UNCLOS, such as the application of the common heritage of mankind; or did not
address problems that have either arisen since its ratification, such as exploitation of
Marine Genetic Resources (MGRs), or worsened since the treaty's completion in
1982, such as marine pollution.”
27 Fundamental questions still need to be addressed,
such as whether the exploitation of MGRs is a high seas freedom, or falls within the
common heritage of mankind regime, whatever that may be. There are also many
outstanding questions on the management of marine living resources in ABNJ.
28
Article 237 of UNCLOS, on obligations under other conventions on the protection and preservation of the marine environment, makes very clear that the drafters of
the UNCLOS anticipated more detailed rules on the protection of the ABNJ. It
proclaims that certain provisions in the UNCLOS are “without prejudice to the
specific obligations assumed by States under [. . .] agreements which may be concluded in furtherance of the general principles set forth in this Convention”. It further
proclaims that “specific obligations assumed by States under special conventions,
with respect to the protection and preservation of the marine environment, should be
carried out in a manner consistent with the general principles and objectives of this
Convention.”
Let us look in some more detail at how much policy space is left open by the
UNCLOS, when it comes to balancing marine environmental protection and the high
seas freedoms. There is some disagreement on this issue. The United States believe
there is not really any legal vacuum.
29 The European Union is of the opinion that a
global legal regime for the conservation of BBNJ needs to be made, seeking to
balance marine environmental protection with high seas freedoms, whilst at the same
time finding some modest room for the common heritage of mankind principle.
30
China and most developing States believe that the UNCLOS obliges States to exploit
BBNJ on the basis of the common heritage of mankind principle, and that there is a
need for a new global agreement to tell States how exactly this is done; marine
environmental protection and the high seas freedoms fade a little bit into the
background here.
31 References to the common heritage of mankind principle we
find, inter alia, in Article 136 of UNCLOS, which proclaims that “the Area and its
resources are the common heritage of mankind”. And Article 311(6) of UNCLOS
prohibits States from making “amendments to the basic principle relating to the
common heritage of mankind set forth in Article 136 [and to become] party to any
agreement in derogation thereof”. Article 140 of UNCLOS obliges States inter alia
to carry out all activities in the Area “for the benefit of mankind as a whole”. The ISA
was given specific tasks in this context, further elaborated in the Agreement relating
27 Tiller et al. (2019). See also Kraabel (2019), pp. 152–154.
28 Warner (2018a).
29 See also Wright et al. (2018), p. 53. The United States maintain this position especially with
regard to marine genetic resources in ABNJ.
30 Id., pp. 47–49.
31 China argues in particular that marine genetic resources in the Area should be exploited on the
basis of this principle. See Id., pp. 34–35 and 49–51.
358
C. Blanchard et al.
address problems that have either arisen since its ratification, such as exploitation of
Marine Genetic Resources (MGRs), or worsened since the treaty's completion in
1982, such as marine pollution.”
27 Fundamental questions still need to be addressed,
such as whether the exploitation of MGRs is a high seas freedom, or falls within the
common heritage of mankind regime, whatever that may be. There are also many
outstanding questions on the management of marine living resources in ABNJ.
28
Article 237 of UNCLOS, on obligations under other conventions on the protection and preservation of the marine environment, makes very clear that the drafters of
the UNCLOS anticipated more detailed rules on the protection of the ABNJ. It
proclaims that certain provisions in the UNCLOS are “without prejudice to the
specific obligations assumed by States under [. . .] agreements which may be concluded in furtherance of the general principles set forth in this Convention”. It further
proclaims that “specific obligations assumed by States under special conventions,
with respect to the protection and preservation of the marine environment, should be
carried out in a manner consistent with the general principles and objectives of this
Convention.”
Let us look in some more detail at how much policy space is left open by the
UNCLOS, when it comes to balancing marine environmental protection and the high
seas freedoms. There is some disagreement on this issue. The United States believe
there is not really any legal vacuum.
29 The European Union is of the opinion that a
global legal regime for the conservation of BBNJ needs to be made, seeking to
balance marine environmental protection with high seas freedoms, whilst at the same
time finding some modest room for the common heritage of mankind principle.
30
China and most developing States believe that the UNCLOS obliges States to exploit
BBNJ on the basis of the common heritage of mankind principle, and that there is a
need for a new global agreement to tell States how exactly this is done; marine
environmental protection and the high seas freedoms fade a little bit into the
background here.
31 References to the common heritage of mankind principle we
find, inter alia, in Article 136 of UNCLOS, which proclaims that “the Area and its
resources are the common heritage of mankind”. And Article 311(6) of UNCLOS
prohibits States from making “amendments to the basic principle relating to the
common heritage of mankind set forth in Article 136 [and to become] party to any
agreement in derogation thereof”. Article 140 of UNCLOS obliges States inter alia
to carry out all activities in the Area “for the benefit of mankind as a whole”. The ISA
was given specific tasks in this context, further elaborated in the Agreement relating
27 Tiller et al. (2019). See also Kraabel (2019), pp. 152–154.
28 Warner (2018a).
29 See also Wright et al. (2018), p. 53. The United States maintain this position especially with
regard to marine genetic resources in ABNJ.
30 Id., pp. 47–49.
31 China argues in particular that marine genetic resources in the Area should be exploited on the
basis of this principle. See Id., pp. 34–35 and 49–51.
358
C. Blanchard et al.