regarding what would be the exact weight of the OCS States’ opinion in the final
decision of establishing MPAs.
94
In addition to this, some States proposed that the final decision on the establishment of MPAs should be made by consensus or, whenever that was not possible, by
majority-voting, the latter resulting in the complete disregard for OCS States’
expressed concerns.
95 Nevertheless, even if the new ILBI were to endow the opinion
of the OCS State with a decisive impact, it is foreseeable that given the chance to do
so, or when in doubt regarding the infringement upon their sovereign rights, OCS
States will likely reject the creation of an MPA in an area above their OCS. Such an
outcome would result in the attribution of a veto power to OCS States. This option
would seriously compromise the objectives of the new ILBI as it would lead to
having no MPAs above the OCS of States, which would prevent a better conservation and sustainable use of BBNJ.
Considering the limitations of the solutions proposed so far, it remains vital to
work towards a framework procedure capable of pacifying the referred concerns.
This can only be achieved by guaranteeing the effective exercise of the sovereign
rights of the coastal State over the OCS, without jeopardising the purpose of the new
ILBI. This is particularly important in allowing the discussions regarding the
development of a new mechanism for the establishment of a global network of
MPAs to move forward as the Conference shall exhaust every effort, in good faith, to
reach agreement on substantive issues by consensus.
96 The next section will present
a possible configuration for such a framework procedure.
3.2.2 Ex Post Opt-Out Mechanism
Bearing in mind the value of the proposed prior-MPA-establishment consultation
procedure mentioned above, there is no need to start from scratch as, building upon
these frameworks, an alternative method regarding the final decision making is
sufficient.
On the one hand, deciding on the establishment of MPAs solely by consensus will
to a certain extent, result in providing OCS States with a veto power. This would
likely lead them to prevent the establishment of any MPA in areas above their
respective OCS. Such a choice would, as stated above, prevent the full execution
of the objectives of the new ILBI regarding the establishment of a global network
of MPAs.
On the other hand, making a decision through majority-voting (or qualified
majority) would completely disregard OCS States’ expressed concerns and even
violate the rights given to them by UNCLOS. Such an outcome would not only be
94 Id.
95 See the submissions received from the delegations of the European Union and Greenpeace in
response to the Chair’s invitation made at the second session of the Prep Com.
96 UNGA Resolution 72/249, p. 3.
436
I. Aguiar Branco
decision of establishing MPAs.
94
In addition to this, some States proposed that the final decision on the establishment of MPAs should be made by consensus or, whenever that was not possible, by
majority-voting, the latter resulting in the complete disregard for OCS States’
expressed concerns.
95 Nevertheless, even if the new ILBI were to endow the opinion
of the OCS State with a decisive impact, it is foreseeable that given the chance to do
so, or when in doubt regarding the infringement upon their sovereign rights, OCS
States will likely reject the creation of an MPA in an area above their OCS. Such an
outcome would result in the attribution of a veto power to OCS States. This option
would seriously compromise the objectives of the new ILBI as it would lead to
having no MPAs above the OCS of States, which would prevent a better conservation and sustainable use of BBNJ.
Considering the limitations of the solutions proposed so far, it remains vital to
work towards a framework procedure capable of pacifying the referred concerns.
This can only be achieved by guaranteeing the effective exercise of the sovereign
rights of the coastal State over the OCS, without jeopardising the purpose of the new
ILBI. This is particularly important in allowing the discussions regarding the
development of a new mechanism for the establishment of a global network of
MPAs to move forward as the Conference shall exhaust every effort, in good faith, to
reach agreement on substantive issues by consensus.
96 The next section will present
a possible configuration for such a framework procedure.
3.2.2 Ex Post Opt-Out Mechanism
Bearing in mind the value of the proposed prior-MPA-establishment consultation
procedure mentioned above, there is no need to start from scratch as, building upon
these frameworks, an alternative method regarding the final decision making is
sufficient.
On the one hand, deciding on the establishment of MPAs solely by consensus will
to a certain extent, result in providing OCS States with a veto power. This would
likely lead them to prevent the establishment of any MPA in areas above their
respective OCS. Such a choice would, as stated above, prevent the full execution
of the objectives of the new ILBI regarding the establishment of a global network
of MPAs.
On the other hand, making a decision through majority-voting (or qualified
majority) would completely disregard OCS States’ expressed concerns and even
violate the rights given to them by UNCLOS. Such an outcome would not only be
94 Id.
95 See the submissions received from the delegations of the European Union and Greenpeace in
response to the Chair’s invitation made at the second session of the Prep Com.
96 UNGA Resolution 72/249, p. 3.
436
I. Aguiar Branco