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2020 | Book

Introduction Read chapter Read first chapter

Global Challenges and the Law of the Sea

Editors: Prof. Dr. Marta Chantal Ribeiro, Prof. Dr. Fernando Loureiro Bastos, Prof. Dr. Tore Henriksen

Publisher: Springer International Publishing

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik"

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About this book

This book analyses a selection of challenges in the implementation and application of the 1982 UN Convention on the Law of the Sea (UNCLOS), focusing on several areas: international organizations, fisheries, security, preserving marine biodiversity, dispute settlement, and interaction with other areas of international law.

UNCLOS has been described as the Constitution for the Oceans. It sets out the fundamental rights, obligations and jurisdictions of States regarding the access to, uses and management of the oceans and seas and their resources. It balances States’ diverse and sometimes conflicting interests, such as conflicting uses of space, against navigational interests and the protection of the marine environment. UNCLOS is the first global treaty to include comprehensive obligations on the protection and preservation of the marine environment, including the conservation of living marine resources. These are often common or cross-border challenges, which can only be addressed through international cooperation.

The book is divided into three thematic parts. The first concerns the role of international organizations in ocean governance. It includes twelve chapters covering a very diverse set of issues, both materially and geographically, that demonstrate the importance of coordinated actions on the part of multiple States for obtaining harmonized solutions regarding the pursuit of activities in maritime spaces (in connection with e.g. navigation, fisheries or maritime security). The second part concerns the relevance of dispute settlement mechanisms for understanding the international law of the sea and the international legal framework within which the actions of the great maritime powers take place. It is composed of three chapters, examining stakeholders’ role in dispute settlement, the position taken by China and the Russian Federation regarding international litigation in maritime spaces, and how the South China Sea Award may be relevant to the debate on the international legal concepts of rock and island. In turn, the third part addresses current discussions on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Its seven chapters report on the status quo of the ongoing negotiations for a new international legal regime of the high seas, and the establishment and operationalization of environmental regimes for international maritime spaces.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
AssIDMer was established, in 2001, exactly for the purpose of promoting research activities on issues relating to the Law of the Sea by academics, civil servants and legal practitioners. It is an honor, therefore, for its President, to make some general points on the topic of “Global Challenges and the Law of the Sea”, which are meant to constitute a basic background premise to the chapters that follow. First of all, the maritime issues herein discussed illustrate the vitality of the Law of the Sea, even if an element that can be considered common to many current issues of this topic is the rapid aging of international legal instruments available. Secondly, a free and open maritime order based on the rule of law must be considered as a cornerstone for the stability and prosperity of the international community; this implies that the old unilateralist ethics of the “creeping jurisdiction” must today give way to the demands of co-operation imperatives that are functionally necessary for the common interests of the international community. Finally, protection of marine environment and resources is an emerging key priority at global level; in particular, it has to be stressed that the deep sea represents the world’s largest environment: though largely unexplored, it provides for one of the highest levels of biodiversity on our planet and for a wide variety of ecosystem services.
Giuseppe Cataldi

The Role of the International Organizations in the Implementation and Development of the Law of the Sea

