Are the Genetic Resources in Areas Beyond National Jurisdictions Subject to the 'Genetic Heritage of Mankind' Principle?
| Author | Eleni Achnioti |
| Position | LLM Maritime Law (Soton), LLB |
| Pages | 50-60 |
(2021)
Vol. 11
50
Are the Genetic Resources in Areas Beyond National Jurisdictions Subject
to the “Genetic Heritage of Mankind” Principle?
Eleni Achnioti*
Abstract
It is uncertain whether the genetic resources in areas beyond national jurisdiction are subject to the common
heritage of mankind (CHM) or freedom of the high seas principle. This uncertainty is intensified, as the regime
governing the Area is itself fr agmented, leading to considerable tensions between States as to which r egime
should govern marine genetic resources (MGR). The aim of this paper is to determine the extent to which MGR
in the Area should be the CHM. In doing so, the regime of freedom of the high seas will be analysed to ultimately
conclude its inadequacy in governing MGR. In turn, CHM as a regime will be evaluated to determine its
adequacy. Ultimately, it will be argued that the most beneficial solution would be for a hybrid of CHM and
freedom of the high seas to be created. This would ensure that the majority of State interests are met, thus
avoiding tension.
Introduction
n terms of biodiversity, the deep sea is the most species-rich habitat in the world, therefore
ensuring the conservation and sustainable management of biodiversity therein could
arguably be the most important challenge of the coming decades.1 With more research
being carried out, it has become apparent that marine genetic resources (MGR) found in the
deep seabed have significant scientific and economic value.2 MGR have been observed to
survive in extreme environments in the Area, thus making their genetic material a particular
interest for science.3 Article 1 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS) defines the Area as “the seabed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction”.4
The question of whether MGR are the common heritage of mankind (CHM) shall be
dissected in order to analyse the controversy surrounding the regulation of MGR. Firstly, the
principle of the common CHM will be explained in order to later determine whether it is
reasonable for MGR to fall under it. Secondly, the development of the regime governing the
preservation of biodiversity in areas beyond national jurisdiction (ABNJ) will be considered,
in order to justify the need for a new legal document and to highlight the weakness of the
current regime. It will be argued that the current un-harmonised framework has added to the
controversy surrounding MGR and has caused disagreement by States as to whether MGR
fall under the principle of CHM or that of freedom of the high seas. Developed States are
usually advocates of the view of freedom of the high seas, whereas developing States support
the integration of MGR in the CHM. Both of the opposing views will be considered and their
persuasiveness will be analysed.
*
LLM Maritime Law (Soton), LLB.
1 David Leary,
International Law And The Genetic Resources Of The Deep Sea
(Martinus Nijhoff 2007) 8-9.
2 Yoshifumi Tanaka, ‘Reflections On The Conservation And Sustainable Use Of Genetic Resources In The
Deep Seabed Beyond The Limits Of National Jurisdiction’ (2008) 39 Ocean Development & International Law
129.
3 ibid.
4 United Nations Convention on the Law of the Sea (hereinafter UNCLOS 1982) (adopted 10 December 1982,
entered into force UN Treaty Series, vol. 183 p. 3, Article 1(1)(1).
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