possible interference with the coastal States’ exercise of sovereign rights over the
OCS, by the establishment of MPAs in the HS, is legitimate and well founded.
89
Currently, there is a general understanding regarding not only the need for a
strong and widely agreed upon ILBI, but also that the best way of achieving
conservation and sustainable use of BBNJ is through the selection of the criteria
and framework for the establishment of a global network of MPAs.
Bearing in mind this general understanding, along with the abovementioned
concerns, it is crucial at this point to think about ways to pacify the concerns of
OCS States without undermining the shared aims of the ILBI on conservation and
sustainable use of BBNJ. It is in this spirit that a possible solution, proposed in the
next section, is presented.
3.2 The Proposed Solution
3.2.1 Previously Proposed Solutions
Irrespective of being a controversial issue, during the discussions of both the WG
and the Prep Com, the solutions proposed to accommodate OCS States’ interests so
far have been not only scarce, but also far from reassuring.
Firstly, it was proposed that a reference should be made in the preambular part of
the agreement stating that the agreement will not affect the rights of coastal States
over the continental shelf within and beyond 200 nm.
90 This proposal was, however,
considered to be insufficient as the legal value of the preamble of a treaty remains
disputable in International Law.
91 Despite this, there seems to be general agreement
concerning the fact that, regardless of the value the preamble may hold, such value
will never be equal to the value of the main text.
92 Thus, OCS States requested for
more concrete alternatives that would be able to effectively secure the exercise of
their sovereign rights.
Secondly, in response to the referred request, many States suggested the inclusion, within the proposals for a possible framework for the process of establishment
of MPAs, of the duty to consult coastal States in situations where the proposed MPA
lies in an area above their OCS.
93 Regardless of the value of a prior-MPA-establishment consultation procedure, the proposed frameworks offered no insight
89 Mossop (2016), p. 247.
90 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.
91 Pazarci (2011), pp. 3–6.
92 Ibid.
93 See the submissions received from the delegations of the European Union, the USA, Monaco and
Greenpeace in response to the Chair’s invitation made at the second session of the Prep Com.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
435
OCS, by the establishment of MPAs in the HS, is legitimate and well founded.
89
Currently, there is a general understanding regarding not only the need for a
strong and widely agreed upon ILBI, but also that the best way of achieving
conservation and sustainable use of BBNJ is through the selection of the criteria
and framework for the establishment of a global network of MPAs.
Bearing in mind this general understanding, along with the abovementioned
concerns, it is crucial at this point to think about ways to pacify the concerns of
OCS States without undermining the shared aims of the ILBI on conservation and
sustainable use of BBNJ. It is in this spirit that a possible solution, proposed in the
next section, is presented.
3.2 The Proposed Solution
3.2.1 Previously Proposed Solutions
Irrespective of being a controversial issue, during the discussions of both the WG
and the Prep Com, the solutions proposed to accommodate OCS States’ interests so
far have been not only scarce, but also far from reassuring.
Firstly, it was proposed that a reference should be made in the preambular part of
the agreement stating that the agreement will not affect the rights of coastal States
over the continental shelf within and beyond 200 nm.
90 This proposal was, however,
considered to be insufficient as the legal value of the preamble of a treaty remains
disputable in International Law.
91 Despite this, there seems to be general agreement
concerning the fact that, regardless of the value the preamble may hold, such value
will never be equal to the value of the main text.
92 Thus, OCS States requested for
more concrete alternatives that would be able to effectively secure the exercise of
their sovereign rights.
Secondly, in response to the referred request, many States suggested the inclusion, within the proposals for a possible framework for the process of establishment
of MPAs, of the duty to consult coastal States in situations where the proposed MPA
lies in an area above their OCS.
93 Regardless of the value of a prior-MPA-establishment consultation procedure, the proposed frameworks offered no insight
89 Mossop (2016), p. 247.
90 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.
91 Pazarci (2011), pp. 3–6.
92 Ibid.
93 See the submissions received from the delegations of the European Union, the USA, Monaco and
Greenpeace in response to the Chair’s invitation made at the second session of the Prep Com.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
435