In an attempt to overcome said concerns, different options have been proposed
during the meetings of the Prep Com. However, such options were unable to gather
the support needed to allow the discussions to move forward as effective exercise
and respect for OCS sovereign rights was not straightforwardly guaranteed by any
of them.
With the beginning of the proceedings of the Intergovernmental Conference, the
momentum to find new solutions, capable of pacifying the referred concerns, has
become more evident.
101 As such, this research analysed and built upon the already
proposed solutions, mainly by upgrading and shielding them from identified weaknesses and undesired results.
Consequently, in addition to the decision-making procedure of consensus proposed for the establishment of MPAs, an Ex post opting out mechanism should be
made available. The target of this mechanism would be the coastal States that, as
future parties to the agreement, will have an MPA above an area of their respective
OCS that applies protective measures incompatible with the exercise of their sovereign rights.
This proposal guarantees not only that OCS States will always be able to
effectively exercise their rights, but also that they will be part of and bound by the
created MPA. The previously mentioned mechanism will allow for the unclogging
of the negotiations and will serve the purpose of the new ILBI, as it allows for a
consensus agreement on a global and universal network of MPAs. Such network will
be opposable to all parties of the new ILBI, including the OCS States that make use
of the Ex post opting out mechanism as the latter will only be exercised in relation to
incompatible measures, and not the ILBI or the MPA themselves.
102
It is undeniable that the intergovernmental conference poses a unique opportunity
to discuss and create a comprehensive and inclusive approach to the conservation
and sustainable use of BBNJ. This will make it possible to fulfil the aspirations of
UNCLOS preamble to “promote the peaceful uses of the seas and oceans, the
equitable and efficient utilisation of their resources, the conservation of living
resources, and the study, protection and preservation of the marine environment”.
103
As stated during the second meeting of the Prep Com “all the pieces are aligned
for us Earthlings to make headway”,
104 it is in this spirit that this mechanism is
proposed.
101 Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1.
102 In case States agree to include provisions in the new ILBI calling for a degree of environmental
protection equivalent in ABNJ MPAs, as advocated recently by Ribeiro (2017b), p. 759, this
mechanism is compatible and allows for cumulative application.
103 Ardron J et al., Advancing Governance of the High Seas, 2013, p. 3; Pew Environment Group,
Addressing existing Commitments And designing next steps for Action Conserving marine Biodiversity, 2013, p. 16.
104 Morgera et al. (2016b), p. 20.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
439
during the meetings of the Prep Com. However, such options were unable to gather
the support needed to allow the discussions to move forward as effective exercise
and respect for OCS sovereign rights was not straightforwardly guaranteed by any
of them.
With the beginning of the proceedings of the Intergovernmental Conference, the
momentum to find new solutions, capable of pacifying the referred concerns, has
become more evident.
101 As such, this research analysed and built upon the already
proposed solutions, mainly by upgrading and shielding them from identified weaknesses and undesired results.
Consequently, in addition to the decision-making procedure of consensus proposed for the establishment of MPAs, an Ex post opting out mechanism should be
made available. The target of this mechanism would be the coastal States that, as
future parties to the agreement, will have an MPA above an area of their respective
OCS that applies protective measures incompatible with the exercise of their sovereign rights.
This proposal guarantees not only that OCS States will always be able to
effectively exercise their rights, but also that they will be part of and bound by the
created MPA. The previously mentioned mechanism will allow for the unclogging
of the negotiations and will serve the purpose of the new ILBI, as it allows for a
consensus agreement on a global and universal network of MPAs. Such network will
be opposable to all parties of the new ILBI, including the OCS States that make use
of the Ex post opting out mechanism as the latter will only be exercised in relation to
incompatible measures, and not the ILBI or the MPA themselves.
102
It is undeniable that the intergovernmental conference poses a unique opportunity
to discuss and create a comprehensive and inclusive approach to the conservation
and sustainable use of BBNJ. This will make it possible to fulfil the aspirations of
UNCLOS preamble to “promote the peaceful uses of the seas and oceans, the
equitable and efficient utilisation of their resources, the conservation of living
resources, and the study, protection and preservation of the marine environment”.
103
As stated during the second meeting of the Prep Com “all the pieces are aligned
for us Earthlings to make headway”,
104 it is in this spirit that this mechanism is
proposed.
101 Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1.
102 In case States agree to include provisions in the new ILBI calling for a degree of environmental
protection equivalent in ABNJ MPAs, as advocated recently by Ribeiro (2017b), p. 759, this
mechanism is compatible and allows for cumulative application.
103 Ardron J et al., Advancing Governance of the High Seas, 2013, p. 3; Pew Environment Group,
Addressing existing Commitments And designing next steps for Action Conserving marine Biodiversity, 2013, p. 16.
104 Morgera et al. (2016b), p. 20.
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
439