CYIL vol. 9 (2018)

PETR VÁLEK CYIL 9 ȍ2018Ȏ would be identified. The outlined “designation process” for these tools and MPAs unfortunately does not provide a clear recommendation on who would actually make the decision. 68 The MPAs already exist, e.g., the Great Barrier Reef Marine Park established by Australia or the Wadden Sea established by the Netherlands, Denmark, and Germany. Nevertheless, a universal treaty regime on the MPAs is missing. The Convention on Biological Diversity (adopted in Rio de Janeiro on 5 June 1992) 69 contains in its Article 2 a general term “protected area” that is, according to its Article 8, applicable only to the territory of the Parties to the Convention. The regulation of the marine protected areas could be, from the point of protection of marine environment, one of the most important achievements of the Instrument. The third substantive topic is the environmental impact assessments (hereinafter, the “EIA”), already foreseen by Article 206 of the UNCLOS for activities that may cause “substantial pollution of or significant and harmful changes to the marine environment”. Again, the Preparatory Committee did not recommend who would make a decision whether a certain activity may proceed or not. 70 The exploration and exploitation of mineral resources in the Area will most likely be also regulated by the Instrument, therefore, the member States of the Interoceanmetal and similar consortia should pay close attention to this issue, as their business might be affected by it. The fourth topic, the capacity-building and transfer of marine technology, has already created a divide between the developed and developing States during the Third UN Conference on the Law of the Sea. At that time, [t]he chief U.S. delegate to the Conference described what the United States regarded as the treaty’s flaws to the House Subcommittee on Foreign Affairs: … A fundamental lack of certainty would exist with regard to the…mandatory technology transfer requirements. The provisions violate a basic principle that owners of technology have rights in its sale and use. 71 The general recommendations of the Preparatory Committee do not attempt to propose a solution to this problem. A solution that might be considered is to use Part XIV of the UNCLOS on the development and transfer of marine technology as a model. As the next step, the UNGA decided, in its resolution 72/249 of 24 December 2017, “to convene an intergovernmental conference, under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee on the elements and to elaborate the text” 72 of the Instrument (hereinafter, the “IGC”). The IGC is supposed to meet for four sessions from 2018 to 2020. At the organizational meeting of the IGC from 16 to 18 April 2018, the delegates elected Ms. Rena Lee, Ambassador for Oceans and Law of the Sea Issues and Special Envoy of the Minister of Foreign Affairs of Singapore as the IGC President, 73 thus keeping the tradition of a President from Singapore from the Third UN Conference on the Law of the Sea. The task that awaits her d – i.e., to steer the IGC towards adopting the Instrument – is truly gargantuan; even more so, as the usefulness of the above-mentioned recommendations of the Preparatory Committee is quite limited and no 68 Id., pp. 11-12, paras. 4.3.1.-4.3.2. 69 Published in the Czech Republic under Act No. 133/1999 Sb. 70 See supra 62, p. 13, para. 5.4. 71 See supra13, p. 708. 72 UN Document No. A/RES/72/249, OP 1. 73 The UN meetings coverage and press releases, available at: https://www.un.org/press/en/2018/sea2071.doc.htm.

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