In the past decade, MPAs have been praised as one of the most important
mechanisms for the protection and conservation of BBNJ.
11 Consequently, both
during the discussions of the WG and the Prep Com, the establishment of the
mechanism and criteria for the creation of a global network of MPAs in the High
Seas (HS) has been expressed as being one of the main objectives of the new ILBI.
12
Despite sharing the desire for the establishment of a global network of MPAs in
the HS, during the meetings of the Prep Com, some States have expressed concerns
regarding the advent of potential conflicts between the sovereign rights connected to
the continental shelf beyond 200 nm (OCS) and the protective measures applied in
MPAs established in the HS.
13,14 These concerns were so controversial that, in the
Chair’s overview of the second session of the Prep Com, the matter of the respect for
the rights of the coastal States over their respective OCS remained included under
the list of issues requiring further discussion.
15
Nevertheless, little progress was accomplished on this discussion in the following
meetings of the Prep Com resulting in a final Report of the Prep Com with very
broad recommendations on this issue.
16 Consequently, the matter is to be further
discussed in future negotiations as the UNGA has decided to follow the recommendation of the Prep Com and convene an intergovernmental conference with a view to
developing the ILBI on conservation and sustainable use of BBNJ as soon as
possible.
17
As an ILBI still in development, States will only have to comply with it if (and
after) they express their consent to be bound by it.
18 Hence, it is crucial, at this point,
to find means to pacify the referred concerns on the issue, thus generating a strong
and universally acceptable ILBI and allowing the negotiations to move forward.
11 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24,
Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; UNGA Letter
dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group
to the President of the General Assembly, A/65/68, 17 March 2010, p. 12, para. 58; Letter dated
30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the
President of the General Assembly, A/66/119, 30 June 2011, p. 6, para. 23.
12 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the
first session of the Preparatory Committee, 2016, p. 19; Verkuijl (2016), p. 302; Mossop
(2016), p. 245.
13 Among them the Russian Federation, China, Indonesia, Norway, Bangladesh, Canada, Morocco,
Iceland, Australia, Venezuela, Federate States of Micronesia, Japan and Saudi Arabia.; Morgera
et al. (2016a), pp. 7 and 16; Morgera et al. (2016b), pp. 9–10; Morgera et al. (2017a), pp. 5–6;
Morgera et al. (2017b), pp. 6–8.
14 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the
first session of the Preparatory Committee, 2016, p. 19.
15 Charles E, Chair’s overview of the second session of the Preparatory Committee, 2016, Appendix
2; Verkuijl (2016), p. 302.
16 Report A/AC.287/2017/PC.4/2, pp. 7, 9 and 11–17.
17 Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1.
18 Arts 12 to 15 of the Vienna Convention on the Law of Treaties; Tladi (2015), pp. 657 and
671–672.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
425
mechanisms for the protection and conservation of BBNJ.
11 Consequently, both
during the discussions of the WG and the Prep Com, the establishment of the
mechanism and criteria for the creation of a global network of MPAs in the High
Seas (HS) has been expressed as being one of the main objectives of the new ILBI.
12
Despite sharing the desire for the establishment of a global network of MPAs in
the HS, during the meetings of the Prep Com, some States have expressed concerns
regarding the advent of potential conflicts between the sovereign rights connected to
the continental shelf beyond 200 nm (OCS) and the protective measures applied in
MPAs established in the HS.
13,14 These concerns were so controversial that, in the
Chair’s overview of the second session of the Prep Com, the matter of the respect for
the rights of the coastal States over their respective OCS remained included under
the list of issues requiring further discussion.
15
Nevertheless, little progress was accomplished on this discussion in the following
meetings of the Prep Com resulting in a final Report of the Prep Com with very
broad recommendations on this issue.
16 Consequently, the matter is to be further
discussed in future negotiations as the UNGA has decided to follow the recommendation of the Prep Com and convene an intergovernmental conference with a view to
developing the ILBI on conservation and sustainable use of BBNJ as soon as
possible.
17
As an ILBI still in development, States will only have to comply with it if (and
after) they express their consent to be bound by it.
18 Hence, it is crucial, at this point,
to find means to pacify the referred concerns on the issue, thus generating a strong
and universally acceptable ILBI and allowing the negotiations to move forward.
11 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24,
Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; UNGA Letter
dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group
to the President of the General Assembly, A/65/68, 17 March 2010, p. 12, para. 58; Letter dated
30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the
President of the General Assembly, A/66/119, 30 June 2011, p. 6, para. 23.
12 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the
first session of the Preparatory Committee, 2016, p. 19; Verkuijl (2016), p. 302; Mossop
(2016), p. 245.
13 Among them the Russian Federation, China, Indonesia, Norway, Bangladesh, Canada, Morocco,
Iceland, Australia, Venezuela, Federate States of Micronesia, Japan and Saudi Arabia.; Morgera
et al. (2016a), pp. 7 and 16; Morgera et al. (2016b), pp. 9–10; Morgera et al. (2017a), pp. 5–6;
Morgera et al. (2017b), pp. 6–8.
14 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the
first session of the Preparatory Committee, 2016, p. 19.
15 Charles E, Chair’s overview of the second session of the Preparatory Committee, 2016, Appendix
2; Verkuijl (2016), p. 302.
16 Report A/AC.287/2017/PC.4/2, pp. 7, 9 and 11–17.
17 Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1.
18 Arts 12 to 15 of the Vienna Convention on the Law of Treaties; Tladi (2015), pp. 657 and
671–672.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
425