exclusive or shared, according to Art. 5 of the Treaty of European Union (TEU).
9
The diversity of Member States’ interests and the division of competences seem to
make it difficult for the EU to always formulate a precise and unique position.
However, the EU and its Member States recently showed the real capacity to
speak with one voice in the framework of the UNGA.
In order to understand this capacity, we first have to consider the resolution
A/RES/69/292
10 with which the UNGA decided to launch a process of negotiations
leading to the adoption, under the UNCLOS, of an international legally binding
instrument (ILBI) on the conservation and sustainable use of marine biodiversity of
areas beyond national jurisdiction (BBNJ). The ILBI would address the following
key topics “together and as a whole”: (a) the marine genetic resources (MGRs),
including questions on the sharing of benefits; (b) measures such as area-based
management tools, including marine protected areas; (c) environmental impact
assessments; (d) capacity-building and the transfer of marine technology.
In the specific case under scrutiny, the UNGA discussions for such a new ILBI
have raised several questions. In the first place, it principally refers to whether
existing international agreements on the Law of the Sea, such as the UNCLOS itself,
are sufficient to meet global commitments in order to protect marine biodiversity
beyond national jurisdiction. In fact, the UNCLOS only seems to provide very broad
duties of States to protect the marine environment and its living resources in ABNJ.
In the second place, it also refers to whether additional, different and more specific
mechanisms may be required in favour of the protection and preservation of
the ABNJ.
In the light of these issues, the new enhanced status that the EU has had in the
UNGA since the 2011 may play a key role in the future negotiations on the
ILBI. Accordingly, the goal of this study is to provide an overview of the current
negotiations within the UNGA for the adoption of a new ILBI through the new role
that the EU may play in the UNGA, investigating the added value of the possibility
for the EU to speak with a single voice on behalf of its 28 Member States.
Particularly, after recalling the participation of the EU in UNCLOS and the mechanisms allowing the coordination between the EU and its Member States, in the first
place, the chapter will try to identify the main legal gaps in the UNCLOS framework,
concerning the protection of the marine biological diversity and, mainly, the MGRs.
In the second place, the two main positions taken by the States during negotiations
will be examined, outlining the main legal arguments concerned. In the third place,
the chapter will analyse the enhanced position that EU has had in the UNGA since
2011. Finally, the study will move on to consider the pragmatic position expressed
by the EU, together with its Member States, trying to understand whether and to
what extent it can represent a possible third way to walk on and a new path towards a
concrete development of the Law of the Sea.
9 Cf., Wessel (2011), p. 621. On the relationship between the EU and UNCLOS, see infra para. 2.
10 See UNGA Resolution, A/RES/69/292, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and
sustainable use of marine biological diversity of areas beyond national jurisdiction, 6 July 2015.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
403
9
The diversity of Member States’ interests and the division of competences seem to
make it difficult for the EU to always formulate a precise and unique position.
However, the EU and its Member States recently showed the real capacity to
speak with one voice in the framework of the UNGA.
In order to understand this capacity, we first have to consider the resolution
A/RES/69/292
10 with which the UNGA decided to launch a process of negotiations
leading to the adoption, under the UNCLOS, of an international legally binding
instrument (ILBI) on the conservation and sustainable use of marine biodiversity of
areas beyond national jurisdiction (BBNJ). The ILBI would address the following
key topics “together and as a whole”: (a) the marine genetic resources (MGRs),
including questions on the sharing of benefits; (b) measures such as area-based
management tools, including marine protected areas; (c) environmental impact
assessments; (d) capacity-building and the transfer of marine technology.
In the specific case under scrutiny, the UNGA discussions for such a new ILBI
have raised several questions. In the first place, it principally refers to whether
existing international agreements on the Law of the Sea, such as the UNCLOS itself,
are sufficient to meet global commitments in order to protect marine biodiversity
beyond national jurisdiction. In fact, the UNCLOS only seems to provide very broad
duties of States to protect the marine environment and its living resources in ABNJ.
In the second place, it also refers to whether additional, different and more specific
mechanisms may be required in favour of the protection and preservation of
the ABNJ.
In the light of these issues, the new enhanced status that the EU has had in the
UNGA since the 2011 may play a key role in the future negotiations on the
ILBI. Accordingly, the goal of this study is to provide an overview of the current
negotiations within the UNGA for the adoption of a new ILBI through the new role
that the EU may play in the UNGA, investigating the added value of the possibility
for the EU to speak with a single voice on behalf of its 28 Member States.
Particularly, after recalling the participation of the EU in UNCLOS and the mechanisms allowing the coordination between the EU and its Member States, in the first
place, the chapter will try to identify the main legal gaps in the UNCLOS framework,
concerning the protection of the marine biological diversity and, mainly, the MGRs.
In the second place, the two main positions taken by the States during negotiations
will be examined, outlining the main legal arguments concerned. In the third place,
the chapter will analyse the enhanced position that EU has had in the UNGA since
2011. Finally, the study will move on to consider the pragmatic position expressed
by the EU, together with its Member States, trying to understand whether and to
what extent it can represent a possible third way to walk on and a new path towards a
concrete development of the Law of the Sea.
9 Cf., Wessel (2011), p. 621. On the relationship between the EU and UNCLOS, see infra para. 2.
10 See UNGA Resolution, A/RES/69/292, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and
sustainable use of marine biological diversity of areas beyond national jurisdiction, 6 July 2015.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
403