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Bangladesh proposal on the Scope of MGRs
“Marine genetic resources of the area beyond the outer limits of
the continental shelf beyond 200nm or of the area beyond
national jurisdiction including waters superjacent to the seabed
and of the ocean floor and of the subsoil thereof”.
Bangladesh proposal on Common heritage of mankind
In case of EEZ Art 56 (1) (a), natural resources means whether
living or non living resources both in the water column and in
the seabed and subsoil. In the UNCLOS Art. 77 (4) relating to
continental shelf beyond 200nm, natural resources consist of
the mineral and other non living resources of the seabed and
subsoil together with living organisms belonging to sedentary
species. Here the definition of sedentary species is designed
for only harvesting and is inappropriate to be applied for MGRs.
Many MGRS are partially mobile and at different stages in their
life, forms may be permanently or temporarily attached to rocks
or may be free swimming or floating in the water column. So
both vertical and horizontal scopes should be addressed in the
IA and an agreement for sedentary species would miss the vast
majority of deep sea MGRS.
In the UNCLOS Art 136- “The AREA and its resources are the
common heritage of mankind”. What that clearly means is Area
beyond national jurisdiction itself is the common heritage of
mankind as much as its resources are also the common
heritage of mankind. This is plain and simple English as both
the words- Area and resources are separated by the word “and”
Art 140 Activities in the Area shall be carried out for the benefit
of mankind as a whole. So any activities in the Area relating to
the MGR which are attached to the seabed, ocean floor and
subsoil forms part of common heritage of mankind as they are
meant for the benefit of the mankind.
It can be considered that, in contrast to the ABS regime
established under Part XI of the UNCLOS, which is limited to
non-living resources, the benefit sharing regime related to
marine scientific research also applies to genetic resources. The
scope of Part XIII of the UNCLOS is not limited to any type of
resource, and the „general‟ limitation of Part XI of the UNCLOS
does not apply to scientific research in the Area. Art. 256 also
deal with marine scientific research in the Area and art. 257
deals with marine scientific research in the water column
beyond the limits of the exclusive economic zone. The latter
becomes clear when looking at the exact formulations used in
Article 143.1 and 143.3 UNCLOS: Referring to ‘scientific
research in the Area’ instead of ‘scientific research concerning
the Area and its resources’ (emphasis added), which is the
formulation used in art 15 of the CBD. Article 143.2 UNCLOS,
implies that these provisions apply to any kind of marine
scientific research and not only to research on mineral
resources.
Since the Area is the common heritage of mankind, any MGR
attached to the on the seabed, ocean floor and subsoil thereof
forms part of common heritage of mankind.
Areas beyond national jurisdiction (ABNJ) are also dealt with
in Article 4(b) of CBD. Accordingly, the CBD also applies to
processes and activities taking place in ABNJ, provided that
such processes or activities are carried out under the
jurisdiction or control of a state. By express distinction to
Article 4(a) CBD, Article 4(b) CBD defines the scope of the CBD
by referring to types of activities rather than the place of
activities.
Option for closing the legal gap to include the MGRs of the
water column superjacent to the seabed and of the ocean floor
and subsoil would be to expand the mandate of the
International Seabed Authority so that it manages ABS related
to marine genetic resources in ABNJ and that needs to be
discussed for inclusion in the IA.
Number of countries argued that because marine genetic
resources are not specifically defined in the Convention, they
fall outside the scope of the Convention’s regulation. As far as
this argument relating to the definition provided in the art 133
(a) “resources” means all solid, liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed, including
polymetallic nodules” is concerned; it must be pointed out that
all state parties having not at all mentioned in the Art
133/definition or any where in the UNCLOS, already accepted
the exploration regulations relating to the polymetallic
sulphides and ferro manganese crusts. And although the shape,
size and location of these resources are quite distinct and
different than polymetallic nodules, exploration licenses have
been signed with the ISA without raising any question.
Moreover, in the preamble of the “ REGULATIONS ON
PROSPECTING AND EXPLORATION FOR POLYMETALLIC
NODULES” It is written that “in accordance with the UNCLOS,
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--------“ justifies clearly that the
word “Area” which denotes its seabed, ocean floor and subsoil
as mentioned also forms the common heritage of mankind in
addition to its resources.
For this, the scope of Part XI of UNCLOS could be changed by
defining ‘resources’ under Article 133 UNCLOS not only as
mineral resources but to include MGRS floating in the water
column or all living and non-living resources in the Area‟. As a
consequence, all resources of the Area, including marine
genetic resources, would need to be explored and exploited for
the benefit of mankind as a whole, irrespective of the
geographical location of states (Preamble as well as Articles
137.2 and 140.1 UNCLOS). The ISA would be obliged to provide
for the equitable sharing of financial and other economic
benefits derived from activities in the Area (Articles 137.2 and
140.2 UNCLOS).