model would not reduce the effectiveness of existing regimes or bodies, but would
possibly improve or enhance their effectiveness. Thus, the global model does not
necessarily “undermine” existing regimes, and this depends on how to interpret the
term “not undermine”. This section does not provide a definitive answer on how to
interpret the term “not undermine”, but it should be noted that such interpretation
would inevitably affect the choice of legal options for the institutional arrangements
of the ILBI.
Although the global model does not necessarily “undermine”, the hybrid model,
in a general sense, would be less likely to “undermine” than the global model. This is
because, under the hybrid model, the existing regional or sectoral regimes would still
be relied upon, and the global institution would only play a complementary role and
not have full competence. In this case, the hybrid model is less likely than the global
model to cause conflict between the management measures adopted by the global
institution and those adopted by existing regional or sectoral regimes. Therefore, it
can be argued that the hybrid model is a better option than the global model in terms
of meeting the requirement of “not undermine”.
In conclusion, as noted by Millicay, it is not feasible to allocate all functions
either to a global body under the ILBI or to existing regional/sectoral bodies.
134 In
terms of the establishment of MPAs in ABNJ, a hybrid model is an appropriate
choice for the institutional arrangements of the ILBI. For one thing, both the hybrid
model and global model are more capable of solving the shortcomings of existing
regimes than the regional/sectoral model. For another, the hybrid model envisages
less political objections and is less likely to undermine existing regimes than the
global model. Thus, the hybrid model might be a better choice than the other two
options. In this respect, a further question is, under the hybrid approach, to what
extent global body under the ILBI might have the mandate in respect of the
establishment of MPAs in ABNJ and to what degree the existing regional/sectoral
body might have the mandate. At this point, the answer to this question is not yet
clear and depends on further outcomes of the BBNJ negotiations.
5 Conclusion
The three issues discussed above constitute central structural elements for the
development of the ILBI and will shape its practical significance. While the relationship between the UNCLOS, the CBD and the ILBI raises questions of instrument
interaction, it also raises questions of regime interaction. Indeed, the ILBI is
expected to act as the bridging element between the law of the sea and biodiversity
law in ABNJ. The way the instruments impact and complement one another will
therefore be of major significance for understanding the role that the ILBI can play in
solidifying the regime in ABNJ. For their part, the options for the institutional
134 See Millicay (2018), p. 175.
372
C. Blanchard et al.
possibly improve or enhance their effectiveness. Thus, the global model does not
necessarily “undermine” existing regimes, and this depends on how to interpret the
term “not undermine”. This section does not provide a definitive answer on how to
interpret the term “not undermine”, but it should be noted that such interpretation
would inevitably affect the choice of legal options for the institutional arrangements
of the ILBI.
Although the global model does not necessarily “undermine”, the hybrid model,
in a general sense, would be less likely to “undermine” than the global model. This is
because, under the hybrid model, the existing regional or sectoral regimes would still
be relied upon, and the global institution would only play a complementary role and
not have full competence. In this case, the hybrid model is less likely than the global
model to cause conflict between the management measures adopted by the global
institution and those adopted by existing regional or sectoral regimes. Therefore, it
can be argued that the hybrid model is a better option than the global model in terms
of meeting the requirement of “not undermine”.
In conclusion, as noted by Millicay, it is not feasible to allocate all functions
either to a global body under the ILBI or to existing regional/sectoral bodies.
134 In
terms of the establishment of MPAs in ABNJ, a hybrid model is an appropriate
choice for the institutional arrangements of the ILBI. For one thing, both the hybrid
model and global model are more capable of solving the shortcomings of existing
regimes than the regional/sectoral model. For another, the hybrid model envisages
less political objections and is less likely to undermine existing regimes than the
global model. Thus, the hybrid model might be a better choice than the other two
options. In this respect, a further question is, under the hybrid approach, to what
extent global body under the ILBI might have the mandate in respect of the
establishment of MPAs in ABNJ and to what degree the existing regional/sectoral
body might have the mandate. At this point, the answer to this question is not yet
clear and depends on further outcomes of the BBNJ negotiations.
5 Conclusion
The three issues discussed above constitute central structural elements for the
development of the ILBI and will shape its practical significance. While the relationship between the UNCLOS, the CBD and the ILBI raises questions of instrument
interaction, it also raises questions of regime interaction. Indeed, the ILBI is
expected to act as the bridging element between the law of the sea and biodiversity
law in ABNJ. The way the instruments impact and complement one another will
therefore be of major significance for understanding the role that the ILBI can play in
solidifying the regime in ABNJ. For their part, the options for the institutional
134 See Millicay (2018), p. 175.
372
C. Blanchard et al.