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Consequently there at present few if any restrictions on access to marine genetic resources in ABNJ or any substantive controls as to how the acquisition of marine genetic resources is to be undertaken. This has a number of implications. First of all there is a risk of damage to marine biodiversity as a result of the acquisition of marine genetic resources from or near the sea bed (sampling techniques mean that negative impacts in the water column are likely to be negligible). Although unlike a harvesting operation, only very small quantities of such resources are needed for the purposes of gathering marine genetic material, such material may be located within very delicate ecosystems such as hydrothermal vent ecosystems which are hotspots of marine biodiversity. Second, there is the question of ABS with regard marine genetic resources. In this connection it is necessary to recall that two separate regimes apply: the regime of the high seas, which applies to the surface and water column, and the specific regime of the seabed that applies to the Area. In terms of the high seas, as already noted, all States enjoy inter alia the freedom of navigation, the freedom fishing and the freedom of marine scientific research. However such freedoms are not absolute.274 They must be exercised by all States with due regard to the interests of other States in their exercise of their freedom of the high seas as well as relevant provisions of UNCLOS including those relating to the conservation and management of living resources (Part VII, section 2), general obligations to protect and preserve the marine environment (Part XII) as well as the regime for marine scientific research (Part XIII). Nevertheless, article 257 clearly provides that all States, irrespective of geographical location, have the right to conduct scientific research ‘in the water column beyond the limits of the exclusive economic zone’. As regards the Area, it will be recalled that in accordance with Part XI a specific regime applies to the exploitation of the (mineral) resources of situated there. However that regime is silent as to the marine genetic resources of the Area. Moreover article 256 clearly indicates that all States have the right, in conformity with Part XI, to conduct scientific research in the Area. In outline, two basic positions can be taken with regard to the question of ABS in connection with marine genetic resources in ABNJ. Developed countries tend argue that principle of the freedom of the high seas extends to the acquisition and exploitation of the marine genetic resources found in the water column and by extension in the Area given that this issue is not expressly addressed in Part XI. Other countries argue that when the principle of the freedom of the high seas was developed, back in the seventeenth century, no-one had marine bioprospecting in mind and that a ‘first come first served’ legal regime favours the richer countries that have the resources to fund marine scientific research. Consequently it is argued that the spirit of UNLCOS calls for marine genetic resources in ABNJ to be recognized as forming part of the common heritage of mankind and to be managed in a more equitable manner along the lines of the regime for the mineral resources of the Area.275 In support of this second argument it is further argued that article 143 (1) provides that marine scientific research in the Area must be carried out ‘exclusively for peaceful purposes and for the benefit of mankind as a whole in accordance with Part XIII’. Moreover it is argued that the obligation contained in article 244 of UNCLOS to make available knowledge resulting from marine scientific research is incompatible with the commercial objectives of bioprospecting.276 Finally there is the much broader issue of the protection of biodiversity in ABNJ in general including as regards the creation of marine protected areas (MPAs). 274 Article 87. 275 Scovazzi op cit at page 21. 276 Warner op cit. 200 Study in support of Impact Assessment work on Blue Biotechnology

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