suggestion would be, so Proelss, the constructive practice of the North-East Atlantic
Fisheries Commission (NEAFC) in fighting bottom trawling and designating high
seas MPAs. In this sense, the solution for high seas genetic resources would pass far
from discussing benefit sharing, but by conserving genetic resources per se.
26
With due respect to Proelss’ view, the suggestion gives little relevance to the core
claims of developing states, which are (i) to limit access to genetic resources by
developed countries and (ii) to create an access and benefit sharing regime that grant
developing nations a share of the direct (and indirect) benefits of such genetic and
extremely valuable resources. Any solution that neglects such demands is, thus,
doomed to fail.
27
8.1.2 Second Dimension: Prevention, Reduction and Control
of Marine Pollution
The second dimension of coastal states’ environmental powers on the continental
shelf concerns the prevention, reduction and control marine pollution from seabed
activities, for the analysis of which, mandatory reference to Part XII UNCLOS is
due. The concept of seabed activities, used here, may comprise the continental shelf
and the Area, thus making it necessary to emphasize the application of the following
thoughts and ideas exclusively to pollution originating from continental shelf activities. Upfront, it should be noted that the regulatory scenario for pollution from
seabed activities within national jurisdiction does not look bright. Perhaps because it
responds for about one per cent of degradation of the marine environment,
28 such
sort of pollution is regulated only in general terms within UNCLOS, which sets out
the elementary framework for general commitments to be established in regional
seas agreements and other specific regional treaties on the issue.
In line with the “three-step implementation” approach,
29 UNCLOS initially outlines states’ general obligation to protect and preserve the marine environment and
defines the obligation to take all measures consistent with the Convention that are
necessary to prevent, reduce and control pollution of the marine environment—Arts.
192 and 194. Then, as a second step, Art. 208 establishes states’ jurisdiction to
prescribe laws and regulations for combatting marine pollution from all sources,
26 Id. 444.
27 A counter argument to Proelss’ position can also be found in the work of Tullio Treves, to whom
international law does not address marine genetic resources beyond national jurisdiction. It would
be, thus, the case to deal with new a problem through new law. For Treves, “their natural
peculiarity, the difficulty to adopt general assumptions as to whether they belong to the seabed or
to the water column, the fact that in most cases only samples are needed for subsequent research,
and that huge investments are often required to develop potential applications, explain how difficult
it is to determine the law of the sea rules applicable to them”. See Treves (2017), p. 540.
28 Sands and Peel (2012), p. 387.
29 See Hafner (2006), note supra.
8.1 Environmental Jurisdiction to Prescribe
231
Fisheries Commission (NEAFC) in fighting bottom trawling and designating high
seas MPAs. In this sense, the solution for high seas genetic resources would pass far
from discussing benefit sharing, but by conserving genetic resources per se.
26
With due respect to Proelss’ view, the suggestion gives little relevance to the core
claims of developing states, which are (i) to limit access to genetic resources by
developed countries and (ii) to create an access and benefit sharing regime that grant
developing nations a share of the direct (and indirect) benefits of such genetic and
extremely valuable resources. Any solution that neglects such demands is, thus,
doomed to fail.
27
8.1.2 Second Dimension: Prevention, Reduction and Control
of Marine Pollution
The second dimension of coastal states’ environmental powers on the continental
shelf concerns the prevention, reduction and control marine pollution from seabed
activities, for the analysis of which, mandatory reference to Part XII UNCLOS is
due. The concept of seabed activities, used here, may comprise the continental shelf
and the Area, thus making it necessary to emphasize the application of the following
thoughts and ideas exclusively to pollution originating from continental shelf activities. Upfront, it should be noted that the regulatory scenario for pollution from
seabed activities within national jurisdiction does not look bright. Perhaps because it
responds for about one per cent of degradation of the marine environment,
28 such
sort of pollution is regulated only in general terms within UNCLOS, which sets out
the elementary framework for general commitments to be established in regional
seas agreements and other specific regional treaties on the issue.
In line with the “three-step implementation” approach,
29 UNCLOS initially outlines states’ general obligation to protect and preserve the marine environment and
defines the obligation to take all measures consistent with the Convention that are
necessary to prevent, reduce and control pollution of the marine environment—Arts.
192 and 194. Then, as a second step, Art. 208 establishes states’ jurisdiction to
prescribe laws and regulations for combatting marine pollution from all sources,
26 Id. 444.
27 A counter argument to Proelss’ position can also be found in the work of Tullio Treves, to whom
international law does not address marine genetic resources beyond national jurisdiction. It would
be, thus, the case to deal with new a problem through new law. For Treves, “their natural
peculiarity, the difficulty to adopt general assumptions as to whether they belong to the seabed or
to the water column, the fact that in most cases only samples are needed for subsequent research,
and that huge investments are often required to develop potential applications, explain how difficult
it is to determine the law of the sea rules applicable to them”. See Treves (2017), p. 540.
28 Sands and Peel (2012), p. 387.
29 See Hafner (2006), note supra.
8.1 Environmental Jurisdiction to Prescribe
231