3 What Is at Stake?
Regardless of the complexity of the jurisdictional regimes described, it is impossible
to isolate what happens in the seabed from what happens in the water column as, due
to the ocean ecosystems interlinkage, activities impacting one will, in all certainty,
impact the other.
78 Consequently, MPAs can only be effective if this interlinkage is
kept in mind.
79
It is precisely due to the interlinkage of ocean ecosystems and the duality of
regimes applicable to these two areas that the conflict may rise. In other words, the
exercise of freedom, namely through the establishment of MPAs, in the HS can
potentially collide with the exercise of coastal States’ sovereign rights over the OCS.
Regional initiatives, as explained above, are no strangers to this duality of
frameworks and regimes. As shown by the Charlie-Gibbs Fracture Zone (North)
v. Iceland case, the possibility of conflict, in the designation of MPAs in the HS,
exists whenever they overlap with the OCS and whenever the OCS States rights to
explore and exploit the natural resources of their OCS might be affected.
80
Past experiences have shown, however, that whenever willingness of States to
engage cooperatively with competent authorities exists, there are cases of success.
81
One of such cases is the cooperation between the OSPAR Commission and Portugal
for the development of common management strategies for MPAs in the HS lying
over the Portuguese proposed OCS.
82
Regardless of this example and other regional efforts already described, the result
remains being a fragmented and incoherent approach concerning the establishment
and management of MPAs in the HS, that results from the three challenges identified
in the previous section.
The ongoing work on, and the discussions leading to the intergovernmental
conference on, the conservation and sustainable use of BBNJ, in particular
concerning MPAs in the HS, is attempting precisely to overcome those challenges
by providing States with a universally binding mechanism for the establishment and
management of MPAs in ABNJ. Such mechanism should finally be able to provide
the international community with the capacity, coherence and effectiveness it is
lacking on this particular issue.
83
Being familiar with the “overlap” between the regimes of the HS and the OCS,
what is at stake for OCS States however, is not the need for the mechanism, but how
the mechanism will be designed. Meaning that OCS States want to be sure that,
78 Salpin and Germani (2010), p. 178; Mossop (2016), p. 245.
79 Ibid.
80 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010),
pp. 181–182; Tanaka (2012b), pp. 310–324.
81 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010),
pp. 181–182; Tanaka (2012b), pp. 310–324; O’Leary et al. (2012), p. 602.
82 Ibid.
83 Wright et al. (2018), pp. 163–165.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
433
Regardless of the complexity of the jurisdictional regimes described, it is impossible
to isolate what happens in the seabed from what happens in the water column as, due
to the ocean ecosystems interlinkage, activities impacting one will, in all certainty,
impact the other.
78 Consequently, MPAs can only be effective if this interlinkage is
kept in mind.
79
It is precisely due to the interlinkage of ocean ecosystems and the duality of
regimes applicable to these two areas that the conflict may rise. In other words, the
exercise of freedom, namely through the establishment of MPAs, in the HS can
potentially collide with the exercise of coastal States’ sovereign rights over the OCS.
Regional initiatives, as explained above, are no strangers to this duality of
frameworks and regimes. As shown by the Charlie-Gibbs Fracture Zone (North)
v. Iceland case, the possibility of conflict, in the designation of MPAs in the HS,
exists whenever they overlap with the OCS and whenever the OCS States rights to
explore and exploit the natural resources of their OCS might be affected.
80
Past experiences have shown, however, that whenever willingness of States to
engage cooperatively with competent authorities exists, there are cases of success.
81
One of such cases is the cooperation between the OSPAR Commission and Portugal
for the development of common management strategies for MPAs in the HS lying
over the Portuguese proposed OCS.
82
Regardless of this example and other regional efforts already described, the result
remains being a fragmented and incoherent approach concerning the establishment
and management of MPAs in the HS, that results from the three challenges identified
in the previous section.
The ongoing work on, and the discussions leading to the intergovernmental
conference on, the conservation and sustainable use of BBNJ, in particular
concerning MPAs in the HS, is attempting precisely to overcome those challenges
by providing States with a universally binding mechanism for the establishment and
management of MPAs in ABNJ. Such mechanism should finally be able to provide
the international community with the capacity, coherence and effectiveness it is
lacking on this particular issue.
83
Being familiar with the “overlap” between the regimes of the HS and the OCS,
what is at stake for OCS States however, is not the need for the mechanism, but how
the mechanism will be designed. Meaning that OCS States want to be sure that,
78 Salpin and Germani (2010), p. 178; Mossop (2016), p. 245.
79 Ibid.
80 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010),
pp. 181–182; Tanaka (2012b), pp. 310–324.
81 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010),
pp. 181–182; Tanaka (2012b), pp. 310–324; O’Leary et al. (2012), p. 602.
82 Ibid.
83 Wright et al. (2018), pp. 163–165.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
433