Geoscience Reference
In-Depth Information
9.3.1 The centrality of UNCLOS and the role of the CBD
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the legal
framework for all activities in the oceans and seas, including sustainable management of re-
sources, marine scientific research, and the protection and preservation of the marine envir-
onment. While UNCLOS does not contain a specific mention of genetic resources or biod-
iversity, it addresses 'marine life' (Articles 1(1)(4) and 194(5)), 'natural resources' (Articles
56(1)(a), 77, 79(2), 145, 193, 194(3), 246(5), and 249(2)), 'living resources' (Preamble and
Articles 1(1)(4), 21(1), 56(1), 61, 62, 69, 70, 71, 72, 73, Section II of Part VII, 123, 277, and
297(3)), and 'living organisms' (Article 77) in a number of ways from conservation, protec-
tion and preservation, to utilization and research. These terms can reasonably be understood
as encompassing all biological resources in the oceans, including genetic resources.
A number of provisions of the CBD are also relevant, including Article 15 on access
and benefit-sharing, as far as genetic resources within national jurisdiction are concerned,
and Article 14 on impact assessments. The 2010 Nagoya Protocol, which aims at imple-
menting the provisions of the CBD on access to genetic resources and the sharing of benefits
arising out of their utilization, also applies to genetic resources within national jurisdiction.
Both UNCLOS and the CBD provide the legal framework for activities related to mar-
ine genetic resources from organisms found within national sovereignty (i.e. in internal wa-
ters, which are the waters situated on the landward side of the baselines; archipelagic waters,
which are the waters enclosed by the archipelagic baseline; and the territorial sea, which
are the waters extending up to 12 nautical miles from the baselines) or jurisdiction (i.e. the
exclusive economic zone, which lies beyond and adjacent to the territorial sea, up to 200
nautical miles, and the continental shelf, which comprises the seabed and subsoil that ex-
tend beyond the territorial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200 nautical miles from the
baselines where the outer edge of the continental margin does not extend up to that dis-
tance). However, divergent views continue to be held regarding the applicability of the CBD
and its Nagoya Protocol to marine genetic resources of areas beyond national jurisdiction.
