their participation in the conference could not in any way affect their status of
UNCLOS non-parties.
The special relationship between the new ILBI and the UNCLOS is further
reflected in the proposal to see the new ILBI as an instrument “under” the UNCLOS.
There is general agreement that this means the new ILBI will become an
implementing agreement, like the Agreement implementing Part XI of the UNCLOS
on matters related to the Area, and the Fish Stocks Agreement. In fact, the phrase that
the new ILBI must not “prejudice the rights, jurisdiction and duties of States under
the” UNCLOS, and that it “shall be interpreted and applied in the context of and in a
manner consistent with” the UNCLOS, is copy-pasted from Article 4 of the Fish
Stocks Agreement.
21
There is thus a clear hierarchical relationship, with the “constitution of the
oceans” (the UNCLOS) on top of that hierarchy, and the ILBI below it.
22 This
relationship is different from the relationship between the ILBI and other international treaties, such as the Convention on Biological Diversity. With respect to those,
the new ILBI “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.
23 The “not undermine”-condition does not apply to the relationship between the ILBI and the UNCLOS and
will thus not be discussed in this section.
The ILBI’s main objective is to ensure the conservation and sustainable use of
marine biodiversity in areas beyond national jurisdiction through effective implementation of the UNCLOS. Instead of prejudicing the rights and duties under the
UNCLOS, the new ILBI must actively reaffirm, support and strengthen these very
rights and duties. The ILBI should show respect for the balance of rights and
obligations achieved in the UNCLOS; and the new ILBI should build on the relevant
principles of the UNCLOS, and not derogate from them. And the meaning of terms
used in the ILBI should be consistent with the meaning of those same terms as used
in the UNCLOS. This is not so difficult, since the UNCLOS does not provide a
definition of most of the terms it uses.
24 But their meaning did crystallize through the
subsequent practice in the application and interpretation of the UNCLOS, and this
practice now forms part of that Convention.
What rights and duties do we find in the UNCLOS that are relevant to the ILBI?
First, the UNCLOS contains various duties—and rights—of States to protect and
preserve the marine environment, also in areas beyond national jurisdiction. Second,
one of the most important rights in the UNCLOS is the freedom of the high seas. A
formidable achievement of the UNCLOS is that it found a balance between marine
environmental protection and high seas freedoms.
21 Fish Stocks Agreement (1995), Art. 4.
22 See e.g. UNGA Res 69/292 (2015).
23 Id., para 19.
24 Most notably, the UNCLOS does not define “marine environment”; and the term “(marine)
biodiversity” is entirely absent from the Convention.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
355
UNCLOS non-parties.
The special relationship between the new ILBI and the UNCLOS is further
reflected in the proposal to see the new ILBI as an instrument “under” the UNCLOS.
There is general agreement that this means the new ILBI will become an
implementing agreement, like the Agreement implementing Part XI of the UNCLOS
on matters related to the Area, and the Fish Stocks Agreement. In fact, the phrase that
the new ILBI must not “prejudice the rights, jurisdiction and duties of States under
the” UNCLOS, and that it “shall be interpreted and applied in the context of and in a
manner consistent with” the UNCLOS, is copy-pasted from Article 4 of the Fish
Stocks Agreement.
21
There is thus a clear hierarchical relationship, with the “constitution of the
oceans” (the UNCLOS) on top of that hierarchy, and the ILBI below it.
22 This
relationship is different from the relationship between the ILBI and other international treaties, such as the Convention on Biological Diversity. With respect to those,
the new ILBI “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.
23 The “not undermine”-condition does not apply to the relationship between the ILBI and the UNCLOS and
will thus not be discussed in this section.
The ILBI’s main objective is to ensure the conservation and sustainable use of
marine biodiversity in areas beyond national jurisdiction through effective implementation of the UNCLOS. Instead of prejudicing the rights and duties under the
UNCLOS, the new ILBI must actively reaffirm, support and strengthen these very
rights and duties. The ILBI should show respect for the balance of rights and
obligations achieved in the UNCLOS; and the new ILBI should build on the relevant
principles of the UNCLOS, and not derogate from them. And the meaning of terms
used in the ILBI should be consistent with the meaning of those same terms as used
in the UNCLOS. This is not so difficult, since the UNCLOS does not provide a
definition of most of the terms it uses.
24 But their meaning did crystallize through the
subsequent practice in the application and interpretation of the UNCLOS, and this
practice now forms part of that Convention.
What rights and duties do we find in the UNCLOS that are relevant to the ILBI?
First, the UNCLOS contains various duties—and rights—of States to protect and
preserve the marine environment, also in areas beyond national jurisdiction. Second,
one of the most important rights in the UNCLOS is the freedom of the high seas. A
formidable achievement of the UNCLOS is that it found a balance between marine
environmental protection and high seas freedoms.
21 Fish Stocks Agreement (1995), Art. 4.
22 See e.g. UNGA Res 69/292 (2015).
23 Id., para 19.
24 Most notably, the UNCLOS does not define “marine environment”; and the term “(marine)
biodiversity” is entirely absent from the Convention.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
355