The existence of life forms in the international seabed was discovered in the late
1970s. Living beings who, thanks to the process of chemosynthesis, can live in
extreme conditions of life (very high pressure, total dark and very high or very low
temperatures) have developed genetic characteristics that make them unique and
particularly interesting for the pharmaceutical, cosmetic, agri-food, waste sinter and
military industries. Submarine technological progress has allowed the sampling of
these living beings for study purposes and the development of marketable products,
starting from the genetic resources contained in these living beings since the 1990.
These activities, namely “Bioprospecting”,
30 require the availability of huge financial and technological resources: they are usually conducted by public research
centres through a financial participation of the private sector. Today, few States
possess the necessary resources to undertake such activities.
Now, it is important to observe that, in the Law of the Sea, the ABNJ are: the
Area,
31 the sea bottoms and the soil and the subsoil, and the High Sea. On the one
hand (the Area, the sea bottoms and the soil/subsoil), the legal framework is based on
the principle of common heritage of mankind, which provides for the inalienability
of resources, their exploitation for peaceful purposes and for the benefit of humanity,
the internationalization of management and the sharing of benefits deriving from
their exploitation. On the other hand (the High Seas), the juridical regime is built on
the principle of freedom of the high seas, which provides that every State is free to
conduct its own peaceful activities, respecting the freedom of the other States and the
rules on the protection of the marine environment.
The UNCLOS does not provide for a clear bilateral regulation to access the
MGRs and the sharing of benefits. On the one hand, the biodiversity legal system
declares that biodiversity conservation is a common interest of humanity, a legal
regime that differs from the common heritage of mankind
32 due to the absence of
internationalization of the resources management, and because it is not limited to
the ABNJ.
In particular, the UNCLOS shows several legal gaps, mainly because the relevant
activities were not planned at the time of the Convention’s adoption. More precisely,
Part XII of the Convention (namely the protection and preservation of the marine
environment) provides a very general framework that needs to be integrated through
more detailed rules, also considering the framework established by the Convention
on Biological Diversity (CBD).
33 In particular, it is important to observe that on this
unqualified obligation to protect and to preserve the marine environment (which
30 On the bioprospecting activities, cf., Kirchner (2010) p. 125.
31 It is important to observe that “the Area” indicates “the seabed and ocean floor and subsoil”, as
stated in the Art. 1.1 of UNCLOS.
32 On these aspects, cf., inter alia, Kiss (1982), p. 99.
33 Cf., Diz (2017), p. 123, in which the author also focused on the relationship between the
UNCLOS and the CBD. The CBD was signed on 5 June 1992 during the Earth Summit in Rio
de Janeiro, under the auspices of the UN, and it was entered into force the 29 December 1993, 1760
UNTS 79. See United Nations, Treaty Series, Vol. 1760, p. 79; and depositary notification C.N. 29.
1996. TREATIES-2 of 18 March 1996.
408
L. Riccardi
1970s. Living beings who, thanks to the process of chemosynthesis, can live in
extreme conditions of life (very high pressure, total dark and very high or very low
temperatures) have developed genetic characteristics that make them unique and
particularly interesting for the pharmaceutical, cosmetic, agri-food, waste sinter and
military industries. Submarine technological progress has allowed the sampling of
these living beings for study purposes and the development of marketable products,
starting from the genetic resources contained in these living beings since the 1990.
These activities, namely “Bioprospecting”,
30 require the availability of huge financial and technological resources: they are usually conducted by public research
centres through a financial participation of the private sector. Today, few States
possess the necessary resources to undertake such activities.
Now, it is important to observe that, in the Law of the Sea, the ABNJ are: the
Area,
31 the sea bottoms and the soil and the subsoil, and the High Sea. On the one
hand (the Area, the sea bottoms and the soil/subsoil), the legal framework is based on
the principle of common heritage of mankind, which provides for the inalienability
of resources, their exploitation for peaceful purposes and for the benefit of humanity,
the internationalization of management and the sharing of benefits deriving from
their exploitation. On the other hand (the High Seas), the juridical regime is built on
the principle of freedom of the high seas, which provides that every State is free to
conduct its own peaceful activities, respecting the freedom of the other States and the
rules on the protection of the marine environment.
The UNCLOS does not provide for a clear bilateral regulation to access the
MGRs and the sharing of benefits. On the one hand, the biodiversity legal system
declares that biodiversity conservation is a common interest of humanity, a legal
regime that differs from the common heritage of mankind
32 due to the absence of
internationalization of the resources management, and because it is not limited to
the ABNJ.
In particular, the UNCLOS shows several legal gaps, mainly because the relevant
activities were not planned at the time of the Convention’s adoption. More precisely,
Part XII of the Convention (namely the protection and preservation of the marine
environment) provides a very general framework that needs to be integrated through
more detailed rules, also considering the framework established by the Convention
on Biological Diversity (CBD).
33 In particular, it is important to observe that on this
unqualified obligation to protect and to preserve the marine environment (which
30 On the bioprospecting activities, cf., Kirchner (2010) p. 125.
31 It is important to observe that “the Area” indicates “the seabed and ocean floor and subsoil”, as
stated in the Art. 1.1 of UNCLOS.
32 On these aspects, cf., inter alia, Kiss (1982), p. 99.
33 Cf., Diz (2017), p. 123, in which the author also focused on the relationship between the
UNCLOS and the CBD. The CBD was signed on 5 June 1992 during the Earth Summit in Rio
de Janeiro, under the auspices of the UN, and it was entered into force the 29 December 1993, 1760
UNTS 79. See United Nations, Treaty Series, Vol. 1760, p. 79; and depositary notification C.N. 29.
1996. TREATIES-2 of 18 March 1996.
408
L. Riccardi