Therefore, even though Art. 136 of UNCLOS stated that: “The Area and its
resources are the common heritage of mankind”, it seems that the concept of the
common heritage of mankind should not be automatically extended to the MGRs. In
fact, the UNCLOS limited the MGRs to the mineral ones, namely the only kind of
resources that science was aware of during the negotiation of the Convention of
1982.
37
4 The Huge Dilemma Around the Table of the UN
on the ABNJ’s Legal Framework: The Common Heritage
of Mankind v. the Freedom of the High Seas
Recently, during the 72nd session of the UNGA of 2017, the adoption of a second
UNGA resolution relating to the marine resources in ABJN has been achieved.
38
However, different views and opinions have been expressed in the discussions,
mainly, on the matters related to the MGRs, both on their definition and on the
applicable legal regime.
39 Generally, it is possible to distinguish between two
opposite main approaches. Broadly speaking, the division has been remarked
between developed countries and developing countries.
About the definition of the MGRs, the UNCLOS does not mention them. Conversely, the CBD provides that the expression “genetic resources” refers to “genetic
material of actual or potential value”, as stated in its Art. 2. The provision further
defines “genetic material” as “any material of plant, animal, microbial or other origin
containing functional units of heredity.” In this context, several different perspectives have been emphasized.
The Group of 77 has always emphasized that some definitions pertaining to
MGRs need to be clarified, also in order to distinguish the MGRs from the subjects
of the UNCLOS regimes on fisheries, as reflected in the Fish Stock Agreement of
1995.
40 On the contrary, the developed countries have queried the justifications for
37 For an in-depth analysis of the legal gaps of UNCLOS, see Scovazzi (2016), p. 188.
38 See UNGA Resolution, A/RES/72/249, International legally binding instrument under the United
Nations Convention on the Law of the Sea on the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction, 24 December 2017.
39 On these questions, cf., inter alia, Glowka (1996), p. 156; Scovazzi (2004), p. 383; Arico and
Salpin (2005), p. 50; Armas Pfirter (2006), p. 1; Leary (2006), p. 100; Oude Elferink (2007), p. 143;
De La Fayette (2009), p. 221; Ridgeway (2009), p. 309; Barnes (2010), p. 83; Prip (2016).
40 See United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks,
24 July–4 August 1995, Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. DOCA/Conf. 164/37. See also
Council Decision 98/392/EC, 23 March 1998, concerning the conclusion, by the European
Community, of the convention of the United Nations on the law of the sea of 10 December 1982
and the Agreement of 28 July 1994 concerning the implementation of the Part XI of the Convention,
410
L. Riccardi
resources are the common heritage of mankind”, it seems that the concept of the
common heritage of mankind should not be automatically extended to the MGRs. In
fact, the UNCLOS limited the MGRs to the mineral ones, namely the only kind of
resources that science was aware of during the negotiation of the Convention of
1982.
37
4 The Huge Dilemma Around the Table of the UN
on the ABNJ’s Legal Framework: The Common Heritage
of Mankind v. the Freedom of the High Seas
Recently, during the 72nd session of the UNGA of 2017, the adoption of a second
UNGA resolution relating to the marine resources in ABJN has been achieved.
38
However, different views and opinions have been expressed in the discussions,
mainly, on the matters related to the MGRs, both on their definition and on the
applicable legal regime.
39 Generally, it is possible to distinguish between two
opposite main approaches. Broadly speaking, the division has been remarked
between developed countries and developing countries.
About the definition of the MGRs, the UNCLOS does not mention them. Conversely, the CBD provides that the expression “genetic resources” refers to “genetic
material of actual or potential value”, as stated in its Art. 2. The provision further
defines “genetic material” as “any material of plant, animal, microbial or other origin
containing functional units of heredity.” In this context, several different perspectives have been emphasized.
The Group of 77 has always emphasized that some definitions pertaining to
MGRs need to be clarified, also in order to distinguish the MGRs from the subjects
of the UNCLOS regimes on fisheries, as reflected in the Fish Stock Agreement of
1995.
40 On the contrary, the developed countries have queried the justifications for
37 For an in-depth analysis of the legal gaps of UNCLOS, see Scovazzi (2016), p. 188.
38 See UNGA Resolution, A/RES/72/249, International legally binding instrument under the United
Nations Convention on the Law of the Sea on the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction, 24 December 2017.
39 On these questions, cf., inter alia, Glowka (1996), p. 156; Scovazzi (2004), p. 383; Arico and
Salpin (2005), p. 50; Armas Pfirter (2006), p. 1; Leary (2006), p. 100; Oude Elferink (2007), p. 143;
De La Fayette (2009), p. 221; Ridgeway (2009), p. 309; Barnes (2010), p. 83; Prip (2016).
40 See United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks,
24 July–4 August 1995, Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. DOCA/Conf. 164/37. See also
Council Decision 98/392/EC, 23 March 1998, concerning the conclusion, by the European
Community, of the convention of the United Nations on the law of the sea of 10 December 1982
and the Agreement of 28 July 1994 concerning the implementation of the Part XI of the Convention,
410
L. Riccardi