scientific research, within national jurisdiction, subject to the “implied consensus
rule” of Art. 252 UNCLOS.
25
This book takes side with the view that does not rule out the application of the
CBD to the management and conservation of marine living resources within national
jurisdiction, including genetic resources. In fact, the CBD concepts of “ecosystem”
and “functional unit”, mentioned supra, are of particular relevance in determining
the living resources of the outer continental shelf over which coastal states will
exercise environmental jurisdiction. Thus, coastal states have rights and duties not
only over sedentary species stricto sensu, but over the functional unit of living
resources of a given ecosystem of the outer shelf. That is particularly relevant for the
fragile and pristine ecosystems of hydrothermal vents.
8.1.1.2 Genetic Resources in Areas Beyond National Jurisdiction
In the EEZ alone, the regulation of bioprospection for marine genetic resources is
considerably clearer, as the all-encompassing notion of “sovereign rights” over
natural resources accommodates all marine life until 200 nm from the baselines,
which may have a potential commercial value. For that reason, the largest discussion
in terms of bioprospecting for genetic resources refers to both the outer continental
shelf and the areas beyond national jurisdiction (ABNJ). The relationship between
UNCLOS and CBD is much discussed in recent publications, but almost exclusively
with respect to the protection of biodiversity in areas beyond national jurisdiction. In
fact, the protection of biodiversity in ABNJ is the “hot topic” of the day, a star whose
shine is all the more potentialized by the ongoing negotiations on the adoption of an
implementing agreement to UNCLOS on that regard.
Chances of reaching consensus on the topic are extremely low, due to staunch
mutual opposition between developing and developed states as to the applicability of
the common heritage of mankind principle to high seas genetic material, which
would mean the insertion of such resources into the legal regime of access and
benefit-sharing of the Area. Research states oppose such proposal and stick to
freedom of the high seas, including of research (Art. 87 UNCLOS), while developing states with little technical capabilities pray the submission of bioprospection in
the high seas to the common heritage principle.
For Alexander Proelss, given that the odds of such implementing agreement
coming to life are rather low, the solution would be to consider MGR as living
organisms of the high seas beyond national jurisdiction and expand the mandate of
RFMOs to deal with them. Thus, RFMOs would manage hydrothermal vent sites
beyond the national jurisdiction of coastal states, and an argument in favor of such a
25 The first part of Art. 252 UNCLOS stipulates that “States or competent international organizations
may proceed with a marine scientific research project six months after the date upon which the
information required pursuant to article 248 was provided to the coastal State”. Then, the provision
clarifies some exceptions to the implied consent mechanism.
230
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
rule” of Art. 252 UNCLOS.
25
This book takes side with the view that does not rule out the application of the
CBD to the management and conservation of marine living resources within national
jurisdiction, including genetic resources. In fact, the CBD concepts of “ecosystem”
and “functional unit”, mentioned supra, are of particular relevance in determining
the living resources of the outer continental shelf over which coastal states will
exercise environmental jurisdiction. Thus, coastal states have rights and duties not
only over sedentary species stricto sensu, but over the functional unit of living
resources of a given ecosystem of the outer shelf. That is particularly relevant for the
fragile and pristine ecosystems of hydrothermal vents.
8.1.1.2 Genetic Resources in Areas Beyond National Jurisdiction
In the EEZ alone, the regulation of bioprospection for marine genetic resources is
considerably clearer, as the all-encompassing notion of “sovereign rights” over
natural resources accommodates all marine life until 200 nm from the baselines,
which may have a potential commercial value. For that reason, the largest discussion
in terms of bioprospecting for genetic resources refers to both the outer continental
shelf and the areas beyond national jurisdiction (ABNJ). The relationship between
UNCLOS and CBD is much discussed in recent publications, but almost exclusively
with respect to the protection of biodiversity in areas beyond national jurisdiction. In
fact, the protection of biodiversity in ABNJ is the “hot topic” of the day, a star whose
shine is all the more potentialized by the ongoing negotiations on the adoption of an
implementing agreement to UNCLOS on that regard.
Chances of reaching consensus on the topic are extremely low, due to staunch
mutual opposition between developing and developed states as to the applicability of
the common heritage of mankind principle to high seas genetic material, which
would mean the insertion of such resources into the legal regime of access and
benefit-sharing of the Area. Research states oppose such proposal and stick to
freedom of the high seas, including of research (Art. 87 UNCLOS), while developing states with little technical capabilities pray the submission of bioprospection in
the high seas to the common heritage principle.
For Alexander Proelss, given that the odds of such implementing agreement
coming to life are rather low, the solution would be to consider MGR as living
organisms of the high seas beyond national jurisdiction and expand the mandate of
RFMOs to deal with them. Thus, RFMOs would manage hydrothermal vent sites
beyond the national jurisdiction of coastal states, and an argument in favor of such a
25 The first part of Art. 252 UNCLOS stipulates that “States or competent international organizations
may proceed with a marine scientific research project six months after the date upon which the
information required pursuant to article 248 was provided to the coastal State”. Then, the provision
clarifies some exceptions to the implied consent mechanism.
230
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .