4.4 The Requirement of “Not Undermine”
As a preliminary conclusion, it can be argued that the global model and hybrid model
are better options than the sectoral and regional model. This is because both the
global model and hybrid model are helpful to solve the shortcomings of existing
legal regimes by enhancing the universal participation of States in the establishment
of MPAs in ABNJ and promoting the coordination and cooperation of the management measures related to MPAs in ABNJ among different global, regional and
sectoral legal regimes. A further question is which one is better between the global
model and the hybrid model.
Under the global model, it might be possible for the establishment of MPAs and
management measures therein adopted by the global institution to conflict with the
measures adopted by existing regional or sectoral regimes.
128 As required by UNGA
Resolutions 69/292 and 72/249, the development of an ILBI shall “not undermine”
existing relevant legal instruments and frameworks and relevant global, regional and
sectoral bodies.
129 Consequently, the institutional arrangements of the ILBI should
“not undermine” the existing measures taken by regional or sectoral regimes or
competence of existing institutions. Whether the global model would “not undermine” depends on how to interpret the phrase “not undermine”. As indicated by
Scanlon, there are two different interpretations of this term.
130 The first one requires
that the ILBI should “not undermine” the authority or mandate of existing institutions and the measures under existing regimes, i.e. the ILBI should leave their
mandates untouched.
131 In accordance with this interpretation, the ILBI cannot
create an overlapping mandate or weaken the competence of those existing institutions to operate.
132 The second interpretation requires that the ILBI should “not
undermine” the effectiveness or objectives of existing frameworks and bodies,
which means improving or strengthening the effectiveness of existing frameworks
and bodies would not be considered as “undermine”.
133 If the first interpretation
were adopted, then the global model would tend to be inconsistent with the requirement of “not undermine”. This is because, under this model, the competence of the
global institution overlaps with the mandates of existing bodies, provided that the
global institution was competent to adopt measures that fall within the competence
of existing regimes. By contrast, if the second interpretation were adopted, it would
not be likely for the global model to “undermine”. Even in case of overlap, the global
128 Illustrative of this point, it should be noted that the global model runs the risk of creating the
possibility of a conflict between the measures adopted by the global mechanism of the ILBI and
those adopted by the RFMOs and other organizations with sectoral mandates in ABNJ. See Tladi
(2015), p. 668.
129 UNGA Res 69/292 (2015), paras. 1,3; UNGA Res 72/249 (2017), para. 7.
130 Scanlon (2018), pp. 405–416.
131 Scanlon (2018), pp. 406–407; See also IISD (2016), pp. 19–20.
132 Scanlon (2018), pp. 406–407.
133 Ibid.; See also IISD (2016), pp. 19–20.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
371
As a preliminary conclusion, it can be argued that the global model and hybrid model
are better options than the sectoral and regional model. This is because both the
global model and hybrid model are helpful to solve the shortcomings of existing
legal regimes by enhancing the universal participation of States in the establishment
of MPAs in ABNJ and promoting the coordination and cooperation of the management measures related to MPAs in ABNJ among different global, regional and
sectoral legal regimes. A further question is which one is better between the global
model and the hybrid model.
Under the global model, it might be possible for the establishment of MPAs and
management measures therein adopted by the global institution to conflict with the
measures adopted by existing regional or sectoral regimes.
128 As required by UNGA
Resolutions 69/292 and 72/249, the development of an ILBI shall “not undermine”
existing relevant legal instruments and frameworks and relevant global, regional and
sectoral bodies.
129 Consequently, the institutional arrangements of the ILBI should
“not undermine” the existing measures taken by regional or sectoral regimes or
competence of existing institutions. Whether the global model would “not undermine” depends on how to interpret the phrase “not undermine”. As indicated by
Scanlon, there are two different interpretations of this term.
130 The first one requires
that the ILBI should “not undermine” the authority or mandate of existing institutions and the measures under existing regimes, i.e. the ILBI should leave their
mandates untouched.
131 In accordance with this interpretation, the ILBI cannot
create an overlapping mandate or weaken the competence of those existing institutions to operate.
132 The second interpretation requires that the ILBI should “not
undermine” the effectiveness or objectives of existing frameworks and bodies,
which means improving or strengthening the effectiveness of existing frameworks
and bodies would not be considered as “undermine”.
133 If the first interpretation
were adopted, then the global model would tend to be inconsistent with the requirement of “not undermine”. This is because, under this model, the competence of the
global institution overlaps with the mandates of existing bodies, provided that the
global institution was competent to adopt measures that fall within the competence
of existing regimes. By contrast, if the second interpretation were adopted, it would
not be likely for the global model to “undermine”. Even in case of overlap, the global
128 Illustrative of this point, it should be noted that the global model runs the risk of creating the
possibility of a conflict between the measures adopted by the global mechanism of the ILBI and
those adopted by the RFMOs and other organizations with sectoral mandates in ABNJ. See Tladi
(2015), p. 668.
129 UNGA Res 69/292 (2015), paras. 1,3; UNGA Res 72/249 (2017), para. 7.
130 Scanlon (2018), pp. 405–416.
131 Scanlon (2018), pp. 406–407; See also IISD (2016), pp. 19–20.
132 Scanlon (2018), pp. 406–407.
133 Ibid.; See also IISD (2016), pp. 19–20.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
371