not ratified by those States, the effectiveness of the global model would be weakened
due to the lack of participation of those States.
4.2 Regional/Sectoral Model
Under the regional or sectoral model, any issues in relation to the establishment of
MPAs would still be addressed within existing sectoral/regional regimes.
114 However, the existing legal regimes related to the establishment of MPAs in ABNJ are
highly fragmented.
115 This is because the establishment of existing MPAs in ABNJ
is addressed in various regional or sectoral regimes rather than an overarching global
regime, and each regional regime only includes a limited number of States.
116 In
addition, the competence or scope of various relevant existing regimes or bodies
related to the establishment of MPAs in ABNJ is limited and no holistic mechanism
exists to coordinate these regional regimes.
117 Due to such a fragmentation, it is
difficult to ensure universal participation of States in the establishment of MPAs in
ABNJ and to achieve the cooperation or coordination of various regional regimes for
ensuring legal coherence and consistency in that respect.
118 In addition, as analyzed
by Fletcher et al., under this approach, due to the lack of a dedicated scientific body
of a global institution and the reliance on the scientific bodies of existing regional or
sectoral institutions, there may exist “gaps in the capacity of these existing bodies to
consider elements currently outside their normal scope”.
119 At this point, those
elements outside the normal scope of those existing bodies may include the establishment of MPAs in ABNJ and management measures therein. Therefore, if the
regional or sectoral model was adopted by the ILBI, the establishment of MPAs in
ABNJ would still be addressed within existing fragmented legal regimes, and thus
the shortcomings of existing legal regimes would still not be solved under the ILBI.
Nevertheless, this model is still favoured by several States, such as Russia and
Japan.
120 Russia strongly objected to the creation of a new global institution for
establishing MPAs in ABNJ, but preferred establishing those MPAs through
114 DOALOS (2017b), paras. 96, 123, 241.
115 Such a fragmentation is also an embodiment of the fragmented legal landscape related to the
conservation of BBNJ, see Fletcher et al. (2017), p. 53.
116 The CCAMLR establishing CCAMLR MPAs has 25 members, the OSPAR Commission
establishing OSPAR High Seas MPAs has 16 parties, and the SPAs Protocol by which the Pelagos
Sanctuary was established has 17 parties. It should be noted that contracting parties or members of
those existing regimes related to the establishment of MPAs in ABNJ are not the only States whose
nationals or vessels are conducting activities in the MPAs established by those regimes.
117 See Drankier (2012), p. 341.
118 See Tanaka (2012), pp. 325–326.
119 Fletcher et al. (2017), p. 43.
120 See IISD (2017), pp. 11–12, 15–16; See also DOALOS (2017a), p. 53; See also Millicay (2018),
pp. 167–168.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
369
due to the lack of participation of those States.
4.2 Regional/Sectoral Model
Under the regional or sectoral model, any issues in relation to the establishment of
MPAs would still be addressed within existing sectoral/regional regimes.
114 However, the existing legal regimes related to the establishment of MPAs in ABNJ are
highly fragmented.
115 This is because the establishment of existing MPAs in ABNJ
is addressed in various regional or sectoral regimes rather than an overarching global
regime, and each regional regime only includes a limited number of States.
116 In
addition, the competence or scope of various relevant existing regimes or bodies
related to the establishment of MPAs in ABNJ is limited and no holistic mechanism
exists to coordinate these regional regimes.
117 Due to such a fragmentation, it is
difficult to ensure universal participation of States in the establishment of MPAs in
ABNJ and to achieve the cooperation or coordination of various regional regimes for
ensuring legal coherence and consistency in that respect.
118 In addition, as analyzed
by Fletcher et al., under this approach, due to the lack of a dedicated scientific body
of a global institution and the reliance on the scientific bodies of existing regional or
sectoral institutions, there may exist “gaps in the capacity of these existing bodies to
consider elements currently outside their normal scope”.
119 At this point, those
elements outside the normal scope of those existing bodies may include the establishment of MPAs in ABNJ and management measures therein. Therefore, if the
regional or sectoral model was adopted by the ILBI, the establishment of MPAs in
ABNJ would still be addressed within existing fragmented legal regimes, and thus
the shortcomings of existing legal regimes would still not be solved under the ILBI.
Nevertheless, this model is still favoured by several States, such as Russia and
Japan.
120 Russia strongly objected to the creation of a new global institution for
establishing MPAs in ABNJ, but preferred establishing those MPAs through
114 DOALOS (2017b), paras. 96, 123, 241.
115 Such a fragmentation is also an embodiment of the fragmented legal landscape related to the
conservation of BBNJ, see Fletcher et al. (2017), p. 53.
116 The CCAMLR establishing CCAMLR MPAs has 25 members, the OSPAR Commission
establishing OSPAR High Seas MPAs has 16 parties, and the SPAs Protocol by which the Pelagos
Sanctuary was established has 17 parties. It should be noted that contracting parties or members of
those existing regimes related to the establishment of MPAs in ABNJ are not the only States whose
nationals or vessels are conducting activities in the MPAs established by those regimes.
117 See Drankier (2012), p. 341.
118 See Tanaka (2012), pp. 325–326.
119 Fletcher et al. (2017), p. 43.
120 See IISD (2017), pp. 11–12, 15–16; See also DOALOS (2017a), p. 53; See also Millicay (2018),
pp. 167–168.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
369