CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ LAW OF THE SEA: IS IT RELEVANT FOR THE CZECH REPUBLIC? of the Instrument. 61 The Preparatory Committee met for four sessions in 2016 and 2017. Its results are presented in the final Report distributed on 31 July 2017, 62 including the recommendations for the UNGA, further divided into two sections. The Report makes it clear that both of them “do not reflect consensus. Section A includes non-exclusive elements that generated convergence among most delegations. Section B highlights some of the main issues on which there is divergence of views.” 63 In other words, the Preparatory Committee did not reach consensus on anything over those two years, while it disagreed less on section A rather than on section B. With regard to the substance, section A attempts to draw the basic structure of the Instrument and provides a basic understanding of the proposed Instrument. Section B is just a mélange of ideas that could be developed during the negotiation process of the Instrument. Therefore, the focus will be on section A. After the preambular elements, section A continues with the part titled “general elements”. This part determines the geographical scope of application of the Instrument, i.e., “areas beyond national jurisdiction”, 64 and the material one, comprised of four main topics further discussed below. The key relationship of the Instrument to the UNCLOS is recommended as follows: “nothing in the instrument shall prejudice the rights, jurisdiction and duties of States under the Convention” and that it “shall be interpreted and applied in the context of and in a manner consistent with the Convention.” 65 Therefore, the Instrument is supposed to be complementary to the UNCLOS. The “general elements” are followed by the “general principles and approaches guiding the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” which are accompanied by a demonstrative and somewhat chaotic list. 66 While it may be useful for future interpretation of the Instrument to include some “general principles”, it is quite surprising to recommend the “approaches” which seem to be political or scientific rather than legal concepts. Moreover, in some cases, it is unclear actually what is meant by these concepts, as some of them are too vague to provide any guidance at all, e.g., “relevant stakeholders engagement”, “ecosystem approach” or “adaptive management”. The first substantive topic is marine genetic resources, including questions on the sharing of benefits. It can be expected that it will be hard to reconcile the idea of sharing of benefits from these resources with the intellectual property rights, nevertheless, the Preparatory Committee has not suggested any solution and merely noted that “the text could set out the relationship” between the Instrument and these rights. 67 This issue is perhaps the most divisive between the developed and developing States, as the former prefer the protection of these rights, while the latter want to apply the concept of the “common heritage of mankind” from the UNCLOS to these resources. The second substantive issue is called measures, such as area-based management tools, including marine protected areas (hereinafter, the “MPAs”). In this context, the Preparatory Committee proposed a demonstrative list of “standards and criteria” on which basis such areas

61 UN Document No. A/RES/69/292, OP 1. 62 UN Document No. A/AC.287/2017/PC.4/2.

63 Id., p. 7, para. 38. 64 Id., p. 8, para. 2. 65 Id., pp. 8-9, para. 4. 66 Id., p. 9, para. 1. 67 Id., p. 10, para. 3.

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