Human Security and Biodiversity. Towards the Conservation and sustainable use of marine genetic resources in areas beyond national jurisdiction

The concept of human security entered the doctrinal debate since it was first recalled in the 1994 United Nations Development Programme report on Human Development. As ‘a shifting and bridging concept’, the notion has the merit to emphasize that State security has no longer solely a military dimension, but also economic, environmental and health components. In particular, biodiversity is the foundation of human health, since it implies food security, regulation and control of infectious diseases and also provides relevant and undiscovered resources for medical research. Specific relevance is attached to marine genetic resources (MGRs) of the deep seabed and the adjacent water column due to their ability to survive in extreme conditions, which make them particularly suitable as a source of new drugs and for the role they can play in the so-called carbon cycle. Deep-sea MGRs mostly live in a symbiotic way with mineral resources of the seabed, ocean floors and subsoils beyond national jurisdiction (the Area), of whose growth they are responsible, as it is the case for hydrothermal vents and polymetallic sulfides deposits. The protection of MGRs in both the Area and the High Seas has long been discussed under the existing framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS or the Convention) and some legal gaps have been identified. While an Intergovernmental Conference has been convened to conclude a legally binding instrument under the UNCLOS for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in the light of its uncertain outcomes this paper will focus on how the International Seabed Authority (ISA or the Authority) could ensure the protection of MGRs under the Convention’s applicable legal framework. The most relevant provision in this regard is article 145 of the UNCLOS which, aside from requiring the ISA to adopt measures aimed at preventing, reducing and controlling pollution and hazards to the Area, also entrusts the Authority to hinder any damage to the flora and fauna of the marine environment at large which might arise from the exploration and exploitation of the mineral resources. Although it is clear that the Authority is mainly and foremost the organization through which State parties organize and control their activities related to the minerals of the Area, it is debated whether the Authority already has any general competence with regard to the protection of MGRs of the Area and the related water column. In fact, on the one hand, the ISA, sticking to the vertical division of the ocean spaces provided by the UNCLOS, could eventually exercise its environmental mandate on MGRs only in the context of the hazardous activities conducted under Part XI of the Convention and, ratione loci, only with regard to the Area and its mineral resources. On the other hand, the reasonableness of the existing boundaries between the Area and its adjacent water column is questionable as an ecosystem approach would be preferred by reason of the interdependence of the biodiversity services of a given area, whatever the conducted activity. This paper will argue that the ecosystem approach, which is widely recognised as a guiding principle under International Environmental Law, and that is even recalled in the preamble of the UNCLOS, would represent the best option in the interest of the biological integrity and human security. The pivotal role already played by the Authority in the field will be demonstrated by referring to its current contribution to the protection of the marine environment through its prescriptive and enforcement powers and by taking into account its law-making and practice. For instance, through its Regional Environmental Management Plan for the Clarion-Clipperton zone, the ISA has identified some Areas of Particular Environmental Interest, which are de facto marine protected areas aimed at granting the preservation of the living resources of the seabed and the water column of one of the rarest biological communities of the oceans. Since the ISA is the only global institution that is currently ensuring a certain protection to MGRs, the clear recognition of its wider environmental mandate in the field would prove the most immediate and suitable solution for their effective preservation, as the Authority owns comprehensive information on the mainly unknown biological deep-sea communities. This would also prevent that, while contractors for mining operations are required to stick to increasingly stringent environmental provisions, like those contained in the Mining Code, the bioprospection and use of MGRs could be arbitrarily conducted with no guarantee of any preservation of specific ecosystem services.