to the implementation of Part XI of the United Nations Convention on the Law of the
Sea, which entered into force 28 July 1996. It is important to note that the UNCLOS
articles referred to, as well as the Part XI implementing agreement, apply only to the
Area, not to the water column situated above it, i.e. the high seas. In those high seas,
the traditional freedoms prevail.
32 That is why a new ILBI based on an application of
the common heritage of mankind principle (also) to the high seas risks to modify—
as opposed to implement—the UNCLOS framework.
Let us look briefly at some of the ways in which the new ILBI might play this
function of filling in the details left open by the more general provisions in the
UNCLOS.
33 Article 192 of UNCLOS obliges States parties to “protect and preserve
the marine environment”; and Article 194(5) of UNCLOS obliges the same States to
take measures “necessary to protect and preserve rare or fragile ecosystems as well
as the habitat of depleted, threatened or endangered species and other forms of
marine life”. Article 197 of UNCLOS requires States to cooperate. One way to
cooperate in the protection of fragile marine ecosystems is by designating them as
MPAs. It could be argued that one can derive an obligation, from the abovementioned articles in the UNCLOS, to participate in the establishment of such
MPAs.
34 The new ILBI can set criteria and procedures for designation of ABMTs,
including MPAs, and provide more detailed regulations on their management, and
enforcement of the MPA’s protective measures.
35
According to Article 194(4) of UNCLOS, “in taking measures to prevent, reduce
or control pollution of the marine environment [such as the designation of an MPA]
States shall refrain from unjustifiable interference with activities carried out by other
States in the exercise of their rights and in pursuance of their duties in conformity
with this Convention”. This can be interpreted as a variation of the obligation we find
in Article 87 of UNCLOS, i.e. to have “due regard for the interests of other States in
their exercise of the freedom of the high seas”.
36 In other words, when designating
an MPA, the obligation to protect the environment must be balanced against the
obligation to respect the high seas freedoms. The new ILBI should not distort this
balance, which is the very foundation on which the constitution of the oceans is built.
From Article 206 of UNCLOS, a general duty to undertake an EIA, also for
activities which might cause harm to the marine environment in areas beyond
national jurisdiction, can be derived.
37 But Article 206 of UNCLOS does not
tell us when exactly such an EIA is compulsory, and how it should be done.
38 The
32 See UNCLOS, Art. 87.
33 See also IUCN (2018).
34 See also Oude Elferink (2018), p. 445. Here, the author discusses the legal basis for the
establishment of MPAs in ABNJ but does not expressly indicate that there is an obligation for
States to participate in the establishment of MPAs in ABNJ.
35 Wright et al. (2018), pp. 32–34. See also Park and Kim (2019).
36 See also Oude Elferink (2018), pp. 447–448. Support for this interpretation can be found in
Chagos Marine Protected Area Arbitration (2015), para 475.
37 This interpretation of 206 UNCLOS finds support in ITLOS Advisory Opinion (2011), para
146–148.
38 See also Wright et al. (2018), p. 35.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
359
Sea, which entered into force 28 July 1996. It is important to note that the UNCLOS
articles referred to, as well as the Part XI implementing agreement, apply only to the
Area, not to the water column situated above it, i.e. the high seas. In those high seas,
the traditional freedoms prevail.
32 That is why a new ILBI based on an application of
the common heritage of mankind principle (also) to the high seas risks to modify—
as opposed to implement—the UNCLOS framework.
Let us look briefly at some of the ways in which the new ILBI might play this
function of filling in the details left open by the more general provisions in the
UNCLOS.
33 Article 192 of UNCLOS obliges States parties to “protect and preserve
the marine environment”; and Article 194(5) of UNCLOS obliges the same States to
take measures “necessary to protect and preserve rare or fragile ecosystems as well
as the habitat of depleted, threatened or endangered species and other forms of
marine life”. Article 197 of UNCLOS requires States to cooperate. One way to
cooperate in the protection of fragile marine ecosystems is by designating them as
MPAs. It could be argued that one can derive an obligation, from the abovementioned articles in the UNCLOS, to participate in the establishment of such
MPAs.
34 The new ILBI can set criteria and procedures for designation of ABMTs,
including MPAs, and provide more detailed regulations on their management, and
enforcement of the MPA’s protective measures.
35
According to Article 194(4) of UNCLOS, “in taking measures to prevent, reduce
or control pollution of the marine environment [such as the designation of an MPA]
States shall refrain from unjustifiable interference with activities carried out by other
States in the exercise of their rights and in pursuance of their duties in conformity
with this Convention”. This can be interpreted as a variation of the obligation we find
in Article 87 of UNCLOS, i.e. to have “due regard for the interests of other States in
their exercise of the freedom of the high seas”.
36 In other words, when designating
an MPA, the obligation to protect the environment must be balanced against the
obligation to respect the high seas freedoms. The new ILBI should not distort this
balance, which is the very foundation on which the constitution of the oceans is built.
From Article 206 of UNCLOS, a general duty to undertake an EIA, also for
activities which might cause harm to the marine environment in areas beyond
national jurisdiction, can be derived.
37 But Article 206 of UNCLOS does not
tell us when exactly such an EIA is compulsory, and how it should be done.
38 The
32 See UNCLOS, Art. 87.
33 See also IUCN (2018).
34 See also Oude Elferink (2018), p. 445. Here, the author discusses the legal basis for the
establishment of MPAs in ABNJ but does not expressly indicate that there is an obligation for
States to participate in the establishment of MPAs in ABNJ.
35 Wright et al. (2018), pp. 32–34. See also Park and Kim (2019).
36 See also Oude Elferink (2018), pp. 447–448. Support for this interpretation can be found in
Chagos Marine Protected Area Arbitration (2015), para 475.
37 This interpretation of 206 UNCLOS finds support in ITLOS Advisory Opinion (2011), para
146–148.
38 See also Wright et al. (2018), p. 35.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
359