against the spirit of the new ILBI, but also against UNCLOS itself as UNCLOS
requires States to exercise their rights and obligations in a manner consistent with its
general principles and objectives.
97
All things considered, the ideal decision-making procedure should allow the
establishment of all MPAs by consensus while, simultaneously, guaranteeing the
exercise of OCS States’ sovereign rights. In other words, there is the need to bestow
OCS States with a mechanism that allows them to be part of the consensus needed
for the establishment of MPAs without the fear of infringement upon their rights.
Due to the abovementioned need, the mechanism proposed in this research is to
provide OCS States with an Ex post opting out mechanism. This would be an Ex post
mechanism since it would only be exercisable if three conditions are
cumulatively met.
Firstly, and to respect the principles of Pacta sunt servanda and Pacta tertiis nec
nocent nec prosunt,
98 it would only be exercisable after said States expressed their
consent to be bound by the new ILBI as it will be the legal framework providing for
that mechanism.
Secondly, it would be exercisable only after the establishment of an MPA above
their respective OCS.
Finally, it would be exercisable only if the protective measures adopted in the
MPA prevent the exercise (or make such exercise excessively onerous) of the OCS
State’s rights. In which case, the opt-out would be exercised, not regarding the new
ILBI or the MPA, but regarding the specific measure in conflict with the exercise of
their rights.
The proposed mechanism will allow a consensus to be reached regarding the final
decision-making procedure for the establishment of MPAs as OCS States will no
longer be worried about a possible infringement of their rights. Moreover, it will
enhance the level of protection of the marine environment as the future network of
MPAs will be universally opposable. This would be due to OCS States being bound
by the MPA regardless of exercising their Ex post opting out right as the latter would
only be exercisable with respect to the protective measures that collide with the
exercise of their sovereign right.
For example, consider an MPA created in an area above the OCS of State B which
adopts a prohibitive protective measure regarding the emission of marine noise, plus
a parameter of noise in the water column of no more than 50%. If our proposed
mechanism was adopted, the OCS State would, after exercising his Ex post opting
out right in relation to the prohibitive measure, be able to conduct seismic surveys of
the ocean floor as long as the marine noise produced did not exceed the established
97 Art. 237(2), UNCLOS.
98 Arts 26 and 34 of the Vienna Convention on the Law of Treaties; Tanaka (2012b), pp. 315–317;
Drankier (2012), pp. 346–347; Merkouris (2010), pp. 77–82; Tladi (2015), p. 667.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
437
requires States to exercise their rights and obligations in a manner consistent with its
general principles and objectives.
97
All things considered, the ideal decision-making procedure should allow the
establishment of all MPAs by consensus while, simultaneously, guaranteeing the
exercise of OCS States’ sovereign rights. In other words, there is the need to bestow
OCS States with a mechanism that allows them to be part of the consensus needed
for the establishment of MPAs without the fear of infringement upon their rights.
Due to the abovementioned need, the mechanism proposed in this research is to
provide OCS States with an Ex post opting out mechanism. This would be an Ex post
mechanism since it would only be exercisable if three conditions are
cumulatively met.
Firstly, and to respect the principles of Pacta sunt servanda and Pacta tertiis nec
nocent nec prosunt,
98 it would only be exercisable after said States expressed their
consent to be bound by the new ILBI as it will be the legal framework providing for
that mechanism.
Secondly, it would be exercisable only after the establishment of an MPA above
their respective OCS.
Finally, it would be exercisable only if the protective measures adopted in the
MPA prevent the exercise (or make such exercise excessively onerous) of the OCS
State’s rights. In which case, the opt-out would be exercised, not regarding the new
ILBI or the MPA, but regarding the specific measure in conflict with the exercise of
their rights.
The proposed mechanism will allow a consensus to be reached regarding the final
decision-making procedure for the establishment of MPAs as OCS States will no
longer be worried about a possible infringement of their rights. Moreover, it will
enhance the level of protection of the marine environment as the future network of
MPAs will be universally opposable. This would be due to OCS States being bound
by the MPA regardless of exercising their Ex post opting out right as the latter would
only be exercisable with respect to the protective measures that collide with the
exercise of their sovereign right.
For example, consider an MPA created in an area above the OCS of State B which
adopts a prohibitive protective measure regarding the emission of marine noise, plus
a parameter of noise in the water column of no more than 50%. If our proposed
mechanism was adopted, the OCS State would, after exercising his Ex post opting
out right in relation to the prohibitive measure, be able to conduct seismic surveys of
the ocean floor as long as the marine noise produced did not exceed the established
97 Art. 237(2), UNCLOS.
98 Arts 26 and 34 of the Vienna Convention on the Law of Treaties; Tanaka (2012b), pp. 315–317;
Drankier (2012), pp. 346–347; Merkouris (2010), pp. 77–82; Tladi (2015), p. 667.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
437