6 Conclusive Remarks
With regard to the ABNJ, the study showed the legal gaps of the UNCLOS showing
that what is needed for the time being is the consolidation of a general understanding
on a number of commonalities that could become the key elements in the objectives
of the ILBI, namely a network of MPAs, EIA, MGRs, including access to and
sharing of benefits from them, as well as CB&TT. In fact, through the negotiations of
September 2018, initial discussions, particularly on CB&TT, largely followed the
PrepCom format and reiterated familiar positions. Similarly, discussions on MGRs
confirmed divergent views on a number of issues well-known in the PrepCom
negotiations. Disagreement over whether the regime of the common heritage of
humankind or high seas freedoms should apply to MGRs persisted. Besides, as
remarked above, those favoring high seas freedoms emphasized free access to
MGRs, whereas those arguing for common heritage called for some sort of international oversight and equitable benefit-sharing.
The preceding analysis suggests that the constraints on States in negotiating a
new legal international instrument seem to be not only legal, hiding their respective
political interests. This current divergence raises a question: can the existence of two
different positions (between those who are in favour of applying the principle of the
common heritage of humanity and the regime of freedom of the high seas) be
qualified as a limit?
In this context, the EU seems to play a key role, stressing the idea of adopting a
hybrid and pragmatic position, which may reflect the interdisciplinarity of the issues
of the ILBI. Indeed, the practice showed that in the vision of the EU, speaking with
one voice, setting the opposing regimes of common heritage of mankind and the
freedom of the high seas against each other is not likely to lead to productive results.
The stronger participation of the EU may give the possibility to focus on the
adoption of concrete measures, such as: the application of the principle of common
concern of humankind; the drawing from Part XIII UNCLOS relating to marine
scientific research and the adaptation from the Nagoya Protocol.
The new status of the EU in the UNGA may lead to a major sharing of such
position among other States, improving the implementation and the development of
the Law of the Sea, by covering also the legal gaps of the UNCLOS, interconnecting
it with other international instruments and IOs, in which the EU is an active player
and guarantying a concrete implementation of Art. 278 of UNCLOS. Starting from
its new status in the UNGA and speaking with one voice, the EU appears fundamental to outline the importance of the cooperation and coordination between IOs,
meanly in which the EU actively participates not only for the negotiations in
question but also for the development of the Law of the Sea.
The second and third sessions of the IgC will take place in 2019, and the fourth
session in the first half of 2020. Time will tell whether the pragmatic position of the
EU and its enhanced participation in the UNGA could become a useful compromise
between other and more radical positions and whether it may be useful to the EU, ad
its Member States, to specify the general elements into more detailed treaty
provisions.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
419
With regard to the ABNJ, the study showed the legal gaps of the UNCLOS showing
that what is needed for the time being is the consolidation of a general understanding
on a number of commonalities that could become the key elements in the objectives
of the ILBI, namely a network of MPAs, EIA, MGRs, including access to and
sharing of benefits from them, as well as CB&TT. In fact, through the negotiations of
September 2018, initial discussions, particularly on CB&TT, largely followed the
PrepCom format and reiterated familiar positions. Similarly, discussions on MGRs
confirmed divergent views on a number of issues well-known in the PrepCom
negotiations. Disagreement over whether the regime of the common heritage of
humankind or high seas freedoms should apply to MGRs persisted. Besides, as
remarked above, those favoring high seas freedoms emphasized free access to
MGRs, whereas those arguing for common heritage called for some sort of international oversight and equitable benefit-sharing.
The preceding analysis suggests that the constraints on States in negotiating a
new legal international instrument seem to be not only legal, hiding their respective
political interests. This current divergence raises a question: can the existence of two
different positions (between those who are in favour of applying the principle of the
common heritage of humanity and the regime of freedom of the high seas) be
qualified as a limit?
In this context, the EU seems to play a key role, stressing the idea of adopting a
hybrid and pragmatic position, which may reflect the interdisciplinarity of the issues
of the ILBI. Indeed, the practice showed that in the vision of the EU, speaking with
one voice, setting the opposing regimes of common heritage of mankind and the
freedom of the high seas against each other is not likely to lead to productive results.
The stronger participation of the EU may give the possibility to focus on the
adoption of concrete measures, such as: the application of the principle of common
concern of humankind; the drawing from Part XIII UNCLOS relating to marine
scientific research and the adaptation from the Nagoya Protocol.
The new status of the EU in the UNGA may lead to a major sharing of such
position among other States, improving the implementation and the development of
the Law of the Sea, by covering also the legal gaps of the UNCLOS, interconnecting
it with other international instruments and IOs, in which the EU is an active player
and guarantying a concrete implementation of Art. 278 of UNCLOS. Starting from
its new status in the UNGA and speaking with one voice, the EU appears fundamental to outline the importance of the cooperation and coordination between IOs,
meanly in which the EU actively participates not only for the negotiations in
question but also for the development of the Law of the Sea.
The second and third sessions of the IgC will take place in 2019, and the fourth
session in the first half of 2020. Time will tell whether the pragmatic position of the
EU and its enhanced participation in the UNGA could become a useful compromise
between other and more radical positions and whether it may be useful to the EU, ad
its Member States, to specify the general elements into more detailed treaty
provisions.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
419