Emerging and unresolved issues: the example of marine genetic resources of areas beyond national jurisdiction - Ocean Sustainability in the 21st Century - page 321

regime of the high seas - the freedom of the high seas would therefore govern their col-
lection and exploitation (cf. United Nations, 2008 and 2010 ). By and large, these positions
reflect the respective capacity of each group of states to access, explore, and exploit those
resources (Germani and Salpin, 2011 ) .
Marine scientific research (MSR), which is governed by the provisions of Part XIII
of UNCLOS and constitutes the usual first point of access to marine genetic resources in
situ , is understood as encompassing both pure and applied research (Salpin and Germani,
2007 ) , including research of direct significance for the exploitation of natural resources
(UNCLOS, Article 246). All states, irrespective of their geographical location, and com-
petent international organizations have the right to conduct MSR in the area and in the high
seas (UNCLOS, Articles 256 and 257).
Assuming that a valuable marine compound had been identified and isolated, but
could not be cultured in the laboratory in sufficient quantities for further research and sub-
sequent application, one could wonder, in the absence of any explicit provision to that
effect, whether the procurement of additional material in situ in the marine environment
would still qualify as MSR, in particular if the quantities of material required were signific-
ant, or if other provisions applied. For instance, under the MSR regulations of some states,
the collection of large amounts of fish would entail the deduction of the catch from the re-
searching state's annual fishing quota, and most of the bioprospecting laws in place usually
refer to small quantities of algae, animals, and microorganisms (Salpin, 2013 ).
Another issue for further consideration relates to the manner in which UNCLOS ad-
dresses commercial exploitation of genetic resources following identification of a lead
compound through MSR. In that regard, it must be borne in mind that MSR, under Article
241 of UNCLOS, shall not constitute the legal basis for any claim to any part of the mar-
ine environment or its resources (Salpin and Germani, 2007 ). Salpin and Germani ( 2007 )
provide a discussion of the implications of this provision.
Particularly relevant in a context of limited capacity also, are the provisions of
UNCLOS related to cooperation in MSR, which require states and competent international
organizations, in accordance with the principle of respect for sovereignty and jurisdiction