preserve the marine environment, all States have an obligation to cooperate with
other States, on a global or regional basis, directly or through competent international organizations (Article 197, UNCLOS). The UNCLOS does not detail the
means and methods of such cooperation, but at the very least it means States cannot
frustrate cooperation efforts of other States, or dissociate themselves from any form
of cooperation, or engage in cooperation efforts in bad faith. The UNCLOS does not
detail the precise modalities and competences of institutionalized forms of cooperation (international organizations). It also does not appear to oblige reluctant States
to cooperate with such international organizations, once established by other States.
All States are obligated to take measures necessary for the conservation of the
living resources of the high seas (Article 117, UNCLOS) and need to cooperate for
that purpose (Article 118, UNCLOS).
They are also under an obligation to take measures necessary to protect the
marine environment in the so-called “Area” (Article 145, UNCLOS). The “Area”
is defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of
national jurisdiction” (Article 1, UNCLOS). More specifically, Article
145 of UNCLOS obliges States to take “necessary measures”, with respect to all
activities of exploration for, and exploitation of, the resources of the Area, and to
ensure effective protection for the marine environment from harmful effects which
may arise from such activities. The International Seabed Authority (ISA) is tasked
with deciding which measures are necessary to avoid “interference with the ecological balance of the marine environment”, as well as to ensure “the protection and
conservation of the natural resources of the Area and the prevention of damage to the
flora and fauna of the marine environment”.
It could be argued that these duties, taken together, already require States parties
to the UNCLOS to adopt all measures necessary to protect the marine environment,
and that this includes an obligation to cooperate for the conservation and sustainable
use of marine biodiversity in areas beyond national jurisdiction. After all, under the
UNCLOS, States have an obligation to cooperate, including in the establishment and
functioning of international organizations. To what extent can States then entirely
refuse to participate in the institutional framework established by the new ILBI? In
the negotiations, the European Union constantly insists on references, in the new
ILBI, to provisions in the UNCLOS, as if the new ILBI provides the only way to
comply with these provisions in the UNCLOS. This would give the impression that
States parties to the UNCLOS are basically “obliged” to also ratify the new ILBI.
But what if States decide to implement their obligations under the UNCLOS in a way
that is different from the way it is done in the new ILBI? The UNCLOS is much too
vague and general to provide guidance here. And this was deliberately done.
Indeed, the provisions in the UNCLOS referred to above anticipate that the States
will come together and conclude more specific agreements. The ILBI’s main aim is
thus to fill certain gaps deliberately left in the UNCLOS at the time it was drafted.
According to Tiller et al., these gaps relate to “provisions and definitions [that] were
not specific enough for states to be certain of the treaty's meaning at the time of
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
357
other States, on a global or regional basis, directly or through competent international organizations (Article 197, UNCLOS). The UNCLOS does not detail the
means and methods of such cooperation, but at the very least it means States cannot
frustrate cooperation efforts of other States, or dissociate themselves from any form
of cooperation, or engage in cooperation efforts in bad faith. The UNCLOS does not
detail the precise modalities and competences of institutionalized forms of cooperation (international organizations). It also does not appear to oblige reluctant States
to cooperate with such international organizations, once established by other States.
All States are obligated to take measures necessary for the conservation of the
living resources of the high seas (Article 117, UNCLOS) and need to cooperate for
that purpose (Article 118, UNCLOS).
They are also under an obligation to take measures necessary to protect the
marine environment in the so-called “Area” (Article 145, UNCLOS). The “Area”
is defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of
national jurisdiction” (Article 1, UNCLOS). More specifically, Article
145 of UNCLOS obliges States to take “necessary measures”, with respect to all
activities of exploration for, and exploitation of, the resources of the Area, and to
ensure effective protection for the marine environment from harmful effects which
may arise from such activities. The International Seabed Authority (ISA) is tasked
with deciding which measures are necessary to avoid “interference with the ecological balance of the marine environment”, as well as to ensure “the protection and
conservation of the natural resources of the Area and the prevention of damage to the
flora and fauna of the marine environment”.
It could be argued that these duties, taken together, already require States parties
to the UNCLOS to adopt all measures necessary to protect the marine environment,
and that this includes an obligation to cooperate for the conservation and sustainable
use of marine biodiversity in areas beyond national jurisdiction. After all, under the
UNCLOS, States have an obligation to cooperate, including in the establishment and
functioning of international organizations. To what extent can States then entirely
refuse to participate in the institutional framework established by the new ILBI? In
the negotiations, the European Union constantly insists on references, in the new
ILBI, to provisions in the UNCLOS, as if the new ILBI provides the only way to
comply with these provisions in the UNCLOS. This would give the impression that
States parties to the UNCLOS are basically “obliged” to also ratify the new ILBI.
But what if States decide to implement their obligations under the UNCLOS in a way
that is different from the way it is done in the new ILBI? The UNCLOS is much too
vague and general to provide guidance here. And this was deliberately done.
Indeed, the provisions in the UNCLOS referred to above anticipate that the States
will come together and conclude more specific agreements. The ILBI’s main aim is
thus to fill certain gaps deliberately left in the UNCLOS at the time it was drafted.
According to Tiller et al., these gaps relate to “provisions and definitions [that] were
not specific enough for states to be certain of the treaty's meaning at the time of
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
357