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The final maritime zone of relevance to this topic is the area of ‘high seas’ which include all parts of the sea that do not form part of the EEZ, territorial sea or other maritime zones of coastal States.267 The high seas are the subject of Part VII of UNCLOS. The provisions of Part VII therefore apply to the airspace, surface waters and water column beyond the outer limit of the EEZ and the seabed and subsoil of that same area. In other words, the UNCLOS regime for the high seas overlaps with its regime for the Area and may overlap with the regime of the outer continental shelf if one is claimed.268 All States enjoy the freedoms of the high seas, which include the freedom of overflight, fishing and scientific research. Moreover no State may seek to subject any part of the high seas to its sovereignty.269 For this reason the high seas, like the Area, are often referred to as an ‘area beyond national jurisdiction’ or an ‘international commons’ in which States are not entitled to exercise jurisdiction in a coastal State capacity.270 Having examined the UNCLOS provisions on maritime zones it is next appropriate to consider how UNCLOS deals with the issue of marine genetic resources. UNCLOS and marine genetic resources In fact, as already mentioned, UNCLOS does not specifically refer to marine genetic resources. The rights and duties of States must instead be understood in terms of more general provisions on the conservation and exploitation of natural resources in general as well as the provisions contained in Part XIII on marine scientific research (which inter alia require States to make available knowledge from scientific research and to actively promote the flow the flow of scientific data and information and the transfer of knowledge) and in Part XII, which imposes a number of general duties upon States to protect the marine environment. In examining the provisions on UNCLOS on these topics it is convenient to distinguish between the legal regime applicable to maritime areas under national jurisdiction (namely internal waters, territorial sea, EEZ and continental shelf) and that applicable to areas beyond national jurisdiction (namely the Area and the high seas). Areas under national jurisdiction Although the term ‘natural resources’ is not actually defined in UNCLOS the all encompassing description of natural resources in Article 56, which includes living or non-living resources, would appear to include marine genetic resources.271 It follows therefore that on the basis its sovereignty over its internal waters and territorial sea a coastal State also enjoys sovereignty over the marine genetic resources contained within its internal waters and territorial sea. Similarly the sovereign rights that a coastal State enjoys over the living marine resources contained within its EEZ and on its continental shelf (and extended continental shelf if any) extend to the marine genetic resources found there. In other words genetic resources found within such areas under national jurisdiction (internal waters, territorial sea, EEZ 267 In other words if a coastal State does not claim an EEZ the waters above its continental shelf may also be considered to form part of the high seas. 268 For a comprehensive discussion see A.G. Oude Elferink, “The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas”, 22 International Journal of Marine and Coastal Law 143176 (2007). 269 Article 89. 270 Article 137. 271 Warner, R.M. ‘Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Research Beyond National Jurisdiction’, 22 Ocean Yearbook (2008) p. 411. Study in support of Impact Assessment work on Blue Biotechnology 197

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