important institutional changes.
46 However, would adapting and supplementing the
Area regulation be enough to include marine genetic resources located in ABNJs in
that regime? It is a complex issue. For example, some authors highlight the advisability of a comprehensive regime for mineral and marine genetic resources with a
symbiotic relationship, such as in hydrothermal vents.
47 Other authors point out
drawbacks related to their exploitation.
48
In contrast, if the answer is no, that is, if the Area is not considered synonymous
with the deep seabed, then the latter would not be common heritage of mankind
under the current regulation. This hypothesis, which distinguishes between the Area
and the deep seabed, does not so much match the UNCLOS definition of the Area as
the definition of the Area’s resources;
49 and the existing regime, which is limited to
mining resources, should not be considered as incomplete. A suppletive application
of the high seas regime in the deep seabed would have more room for action, as it
would not be limited by the recognition of the deep seabed as common heritage of
mankind. And the framework for any future treaty could be the same in relation to all
the living resources located in ABNJs, that is, in both the deep seabed and the
high seas.
2.3 Political Debate
Beyond the doctrinal debate, the discussion on the regime for the marine genetic
resources of the deep seabed is fundamentally political. It is one of the most
important issues to be dealt with at the intergovernmental conference.
50
The future treaty is unlikely to place sedentary species within the current framework, whether as Area resources, as deep seabed resources subject to the high seas
regime, or even as resources pertaining to the high seas water column. Instead, it will
46 Art. 157.1 UNCLOS: “1. The Authority is the organization through which States Parties shall, in
accordance with this Part, organize and control activities in the Area, particularly with a view to
administering the resources of the Area.” Treves (2010, p. 17) emphasizes, amongst other things,
that the composition of the Council—a key body of the International Seabed Authority—has been
shaped by taking into account the polymetallic nodule industry.
47 Salamanca Aguado (2006), pp. 1074–1075.
48 Art. 143.1 UNCLOS provides: “Marine scientific research in the Area shall be carried out
exclusively for peaceful purposes and for the benefit of mankind as a whole (. . .)”. Therefore, if
bioprospecting is considered a marine scientific activity in the Area, it should be done for the benefit
of humanity. Conde Pérez (2016, p. 259) points out that the regime provided for in this area—
dissemination of results . . .—clashes with the objective of any bioprospecting project, oriented
towards commercialisation and concerned with protecting intellectual property.
49 Art. 1 UNCLOS: “1. For the purposes of this Convention: (1) “Area” means the seabed and ocean
floor and subsoil thereof, beyond the limits of national jurisdiction”. Art. 133 UNCLOS: “For the
purposes of this Part [Part XI: The Area]: (a) “resources” means all solid, liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (. . .)”.
50 See, e.g.: Sánchez Ramos (2017).
452
M. Sobrido-Prieto
46 However, would adapting and supplementing the
Area regulation be enough to include marine genetic resources located in ABNJs in
that regime? It is a complex issue. For example, some authors highlight the advisability of a comprehensive regime for mineral and marine genetic resources with a
symbiotic relationship, such as in hydrothermal vents.
47 Other authors point out
drawbacks related to their exploitation.
48
In contrast, if the answer is no, that is, if the Area is not considered synonymous
with the deep seabed, then the latter would not be common heritage of mankind
under the current regulation. This hypothesis, which distinguishes between the Area
and the deep seabed, does not so much match the UNCLOS definition of the Area as
the definition of the Area’s resources;
49 and the existing regime, which is limited to
mining resources, should not be considered as incomplete. A suppletive application
of the high seas regime in the deep seabed would have more room for action, as it
would not be limited by the recognition of the deep seabed as common heritage of
mankind. And the framework for any future treaty could be the same in relation to all
the living resources located in ABNJs, that is, in both the deep seabed and the
high seas.
2.3 Political Debate
Beyond the doctrinal debate, the discussion on the regime for the marine genetic
resources of the deep seabed is fundamentally political. It is one of the most
important issues to be dealt with at the intergovernmental conference.
50
The future treaty is unlikely to place sedentary species within the current framework, whether as Area resources, as deep seabed resources subject to the high seas
regime, or even as resources pertaining to the high seas water column. Instead, it will
46 Art. 157.1 UNCLOS: “1. The Authority is the organization through which States Parties shall, in
accordance with this Part, organize and control activities in the Area, particularly with a view to
administering the resources of the Area.” Treves (2010, p. 17) emphasizes, amongst other things,
that the composition of the Council—a key body of the International Seabed Authority—has been
shaped by taking into account the polymetallic nodule industry.
47 Salamanca Aguado (2006), pp. 1074–1075.
48 Art. 143.1 UNCLOS provides: “Marine scientific research in the Area shall be carried out
exclusively for peaceful purposes and for the benefit of mankind as a whole (. . .)”. Therefore, if
bioprospecting is considered a marine scientific activity in the Area, it should be done for the benefit
of humanity. Conde Pérez (2016, p. 259) points out that the regime provided for in this area—
dissemination of results . . .—clashes with the objective of any bioprospecting project, oriented
towards commercialisation and concerned with protecting intellectual property.
49 Art. 1 UNCLOS: “1. For the purposes of this Convention: (1) “Area” means the seabed and ocean
floor and subsoil thereof, beyond the limits of national jurisdiction”. Art. 133 UNCLOS: “For the
purposes of this Part [Part XI: The Area]: (a) “resources” means all solid, liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (. . .)”.
50 See, e.g.: Sánchez Ramos (2017).
452
M. Sobrido-Prieto