environment. The EU has emphasized the importance to search for a third and hybrid
path to balance the legal gaps of UNCLOS and the need to concrete specific
measures in favour of the marine biodiversity in ABNJ. In this context, several
practical options have emerged during the discussions, such as:
(a) The Application of the Common Concern of Humankind principle as an alternative to
the principle of Common Heritage of Mankind
64
;
(b) The drawing from Part XIII UNCLOS relating to marine scientific research (MSR).
In fact, instead of seeking to resolve the applicable legal regime through the lens
of the Part VII or XI, such as suggested by the two major opinions during the
negotiations, it is proposed that approaching the issues of ABNJ starting from Part
XIII of UNCLOS may offer a useful insight.
65 This is because the marine scientific
research can take place under both Part VII and XI.
66 Indeed, according to Art.
238 UNCLOS, all the States and the competent IOs have the right to conduct marine
scientific research. MSR is also one of the freedoms of the high seas according Art.
87 of UNCLOS. In addition, there are several provisions in Part XI UNCLOS
dealing with MSR in the Area, as Art. 143 of UNCLOS, which stated that MSR
shall be carried out exclusively for peaceful purposes and the benefit of mankind in
accordance with Part XIII. Besides, there has been suggested that the bioprospecting
activity may be subject of MSR. In this context, it is outlined that there is an
inextricable factual link between MSR and bioprospecting and that it is impossible
to establish a clear-cut distinction between one activity and the other and between
one purpose and the other. In fact, The UNCLOS does not provide any definition of
MSR. Art. 246, which applies to the exclusive economic zone and the continental
shelf, makes a distinction between two kinds of MSR projects, namely those carried
out “to increase scientific knowledge of the marine environment for the benefit of all
mankind” (par. 3) and those “of direct significance for the exploration and exploitation of natural resources, whether living or non-living” (par. 5, let. a). It is
highlighted that this distinction supports the conclusion that, under the UNCLOS
regime, also research activities directly related to the purpose of commercial exploitation of resources, such as bioprospecting, fall under the general label of MS.
67
(c) the Adaptation from the Nagoya Protocol,
68 which may represent a possible model to
adapt appropriately to the ABNJ, and, mainly, to the exploitation of MGRs.
64 It is suggested that such principle could be applied precisely to the MGRs issues. Cf., inter alia,
Bonfanti and Trevisanut (2012-2013), p. 187 and spec. p. 197.
65 In fact, as stated in the written submission of the COMAR of 25 July 2016, on behalf of the EU
and its Member States, the determination of the legal status of MGRs originating in ABNJ is not a
precondition for including relevant provisions in a future ILBI. See http://www.un.org/depts/los/
biodiversity/prepcom_files/EU&MS_Written_Submission_BBNJ.pdf, p. 2, paras. 12–13.
66 Cf., Morris-Sharma (2016), p. 71 and spec. p. 90.
67 Cf., Scovazzi (2007), p. 11, spec. p. 18.
68 The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted in
Nagoya on 29 October 2010 and entered into force on 12 October 2014, UNEP/CBD/COP/DEC/
X/1.
416
L. Riccardi
path to balance the legal gaps of UNCLOS and the need to concrete specific
measures in favour of the marine biodiversity in ABNJ. In this context, several
practical options have emerged during the discussions, such as:
(a) The Application of the Common Concern of Humankind principle as an alternative to
the principle of Common Heritage of Mankind
64
;
(b) The drawing from Part XIII UNCLOS relating to marine scientific research (MSR).
In fact, instead of seeking to resolve the applicable legal regime through the lens
of the Part VII or XI, such as suggested by the two major opinions during the
negotiations, it is proposed that approaching the issues of ABNJ starting from Part
XIII of UNCLOS may offer a useful insight.
65 This is because the marine scientific
research can take place under both Part VII and XI.
66 Indeed, according to Art.
238 UNCLOS, all the States and the competent IOs have the right to conduct marine
scientific research. MSR is also one of the freedoms of the high seas according Art.
87 of UNCLOS. In addition, there are several provisions in Part XI UNCLOS
dealing with MSR in the Area, as Art. 143 of UNCLOS, which stated that MSR
shall be carried out exclusively for peaceful purposes and the benefit of mankind in
accordance with Part XIII. Besides, there has been suggested that the bioprospecting
activity may be subject of MSR. In this context, it is outlined that there is an
inextricable factual link between MSR and bioprospecting and that it is impossible
to establish a clear-cut distinction between one activity and the other and between
one purpose and the other. In fact, The UNCLOS does not provide any definition of
MSR. Art. 246, which applies to the exclusive economic zone and the continental
shelf, makes a distinction between two kinds of MSR projects, namely those carried
out “to increase scientific knowledge of the marine environment for the benefit of all
mankind” (par. 3) and those “of direct significance for the exploration and exploitation of natural resources, whether living or non-living” (par. 5, let. a). It is
highlighted that this distinction supports the conclusion that, under the UNCLOS
regime, also research activities directly related to the purpose of commercial exploitation of resources, such as bioprospecting, fall under the general label of MS.
67
(c) the Adaptation from the Nagoya Protocol,
68 which may represent a possible model to
adapt appropriately to the ABNJ, and, mainly, to the exploitation of MGRs.
64 It is suggested that such principle could be applied precisely to the MGRs issues. Cf., inter alia,
Bonfanti and Trevisanut (2012-2013), p. 187 and spec. p. 197.
65 In fact, as stated in the written submission of the COMAR of 25 July 2016, on behalf of the EU
and its Member States, the determination of the legal status of MGRs originating in ABNJ is not a
precondition for including relevant provisions in a future ILBI. See http://www.un.org/depts/los/
biodiversity/prepcom_files/EU&MS_Written_Submission_BBNJ.pdf, p. 2, paras. 12–13.
66 Cf., Morris-Sharma (2016), p. 71 and spec. p. 90.
67 Cf., Scovazzi (2007), p. 11, spec. p. 18.
68 The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted in
Nagoya on 29 October 2010 and entered into force on 12 October 2014, UNEP/CBD/COP/DEC/
X/1.
416
L. Riccardi