Let us begin with the latter. Article 87 of UNCLOS states that “the high seas are
open to all States”. High seas freedoms include the freedom of navigation, overflight,
the freedom to lay submarine cables and pipelines, the freedom to construct artificial
islands and other installations, the freedom of fishing, and the freedom of scientific
research. None of these freedoms is absolute. They are to be “exercised under the
conditions laid down by this Convention and by other rules of international law”.
25
One such condition laid down in the UNCLOS itself is the obligation to protect and
preserve the marine environment (Article 192, UNCLOS). There are conditions that
apply to specific freedoms only, such as the obligation for States to “cooperate with
each other in the conservation and management of living resources in the areas of the
high seas”, which primarily constitutes a limitation on the freedom of high seas
fishing (Article 118, UNCLOS). States interested in the same living resource must
“enter into negotiations with a view to taking the measures necessary for the
conservation of the living resources concerned”, which includes an obligation to
jointly establish sub-regional or regional fisheries organizations, whose raison d’être
is to further limit the freedom of high seas fishing.
Article 87 of UNCLOS obliges States to exercise their high seas freedoms “with
due regard for the interests of other States in their exercise of the freedom of the high
seas, and also with due regard for the rights under this Convention with respect to
activities in the Area”. This due regard-condition means States must consult with the
relevant other States and figure out jointly how all States’ rights and obligations may
be balanced, and possibly consider an alternative course of action if that balance
appears to get lost.
26
The high seas freedoms are thus subject to conditions, and these can be based on
the UNCLOS, but also on other international law. When the UNCLOS was drafted,
the States sought to achieve a fair balance between the freedoms of the high seas and
the protection of the marine environment. Clearly, the new ILBI must show some
respect for this delicate balance of rights and interests achieved in the UNCLOS.
Let us now look at the other category of rights and duties under the UNCLOS,
which might be affected by the new ILBI. The UNCLOS establishes rights and
duties for the protection of the marine environment; the term “biodiversity” does not
appear at all in the UNCLOS. When the UNCLOS was drafted, there was a feeling
that the legal framework on the protection and preservation of the marine environment was still in development, and that the UNCLOS should not solidify or
crystallize this development. It was too early for that. Therefore, some of the
provisions in the UNCLOS are rather vague and general. Article 192 of UNCLOS
simply reads that “States have the obligation to protect and preserve the marine
environment”. Admittedly, there are more detailed provisions on the States’ obligations to take measures necessary to combat pollution (Article 194, UNCLOS), be it
from land-based sources (Article 201, UNCLOS), vessels (Article 211, UNCLOS),
or through the atmosphere (Article 212, UNCLOS). In their efforts to protect and
25 UNCLOS, Art. 87(1).
26 See also Oude Elferink (2018), pp. 446–455.
356
C. Blanchard et al.
open to all States”. High seas freedoms include the freedom of navigation, overflight,
the freedom to lay submarine cables and pipelines, the freedom to construct artificial
islands and other installations, the freedom of fishing, and the freedom of scientific
research. None of these freedoms is absolute. They are to be “exercised under the
conditions laid down by this Convention and by other rules of international law”.
25
One such condition laid down in the UNCLOS itself is the obligation to protect and
preserve the marine environment (Article 192, UNCLOS). There are conditions that
apply to specific freedoms only, such as the obligation for States to “cooperate with
each other in the conservation and management of living resources in the areas of the
high seas”, which primarily constitutes a limitation on the freedom of high seas
fishing (Article 118, UNCLOS). States interested in the same living resource must
“enter into negotiations with a view to taking the measures necessary for the
conservation of the living resources concerned”, which includes an obligation to
jointly establish sub-regional or regional fisheries organizations, whose raison d’être
is to further limit the freedom of high seas fishing.
Article 87 of UNCLOS obliges States to exercise their high seas freedoms “with
due regard for the interests of other States in their exercise of the freedom of the high
seas, and also with due regard for the rights under this Convention with respect to
activities in the Area”. This due regard-condition means States must consult with the
relevant other States and figure out jointly how all States’ rights and obligations may
be balanced, and possibly consider an alternative course of action if that balance
appears to get lost.
26
The high seas freedoms are thus subject to conditions, and these can be based on
the UNCLOS, but also on other international law. When the UNCLOS was drafted,
the States sought to achieve a fair balance between the freedoms of the high seas and
the protection of the marine environment. Clearly, the new ILBI must show some
respect for this delicate balance of rights and interests achieved in the UNCLOS.
Let us now look at the other category of rights and duties under the UNCLOS,
which might be affected by the new ILBI. The UNCLOS establishes rights and
duties for the protection of the marine environment; the term “biodiversity” does not
appear at all in the UNCLOS. When the UNCLOS was drafted, there was a feeling
that the legal framework on the protection and preservation of the marine environment was still in development, and that the UNCLOS should not solidify or
crystallize this development. It was too early for that. Therefore, some of the
provisions in the UNCLOS are rather vague and general. Article 192 of UNCLOS
simply reads that “States have the obligation to protect and preserve the marine
environment”. Admittedly, there are more detailed provisions on the States’ obligations to take measures necessary to combat pollution (Article 194, UNCLOS), be it
from land-based sources (Article 201, UNCLOS), vessels (Article 211, UNCLOS),
or through the atmosphere (Article 212, UNCLOS). In their efforts to protect and
25 UNCLOS, Art. 87(1).
26 See also Oude Elferink (2018), pp. 446–455.
356
C. Blanchard et al.