Marine genetic resources and bioprospecting in areas beyond national jurisdiction : are they governed by UNCLOS?

Abstract

During the negotiations leading to the United Nations Convention on the Law of the Sea (UNCLOS), awareness about marine genetic wealth in the deep-sea was rather limited. Indeed, UNCLOS does not include any explicit reference to marine genetic resources (MGRs) nor to its concomitant bioprospecting activity. This has given rise to divergent views whether UNCLOS covers all marine resources and activities in the Area and the High Seas, which together constitute areas beyond national jurisdiction (ABNJ).

To address this legal conundrum, this study examines the relevant UNCLOS‟ provisions and backs this by scholarly literature. It establishes that while MGRs are covered in the high seas by Part VII, MGRs in the Area are not covered as Part XI covers only mineral resources. Bioprospecting of MGRs in ABNJ thus falls under the high seas regime rather than the Common Heritage of Mankind (CHM) regime. This has important ramifications on the applicable freedom as well as on access to MGRs, benefits sharing and intellectual property rights, amongst others.

This study then carries out a comparative analysis between the findings of the literature review and the positions put forth at the Preparatory Committee of the Biodiversity Beyond National Jurisdiction process, which has been established by the UN to address regulatory gaps in this regard. This reveals that developing countries hold that the CHM regime applies to bioprospecting of MGRs as they want to benefit from this „blue gold‟ in the same manner as developed countries. On the other hand, the latter assert that such activity is governed by the freedom of the high seas. To bridge this ideological debate, a pragmatic approach purports a sui generis regime that fuses elements from both regimes.

The above has important implications for Malta. One such implication arises from the interplay between its unclaimed EEZ and its current status as high seas.