vulnerable ecosystems exist. In this sense, an interesting Solomonic solution is
suggested by Joanna Mossop, to whom “the coastal State can consider using
conditions to ensure that its interests are protected, while also allowing for marine
scientific research”, for instance, requiring permission before samples are shared
with researchers other than those originally involved in the sampling project.
Conscious of those difficulties, coastal states should take all precautions and
obtain all relevant information about the research project prior to consent. In cases
where no consent is needed, coastal states ought still to gather information on the
purposes of the scientific project, situation in which a refusal by the researching state
to share that information may give legal ground for the coastal state to take
preventive environmental measures against a specific research project.
Yet, imposing environmental conditions on requests for MSR is a delicate
borderline case. While it may be lawful in researches over which the coastal state
has discretion to refuse consent, it may be unlawful in researches where the coastal
state is obliged to give consent. State practice shows that coastal states have opted to
impose environmental conditions to foreign research. However, concerning the
coastal state jurisdiction to impose environmental obligations over researches on
the outer continental shelf—where the state may not withhold consent, it has been
argued that “imposing conditions to prevent undue harm to the marine environment
is entirely consistent with States’ general obligation to protect the marine environment”, as in line with UNCLOS and customary international law”.
65
10.1.4 Bioprospection and Genetic Resources
The practice of bioprospecting disguises commercially-oriented “research and development, building on use of natural occurring compounds, all the way from first
discovery, over patenting, benchmarking, improvement, development and commercialization”.
66 In other words, and according to the CBD Secretariat, bioprospecting
means the “exploration of biodiversity for commercially valuable genetic and
biochemical resources, the process of gathering information from the biosphere on
the molecular composition of genetic resources for the development of new commercial products”.
67 In this regard, the combined application of UNCLOS and CBD
is not only possible, but vital to the regulation of bioprospecting in maritime spaces
under some degree of national jurisdiction. It is the case of Art. 7 CBD, on the
obligation to monitor genetic resources in areas of national jurisdiction, under which
65 Id. 171.
66 International Expert Group convened by the Research Council of Norway, “Possibilities for a
bioprospecting commitment in Norway 2008 – 2020”, 2008, report available at www.
forskningsradet.no. Accessed 12 April 2020.
67 See Database maintained by the United Nations University—Institute of Advanced Studies
atwww.bioprospector.org. Accessed 12 April 2020.
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10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
suggested by Joanna Mossop, to whom “the coastal State can consider using
conditions to ensure that its interests are protected, while also allowing for marine
scientific research”, for instance, requiring permission before samples are shared
with researchers other than those originally involved in the sampling project.
Conscious of those difficulties, coastal states should take all precautions and
obtain all relevant information about the research project prior to consent. In cases
where no consent is needed, coastal states ought still to gather information on the
purposes of the scientific project, situation in which a refusal by the researching state
to share that information may give legal ground for the coastal state to take
preventive environmental measures against a specific research project.
Yet, imposing environmental conditions on requests for MSR is a delicate
borderline case. While it may be lawful in researches over which the coastal state
has discretion to refuse consent, it may be unlawful in researches where the coastal
state is obliged to give consent. State practice shows that coastal states have opted to
impose environmental conditions to foreign research. However, concerning the
coastal state jurisdiction to impose environmental obligations over researches on
the outer continental shelf—where the state may not withhold consent, it has been
argued that “imposing conditions to prevent undue harm to the marine environment
is entirely consistent with States’ general obligation to protect the marine environment”, as in line with UNCLOS and customary international law”.
65
10.1.4 Bioprospection and Genetic Resources
The practice of bioprospecting disguises commercially-oriented “research and development, building on use of natural occurring compounds, all the way from first
discovery, over patenting, benchmarking, improvement, development and commercialization”.
66 In other words, and according to the CBD Secretariat, bioprospecting
means the “exploration of biodiversity for commercially valuable genetic and
biochemical resources, the process of gathering information from the biosphere on
the molecular composition of genetic resources for the development of new commercial products”.
67 In this regard, the combined application of UNCLOS and CBD
is not only possible, but vital to the regulation of bioprospecting in maritime spaces
under some degree of national jurisdiction. It is the case of Art. 7 CBD, on the
obligation to monitor genetic resources in areas of national jurisdiction, under which
65 Id. 171.
66 International Expert Group convened by the Research Council of Norway, “Possibilities for a
bioprospecting commitment in Norway 2008 – 2020”, 2008, report available at www.
forskningsradet.no. Accessed 12 April 2020.
67 See Database maintained by the United Nations University—Institute of Advanced Studies
atwww.bioprospector.org. Accessed 12 April 2020.
318
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...