part: this includes diversity within species, between species and of ecosystems”.
18
This umbrella concept comprises both large and microbial elements of marine life,
such as whales, crabs and genetic resources.
However, sedentary species are not the same as genetic resources. According to
the definition encrusted in Art. 77 (4) UNCLOS, sedentary species are specific
natural resources, not be confused with the broader concept of biodiversity, nor
that of resources of genetic material. In fact, the definition of sedentary species as
organisms which are at a “harvestable stage” focuses on the resource to be exploited,
thereby mirroring the overwhelming logics of appropriation entrenched in the law of
the sea Convention. No references to “ecosystems” are present throughout the treaty,
solely to single sedentary species, an ascertainment that creates major challenges to
the protection and preservation of the marine environment under national
jurisdiction.
The first identifiable challenge emerges from the fact the concept of sedentary
species “has little or no relationship to biological taxonomy”.
19 This makes it
difficult for states to reach consensus on what species are “sedentary” or not, with
state practice varying drastically on the issue, according to each state’s economic and
political interests.
20 In other words, there is no consensus as to the (relatively)
straightforward question of which living organisms are unable to move except in
constant physical contact with the seabed, as determined by Art. 77 (4) UNCLOS.
The second challenge lies on borderline cases of deep-sea marine ecosystems where
both sedentary and non-sedentary organisms live, and whether the two categories
ought to be subject to different legal regimes. A coastal state would have legal rights
and obligations in respect of sedentary species but not others, which nonetheless
inhabit the very same ecosystem. This understanding would go against the CBD
definition of ecosystem as a “dynamic concept of plant, animal and micro-organism
communities and their non-living environment interacting as a functional unit”. The
problem is particularly acute with regard to the portion of the continental shelf
beyond 200 nm.
Should one apply the single-regime approach to both species on the outer
continental shelf, in the case of hydrothermal vent sites, either active or inactive,
coastal states would have sovereign rights in relation to worms and microbes which
move in permanent connection to the tubes, but not shrimps and other species that
live in the same ecosystem. Such an approach does not seem compatible to current
environmental and ecosystem-oriented interpretations in international law. It is
clearly a case in which UNCLOS reveals itself as product of its time: avantguardiste
18 Art. 2 CBD, on the use of terms.
19 See Allen (2001), p. 563.
20 See the Brazilian Lobster War (1963) or, more recently, the snow crab case in the Barents Sea or
the Scallups off the coast of Canada. Those animals can be said to move without need for permanent
contact with the seafloor, yet they have been repeatedly considered as sedentary species by coastal
states.
228
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
18
This umbrella concept comprises both large and microbial elements of marine life,
such as whales, crabs and genetic resources.
However, sedentary species are not the same as genetic resources. According to
the definition encrusted in Art. 77 (4) UNCLOS, sedentary species are specific
natural resources, not be confused with the broader concept of biodiversity, nor
that of resources of genetic material. In fact, the definition of sedentary species as
organisms which are at a “harvestable stage” focuses on the resource to be exploited,
thereby mirroring the overwhelming logics of appropriation entrenched in the law of
the sea Convention. No references to “ecosystems” are present throughout the treaty,
solely to single sedentary species, an ascertainment that creates major challenges to
the protection and preservation of the marine environment under national
jurisdiction.
The first identifiable challenge emerges from the fact the concept of sedentary
species “has little or no relationship to biological taxonomy”.
19 This makes it
difficult for states to reach consensus on what species are “sedentary” or not, with
state practice varying drastically on the issue, according to each state’s economic and
political interests.
20 In other words, there is no consensus as to the (relatively)
straightforward question of which living organisms are unable to move except in
constant physical contact with the seabed, as determined by Art. 77 (4) UNCLOS.
The second challenge lies on borderline cases of deep-sea marine ecosystems where
both sedentary and non-sedentary organisms live, and whether the two categories
ought to be subject to different legal regimes. A coastal state would have legal rights
and obligations in respect of sedentary species but not others, which nonetheless
inhabit the very same ecosystem. This understanding would go against the CBD
definition of ecosystem as a “dynamic concept of plant, animal and micro-organism
communities and their non-living environment interacting as a functional unit”. The
problem is particularly acute with regard to the portion of the continental shelf
beyond 200 nm.
Should one apply the single-regime approach to both species on the outer
continental shelf, in the case of hydrothermal vent sites, either active or inactive,
coastal states would have sovereign rights in relation to worms and microbes which
move in permanent connection to the tubes, but not shrimps and other species that
live in the same ecosystem. Such an approach does not seem compatible to current
environmental and ecosystem-oriented interpretations in international law. It is
clearly a case in which UNCLOS reveals itself as product of its time: avantguardiste
18 Art. 2 CBD, on the use of terms.
19 See Allen (2001), p. 563.
20 See the Brazilian Lobster War (1963) or, more recently, the snow crab case in the Barents Sea or
the Scallups off the coast of Canada. Those animals can be said to move without need for permanent
contact with the seafloor, yet they have been repeatedly considered as sedentary species by coastal
states.
228
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .