includes its marine life and/or biodiversity), the ITLOS stated that: “. . . marine living
resources and marine life are part of the marine environment and that, as the Tribunal
stated in the Southern Bluefin Tuna Cases “the conservation of the living resources
of the sea is an element in the protection and preservation of the marine
environment. . .”.
34 For instance, under Art. 206 of UNCLOS, parties are obliged
to assess the effects of activities that may cause pollution; however, this obligation
applies “as far as practicable” and there is no indication on how the assessment
should be made.
A similar situation occurs for the lack of a specific regime in the case of protected
marine areas beyond national jurisdiction. In fact, the Convention emphasizes the
general objective of preservation and protection of the marine environment, as stated
in Part XII of UNCLOS. All States are under the obligation—arising from customary
international law and restated in the Art. 192 of UNCLOS—“to protect and preserve
the marine environment”. A means to comply with its general obligation is the use of
area-based management tools, including marine protected areas (MPAs),
35 which is
implied in Art. 194, par. 5, of UNCLOS. According to this provision, the measures
taken to protect and preserve the marine environment “shall include those necessary
to protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of marine life.”
36
The MGRs represent the most critical gap in the UNCLOS. In fact, UNCLOS
never specifically mentions genetic resources. There is no doubt that the UNCLOS is
a cornerstone in the field of codification of international law of the sea. Nevertheless,
the Convention, as any other legal text, is linked to the time when it was negotiated
(1973–1982). At that time, very little was known about the genetic qualities of deep
seabed organisms and, when dealing with the special regime of the seabed beyond
national jurisdiction and its resources, the UNCLOS only took mineral resources
into account. As stated in the Art. 1, par. 3 of the Convention, the term “activities in
the Area” is defined as “all the activities of exploration for, and exploitation of, the
resources of the Area”. Art. 133, let. a), of UNCLOS defines the term “resources” of
the Area as “all solid, liquid or gaseous mineral resource [. . .]”. The UNCLOS
narrows the term “resources” that was used in a broader sense in Art. 1 of UNGA
Resolution, 2749 (XXV), 17 December 1970.
34 In this regard, see ITLOS, Advisory Opinion submitted by the Sub-Regional Fisheries Commission, cit., para. 216.
35 The MPA can be generally understood as an area of marine waters or seabed that is delimited
within precise boundaries, including, if appropriate, buffer zones, and that is granted a special
protection regime because of its significance for several reasons, such as ecological, biological,
scientific, cultural, educational, recreational, etc. This definition is recalled in note 11 of the
Decision VII/5 on Marine and Coastal Biological Diversity, adopted in 2004 by the Conference
of the Parties to the CBD. For an analysis of the notion of marine protected areas, cf., Scovazzi
(2015), p. 63.
36 For an overview on rare of fragile marine ecosystems and their legal conditions, cf., Scovazzi
(2011), p. 13.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
409
resources and marine life are part of the marine environment and that, as the Tribunal
stated in the Southern Bluefin Tuna Cases “the conservation of the living resources
of the sea is an element in the protection and preservation of the marine
environment. . .”.
34 For instance, under Art. 206 of UNCLOS, parties are obliged
to assess the effects of activities that may cause pollution; however, this obligation
applies “as far as practicable” and there is no indication on how the assessment
should be made.
A similar situation occurs for the lack of a specific regime in the case of protected
marine areas beyond national jurisdiction. In fact, the Convention emphasizes the
general objective of preservation and protection of the marine environment, as stated
in Part XII of UNCLOS. All States are under the obligation—arising from customary
international law and restated in the Art. 192 of UNCLOS—“to protect and preserve
the marine environment”. A means to comply with its general obligation is the use of
area-based management tools, including marine protected areas (MPAs),
35 which is
implied in Art. 194, par. 5, of UNCLOS. According to this provision, the measures
taken to protect and preserve the marine environment “shall include those necessary
to protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of marine life.”
36
The MGRs represent the most critical gap in the UNCLOS. In fact, UNCLOS
never specifically mentions genetic resources. There is no doubt that the UNCLOS is
a cornerstone in the field of codification of international law of the sea. Nevertheless,
the Convention, as any other legal text, is linked to the time when it was negotiated
(1973–1982). At that time, very little was known about the genetic qualities of deep
seabed organisms and, when dealing with the special regime of the seabed beyond
national jurisdiction and its resources, the UNCLOS only took mineral resources
into account. As stated in the Art. 1, par. 3 of the Convention, the term “activities in
the Area” is defined as “all the activities of exploration for, and exploitation of, the
resources of the Area”. Art. 133, let. a), of UNCLOS defines the term “resources” of
the Area as “all solid, liquid or gaseous mineral resource [. . .]”. The UNCLOS
narrows the term “resources” that was used in a broader sense in Art. 1 of UNGA
Resolution, 2749 (XXV), 17 December 1970.
34 In this regard, see ITLOS, Advisory Opinion submitted by the Sub-Regional Fisheries Commission, cit., para. 216.
35 The MPA can be generally understood as an area of marine waters or seabed that is delimited
within precise boundaries, including, if appropriate, buffer zones, and that is granted a special
protection regime because of its significance for several reasons, such as ecological, biological,
scientific, cultural, educational, recreational, etc. This definition is recalled in note 11 of the
Decision VII/5 on Marine and Coastal Biological Diversity, adopted in 2004 by the Conference
of the Parties to the CBD. For an analysis of the notion of marine protected areas, cf., Scovazzi
(2015), p. 63.
36 For an overview on rare of fragile marine ecosystems and their legal conditions, cf., Scovazzi
(2011), p. 13.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
409