50%.
99 Conversely, all other States would have to respect the prohibitive protective
measure of no marine noise emission as they possess no rights over the OCS.
This mechanism aims to maximize the effect, geographical distribution and
opposability of a global network of MPAs. Firstly, by guaranteeing the effective
enjoyment of given sovereign rights to OCS States. Secondly, by ensuring the
acceptance of the desired consensus decision making procedure for the establishment of MPAs. Thirdly, by enhancing the degree of general acceptance of the new
ILBI. Finally, and most importantly, by fulfilling in a more effective way the
objective of achieving a better conservation and sustainable use of BBNJ.
Criticism and fear for the creation of double standards inside an MPA may rise
with this proposal. However, one must bear in mind the following: the priority is to
establish a global network of MPAs and without this mechanism many MPAs will
never be approved, with or without double standards. Furthermore, this proposal
allows for cumulative application with other solutions and principles that can be
included in other parts of the agreement. In this context, the principles of ecosystem
approach, best available science and even, as some scholars have been advocating
recently, the creation of a minimum level of protection in the HS can help mitigate
these concerns.
100
After clarifying the abovementioned, let us take another look at the previous
example. In the described situation, the OCS State that choses to exercise his Ex post
opting out right would be able to conduct seismic surveys but, in doing so, it would
have to respect all the provisions, principles and levels of protection provided for by
UNCLOS, by the ILBI and by the MPA itself.
All things considered, this is the greatest advantage of this proposal. Providing
OCS States with the permanent guarantee to exercise their rights, regardless of the
existence of an MPA in the water column above their OCS, while bounding them to
all other obligations that will be included in the ILBI.
4 Conclusion
The discussions leading to the UNGA’s decision to convene an intergovernmental
conference, to develop a new ILBI on conservation and sustainable use of BBNJ,
have been shrouded by concerns regarding many issues. One of the most controversial ones being the establishment of HS MPAs in areas above the OCS as they
could possibly interfere with the exercise of coastal States’ sovereign rights
over them.
99 This mechanism is in line with, and strengthened by, recent proposals advocating for the adoption
of a minimum standard/level of environmental protection for BBNJ as such level, if included in the
new ILBI, will remain applicable to the OCS States that exercise their Ex post opting out right. See
Ribeiro (2017b), pp. 757–759.
100 Ribeiro (2017b), pp. 757–759.
438
I. Aguiar Branco
99 Conversely, all other States would have to respect the prohibitive protective
measure of no marine noise emission as they possess no rights over the OCS.
This mechanism aims to maximize the effect, geographical distribution and
opposability of a global network of MPAs. Firstly, by guaranteeing the effective
enjoyment of given sovereign rights to OCS States. Secondly, by ensuring the
acceptance of the desired consensus decision making procedure for the establishment of MPAs. Thirdly, by enhancing the degree of general acceptance of the new
ILBI. Finally, and most importantly, by fulfilling in a more effective way the
objective of achieving a better conservation and sustainable use of BBNJ.
Criticism and fear for the creation of double standards inside an MPA may rise
with this proposal. However, one must bear in mind the following: the priority is to
establish a global network of MPAs and without this mechanism many MPAs will
never be approved, with or without double standards. Furthermore, this proposal
allows for cumulative application with other solutions and principles that can be
included in other parts of the agreement. In this context, the principles of ecosystem
approach, best available science and even, as some scholars have been advocating
recently, the creation of a minimum level of protection in the HS can help mitigate
these concerns.
100
After clarifying the abovementioned, let us take another look at the previous
example. In the described situation, the OCS State that choses to exercise his Ex post
opting out right would be able to conduct seismic surveys but, in doing so, it would
have to respect all the provisions, principles and levels of protection provided for by
UNCLOS, by the ILBI and by the MPA itself.
All things considered, this is the greatest advantage of this proposal. Providing
OCS States with the permanent guarantee to exercise their rights, regardless of the
existence of an MPA in the water column above their OCS, while bounding them to
all other obligations that will be included in the ILBI.
4 Conclusion
The discussions leading to the UNGA’s decision to convene an intergovernmental
conference, to develop a new ILBI on conservation and sustainable use of BBNJ,
have been shrouded by concerns regarding many issues. One of the most controversial ones being the establishment of HS MPAs in areas above the OCS as they
could possibly interfere with the exercise of coastal States’ sovereign rights
over them.
99 This mechanism is in line with, and strengthened by, recent proposals advocating for the adoption
of a minimum standard/level of environmental protection for BBNJ as such level, if included in the
new ILBI, will remain applicable to the OCS States that exercise their Ex post opting out right. See
Ribeiro (2017b), pp. 757–759.
100 Ribeiro (2017b), pp. 757–759.
438
I. Aguiar Branco