Geoscience Reference
In-Depth Information
The United Nations Convention on the Law of the Sea was recognized as the legal
framework for all activities in the oceans and seas, including in respect of genetic
resources beyond areas of national jurisdiction.
(United Nations,
2008
, para. 36)
Why do two groups of states, moving from the same starting point, namely that the
UNCLOS is the legal framework for all activities taking place in the sea, reach two com-
pletely opposite conclusions with regard to the same question? A possible answer to the
question is that the starting point is not as solid as it seems at first sight.
It is a matter of fact that the UNCLOS cannot regulate those activities that its drafters
did not intend to regulate, for the simple reason that they were not foreseeable in the period
when the Treaty was being negotiated. At that time, very little was known about the genet-
ic qualities of marine organisms. For evident chronological reasons, the potential econom-
ic value of the marine genetic resources was not considered by the UNCLOS negotiators.
When dealing with the special regime of the Area and its resources, the UNCLOS drafters
had only mineral resources in mind.
This is fully evident from the plain text of the UNCLOS. The term 'activities' in the
Area is defined as 'all activities of exploration for, and exploitation of the resources of the
Area' (Art. 1, para. 1). Art. 133 (a) defines the 'resources' of the Area as 'all solid, liquid
or gaseous mineral resources
in-situ
in the Area at or beneath the sea-bed, including poly-
metallic nodules'. The UNCLOS regime of the common heritage of mankind does not in-
clude the non-mineral resources of the Area. However, for the same chronological reasons,
the regime of freedom of the high seas does not apply to genetic resources either. While
including rules on living (fish) and non-living (minerals) resources in areas beyond nation-
al jurisdiction, the UNCLOS does not provide any specific regime for the exploitation of
marine genetic resources. The words 'genetic resources' or 'bioprospecting' do not appear
anywhere in the UNCLOS. A legal gap exists in this regard. Sooner or later it should be
filled (better sooner than later) through a regime which, to be consistent, should encompass
