complexity and legal uncertainty, which could ultimately be detrimental for the
effective protection of marine environment and biodiversity.
All these competences and fields are of interest in the context of the International
legally binding instrument (ILBI) currently being negotiated within the United
Nations and dealing with the conservation and sustainable use of marine biodiversity
in areas beyond national jurisdiction.
12 The following chapters propose to examine
the formal and substantive modalities and implications of the EU’s participation in
the future ILBI, while presenting the challenges and opportunities of such
participation.
2 European Union’s Formal Participation in the Future
International Legally Binding Instrument on Marine
Biodiversity
2.1 The Tension Between Shared and Exclusive Competences
of the European Union and Its Consequences
in the Context of the Negotiation of a Mixed Treaty
In 2011, the Ad Hoc Open-ended Informal Working Group to study issues relating to
the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction
13 agreed on the structure and content of a “package deal”,
which is a series of elements gathering, “together and as a whole”, marine genetic
resources, area-based management tools including marine protected areas, environmental impact assessment, capacity building and transfer of marine technology.
14
Those elements are the constitutive elements of the future ILBI on the conservation
12 The commercial policy, which could be of interest as regards the future ILBI, is also an exclusive
competence of the European Union and the research and development policy has a particular status.
Art. 3(1)(e) TFEU and 4(3): “In the areas of research, technological development and space, the
Union shall have competence to carry out activities, in particular to define and implement
programmes; however, the exercise of that competence shall not result in Member States being
prevented from exercising theirs.”
13 The ‘Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation
and sustainable use of marine biological diversity beyond areas of national jurisdiction’ (here after
the ‘BBNJ Working Group’) was introduced by Resolution 59/24 of the UNGA, adopted on
17 November 2004, indicating in its paragraph 73 that the BBNJ Working Group’s mandate was
“to indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity
beyond national jurisdiction”. Indeed, according to Art. 22 of the UN Charter, the UNGA can
create subsidiary bodies necessary to the accomplishment of its functions.
14 UNGA Resolution 66/231 (2011), Oceans and the Law of the Sea, Annex – Recommendations of
the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and
sustainable use of marine biological diversity beyond areas of national jurisdiction, §(a). (see infra
Sect. 3.1 for a detailed explanation).
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effective protection of marine environment and biodiversity.
All these competences and fields are of interest in the context of the International
legally binding instrument (ILBI) currently being negotiated within the United
Nations and dealing with the conservation and sustainable use of marine biodiversity
in areas beyond national jurisdiction.
12 The following chapters propose to examine
the formal and substantive modalities and implications of the EU’s participation in
the future ILBI, while presenting the challenges and opportunities of such
participation.
2 European Union’s Formal Participation in the Future
International Legally Binding Instrument on Marine
Biodiversity
2.1 The Tension Between Shared and Exclusive Competences
of the European Union and Its Consequences
in the Context of the Negotiation of a Mixed Treaty
In 2011, the Ad Hoc Open-ended Informal Working Group to study issues relating to
the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction
13 agreed on the structure and content of a “package deal”,
which is a series of elements gathering, “together and as a whole”, marine genetic
resources, area-based management tools including marine protected areas, environmental impact assessment, capacity building and transfer of marine technology.
14
Those elements are the constitutive elements of the future ILBI on the conservation
12 The commercial policy, which could be of interest as regards the future ILBI, is also an exclusive
competence of the European Union and the research and development policy has a particular status.
Art. 3(1)(e) TFEU and 4(3): “In the areas of research, technological development and space, the
Union shall have competence to carry out activities, in particular to define and implement
programmes; however, the exercise of that competence shall not result in Member States being
prevented from exercising theirs.”
13 The ‘Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation
and sustainable use of marine biological diversity beyond areas of national jurisdiction’ (here after
the ‘BBNJ Working Group’) was introduced by Resolution 59/24 of the UNGA, adopted on
17 November 2004, indicating in its paragraph 73 that the BBNJ Working Group’s mandate was
“to indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity
beyond national jurisdiction”. Indeed, according to Art. 22 of the UN Charter, the UNGA can
create subsidiary bodies necessary to the accomplishment of its functions.
14 UNGA Resolution 66/231 (2011), Oceans and the Law of the Sea, Annex – Recommendations of
the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and
sustainable use of marine biological diversity beyond areas of national jurisdiction, §(a). (see infra
Sect. 3.1 for a detailed explanation).
382
P. Ricard