Potential of Environmental Transboundary Harm caused by Genetic Modified Organism as Mechanism for Bioremediation: A Case Study in Coral Triangle Biodiversity Hotspot

Biotechnology was introduced to the world of industries in the early 2000s. Its profound impact has continued shaping the mechanism of environmental cleanup. The development of biotechnology has received a wide variety of attention. Hence, bioremediation becomes integral to the notion of sustainability for environmental quality. Especially within the oil & gas sector, the damage can substantially affect the environment's longevity. Specifically, one of the most monumental in terms of potential harm is offshore oil & gas operations. On the other hand, the sophistication within oil & gas sector has become a rapid development over the last few years. It’s based on the fact the oil & gas ought to be drilled deeper within the ocean floor. As the depth of drilling increase, so does the complexity of the oil composition. With this, regular bioremediation mechanism might not be able to handle the structural chemical complexity. Thus, a genetic modification appeared as the most efficient effort to reduce environmental damage and strike out the oil chemical complexity. However, it’s easier said than done. This is because, ethically, the modification could harm the natural environment. Not just nationally but also transboundary. Therefore, the issue also discusses a new area of multidisciplinary approach where expected law meets an unprecedented amount of scientific efficiency.


A. Introduction
Oil drilling activities has been the core economic powerhouse for more than 50 years. Established in the 1800s offshore drilling has experienced substantial 1 Assistant Researcher at Indonesian Centre for International Law, Universitas Padjadjaran 2 Sukumar Laik, Offshore Petroleum Drilling and Production, Boca Raton: CRC Press, Taylor & Francis Group, 2018, p.8 growth ever since its first ocean concession. 2 Also the size, sophistication, and depth range of these offshore drilling has significantly enhanced in terms of causal link to that act. In this case, reciprocity prevents transboundary environmental harm toward other countries due to one country's activities. 8 This can be noted within Art. 198-200 of the United Nations Convention on the Law of the Sea (UNCLOS) 1982, which stated the requirement to preserve the ocean environment. 9 To answer the environmental hassle, bioremediation came up as a prominent solution to handle marine oil spills. 10 Bioremediation is an environmental cleanup mechanism that utilizes biological elements, and it can be done both naturally and with genetic modification. Particularly to disintegrate the complex chemical compound from an oil spill. 11 Figure 1.1 below is the concrete form of bioremediation techniques.
One advantage of bioremediation is that microbes become the primary component in reducing the oil concentration of dangerous chemicals within the ocean. This proved to be more environmentally friendly in tackling the chemical compound complexity of oil. 12 Despite its friendly nature, bioremediation has its fair share in disadvantages when it comes to time and capabilities. In this situation, an idea to use LMO (Living Modified Organism) surfaced to enhance the speed of bioremediation. 13 It might be advanced on paper. Nonetheless, the environmental effects persist. LMO can be categorized as an invasive species to the natural ecosystem. Invasive species is flora, fauna, pathogen, or any organism that does not originate from a native ecosystem. 14 The release of LMO in rich biodiversity areas is highly impactful. 15 It requires detailed risk management considering the high environmental impact. 16 As of now, the current legal framework for risk management of LMOs lies within Cartagena Protocol and CBD. 12 16 Ibid. 17 Ibid. 18 Ibid Hence, a state is required to conserve and protect the environment. 17 The notion of environmental protection in accordance with the precautionary principle is of utmost importance. This is because the sustainability of an ecosystem is highly dependent on how the environment is balanced between conservation and usage of LMO. 18 Coral Triangle Initiative is the focus of this research. It has a total area of 91.700 km2 filled with various high species such as corals, fish, sea plantations, and plankton. 19 20% of the world's biodiversity in coral reef exist within the CTI ecosystem. 20 Considering the size, coral ecosystems' role is pivotal in reducing the possibility of species extinction and increasing the variety of the species. 21 This emphasizes the importance of ocean governance. As stated by Chris Rahman, CTI is one of the examples of ocean governance which covers auditing, data recording, and policy implementation. 22 In addition, CTI also is moving in partnership with the implementation of SDGs (Sustainable Development Goals). The evidence lies within routine discussion by CTI Presently, the international law provisions regarding ocean pollution still based on UNCLOS 1982 and CBD 1992 with its protocols in multilateral framework. Regardless of the multilateral approach, regional solutions are still applied. Kratcochwill stated regional approach persists due to deep understanding of culture. 25 ILC (International Law Commission) stated the development of international law refers to "community interest" between countries as an implementation of treaty whether it's soft law or hard law. 26  This research aims to figure out the capabilities of international law in regulating transboundary harm caused by the usage of LMO in bioremediation program. Also, the steps taken by member states of CTI to prevent the transboundary harm from LMO is the prevention from harm for the CTI ecosystem.

