consistent with the rights and obligations of states under the law of the sea.
16 For
instance, Art. 4 (a) of the CBD delimits the scope of the Convention and determines
that its provisions apply “in the case of components of biological diversity, in areas
within national jurisdiction”. Well, it is beyond doubt that sedentary species consist
of elements of biological diversity, and that the outer continental shelf is an area
within national jurisdiction. Furthermore, Art. 6 CBD imposes on states the obligation to “develop national strategies, plans or programs for the conservation and
sustainable use of biological diversity”, sedentary species clearly being a part of this
provision. Finally, in abiding by such obligation, coastal states may resort to in-situ
and ex-situ measures to conserve marine biodiversity within national jurisdiction.
One of such measures is the establishment, as far as possible and as appropriate, of a
system of protected areas where special measures need to be taken to conserve
biological diversity. That is no other than the blackletter of the Convention, which
has been ratified by 196 parties, with the notable exceptions of the United States and
the Holy See. When dealing with an international binding instrument, it is never too
much to remember that “failure by parties to abide by conservation measures in
treaties results in the breach of an international obligation and gives rise to international legal responsibility for harm”.
17
8.1.1.1 Environmental Jurisdiction Over Genetic Resources
of the Outer Continental Shelf
When it comes to defining coastal states’ environmental powers with respect to
marine genetic resources of the continental shelf, the international legal framework
turns even cloudier. Neither UNCLOS nor the CBD live up to the challenges arising
from new marine research techniques and legal/technical questions which only now
emerge, almost 40 years into the adoption of UNCLOS. Here, a confusion which
should not occur is the one between the concepts of biodiversity, sedentary species
and marine genetic resources. As the law of the sea navigates through different areas
of knowledge and has in its essence the print of interdisciplinarity, lawyers usually
have to leave their “comfort zones” and venture deep into topics seemingly unrelated
to law, yet only at a first glance.
From the outset, it should rest clear that biological diversity is a broad concept
initially adopted by ecological advocates and then incorporated into international
instruments, so as escape the traditional species-based conservation approach (as in
the case of seals, whales and other marine mammals and fishes). As such, biodiversity includes all living organisms from all sources, “including, inter alia, terrestrial,
marine and other aquatic ecosystems and the ecological complexes of which they are
16 That is the wording of Art. 22, paragraph 2, CBD, which governs the relationship between CBD
and UNCLOS.
17 See Borg (2014), p. 359.
8.1 Environmental Jurisdiction to Prescribe
227
16 For
instance, Art. 4 (a) of the CBD delimits the scope of the Convention and determines
that its provisions apply “in the case of components of biological diversity, in areas
within national jurisdiction”. Well, it is beyond doubt that sedentary species consist
of elements of biological diversity, and that the outer continental shelf is an area
within national jurisdiction. Furthermore, Art. 6 CBD imposes on states the obligation to “develop national strategies, plans or programs for the conservation and
sustainable use of biological diversity”, sedentary species clearly being a part of this
provision. Finally, in abiding by such obligation, coastal states may resort to in-situ
and ex-situ measures to conserve marine biodiversity within national jurisdiction.
One of such measures is the establishment, as far as possible and as appropriate, of a
system of protected areas where special measures need to be taken to conserve
biological diversity. That is no other than the blackletter of the Convention, which
has been ratified by 196 parties, with the notable exceptions of the United States and
the Holy See. When dealing with an international binding instrument, it is never too
much to remember that “failure by parties to abide by conservation measures in
treaties results in the breach of an international obligation and gives rise to international legal responsibility for harm”.
17
8.1.1.1 Environmental Jurisdiction Over Genetic Resources
of the Outer Continental Shelf
When it comes to defining coastal states’ environmental powers with respect to
marine genetic resources of the continental shelf, the international legal framework
turns even cloudier. Neither UNCLOS nor the CBD live up to the challenges arising
from new marine research techniques and legal/technical questions which only now
emerge, almost 40 years into the adoption of UNCLOS. Here, a confusion which
should not occur is the one between the concepts of biodiversity, sedentary species
and marine genetic resources. As the law of the sea navigates through different areas
of knowledge and has in its essence the print of interdisciplinarity, lawyers usually
have to leave their “comfort zones” and venture deep into topics seemingly unrelated
to law, yet only at a first glance.
From the outset, it should rest clear that biological diversity is a broad concept
initially adopted by ecological advocates and then incorporated into international
instruments, so as escape the traditional species-based conservation approach (as in
the case of seals, whales and other marine mammals and fishes). As such, biodiversity includes all living organisms from all sources, “including, inter alia, terrestrial,
marine and other aquatic ecosystems and the ecological complexes of which they are
16 That is the wording of Art. 22, paragraph 2, CBD, which governs the relationship between CBD
and UNCLOS.
17 See Borg (2014), p. 359.
8.1 Environmental Jurisdiction to Prescribe
227