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

Abstract

Marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ) play an important role in protecting and conserving marine ecosystems and biodiversity. The international legal regime relating to MPAs in ABNJ includes, on the one hand, general obligations relating to the marine environment, marine living resources and marine biodiversity under the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD) and customary international law and, on the other hand, regional regimes (e.g. the CAMLR Convention, the Madrid Protocol, the OSPAR Convention, the Barcelona Convention) through which MPAs in ABNJ have been established. However, there are ‘participatory’, ‘competence’ and ‘geographical’ gaps in this international legal regime. This thesis examines the question – how can ‘participatory’, ‘competence’ and ‘geographical’ gaps in the international legal regime related to MPAs in ABNJ be addressed?

These gaps can be partly addressed under existing international law. The participatory gap – the issue of pacta tertiis – could be addressed to a limited extent through effectively implementing or using: 1) general obligations relating to the marine environment, living resources and biodiversity under the UNCLOS, the CBD and customary international law; 2) treaty rules qualifying as objective regimes; and 3) regime interactions, especially rules of reference. This is complemented by at-sea high seas inspection under Article 21 of the FSA and coastal, port and market State jurisdiction, which can be exercised to ensure compliance with measures made applicable within MPAs in ABNJ by third States. Nevertheless, at-sea high seas inspection and coastal, port and market State jurisdiction do not constitute a strong enforcement/compliance mechanism, as the exercise of jurisdiction is often voluntary rather than mandatory.

The competence and geographical gaps – the lack of comprehensiveness, coherence and consistency of the international regime – are addressed to a limited extent by existing regime interactions through parallel membership, mutual agreement and institutional arrangements. Despite the current regime interactions, there is potential for having more regime interactions which can further contribute to the comprehensiveness, coherence and consistency of the international legal regime relating to MPAs in ABNJ. However, due to the lack of a global mechanism dedicated to cooperation and coordination in relation to MPAs in ABNJ, the comprehensiveness, coherence and consistency of the international legal regime relating to MPAs in ABNJ cannot be achieved at a global level, and the competence and geographical gaps cannot be addressed adequately under existing international law.

The possible future arrangements of the prospective international legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ILBI) might make further contributions to addressing those gaps by opting for: 1) obligating its parties to comply with the measures associated with MPAs established by other relevant regimes; 2) granting its decision-making body the mandate to adopt conservation measures complementary to existing measures associated with MPAs in ABNJ adopted by other relevant regimes; and 3) establishing a mechanism for coordination and cooperation in respect of MPAs at the global level.