizations as well as supervising and managing the different mechanisms set in the agreement.[31]

Conclusion

It is noticeable that the treaty is incorporating already existing practices into the provisions which have developed over the years out of necessity.[32] The protracted negotiations show how difficult it is to find a suitable solution for the multifaceted legal issues around MGR. It is to be seen whether the treaty will pass the proficiency test.

This blog post builds upon the author’s LLM dissertation.

[1] The draft treaty is still to be ratified in the foreseeable future, see United Nations, `Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction` <https://www.un.org/bbnj/> accessed 27 April 2023.

[2] Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert < https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.

[3] Salvatore Arico, `Marine Genetic Resources in Areas beyond National Jurisdiction and Intellectual Property Rights` in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation, IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Nijhoff 2010) 383, 383.

[4] Bioprospecting is to be understood as the activity that derives and collects genetic resources with the help of modern technology from the deep seabed to commercialize the material through various processes and developments. See: Tullio Scovazzi, `The assumption that the United Nations Convention on the Law of the Sea is the legal framework for all activities taking place in the sea`, in Salvatore Aricò (ed), Ocean Sustainability in the 21^st Century (Cambridge University Press 2015) 232, 244.

[5] Salvatore Arico, `Marine Genetic Resources in Areas beyond National Jurisdiction and Intellectual Property Rights` in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation, IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Nijhoff 2010) 383, 383; Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert < https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.

[6] Midwestern University, `Clinical Pipeline, Marine Pharmacology, Approved Marine Drugs` < https://www.midwestern.edu/departments/marinepharmacology/clinical-pipeline> accessed 27 April 2023; Michael Banks and others, `Use of Marine Genetic Resources` in United Nations (ed), The First Global Integrated Marine Assessment: Word Ocean Assessment I (Cambridge University Press 2017) chapter 29.

[7] Bioprospecting is a process which takes several steps from the initial abstraction of the genetic resources to the final commercial or scientific product.

[8] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 U.N.T.S. 3.

[9] The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 U.N.T.S. 69.

[10] Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 U.N.T.S. 299.

[11] Tullio Scovazzi, `The assumption that the United Nations Convention on the Law of the Sea is the legal framework for all activities taking place in the sea`, in Salvatore Aricò (ed), Ocean Sustainability in the 21^st Century (Cambridge University Press 2015) 232.

[12] Terry Collins, `Clear rules needed to govern deep sea bioprospecting: UNU, Vast genetic treasure on sea beds` (2015) EurekAlert <https://www.eurekalert.org/news-releases/739931> accessed 27 April 2023.

[13] Tullio Scovazzi, `The Rights to Genetic Resources beyond National Jurisdiction: Challenges for the Ongoing Negotiations at the United Nations` in Catherine Banet (ed), The Law of the Seabed (Nijhoff 2020).

[14] Convention on Biological Diversity, `History of the Convention, Introduction` <https://www.cbd.int/history/> accessed 27 April 2023.

[15] The provisions are addressing issues of sovereign rights and the legal status of genetic resources. Under CBD article 1 the aim is to ensure the sustainable use of biodiversity, the equitable sharing of the benefits arising from such usage and the technology transfer.

[16] Salvatore Arico and Charlotte Salpin, `Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects` (2005) UNU-IAS Report 38; CBD article 4.

[17] Louise Angélique de La Fayette, `A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction` (2009) 24(2) The International Journal of Marine and Coastal Law 221, 243.

[18] TRIPS article 7 and article 8.

[19] Salvatore Arico and Charlotte Salpin, `Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects` (2005) UNU-IAS Report 43; TRIPS article 27.

[20] Alexander Proelss, `ABS in Relation to Marine GRs` in Evanson Kamau and others (eds.), Genetic resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing (London: Routledge 2009) 63; Louise de La Fayette, `The Conversation of Biodiversity and Genetic Resources of the Deep Sea, Is There a Legal Gap? ` (2007) Biodiversity and Genetic Resources of the Deep Sea Symposium number 7 and 10; UNCLOS article 87.

[21] UNCLOS is governed by UN Division for Ocean Affairs and the Law of the Sea, see: UN environmental programme <UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS) | UNEP – UN Environment Programme> accessed 27 April 2023; CBD has its own Secretariat, see: Welcome to the CBD Secretariat <https://www.cbd.int/secretariat/> accessed 27 April 2023; TRIPS agreement’s secretariat is managed by the World Trade Organisation, see: Secretariat Divisions servicing WTO bodies <https://www.wto.org/english/thewto_e/bodies_divisions_e.htm> accessed 27 April 2023.

[22] United Nations, Intergovernmental Conference in Marine Biodiversity of Areas Beyond National Jurisdiction <https://www.un.org/bbnj/> accessed 27 April 2023.

[23] United Nations, `Secretary General, Statement attributable to the Spokesperson for the Secretary-General – on Int`l Legally Binding Instrument under the UN Convention on the Law of the Sea` <https://www.un.org/sg/en/content/sg/statement/2023-03-04/statement-attributable-the-spokesperson-for-the-secretary-general-intl-legally-binding-instrument-under-the-un-convention-the-law-of-the-sea?_gl=1*8sc79t*_ga*NDIyMjY0MTcyLjE2NzYxNzAyODE.*_ga_TK9BQL5X7Z*MTY3ODA3MjkyMS43LjAuMTY3ODA3MjkyMS4wLjAuMA> accessed 27 April 2023.

[24] United Nations, General Assembly, ` Further refreshed draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction` A/CONF.232/2023/2 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/467/94/PDF/N2246794.pdf?OpenElement> accessed 27 April 2023.

[25] BBNJ draft text Part I and Part II.

[26] BBNJ draft text Part III.

[27] BBNJ draft text Part IV.

[28] BBNJ draft text Part V.

[29] BBNJ draft text Part V.

[30] Fran Humphries and Harriet Harden Davies, `Practical policy solutions for the final stage of BBNJ treaty negotiations` (2020) Elsevier Public Health Emergency Collection 4ff; BBNJ draft text preamble and article 42 with further explanations in ANNEX II.

[31] SRE, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) (A/RES/69)/292), Submission by Mexico (2017) <https://www.un.org/depts/los/biodiversity/prepcom_files/streamlined/Mexico.pdf> accessed 27 April 2023.

[32] Such an example is Marbank from Norway which is a national marine biobank that provides academia and industry with easy and safe access to marine biological resources for research and exploitation purposes. The samples and data of marine organisms were collected in Artic, sub-Artic and boreal habitats, varying from the intertidal zone to the deep seas, see: Institute of Marine Research, Marbank <https://www.hi.no/en/hi/forskning/research-groups-1/marbank> accessed 27 April 2023.