Frontmatter
Chapter 2. Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations
Abstract
Under the United Nations Convention on the Law of the Sea (UNCLOS), international cooperation through universal, regional, or subregional organizations is particularly important for the purpose of the implementation of the rules concerning the conservation and management of the fish stocks (CMFS) and the protection and preservation of the marine environment (PPME). There were numerous international organizations or conventional arrangements for these purposes even before the UNCLOS. However, since the adoption of the UNCLOS, by considering the new development of scientific and technological knowledge and recognizing the needs of new legal rules and approaches to respond to them, new organizations and arrangements have been established both for CMFS and for PPME. Moreover, the organizations and arrangements prior to the UNCLOS have been reviewed or replaced by new mechanisms. The universal organizations contribute to the development of new legal rules and provide the mechanisms for coordination and enhancement of the function of regional organizations and arrangements. Today, various and complicated overlap and interaction can be noted between the legal rules concerning CMFS and those concerning PPME. Marine living resources are considered to constitute a part of the marine environment and various principles and approaches of international environmental law are introduced to the measures for CMFS. Under these circumstances, the cooperation between the organizations for CMFS and those for PPME may contribute to the coordination and harmonization of the legal rules concerning these different but closely related matters.
Mariko Kawano
Chapter 3. International Organizations and the Protection of the Marine Environment
Abstract
One response to the numerous governance challenges faced with respect to the oceans, a shared space, is the creation of international organizations. Typically comprising of representations from member States and with pre-defined mandates, international organizations strive to resolve specific issues. This chapter will provide a categorical overview of these organizations and examine how they operate in isolation, as well as interact with each other, in striving to protect the marine environment. Given the institutional complexity surrounding the individual regimes that create them, the outcomes arrived at by most international organizations occasionally do not represent the collective interests of all member States. Nevertheless, the existence of a common avenue in which marine environmental problems can be raised and discussed as a whole has indeed resulted in the adoption of notable measures to address those problems. Such outcomes would not have been possible without the mechanics that are peculiar to international organizations. Ultimately, this analysis demonstrates the extent to which international organizations formulate the law of the sea and discern some patterns on how their efforts has advanced the protection of the marine environment in recent years.
Pradeep A. Singh
Chapter 4. The Arctic Ocean: Are We Ready to Govern a New Ocean?
Abstract
Climate change makes the Arctic ocean accessible for a range of human activities, such as shipping or hydrocarbon extraction, which can severely damage the fragile natural environment. The emergence of a ‘new ocean’ raises the question whether existing international legal norms are sufficient to adequately govern the Arctic ocean in light of this changing situation. Looking at the work of existing institutions, initiatives by Arctic States and applicable legal norms, the authors investigate the suitability of the current international legal framework for the governance of the Arctic ocean in general and the protection of the marine environment in particular. In the absence of a regional seas agreement for the Arctic ocean, particular attention will be given to the work of the Arctic Council and to potential future developments of the international legal framework governing in particular the high seas part of the central Arctic ocean.
Timo Koivurova, Stefan Kirchner, Pirjo Kleemola-Juntunen
Chapter 5. Regional Fisheries Management Organizations
Abstract
Regional fisheries management organizations and arrangements (RFMO/As) can at present be regarded as the preeminent institutions of international fisheries law. This chapter examines their role in the implementation and development of the law of the sea. It sketches the origins of international fisheries law and RFMO/As, and offers an overview of the different types of RFMO/As and the distinctions between them, their key functions, and whether or not a body qualifies as an RFMO or an RFMA. As part of this latter aspect, several regional bodies are closely examined, in particular those relating to the Arctic and the Antarctic. It is argued that RFMO/As can perform additional roles besides conservation and management of fisheries resources. This ‘role-oriented approach to RFMO/As’ is supported by the rules and practices of several RFMO/As. Special attention is finally devoted to the mandate of RFMO/As to deal with free riders and their rules and practices aimed at safeguarding the interests of the ‘Founding Fathers’ that initiated the negotiation of the RFMO/As’ establishment. These issues are not only of critical importance to RFMO/As but are to a considerable extent also interrelated.
Erik J. Molenaar
Chapter 6. Considerations on Some Global Institutional Challenges Within the Context of the Conservation and Management of Marine Living Resources
Abstract
This chapter highlights relevant aspects of some of the challenges that the international community has recently dealt with and which will continue to have to be present in the coming years within the context of the conservation and management of marine living resources, in particular in the field of fisheries. The following governance related topics are the subject matter of analysis: the interplay between instruments of a binding nature and instruments of ‘soft law’; the role of important instruments that implement UNCLOS or which have been adopted to enable State practise to be in conformity with the general frameworks; the fragmentation of international law; the questions raised by the establishment of MPAs. A specific reference is made to the UN Conference on the instrument on the conservation and management of marine biodiversity in areas beyond national jurisdiction and to some specific issues related with this conference, namely the problematic raised by the taking into consideration, in the negotiation of this instrument, of the genetic marine resources. The chapter further contains an analysis of the importance of international organizations in the conservation and management of fisheries resources and of its relationship with other bodies responsible for the preservation of the marine environment. Finally, the text refers to the action of ITLOS, in particular in what concerns the application, in its jurisprudence, of a wide notion of conservation of marine living resources.
Fernando Correia Cardoso
Chapter 7. Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in Indonesian Waters
Abstract
While coastal States are responsible to protect, conserve and manage living resources under their jurisdiction, flag States are responsible to ensure compliance by their nationals and vessels flying their flag to the coastal States’ conservation measures. However, flag States, who are supposedly having more access to the identity of their vessels, are often left turning blind eyes to the Illegal, Unreported and Unregulated fishing activities conducted by their vessels. Failure to reach a common consensus on the meaning of a genuine link of a vessel has also contributed to the lack of flag States’ control which has been identified as the root cause of IUU fishing. Even though the odds seem to be in favour of the IUU fishing offenders, recent developments have seen some improvements in the flag States’ commitment after the European Union threatened them with a possible seafood ban for failing to adopt more responsible steps to prevent, deter and eliminate IUU fishing by their fleets. This chapter explores relevant market-based measures as possible tools to deter IUU fishing in Indonesia as a representation of the global south that does not have a market power comparable to the EU but is running out of options to put an end to IUU fishing.
Dita Liliansa
Chapter 8. Sea-Level Rise in Relation to International Law: A New Topic for the United Nations International Law Commission
Abstract
One of the most important and pressing current global challenges to the Law of the Sea is the issue of climate change and its adverse effects, namely those arising from rising sea-levels. This phenomenon of sea-level rise also presents challenges to other areas of international law such as those related to statehood and the protection of persons affected by sea-level rise. The present chapter looks at this important challenge and aims at presenting the proposal for a new topic included in the United Nations International Law Commission agenda entitled “Sea-level rise in relation to International Law”, of which the author was one of the co-proponents.
Patrícia Galvão Teles
Chapter 9. The Impact of UN Sanctions on Commercial Shipping Activities
Abstract
To promote its mandate of maintaining international peace and security, the United Nations Security Council has recently utilized a variety of economic sanctions tactics in the maritime sector. Concerned with maritime practices aiding the development of illicit weapons programmes, these sanctions strategies have targeted shipping activities by blacklisting vessels and companies, prohibiting certain cargo import and export, authorizing vessel inspections and interdiction, and outlawing vessel bunkering and marine insurance coverage. Although these measures are designed to promote multilateral policy goals, they also impose regulatory burdens on shipping industry participants attempting to engage in legitimate trade. This chapter explores the interplay between contemporary maritime sanctions techniques and commercial shipping practice. It first examines the sanctions tactics employed at the United Nations Security Council to target maritime practices linked to global security challenges. It then surveys efforts within commercial shipping circles to comply with and adapt to these layers of evolving regulations.
Richard L. Kilpatrick
Chapter 10. Security Council’s Contribution to the Evolution of the Law of the Sea: Avant Garde or Self-Limitation?
Abstract
Undoubtably, the UNSC has played a significant role in the recent evolution of the Law of the Sea. This role is very clear when we focus on the derogations to the core principles of the law of the sea that UNSC has granted along the years (in the framework of the enforcement of sanctions and embargoes, to fight various traffics at sea—migrants; drugs; crude oil, etc.—or to combat piracy and armed robbery). These authorizations have enabled an evolution of the practice at sea, but they are based on exceptions, derogations granted on a case to case basis. The chapter wishes to explore the following question: have UNSC resolutions given rise to an evolution of the rule? The links between the Resolutions at stake and the formal sources of international law are unclear. Can these resolutions really lead to a modification of the fundamental rules applicable at sea, conventional or customary? The exemption clauses contained in the UNSC resolution excluding the formation of a customary norm are challenging. Indeed, when it authorizes Member States to penetrate Somali territorial waters to combat armed robbery or when it authorizes the boarding of foreign ships in the high seas to fight migrant smuggling, the Council indicates that these resolutions “shall not affect the rights or obligations or responsibilities of member states under international law” and “shall not be considered as establishing customary international law”. In doing so, UNSC is affecting the scope of its own contribution to the evolution of the law of the sea.
Kiara Neri
Chapter 11. The Challenges of the Commission on the Limits of the Continental Shelf
Abstract
The UNCLOS is one of the most important multilateral agreements achieved by humankind. For the first time in our history we have one global document that has an effective impact over seventy percent of our planet’s surface. Adopted in 1982, after nine years of intense negotiations, during the Third United Nations Conference on the Law of the Sea, this convention reflects, in a unique package, a multitude of issues that challenged the relationship among the nations in the past. It also sets some new challenges when breaking down our global and continuous ocean into several distinct geographic domains. While some of these domains were inherit from previously agreed conventions, such as the Territorial Sea, Continuous Zone and the High Seas, some others were introduced as new, such as the EEZ and the Area. Within the set of the maritime domains, the concept of legal continental shelf was thoroughly reviewed during the Third Conference, handing up in an agreed complex formulae to establish its outer limit. As an exercise of sovereignty, these outer limits are defined by coastal States and, the latter one, the continental shelf, must be submitted to the CLCS that issues recommendations in order to be accepted by the international community. This chapter describes the evolution of the concept of the continental shelf in international law and addresses the role and the challenges for the CLCS when considering the coastal States’ submissions to establish the outer limits in accordance with Article 76 of UNCLOS.
Aldino Santos de Campos
Chapter 12. UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea
Abstract
In the last several decades, intergovernmental organizations have played an increasingly significant role in implementing international treaties by providing innovative implementation proposals. The UN Food and Agriculture Organization (FAO) has been a core institution for improving international fisheries governance. This chapter proposes that based on a combination of delegated and derivative international organization powers that the FAO has responsibilities to implement actively those portions of UNCLOS that are relevant to the FAO’s mission to conserve natural resources. Even though FAO is not a party to the UNCLOS treaty, the FAO has played a central role in elaborating general concepts within UNCLOS and innovating in the area of fishery management. FAO has done this both as an agent of States but also independently through the exercise of FAO’s delegated powers to conserve natural resources. This chapter highlights five areas where the FAO has made substantive contributions to improving practices for sustainable fisheries management: (1) ecosystem approach fisheries management, (2) port state measures to combat illegal fishing, (3) guidelines to assist small-scale fisheries, (4) improved flag state performance in relation to fisheries and (5) facilitation of regional fisheries bodies. The Author proposes at the end that the FAO might be able to exercise its derivative powers to improve enforcement on the high seas with the possibility of FAO-organized enforcement efforts.
Anastasia Telesetsky
Chapter 13. Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy
Abstract
During joint operations in the Mediterranean, the European Border and Coast Guard agency (Frontex) has contributed to the implementation and development of the law of the sea. Under Frontex-led activities, frontline Member States such as Italy have encouraged an extensive interpretation of the United Nations Convention on the Law of the Sea provisions to extend the application of enforcement powers on the high seas. However, in an effort to intercept foreign ships suspected of having disembarked migrants on the Italian shores, border guard authorities started to intercept those ships directly on the high seas. Since these interception measures could have a significant impact on the freedom of navigation on the high seas, these practices should always find their legal basis in the key principles enshrined in the law of the sea and in other international law instruments.
Against this backdrop, this essay firstly focuses on the existing provisions regulating flag State jurisdiction, right of visit and right of hot pursuit in migrant smuggling operations on the high seas. Secondly, this analysis presents the evolution of the exercise of coastal State jurisdiction through the development of maritime interception practices adopted during Frontex operations. In the last part, accountability and responsibility during these maritime operations will also be discussed. The aim of this chapter is to present extensive legal approaches in the exercise of coastal States’ jurisdiction while highlighting a recent trend in using interception measures that could potentially affect the principle of exclusive flag State jurisdiction on the high seas.
Marco Fantinato

Superpowers, International Courts and the Law of the Sea: Challenges for the Global Oceans Regime

Frontmatter
Chapter 14. Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
Abstract
The role of various actors in dispute settlement processes under the UN Convention on the Law of the Sea (UNCLOS) may be assessed from different perspectives to assess the relevance or salience of those actors in decision-making processes. This chapter utilises a stakeholder identification theory, more commonly utilised in management contexts, to identify and prioritise the interests of different actors from the perspective of the judge in reaching decisions to advance the goals of UNCLOS dispute settlement. The theory is tested against the decisions made on the interpretation of Article 121(3) of UNCLOS in the South China Sea arbitration. The use of stakeholder identification theory enables us to examine the position of superpowers, as well as other states and non-state actors, in relation to a particular legal question and consider how well their interests and claims are met in judicial decision-making under UNCLOS. The author concludes that the theory is a useful explanatory tool and could bring greater transparency in decision-making but acknowledges limitations in its applicability to the UNCLOS context.
Natalie Klein
Chapter 15. The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”?
Abstract
Brazil has historically advanced what has been labelled a “territorialist” agenda for the uses of the sea, having defended extended rights and powers for the coastal State over waters adjacent to the shore. A well-known Brazilian stance has been to adjust the São Pedro and São Paulo Archipelago (ASPSP) to the definition of “island” pursuant to Article 121 of the UN Convention on the Law of the Sea (UNCLOS), so that it generates an Exclusive Economic Zone (EEZ) and a continental shelf of its own. Certain of such a right, Brazil has established a massive marine protected zone within the entirety of the Archipelago’s EEZ. Nonetheless, the recent arbitration award granted in the dispute between the Philippines and China over the South China Sea has endorsed new understandings on the regime of islands, which could eventually counter Brazilian interests regarding the Archipelago. Thus, the present contribution problematizes the position of Brazil amidst possible controversies prompted by the aforementioned arbitration award, whilst aiming to ascertain the consequences of recent jurisprudential findings concerning the concept of “island”, and glimpses into the future of Brazil’s position regarding the rights generated by the Archipelago.
Victor Alencar Mayer Feitosa Ventura, Eduardo Cavalcanti Mello Filho
Chapter 16. Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS
Abstract
On 16 September 2016, Ukraine instituted arbitral proceedings against the Russian Federation (‘Russia’) under Annex VII to the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), alleging violations of its coastal State rights in the Black Sea, the Sea of Azov, and Kerch Strait. Russia has subsequently appointed an arbitrator, sent a delegation to The Hague, and submitted its Preliminary Objections. This marks a dramatic shift in Russia’s recent relationship with interstate arbitration under UNCLOS. Most notably, in late 2013, Russia refused to participate in the arbitration instituted by the Netherlands concerning the Arctic Sunrise, and has made no indication it will comply with the Award on Compensation in the Netherlands’ favour. This chapter compares Russia’s approach in these two cases. First, it addresses its non-participation, contextualising it against Russia’s prior experiences in international dispute resolution processes, and considers the objections that Russia tends to raise against jurisdiction. Second, this chapter analyses how maritime legal considerations interplay with Russia’s posture in international politics, and discusses how each case’s context affected Russia’s response. The authors conclude that Russia’s relationship with the law of the sea is an increasingly important consideration in its political calculus. Russia tends to frame its activities as consistent with the law of the sea and relevant dispute resolution mechanisms, and increased compliance by such a major State promotes the continued effectiveness of the law of the sea.
Grant Kynaston, Rebecca Brown

The Protection and Conservation of the Areas Beyond National Jurisdiction: Where Do We Stand?

Frontmatter
Chapter 17. The Conservation and Sustainable Use of the Ocean in Areas Beyond National Jurisdiction: Where Do We Stand?
Abstract
This chapter discusses recent efforts made at the United Nations to ensure the conservation and sustainable use of ocean resources, particularly those in areas beyond national jurisdiction. By highlighting the publication of the World Ocean Assessment I and the ongoing efforts to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, the continuous engagement of the international community in improving the health of oceans while ensuring its productive capacity for the future is noted. As greater efforts would be needed for States to achieve the targets set out in Sustainable Development Goal 14, this chapter emphasizes that it would be critical to continue to raise awareness of the problems facing the oceans to a broader range of stakeholders.
Miguel de Serpa Soares
Chapter 18. Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area
Abstract
The International Seabed Authority has a challenging dual role: to develop the mineral resources of the seabed beyond national jurisdiction, whilst also protecting and preserving the marine environment from the effects of seabed mining. Setting rules, regulations and procedures for environmental management will be a key means of discharging that responsibility. This chapter identifies where there appear to be gaps within the current system, with particular attention to environmental impact assessment procedures. The authors consider the new exploitation regulations currently under negotiation, and identify opportunities to bolster such rules better to enable the International Seabed Authority to meet its environmental protection mandate.
Hannah Lily, Stephen E. Roady
Chapter 19. Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction
Abstract
The Intergovernmental Conference on marine biodiversity of areas beyond national jurisdiction has started its work on the development of an international legally binding instrument (ILBI) on the conservation and sustainable use of such biodiversity. The negotiations on marine biodiversity beyond national jurisdiction (BBNJ) will therefore further evolve within this new stage of the process. Based on a role-playing game conducted with students of the master’s in public international law at Utrecht University, this chapter looks at how the regulation for marine biodiversity in areas beyond national jurisdiction could unfold by analysing three structural aspects of the development of the ILBI. First, as the ILBI is to be developed as an agreement under the United Nations Convention on the Law of the Sea, the first substantive section focuses on the relationship between the two treaties (Sect. 2). The next section looks at biodiversity itself, through the relationship between the Convention on Biological Diversity and the ILBI, notably on how the instruments could complement one another in areas beyond national jurisdiction (Sect. 3). Finally, the last substantive section assesses the character of the ILBI, to see whether institutional arrangements should be rooted in a global, region/sectoral and/or hybrid approach (Sect. 4). These three issues form, in our view, the three pillars of the structural development and practical significance of the ILBI.
Catherine Blanchard, Otto Spijkers, Wen Duan
Chapter 20. The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction
Abstract
The present chapter aims at analysing the relationship between the European Union and the future International legally binding instrument (ILBI) related to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction—the high seas and the Area (deep seabed). The chapter will begin with a brief introduction detailing the manner in which the European Union has interacted with the international law of the sea. A particular focus will be placed on the difficulty that has arisen in distinguishing between the exclusive and shared competences of the EU in regard to the conservation of biological resources and the protection of the environment, at both a substantial and institutional level. Thereafter, the chapter will be two-pronged, elaborating upon the formal participation of the EU as regards the future instrument and the specificities of its substantive participation. Il also addresses the potential consequences for the Union of the adoption of such an agreement, in terms of its impact on EU maritime policy, on the exercise of its competences and on its participation in international institutions.
Pascale Ricard
Chapter 21. The EU and the UN Legally-Binding Instrument on the Areas Beyond National Jurisdiction
Abstract
The chapter offers an in-depth reading of the role that the European Union (EU) may play during the current negotiations in the United Nations for the adoption of a new international legally binding agreement on biodiversity beyond national jurisdiction. Despite the complexity of the object and the interests of the negotiations in question, the study stresses the added value of the EU to speak with a single voice on behalf of its Member States, thank on the new status that the EU has in the United Nations General Assembly since 2011. In fact, such a status may assist a major sharing of position of the EU among other States, by covering also the legal gaps of the United Nations Convention of the Law of the Sea (UNCLOS), concerning the protection of the marine biological diversity and, mainly, the definition and framework of Marine Genetic Resources. Besides, the chapter stresses the idea that the EU may interconnect the new international agreement with other international instruments and International Organizations, in which the EU is an active player, guarantying in this way a concrete coordination and implementation of UNCLOS. Finally, the study will move to consider a pragmatic position expressed by the EU during the negotiations, together with its Member States, trying to understand whether and to what extent it can represent a possible third way to walk on.
Luigimaria Riccardi
Chapter 22. Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign Rights Over the Continental Shelf Beyond 200 Nautical Miles
Abstract
Despite representing more than 60% of Earth’s oceans, and hosting a substantial part of its biodiversity, marine areas beyond national jurisdiction remain largely unprotected. Consequently, the discussions on the conservation and sustainable use of marine biodiversity in these areas have become the focus of the international community over the past decade. As a result, the United Nations General Assembly decided to convene an intergovernmental conference to elaborate the text of an international legally binding instrument, under the United Nations Convention on the Law of the Sea, on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. During the discussions leading to this decision, the advent of potential conflicts between the sovereign rights connected to the continental shelf beyond 200 nm and the protective measures applied in Marine Protected Areas established in the High Seas, was expressed as one of the pressing concerns. Therefore, it is feared that such concerns will somehow deter these States from expressing their consent to be bound by the agreement in the end. This chapter aims to analyse the aforementioned potential conflict and, through such an analysis, push the work of the intergovernmental conference forward by providing a possible legal framework to prevent said conflict from having undesired results.
Inês Aguiar Branco
Chapter 23. North East Atlantic Marine Protected Areas Beyond National Jurisdiction. Geographical and Material Scope
Abstract
An intergovernmental conference is working to prepare the text of an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJs). One topic is area-based management tools, including marine protected areas (MPAs). Pending the outcome of the conference, and as the future treaty is not to undermine existing relevant legal instruments, frameworks or bodies, this chapter focuses on the main features of the current experience in the North East Atlantic from a jurisdictional point of view. MPAs mainly cover areas under national jurisdiction, but also ABNJs in the Antarctic and North East Atlantic, both in the context of international organisations/agreements. Given the special status of Antarctica, the North East Atlantic experience provides a better reference. Some of the MPAs designated under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) cover the deep seabed. OSPAR collaborates with other relevant international organisations to enhance the overall effectiveness of MPAs. And certain OSPAR coastal states are very attuned to any opportunity to demand a special position in relation to the ABNJs located next to their territory.
Marta Sobrido-Prieto
Metadata
Title
Global Challenges and the Law of the Sea
Editors
Prof. Dr. Marta Chantal Ribeiro
Prof. Dr. Fernando Loureiro Bastos
Prof. Dr. Tore Henriksen
Copyright Year
2020
Electronic ISBN
978-3-030-42671-2
Print ISBN
978-3-030-42670-5
DOI
https://doi.org/10.1007/978-3-030-42671-2