Originally from Natural Resources and the Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources in Areas under National Jurisdiction and Beyond - International Law Institute Series on International Law, Arbitration and Practice, Volume 2

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I.    INTRODUCTION

The term “marine genetic resources” (MGRs) may perhaps seem a bit abstract and, in any case, one that should rather be a subject of biological, not legal, deliberations. Nevertheless, the past decade has witnessed heightened debate, both of academic and diplomatic nature, relating to their legal status. The object of this paper is to analyze these controversies from a relatively narrow perspective. Namely, it will strive to answer one specific question: do the MGRs, as a matter of law, fall within the common heritage of mankind (CHM) principle, as defined in the 1982 United Nations Convention on the Law of the Sea  (UNCLOS or the Convention)? As a result, the paper will focus on areas beyond national jurisdiction (ABNJ), that is the High Seas and the Area, and will, in particular, scrutinize the regulations concerning the latter maritime zone.

It must be underlined at the outset that a number of related and no less important questions fall outside the scope of this paper. These include: the application of the Convention on Biological Diversity (CBD) in ABNJ, bioprospecting activities and to what extent they are covered by the marine scientific research (MSR) provisions of UNCLOS, the competence of the International Seabed Authority (ISA) with regard to the legal status of MGRs, as well as the application of intellectual property rights to marine biodiversity.

The Convention’s preamble clarifies that it was the intention of States Parties to establish “a legal order for the seas and oceans” which will, in particular, promote the equitable and efficient utilization of their resources, as well as the conservation of the living resources. Additionally, the preamble refers to the United Nations (UN) General Assembly (GA) Resolution 2749 of 1970  that declared, inter alia, that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind.