regulated by the Area regime. If so, would the recognition of the Area as common
heritage of mankind prevent/limit that suppletive application?
The application of one regime (freedom of the high seas) or the other (the Area as
common heritage of mankind) has been hotly debated in relation to the marine
genetic resources, of growing scientific and commercial interest, located in both the
deep seabed and the water column. Under the current legal framework, the discussion concerning the regime applicable to marine genetic resources has fundamentally
revolved around two closely related issues: the sedentary species in ABNJs (Sect.
2.1) and their recognition as common heritage of mankind (Sect. 2.2). Currently, the
debate is essentially political (Sect. 2.3). The North East Atlantic experience shows
different models with respect to the environmental protection of the deep seabed
(Sect. 2.4).
2.1 Sedentary Species in ABNJs
Sedentary species are defined in UNCLOS when referring to the regime of the CS as
“organisms which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with the seabed or
the subsoil” (Art. 77.4). For years, some authors have noted that this original concept
is about fisheries (sedentary fisheries) and is insufficient.
26
An important legal issue concerning sedentary species in ABNJs is whether they
belong to the water column or to the deep seabed. This gives rise to two
considerations.
The first is the possibility of using the same scheme that is applied to areas under
national jurisdiction. In marine areas beyond the national territory but under national
jurisdiction, a different regime is explicitly foreseen for the living resources of the
water column (EEZ) and the floor and subsoil (CS). In contrast, no explicit reference
is made to sedentary species in ABNJs, whether in the high seas (in contrast to the
EEZ, which explicitly excludes them) or in the Area regime (in contrast to the CS,
which explicitly includes them).
27 Hence, one possibility could be to use, by
analogy, the same scheme used for areas under national jurisdiction (EEZs and
CSs) for the ABNJs (high seas and the Area). Since the column of water overlying
the CS is not always the EEZ but rather can be the high seas when there is an
extended CS, the legal exclusion of the sedentary species from the column of water
not only under national jurisdiction (EEZ) but also beyond national jurisdiction
(high seas) would simplify the legal framework.
26 Kojima (2008) paragraph 5: “The notion of sedentary fisheries developed under the continental
shelf regime may require reconsideration in light of new situations, for instance the emergence of
the need to protect marine biological diversity and marine genetic resources”. A new approach is
currently being discussed in the intergovernmental conference.
27 Arts 68 (EEZ) and 77.4 (CS) UNCLOS.
448
M. Sobrido-Prieto
heritage of mankind prevent/limit that suppletive application?
The application of one regime (freedom of the high seas) or the other (the Area as
common heritage of mankind) has been hotly debated in relation to the marine
genetic resources, of growing scientific and commercial interest, located in both the
deep seabed and the water column. Under the current legal framework, the discussion concerning the regime applicable to marine genetic resources has fundamentally
revolved around two closely related issues: the sedentary species in ABNJs (Sect.
2.1) and their recognition as common heritage of mankind (Sect. 2.2). Currently, the
debate is essentially political (Sect. 2.3). The North East Atlantic experience shows
different models with respect to the environmental protection of the deep seabed
(Sect. 2.4).
2.1 Sedentary Species in ABNJs
Sedentary species are defined in UNCLOS when referring to the regime of the CS as
“organisms which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with the seabed or
the subsoil” (Art. 77.4). For years, some authors have noted that this original concept
is about fisheries (sedentary fisheries) and is insufficient.
26
An important legal issue concerning sedentary species in ABNJs is whether they
belong to the water column or to the deep seabed. This gives rise to two
considerations.
The first is the possibility of using the same scheme that is applied to areas under
national jurisdiction. In marine areas beyond the national territory but under national
jurisdiction, a different regime is explicitly foreseen for the living resources of the
water column (EEZ) and the floor and subsoil (CS). In contrast, no explicit reference
is made to sedentary species in ABNJs, whether in the high seas (in contrast to the
EEZ, which explicitly excludes them) or in the Area regime (in contrast to the CS,
which explicitly includes them).
27 Hence, one possibility could be to use, by
analogy, the same scheme used for areas under national jurisdiction (EEZs and
CSs) for the ABNJs (high seas and the Area). Since the column of water overlying
the CS is not always the EEZ but rather can be the high seas when there is an
extended CS, the legal exclusion of the sedentary species from the column of water
not only under national jurisdiction (EEZ) but also beyond national jurisdiction
(high seas) would simplify the legal framework.
26 Kojima (2008) paragraph 5: “The notion of sedentary fisheries developed under the continental
shelf regime may require reconsideration in light of new situations, for instance the emergence of
the need to protect marine biological diversity and marine genetic resources”. A new approach is
currently being discussed in the intergovernmental conference.
27 Arts 68 (EEZ) and 77.4 (CS) UNCLOS.
448
M. Sobrido-Prieto