including genetic resources from some organism, while excluding genetic resources
from others.
41
With regard to the applicable legal regime, on the one hand, the Group of 77 and
China abide by the coordinated position that there is a legal gap concerning the
access to and the sharing of benefits deriving from MGRs of the areas beyond
national jurisdiction. Specifically, they contend that the common heritage of mankind principle is applicable to these resources. The situation where “some exploit
these resources that are common heritage of mankind without the concomitant
obligation to share the benefits” has been lamented.
42 Therefore, they emphasize
the application of Part XI of UNCLOS. According to this camp, the UNCLOS states
that the Area and its resources are the common heritage of mankind, as stated in the
Art. 136 of UNCLOS. However, as described above, this part seems to be limited to
the mineral resources. Nevertheless, a purposive interpretation of the provisions
seems to suggest that the intention of including MGRs into the principle in question
could be attributed to the UNCLOS negotiators. The application of the principle
of common heritage of mankind was already traceable to Ambassador Arvid Pardo
of Malta at the UNGA, as he declared the Area and its resources common heritage of
mankind,
43 thus essentially intending to prevent a race to occupy the Area. In fact, at
the time, some delegations saw the Area as res nullius, open to use on a first-come,
first-served basis.
44 The only precedent is a proposal made by the Argentine jurist
José León Suárez. He was entrusted by the League of Nations Experts Committee for
the Progressive Codification of International Law with the drafting of a report on the
international rules relating to the exploitation of marine living resources. In the
report submitted in 1927, Mr. Suárez proposed that the living resources of the sea,
and whales in particular, should be considered a heritage of mankind: “Les richesses
de la mer, en particulier les richesses immenses de la région antarctique, constituent
un patrimoine de l’humanité, et notre Commission, constituée par la Société des
OJ L 179, 23 June 1998, p. 1 Council Decision 98/414/EC, 8 June 1998, concerning the ratification
by the European Community of the Agreement of 4 December 1995 for the purpose of application of
the provisions of the United Nations Convention on the law of the sea of 10 December 1982 relating
to conservation and the management of straddling fish stocks and highly fish stocks migration, OJ L
189, 3 July 1998, p. 14. For the details, see infra par. 2.
41 Cf., Morris-Sharma (2016), p. 71 and spec. p. 76.
42 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at
Annex, par. 47. Also see Statement on Behalf of the G77 and China at the AHWG Meeting in
January 2015, New York, 20 January 2015. https://www.g77.org/statement/getstatement.php?id=
150120b.
43 Address by A. Pardo to the 22nd Session of the UNGA, 1 November 1967, Official Records of the
General Assembly, twenty-second Session, Agenda Item 92, UN Doc. A/6695.
44 In particular, at the time the prevailing opinion was that developing countries would lose any race
for the seabed and its militarization, since only rich developed States had the necessary investment
and technology to engage in such endeavours. On this issue, cf., Pardo (1975), p. 179.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
411
from others.
41
With regard to the applicable legal regime, on the one hand, the Group of 77 and
China abide by the coordinated position that there is a legal gap concerning the
access to and the sharing of benefits deriving from MGRs of the areas beyond
national jurisdiction. Specifically, they contend that the common heritage of mankind principle is applicable to these resources. The situation where “some exploit
these resources that are common heritage of mankind without the concomitant
obligation to share the benefits” has been lamented.
42 Therefore, they emphasize
the application of Part XI of UNCLOS. According to this camp, the UNCLOS states
that the Area and its resources are the common heritage of mankind, as stated in the
Art. 136 of UNCLOS. However, as described above, this part seems to be limited to
the mineral resources. Nevertheless, a purposive interpretation of the provisions
seems to suggest that the intention of including MGRs into the principle in question
could be attributed to the UNCLOS negotiators. The application of the principle
of common heritage of mankind was already traceable to Ambassador Arvid Pardo
of Malta at the UNGA, as he declared the Area and its resources common heritage of
mankind,
43 thus essentially intending to prevent a race to occupy the Area. In fact, at
the time, some delegations saw the Area as res nullius, open to use on a first-come,
first-served basis.
44 The only precedent is a proposal made by the Argentine jurist
José León Suárez. He was entrusted by the League of Nations Experts Committee for
the Progressive Codification of International Law with the drafting of a report on the
international rules relating to the exploitation of marine living resources. In the
report submitted in 1927, Mr. Suárez proposed that the living resources of the sea,
and whales in particular, should be considered a heritage of mankind: “Les richesses
de la mer, en particulier les richesses immenses de la région antarctique, constituent
un patrimoine de l’humanité, et notre Commission, constituée par la Société des
OJ L 179, 23 June 1998, p. 1 Council Decision 98/414/EC, 8 June 1998, concerning the ratification
by the European Community of the Agreement of 4 December 1995 for the purpose of application of
the provisions of the United Nations Convention on the law of the sea of 10 December 1982 relating
to conservation and the management of straddling fish stocks and highly fish stocks migration, OJ L
189, 3 July 1998, p. 14. For the details, see infra par. 2.
41 Cf., Morris-Sharma (2016), p. 71 and spec. p. 76.
42 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at
Annex, par. 47. Also see Statement on Behalf of the G77 and China at the AHWG Meeting in
January 2015, New York, 20 January 2015. https://www.g77.org/statement/getstatement.php?id=
150120b.
43 Address by A. Pardo to the 22nd Session of the UNGA, 1 November 1967, Official Records of the
General Assembly, twenty-second Session, Agenda Item 92, UN Doc. A/6695.
44 In particular, at the time the prevailing opinion was that developing countries would lose any race
for the seabed and its militarization, since only rich developed States had the necessary investment
and technology to engage in such endeavours. On this issue, cf., Pardo (1975), p. 179.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
411