when an MPA is established in the HS above their OCS under the new IBLI, the
balance between the rights/duties existing in both areas will be properly considered.
The “overlap” and conflict however is merely potential as, as previously
explained and demonstrated by the practice of regional initiatives, sometimes it is
in the OCS State best interest to create an MPA in the HS above its OCS. In other
words, the concern is not about the establishment of the MPA itself, but about the
protective/restrictive measures that are going to be applied in that MPA and, of
course, whether such measures are going to deprive OCS States from exercising a
right given to them by UNCLOS.
3.1 Evaluation of the Potential for Conflict
ABNJ represent 60% of the Earth’s oceans.
84 Assuming that all the OCS claims
(excluding overlapping areas) submitted to the Commission on the Limits of the
Continental Shelf are confirmed by its recommendations, the areas in which there is
HS above OCS represent approximately 12% of the ABNJ.
85 Therefore, the geographical scope of the potential conflict is located within these 12%. In addition to
this, the potential conflict will arise only if two conditions are verified.
On the one hand, it is necessary that interest in the establishment of an MPA
exists only in the HS. Otherwise, if the interest to establish an MPA is shared in the
HS and in the OCS, situations such as the OSPAR Commission arrangement with
Portugal would be manageable by the establishment of an MPA in both areas and the
development of common management strategies between the OCS State and a
Regional/International Organization charged with the protection of that part of the
HS.
86
On the other hand, it is also necessary that the protective measures applicable in
the MPAs in HS collide with the exercise of sovereign rights over the OCS. For
example, if an MPA in the HS adopts a prohibition on loud marine noise (preventing
seismic surveys) or a prohibition on fishing (preventing the harvest of sedentary
species).
87
Regardless of the mere potentiality of the conflict in question, it is clear and
uncontested that two different legal regimes apply to the resources of the water
column and the resources of the seabed and that this duality of regimes will need to
be dealt with by the new ILBI.
88 Therefore, it is also clear that the concern of a
84 Heidar (2017), p. 93; Gjerde et al. (2016), p. 46; Wright et al. (2015), p. 272.
85 Schoolmeester and Baker (2011), p. 28.
86 Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010), pp. 183–184; Tanaka (2012b),
pp. 320–322; O’Leary et al. (2012), p. 602; Mossop (2016), pp. 185–186; Scott (2012), p. 556;
Gjerde et al. (2016), pp. 52–53.
87 Mossop (2016), p. 245.
88 Mossop (2016), p. 247.
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I. Aguiar Branco
balance between the rights/duties existing in both areas will be properly considered.
The “overlap” and conflict however is merely potential as, as previously
explained and demonstrated by the practice of regional initiatives, sometimes it is
in the OCS State best interest to create an MPA in the HS above its OCS. In other
words, the concern is not about the establishment of the MPA itself, but about the
protective/restrictive measures that are going to be applied in that MPA and, of
course, whether such measures are going to deprive OCS States from exercising a
right given to them by UNCLOS.
3.1 Evaluation of the Potential for Conflict
ABNJ represent 60% of the Earth’s oceans.
84 Assuming that all the OCS claims
(excluding overlapping areas) submitted to the Commission on the Limits of the
Continental Shelf are confirmed by its recommendations, the areas in which there is
HS above OCS represent approximately 12% of the ABNJ.
85 Therefore, the geographical scope of the potential conflict is located within these 12%. In addition to
this, the potential conflict will arise only if two conditions are verified.
On the one hand, it is necessary that interest in the establishment of an MPA
exists only in the HS. Otherwise, if the interest to establish an MPA is shared in the
HS and in the OCS, situations such as the OSPAR Commission arrangement with
Portugal would be manageable by the establishment of an MPA in both areas and the
development of common management strategies between the OCS State and a
Regional/International Organization charged with the protection of that part of the
HS.
86
On the other hand, it is also necessary that the protective measures applicable in
the MPAs in HS collide with the exercise of sovereign rights over the OCS. For
example, if an MPA in the HS adopts a prohibition on loud marine noise (preventing
seismic surveys) or a prohibition on fishing (preventing the harvest of sedentary
species).
87
Regardless of the mere potentiality of the conflict in question, it is clear and
uncontested that two different legal regimes apply to the resources of the water
column and the resources of the seabed and that this duality of regimes will need to
be dealt with by the new ILBI.
88 Therefore, it is also clear that the concern of a
84 Heidar (2017), p. 93; Gjerde et al. (2016), p. 46; Wright et al. (2015), p. 272.
85 Schoolmeester and Baker (2011), p. 28.
86 Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010), pp. 183–184; Tanaka (2012b),
pp. 320–322; O’Leary et al. (2012), p. 602; Mossop (2016), pp. 185–186; Scott (2012), p. 556;
Gjerde et al. (2016), pp. 52–53.
87 Mossop (2016), p. 245.
88 Mossop (2016), p. 247.
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I. Aguiar Branco