in certain aspects, but necessarily limited in others, namely in light of the legislative
boom experienced by the fields of environmental and sustainable development law.
Hence, while every sedentary species is composed of genetic resources, not all
marine genetic resources equate sedentary species. In fact, such genetic resources
also consist of eggs and larvae of species that will float in the water column until
occlusion. Pursuant to the CBD, Art. 2, “genetic material” means any material of
plant, animal, microbial or other origin containing functional units of heredity; and
“genetic resources” means genetic material of actual or potential value. Understanding such resources is indispensable for the purposes of regulating bioprospection,
which necessarily involves genetic resources. A third challenge is, thus, how to fit
new scientific researching techniques into traditional and anachronical legal categories and regimes. It is the case of the technique of “environmental prospecting”, in
which researchers collect genetic material from environmental DNA, instead of
aiming for samples of specific species. Such genetic material may include “skin,
feces, mucus, and other matter that is in the water”.
21 By using such technique,
genetic material of sedentary species can be sampled without the need for collecting
the organism per se, or even physically touching the seafloor.
22
In light of such questions, the combined resort to UNCLOS and CBD provisions
for the assessment of coastal states’ environmental jurisdiction over living resources
within national jurisdiction is not uncontroversial, especially with respect to marine
genetic resources. On the one hand, it has been praised, given that UNCLOS does
not regulate generic resources directly and that law of the sea rules on living
resources are not entirely adequate for the specificity of genetic resources. In such
a scenario, it would make little sense have UNCLOS always side kick the CBD.
Indeed, according to Matz-Lück and Wolfrum “the two regimes exist in parallel and
supplement and reinforce each other”, and only in cases when the CBD does violate
the rights of other states, should UNCLOS provisions be given precedence.
23
On the other, resort to the CBD to govern genetic resources of the outer continental shelf has been ruled out as essentially “political” and “ideological”. For
Alexander Proelss, coastal states’ management and conservation rights regarding
activities on the continental shelf, including marine scientific research, ought to be
governed exclusively by law of the sea and intellectual property rights’ provisions,
as “rules contained in UNCLOS are better suited to achieve a fair balancing of
conflicting interests involved in such research than those of the CBD”.
24 For that
scholar, Art. 246 UNCLOS supersedes the CBD, due to Art. 22 (2) CBD itself, and
thus limits coastal states’ regulatory maneuver room regarding marine research in the
EEZ and on the continental shelf. Hence, in line with UNCLOS Part XIII, coastal
states exercise limited prescriptive and enforcement rights to discipline marine
21 See Barnes and Turner (2016), p. 3.
22 See generally Mossop (2017).
23 Matz-Lück and Wolfrum (2000), p. 476.
24 Proelss (2008), p. 442.
8.1 Environmental Jurisdiction to Prescribe
229
boom experienced by the fields of environmental and sustainable development law.
Hence, while every sedentary species is composed of genetic resources, not all
marine genetic resources equate sedentary species. In fact, such genetic resources
also consist of eggs and larvae of species that will float in the water column until
occlusion. Pursuant to the CBD, Art. 2, “genetic material” means any material of
plant, animal, microbial or other origin containing functional units of heredity; and
“genetic resources” means genetic material of actual or potential value. Understanding such resources is indispensable for the purposes of regulating bioprospection,
which necessarily involves genetic resources. A third challenge is, thus, how to fit
new scientific researching techniques into traditional and anachronical legal categories and regimes. It is the case of the technique of “environmental prospecting”, in
which researchers collect genetic material from environmental DNA, instead of
aiming for samples of specific species. Such genetic material may include “skin,
feces, mucus, and other matter that is in the water”.
21 By using such technique,
genetic material of sedentary species can be sampled without the need for collecting
the organism per se, or even physically touching the seafloor.
22
In light of such questions, the combined resort to UNCLOS and CBD provisions
for the assessment of coastal states’ environmental jurisdiction over living resources
within national jurisdiction is not uncontroversial, especially with respect to marine
genetic resources. On the one hand, it has been praised, given that UNCLOS does
not regulate generic resources directly and that law of the sea rules on living
resources are not entirely adequate for the specificity of genetic resources. In such
a scenario, it would make little sense have UNCLOS always side kick the CBD.
Indeed, according to Matz-Lück and Wolfrum “the two regimes exist in parallel and
supplement and reinforce each other”, and only in cases when the CBD does violate
the rights of other states, should UNCLOS provisions be given precedence.
23
On the other, resort to the CBD to govern genetic resources of the outer continental shelf has been ruled out as essentially “political” and “ideological”. For
Alexander Proelss, coastal states’ management and conservation rights regarding
activities on the continental shelf, including marine scientific research, ought to be
governed exclusively by law of the sea and intellectual property rights’ provisions,
as “rules contained in UNCLOS are better suited to achieve a fair balancing of
conflicting interests involved in such research than those of the CBD”.
24 For that
scholar, Art. 246 UNCLOS supersedes the CBD, due to Art. 22 (2) CBD itself, and
thus limits coastal states’ regulatory maneuver room regarding marine research in the
EEZ and on the continental shelf. Hence, in line with UNCLOS Part XIII, coastal
states exercise limited prescriptive and enforcement rights to discipline marine
21 See Barnes and Turner (2016), p. 3.
22 See generally Mossop (2017).
23 Matz-Lück and Wolfrum (2000), p. 476.
24 Proelss (2008), p. 442.
8.1 Environmental Jurisdiction to Prescribe
229