Transboundary Harm
To understand this, the writer believes we ought to go back to the basics. In this case transboundary harm. Transboundary harm is a damage resulted from human activities. The nature of the damage is transboundary which crosses national jurisdiction. The concept of transboundary harm developed from several elements, which first, no-harm rule. No harm rule dictates states obligation to not causing damages that might harm other states. In Roman language also known as sic utere. 31 Human activities often caused damage. In this case, damage arises from the utilization of natural resources. The concept of natural resources utilization is based on PSNR (Permanent Sovereignty over Natural Resources). PSNR is discussed within United Nations General Assembly Resolution in 1960 which stated natural resources within a respective jurisdiction can be utilized to its highest potential. 32 Truman Proclamation marked the initiation of PSNR after second world war. It states that the ownership for country towards natural resources within continental shelf consists of living and non-living resources. 33 Hence, United States began its exploration and exploitation of offshore oil. This practice justifies the coastal state to access 31  Legally, SDGs derived from international soft law instruments. Regardless, it still brought significant evidence of customary international law with the presence of state practice and opinio juris within international community. Moving on, this concept changed international environmental concept that only covers responsibility into cooperation whether it's multilateral or regional. Accompanied with, integration of ecosystem preservation, which is the application of precautionary principle, polluters pay principle, and EIA. 49 ICJ within Advisory Opinion on the Legality of the Threat of Use of nuclear weapons stated states has a requirement to control such activity within national jurisdiction and respect other states. This proves, ecosystem within an environment is a part that ought to be manage with cooperation especially for transboundary ecosystem. 50 stated ecosystem-based approach can be elaborated further to complement the intergenerational equity with procedural collaboration that prove to be utter importance. 58 Article 8 of CBD gives a requirement of insitu conservation and Article 14 stated that public participation shall be enhanced to minimalize damage towards biodiversity. 59 In addition, Article 22 of CBD stated that a cooperation is essential in enhancing conservation efforts. The effort ought to be accompanied by exchange of information between parties based on Article 17 of CBD.

