Area-based Protection beyond National Jurisdiction

Abstract

This article provides a critical overview of the current international legal framework for the designation of area-based protection beyond national jurisdiction as well as selected examples of global and regional practice to date. It highlights some of the legal and other challenges in employing spatial management tools in a three dimensional and highly dynamic environment that lies beyond the jurisdiction of states or of any one overarching institution. The article concludes with a brief assessment of the various proposals that are currently under discussion as part of the negotiations for an instrument to support the conservation of biodiversity beyond national jurisdiction (the BBNJ negotiations) to create a global framework for the designation of MPAs and other area-based measures beyond the jurisdiction of states.

The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review

“…There is criticism that EIAs in ABNJ are not comprehensively and effectively carried out (Ma et al, 2016). While legal and institutional frameworks for EIAs are well-established in areas within national jurisdiction, collaborative structures and mechanisms for EIAs in areas beyond national jurisdiction are fragmented and underdeveloped (Warner, 2018); no global institution is in charge of the development of best-practice standards for EIAs and SEAs or the monitoring of their implementation (Gjerde and Rulska-Domino, 2012;Warner, 2012;Scott, 2019). Many ABNJ activities, including oil and gas exploration, marine scientific research, survey activities, marine geoengineering, deep-sea tourism, and military activities are not subject to any EIA process (Warner, 2012).…”

“…With the exception of one publication, the BBNJ literature on environmental impact assessments consensually points to the need to consider cumulative impacts and integrate climate change issues into discussions regarding EIAs and SEAs (Warner, 2014(Warner, , 2017(Warner, , 2018Gjerde et al, 2016;Ma et al, 2016;Sander, 2016;Marciniak, 2017). Regarding the importance to notify adjacent Potential models: Regional, Hybrid, and Global (Quirk and Harden-Davies, 2017;Elferink, 2019;Gjerde et al, 2019;Scott, 2019); Global-Hybrid Model (Vithanage, 2017) Improve potential of RFMOs (Scanlon, 2018) MPAs to be based on transparent, best-available science (O' Leary et al, 2012;Evans et al, 2015;Dias et al, 2017;Gjerde et al, 2019;Gownaris et al, 2019) Consideration of Marine ecological connectivity, Circulation connectivity, Migratory and cultural connectivity (O' Leary et al, 2012;Evans et al, 2015;O'Leary and Roberts, 2017;De Santo, 2018;Hofman, 2019;Popova et al, 2019); Full protection of MPAs (O' Leary and Roberts, 2018;Gownaris et al, 2019) Identification: Using pelagic birds to identify MPAs (Dias et al, 2017); Designation of EBSAs based on occurrence of Tropic Seamounts (Ramiro-Sanchez et al, 2019); biogeographic classifications (Rice et al, 2011); Consider climate change in MPA design (Johnson et al, 2018;Warner, 2018;Dunn et al, 2019) Long-term, precautionary and ecosystem approach (Marciniak, 2017;Johnson et al, 2018;…”

“…Although implementation can be improved through better cooperation and coordination among existing regimes (Ardron et al, 2014) and a case study of the UNFSA shows how existing structures could contribute to the establishment of MPAs under the BBNJ agreement , it has been noted that without a global instrument, ocean protection would depend on existing organizations, whose capacities vary, which do not cover all areas of the ocean (Dias et al, 2017;Mossop, 2018), and would fail to establish a representative global network of MPAs (Elferink, 2019). Past resistance and the slow progress of MPA designation in international waters demonstrate the restrictions of relying on existing instruments, leading to calls for a long-term, global approach that nevertheless does not undermine current mandates (Cordonnery et al, 2015;Tladi, 2015;Scott, 2019). Experience gained by the UNFSA provides principles for managing straddling and highly migratory fish stocks; however, review mechanisms lack decision-making power regarding regional organizations (Elferink, 2019).…”

“…Thus, advocates of giving strong decisionmaking powers to a future BBNJ Scientific and Technical Body call for a "politically highly influential" design (De Santo, 2018). Increasingly, there are calls to include other forms of knowledge into policy-making across all package elements, including traditional knowledge of Indigenous Peoples and Local Communities (Dunstan et al, 2016;Ridings, 2018;Voigt-Hanssen, 2018;Johnson et al, 2019a;Scott, 2019; and the perspectives of resource managers, interest groups (De Santo, 2018), civil society actors, and the private sector (Kraabel, in press). This part of the BBNJ literature points to existing instruments (see Tables 4, 5), including: the Aarhus convention, with its general principles and approaches of public participation, transparency, and information availability (De Santo, 2018); the FAO's 2009 International Guidelines for the Management of Deep-sea Fisheries in the High Seas criteria for VME identification based on the best available scientific knowledge and expert judgment (Johnson et al, 2018); the CAMLR Scientific Committee (De Santo, 2018); scientific advice for decision-making in OSPAR and the North-East Atlantic Fisheries Commission (NEAFC) by the International Council for the Exploration of the Sea (ICES) (De Santo, 2018); and the Permanent Commission for the South Pacific (CPPS) with its climate-related scientific research across the region (Durussel et al, 2017).…”

Data_Sheet_1.pdf

“…Thus, advocates of giving strong decisionmaking powers to a future BBNJ Scientific and Technical Body call for a "politically highly influential" design (De Santo, 2018). Increasingly, there are calls to include other forms of knowledge into policy-making across all package elements, including traditional knowledge of Indigenous Peoples and Local Communities (Dunstan et al, 2016;Ridings, 2018;Voigt-Hanssen, 2018;Johnson et al, 2019a;Scott, 2019; and the perspectives of resource managers, interest groups (De Santo, 2018), civil society actors, and the private sector (Kraabel, in press). This part of the BBNJ literature points to existing instruments (see Tables 4, 5), including: the Aarhus convention, with its general principles and approaches of public participation, transparency, and information availability (De Santo, 2018); the FAO's 2009 International Guidelines for the Management of Deep-sea Fisheries in the High Seas criteria for VME identification based on the best available scientific knowledge and expert judgment (Johnson et al, 2018); the CAMLR Scientific Committee (De Santo, 2018); scientific advice for decision-making in OSPAR and the North-East Atlantic Fisheries Commission (NEAFC) by the International Council for the Exploration of the Sea (ICES) (De Santo, 2018); and the Permanent Commission for the South Pacific (CPPS) with its climate-related scientific research across the region (Durussel et al, 2017).…”