states are obliged to monitor the environmental effects of marine bioprospecting
cruises conducted under their control, including in their EEZ.
68
Generally, coastal states also have rights over the genetic resources of their
continental shelves.
69 Yet, UNCLOS faces severe limitations concerning the regulation of bioprospecting. To start with, the definition of genetic resources. For
instance, genetic material in microbial form can often be found suspended in the
water column and on the seafloor. It would be the case to discuss which kind of
microbial forms fall under coastal states’ jurisdiction and which one not. Another
nightmare is that of biocommunities inhabiting hydrothermal vent sites of outer
continental shelves—situations in which the best interpretation would probably
benefit coastal states’ jurisdiction over the living organisms of the vent, given that
it functions as an ecosystem, a macro biological unit where a multitude of endemic
species thrive.
70 In light of the impossibility to differentiate between the organisms
that touch the seabed and the ones that do not, coastal states are to be consulted prior
to bioprospection and scientific research excursions to those hydrothermal vents.
10.2 How Far Has Brazil Gone?
Brazilian authorities claim to abide by international law—especially UNCLOS and
the CBD—with but a few hermeneutic deviations from both Conventions’ wording.
71 Yet, Brazilian legislation applicable to the continental shelf is extremely
generalist and succinct, what suggests that the country gives relevance to asserting
jurisdiction over continental shelf resources—e.g. dissuading other states from
accessing the shelf—but falls short of transplanting such concerns into specific
legislation for the continental shelf or the EEZ. Worryingly, public authorities
68 Art. 7, CBD, according to which states shall “monitor, through sampling and other techniques, the
components of biological diversity identified pursuant to subparagraph (a) above, paying particular
attention to those requiring urgent conservation measures and those which offer the greatest
potential for sustainable use”.
69 See Maggio (2017), p. 613, mn 26.
70 See Warner (2008), p. 419.
71 Concerning the CBD, the country was first to ratify sign the Convention and has endeavored to
implement the commitments assumed therein via establishing a domestic network of national
policies, action plans, institutions and competences. Cases in point are the 2002 National Biodiversity Policy, as well as the drafting of the National Biological Diversity Program, which
concretizes the actions proposed by the National Policy. In addition, the technical body responsible
for coordinating CBD implementation efforts domestically is the Secretariat of Biodiversity and
Forests (SBF), through its Biodiversity Conservation Board. Among the biomes represented in the
2002 National Biodiversity Policy is the coastal and marine one, with specific actions devoted for
minimizing marine biodiversity loss off the Brazilian coast. More information available at the
website of the Brazilian Ministry for the Environment, Biodiversity section, at: www.mma.gov.br/
biodiversidade. Accessed 12 April 2020.
10.2 How Far Has Brazil Gone?
319
cruises conducted under their control, including in their EEZ.
68
Generally, coastal states also have rights over the genetic resources of their
continental shelves.
69 Yet, UNCLOS faces severe limitations concerning the regulation of bioprospecting. To start with, the definition of genetic resources. For
instance, genetic material in microbial form can often be found suspended in the
water column and on the seafloor. It would be the case to discuss which kind of
microbial forms fall under coastal states’ jurisdiction and which one not. Another
nightmare is that of biocommunities inhabiting hydrothermal vent sites of outer
continental shelves—situations in which the best interpretation would probably
benefit coastal states’ jurisdiction over the living organisms of the vent, given that
it functions as an ecosystem, a macro biological unit where a multitude of endemic
species thrive.
70 In light of the impossibility to differentiate between the organisms
that touch the seabed and the ones that do not, coastal states are to be consulted prior
to bioprospection and scientific research excursions to those hydrothermal vents.
10.2 How Far Has Brazil Gone?
Brazilian authorities claim to abide by international law—especially UNCLOS and
the CBD—with but a few hermeneutic deviations from both Conventions’ wording.
71 Yet, Brazilian legislation applicable to the continental shelf is extremely
generalist and succinct, what suggests that the country gives relevance to asserting
jurisdiction over continental shelf resources—e.g. dissuading other states from
accessing the shelf—but falls short of transplanting such concerns into specific
legislation for the continental shelf or the EEZ. Worryingly, public authorities
68 Art. 7, CBD, according to which states shall “monitor, through sampling and other techniques, the
components of biological diversity identified pursuant to subparagraph (a) above, paying particular
attention to those requiring urgent conservation measures and those which offer the greatest
potential for sustainable use”.
69 See Maggio (2017), p. 613, mn 26.
70 See Warner (2008), p. 419.
71 Concerning the CBD, the country was first to ratify sign the Convention and has endeavored to
implement the commitments assumed therein via establishing a domestic network of national
policies, action plans, institutions and competences. Cases in point are the 2002 National Biodiversity Policy, as well as the drafting of the National Biological Diversity Program, which
concretizes the actions proposed by the National Policy. In addition, the technical body responsible
for coordinating CBD implementation efforts domestically is the Secretariat of Biodiversity and
Forests (SBF), through its Biodiversity Conservation Board. Among the biomes represented in the
2002 National Biodiversity Policy is the coastal and marine one, with specific actions devoted for
minimizing marine biodiversity loss off the Brazilian coast. More information available at the
website of the Brazilian Ministry for the Environment, Biodiversity section, at: www.mma.gov.br/
biodiversidade. Accessed 12 April 2020.
10.2 How Far Has Brazil Gone?
319