LMO and International Law
The practice of oil drilling as an initiation of oil exploration gains significant attention due to its usage and the adverse risk of environmental damage. Commonly, the incidents often occurred in the phase of exploitation and production which can be caused by human errors, intangible pipe conditions, or poorly maintained oil storage. 60 Hence, bioremediation is sought to be the answer by using the application of biotechnology. By definition, Article 2 of CBD stated biotechnology is an application of technology using biological systems to utilize for specific purposes. 61 Moving on, administrative measures in implementing the protocol when it comes to development assurance, containment, transportation, including the release of LMO. By definition, Article 3 (g) of Cartagena Protocol stated LMO is an organism that has a composition of genetic material derived from modern biotechnology. In addition, Article 3 (i) organisms that have genetic materials is identified by the change of genetic composition within the organism outside the traditional taxonomy and natural selection 66 This culminate the requirement for administrative approach based on regional economic integration to provide the particular procedure that falls under the responsibility of such states based on Article 3 (j). On the side note, Article 3 (k) stated "transboundary movement" is cross-border movement between party and non-party states from Cartagena Protocol in accordance with Article 17 and 24. 67 Moving on, Cartagena Protocol Article 4 covers the scope of transboundary movement which consists of transit, handling, and usage all LMO that provide substantial impact to conservation, sustainable use of biodiversity, and the risk of human health become an utmost consideration. This article explains the importance of information sharing, risk assessment, and the presence of Biosafety Clearing House (BCH) prior to the release of LMO into the environment. 68  of Article 4 is being exempt within Article 5 which states LMO within this article do not apply to pharmacy products with a note risk assessment still applies to nonpharmaceutical products. In addition, Article 6 (1) stated the category of LMO that are not under the scope of AIA (Advanced Informed Agreement) procedure especially the products that are being checked in transit using domestic jurisdiction. Article 6 (2) stated the AIA procedure do not apply to the LMO within contained use category. However, the requirement for the AIA exception are as follows: (i) indication of transboundary movement, (ii) LMO falls under contained use (iii) contained use follows the procedure from the importing states accompanied with its administrative standards. 69 In the mechanism of contained use, the impact of Biosafety Clearing House becomes substantially important. This is due to the enactment of biosafety standards play a pivotal role in permitting the usage of LMO that is going to be release within national jurisdiction. A state that enacted administrative approach for LMO usage can identified with two categories which are (i) Research and Development (R&D) that falls under lab research (contained use) and closed field testing (confined use); and (ii) commercial purposes with the scope of unconfined use that is designed to fulfill commercial requirement. For example: export-import of LMO for processing or agriculture. 70 To add, BCH is also significant in applying the Consequently, risk assessment is also part of socio-economic consideration. Based on Article 26 of Cartagena Protocol the social impact of LMO usage shall be monitored since it has to be in accordance with conservation purposes and sustainability of biodiversity. This matter is addressed at COP (Conference of the Parties) 2018 which stated CBD change the terminology of "might be warranted" into "where appropriate" and "where appropriate" into "where applicable" to explain the eligibility of a place that can specifically be use for LMO. 74

Biotechnology and Sustainable Development Goals
Biotechnology is one of the solutions to preserve environment. Humans that conducted exploitative activities of natural resources changed the natural element that already established by the previous microbes that has a beneficial role in the future of environment. The core element of biotechnology consists of microbes that already existed naturally. On the contrary, the rapid development of pollutants from technology culminate significant challenge for bioremediation. 76 SDGs Goal 7 stated energy is an important material in the usage of technology to clean the environment. This can be seen with the usage of bioremediation that is in high demand for oil drilling due to the complexity of oil and LMO becomes more crucial in ensuring the sustainability of the environment. 77 On the side note, the development of technology culminates the potential for convergence with the law. Kornhauser stated convergence between law and economy formed the rationality of legal subject in understanding the law. 78 In this case, this is the basis of LMO usage to prevent oil spill based on cost-benefit analysis, which is the estimation of LMO usage in relation to the scale of environmental damage. 79 If we examine Kornhauser's argument it's true that the usage of technology to form international law is true due to the ever increasingly destructive pollutants.
Nevertheless, the problem is not only from legal, but also ethical especially in LMO development proceeded by its release to the environment. In international law, the concept of restraint that becomes utmost consideration in rights and obligation of states within the international community. David Rocuher that quote the opinion form Samuel Rachel stated states has the capacity of restraint as a rationality of actions that will be done to prevent any damages towards other countries. In this case it's the marine environment. 80 From here, the concept of bioethics develops into the field of law. The benefit of technology has a huge benefit, at the cost of crippling natural ecosystem. This argument is strengthened by Tom Angier who quote Cicero that stated if a law is created for tranquility then to build human rationale it shall be in accordance with nature. 81 Philosophically, the concept of bioethics also plays a role in the development of international community. This is due to the 78

C. LMO Usage in Bioremediation of
Offshore Oil Spills in Coral Triangle Initiative Ecosystem

Offshore Oil Spill
The case of offshore oil spill is a common phenomenon in international community due to its high-risk nature. If we examine, the number of offshore oil spills decreases, but the risk becomes higher due to the volume and the depth of the drilling. 86 This condition is contradictory to the economic goals of offshore drilling that has justification from sovereign rights. 87 Other than that, the damage from offshore oil spills caused economy, environment, and social impacts. As the offshore activities increases, the risk of an incident becomes higher. 88 The risk is derived from oceanic pressure that can increase the risk of an oil blowout that cannot be controlled. 89 Concretely, the marine ecosystem will be polluted by hydrocarbon and cause the coral, algae, and animals to be affected by high toxicity. 90 Hence, the choice in terms of mitigation for an offshore oil spill can be done as follows:

