The Limits of Sectoral and Regional Efforts to Designate High Seas Marine Protected Areas

Abstract

This essay addresses the question of how the international community could designate high seas marine protected areas (MPAs) that would be binding on all states. This is a key issue for the forthcoming UN negotiations of an International Legally Binding Instrument (ILBI) on conservation and sustainable use of biodiversity in areas beyond national jurisdiction. However, this is a longstanding question, the importance of which transcends the ILBI negotiations. Some have argued for the establishment of a centralized Ocean Governance Authority, whose decisions would be universally binding; others have argued that existing regional and sectoral bodies can be relied on to protect biodiversity in areas beyond national jurisdiction. The experience of the Sargasso Sea project is that some sort of centralized or coordinating regime is needed to make MPAs effective across regional and sectoral bodies.

The Sargasso Sea Commission: An Evolving New Paradigm for High Seas Ecosystem Governance?

“…These lessons learned have also demonstrated what has been called the "fractured" system of high seas governance (Freestone, 2018)-where too little attention is paid by one sector to the activities of other sectors and the cumulative impacts that may result. The UN IGC is considering a draft treaty text which would provide an overarching legal framework for areas beyond national jurisdiction.…”

Unity or Fragmentation in the Deep Blue: Choices in Institutional Design for Marine Biological Diversity in Areas Beyond National Jurisdiction

“…Its advocates argue for the creation of a powerful new international organization. Labels used to describe such a model included 'global' or 'heavy' regimes (see e.g., Young and Friedman, 2018, p. 127), or 'Ocean Governance Authority' (see Freestone, 2018). Proponents of this approach seek to create a strong, permanent, robust international organization with organs, binding decisionmaking powers, delineated competences, financial security, and enforcement capabilities (see e.g., High Seas Alliance [HSA], 2018).…”

“…It is highly unlikely that a version of the Agreement which leaves implementation primarily to existing regional RFMOs and other sectoral organizations will gain significant support, especially given their difficulties in implementing MPAs in ABNJ (Freestone, 2018). Recent research demonstrates strong levels of interconnectivity between some areas within national jurisdiction and ABNJ, and this underlines the need for high levels of coordination beyond RFMOs and sectoral organizations (Popova et al, 2019), coordination which does not exist at present.…”

The International Legal Regime relating to Marine Protected Areas in Areas beyond National Jurisdiction: Identifying and Addressing Gaps

“…149 The order of the ITLOS in the Southern Bluefin Tuna Cases implicitly applied the precautionary principle, 150 and the Seabed Dispute Chamber of the ITLOS in the Seabed Mining Advisory Opinion observes that "a trend towards making this approach part of customary international law" has been initiated. 151 However, no existing international court/tribunals such as ICJ and ITLOS explicitly support the argument that the precautionary principle has become a part of customary international law. 152 As observed by Schrijver, "the absence of any authoritative pronouncement by an international judicial body on the legal status of the precautionary principle and the division of scholarly opinion on the matter raise doubts as to whether the precautionary principle/approach has already matured into a norm of customary international law".…”

“…In accordance with Article 5 of Annex V to the Madrid Protocol, any party to the Madrid Protocol, Committee for Environmental Protection (CEP), 149 the Scientific Committee for Antarctic Research (SCAR), 150 or the CCAMLR may propose the designation of an ASPA with a marine component or an ASMPA with a marine component by submitting a proposed management plan to the ATCM. 151 As required by Article 5 of Annex V, the proposed management plan shall include a number of elements such as "a statement of the aims and objectives…", "management activities..", and "a clear description of the conditions under which permits may be granted" for the access to or activities at a proposed ASPA or "code of conduct" within the proposed ASMA and so forth. 152 The proposed management plan for the ASPA/ASMA with the marine component shall be forwarded to the CEP, the SCAR and the CCAMLR.…”