The assumption that the United Nations Convention on the Law of the Sea is the legal framework for all activities taking place in the sea - Ocean Sustainability in the 21st Century - page 375

under the same legal framework the genetic resources of both the Area and the superjacent
waters.
However,notalloftheUNCLOSshouldbeleftasidewhenenvisagingafutureregime
for marine genetic resources beyond national jurisdiction. The scope of the regime of the
Area is already broader than may be believed at first sight. Under the UNCLOS, the leg-
al condition of the Area also has an influence on the regulation of activities that, although
different from minerals and mining, are also located in that space. The regime of the Area
already encompasses subjects which are more or less directly related to mining activities,
such as marine scientific research (Art. 143 of UNCLOS), the preservation of the marine
environment (Art. 145 of UNCLOS), and the protection of underwater cultural heritage
(Art. 149 of UNCLOS). As far as the first two subjects are concerned, it is difficult to draw
a clear-cut distinction between what takes place on the seabed and what in the superjacent
waters.
While a specific regime for exploitation of genetic resources is lacking, the aim of
sharing the benefits among all states can still be seen as a basic objective embodied in a
treaty designed to 'contribute to the realization of a just and equitable international eco-
nomic order which takes into account the interests and needs of mankind as a whole and, in
particular the special interests and needs of developing countries, whether coastal or land-
locked' (UNCLOS preamble). Also in the field of genetic resources, the application of the
principle of freedom of the sea (that is the 'first-come-first-served' approach) leads to in-
equitable and hardly acceptable consequences. New cooperative schemes, based on pro-
visions on access and sharing of benefits, should be envisaged in a future agreement on
genetic resources beyond the limits of national jurisdiction. This is also in full conformity
with the principle of fair and equitable sharing of the benefits arising out of the utilization
of genetic resources set forth by Article 1 of the Convention on Biological Diversity and,
more recently, by Article 10 of the Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilization (CBD, 2010 ) . 8
Moreover, bioprospecting, which is currently understood as the search for commer-
cially valuable genetic resources, can already be considered as falling under the UNCLOS