Practice of Bioremediation in Oil Spills
Even though the method of oil spill cleanup provides lots of choices, the writer believes the cleanest method is bioremediation. Microorganisms that live in the ocean can be utilize to dissolve the oil spill. 94 The reason that bioremediation is environmentally friendly due to the materials can naturally integrated into the natural ecosystem. 95 Other than that, the natural process do not add foreign or poisonous substances into the ocean. 96 Concretely, the usage of bioremediation can be identified form two cases.  102 From laboratory testing there is a need to monitor the proportional nutrition that ensure bioremediation is use to its maximum potential. 103 Second, the case Deepwater Horizon in 2010 at the Mexican Gulf. This is one of the biggest oil spills after Exxon Valdez 1989. The estimated volume of the spill amounted around 31 million barrels of oil spilled into the ocean. The environmental risk becomes increasing which, not only caused by 2100 kilometer of reachability, but also the situation of deep ocean ecosystem. 104 Texas RAT (Rapid Assessment Team) stated the damage from Deepwater Horizon caused environmental damages in five different states which are, Texas, Louisiana, Missouri, Alabama, and Florida. 105 Bioremediation was chosen as response in cleaning up the oil spill. This is also accompanied by chemical dispersant and in-situ burning at the same time. The activity of in-situ burning was conducted around 411 times with the amount of oil burned amounted 220.000 barrels until 310.000 barrels. 106 Moving on, the chemical dispersant that was used to clean up the oil spill on the ocean surface was 2,2 million gallons. This method was successfully prominent in reducing the spilling of oil under the surface which occurred around 87 days based on the report by US Court. 107 Finally, the bioremediation in Deepwater Horizon utilized the indigenous microbes around the environment of the spill. Despite the familiarity, the organisms that is use on bioremediation depends on the environmental conditions within the scope of oil spill. 108

LMO Technology in Bioremediation
Bioremediation have several types. First is biostimulation which is the method of adding a dispersant to remove an iron contamination in water. Dispersant that utilize consist of nitrogen fertilizer that enhance the capabiility of microbes in bioremediation. 109 Biostimulation pinpoints the usage of indigenous microbes in oil spill clean up. 110 Second, is bioagumentation. Bioaugmentation is the intoduction of biologically processed organism to the natural environment for the purpose of enhancing bioremediation process. 111 The writer believes that LMO falls under the category of bioaugmentation. This is because the bioaugmentation uses the advancement of genetic technology which The bioaugmentation process gives the possibility of higher effectivity than biostimulation. The process is adding LMOs into the cleanup tools for oil spills on the ocean surface. 114 Supplements also play a pivotal role in enhancing the capability of microbes that is being used in oil-clean up. Essentially, bioaugmentation required the microorganism outside natural environment. 115 This is done to handle the complexity of oil structure as the core expectation of effectivity and efficiency. 116 Compare with biostimulation, bioaugmentation bring more promising results. The process in biaugmentation that brings outside organisms promises to clean more oil than biostimulation. 117 One of the points that become an essential is the formidability of microoganism towards oil exposure during bioremediation 112 Ibid, p. 89. 113  process. As such, bioaugmentation is an essential method that will be done in an extreme environment. 118 Figure 1.2 explains the method of bioaugmentation: The connection of bioaugmentation with LMO is the metabolism from the microorganism. The process of genome sequencing becomes the essential part bioaugmentation.
Furthermore, the genome sequencing is needed to remove the toxic component within oil material. 119 Hence, the bioaugmentation component for bioremediation has a better resistance than bio stimulation. 120 Regardless, the effectivity of bioaugmentation still needs to be considered. Consideration is ought upon the adding of energy and organic oxidation