Protection of marine biodiversity in areas beyond national jurisdiction: Analyzing the potential effects of the new UN BBNJ regulation on the current legal framework of Marine Protected Areas in the ABNJ

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Protection of marine biodiversity in areas beyond national jurisdiction

Analyzing the potential effects of the new UN BBNJ regulation on the current legal framework of Marine Protected Areas in the ABNJ

Name: Delphine Beun Student #: 306045 Supervisor: Niko Soininen Major Coordinators: Harro Van Asselt, Seita Romppanen Major: Environmental and Climate Change Law Document type: Master Thesis

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Foreword

My law education has taken me to many places, both national and international. I started my adventure at the Vrije Universiteit Brussel (VUB) to complete my bachelor’s diploma. I then transferred to the University of Ghent where I completed my master’s degree. To further my knowledge of environmental law, I am currently finishing my second master’s degree at the University of Eastern Finland. This last and final year has been extra challenging due to the corona pandemic which changed the way we follow classes.

My master thesis is the final challenge at the end of a long road. I see writing my master thesis as a great experience to dedicate myself to one specific theme. It allowed me to question myself and critically reflect on a chosen topic. However, I did not go through this trial alone and had the help and support of many people along the way.

I first want to thank all my professors at UEF for providing me with in-depth knowledge of environmental law and policy. I want to thank professors Niko Soininen and Harro Van Asselt for supporting me in this topic and for the continued assistance while I was writing my thesis. I praise them for their professional input and repeatedly reading my thesis.

Subsequently, I would like to thank my parents for providing me with the chance to study law. Their continued support throughout my studies was much needed. They sometimes needed to tell me to take things step by step when I thought my workload would overwhelm me. I will be forever grateful for everything they have done, even when things did not always go according to plan. I would also like to thank my brother for challenging me always to try to do better. Competing with him has only made me do better. I would also like to thank my grandparents. Their confidence in me at all times gave me the courage to follow my own path.

I would also like to thank all my friends, both from Belgium and the ones I made in Finland.

They provided me with their help and experience.

It gave me satisfaction to finish this thesis and bring it to a (hopefully) successful conclusion.

While this is the conclusion of my chapter at the University of Eastern Finland, this is not the end of the road.

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Abstract

UNIVERSITY OF EASTERN FINLAND Faculty

Of social science and Business studies

Unit

UEF Law School

Author

Delphine Beun

Name of the Thesis

Protection of marine biodiversity in areas beyond national:

Analyzing the potential effects of the new UN BBNJ regulation on the current legal framework

of Marine Protected Areas in the ABNJ

Major

Environmental and Climate change law

Description

Master’s thesis

Date

April 2021

Pages

VII + 73p

Abstract

The oceans are important for a healthy ecosystem. Marine protected areas are important for the protection of the ocean as a whole. While several MPAs have been created in areas under national jurisdiction, there is a lack of MPAs in the ABNJ. Almost all of the current MPAs in the ABNJ fall under the legal framework of either OSPAR or CAMLR. But these current legal frameworks have several big gaps mainly due to the fragmentation that currently exists as UNCLOS barely covers the ABNJ. To resolve this gap of legislation, there are currently negotiations for a UN BBNJ agreement.

This agreement was supposed to be finalized in April 2020, but the corona pandemic has delayed the final negotiation session.

This thesis will look more specifically into the legal frameworks of OSPAR and CAMLR in relation to the MPAs in the ABNJ. The main purpose is to create an idea of the current legal framework and at the same time analyze the main gaps that need to be addressed in these frameworks. Many gaps exist such as the fragmentation, different management plans and designation processes, and the lack of a unified scientific body.

This thesis will also make an analysis of the draft UN BBNJ agreement and what the processes and obligations would be regarding the MPAs in the ABNJ. To get a better understanding of the content of the draft UN BBNJ agreement, I will also look in-depth at the negotiations prior to the draft produced. As the agreement is still in the draft phase, the outstanding issues will be looked into. These issues pertain to the choice of regional, global, or hybrid model, the choice of voting procedure, the lack of management process, and the question of the role of coastal states and stakeholders.

To finalize this thesis, the main question needs to be answered on what the effects will be of the UN BBNJ agreement on current (and future) MPA in the ABNJ frameworks. We can conclude that due to the unresolved issues, it is not clear if certain matters will have a positive or negative effect. Mainly on the effect on the current MPAs in the ABNJ, we can only speculate. But the UN BBNJ agreement will mainly have positive effects on designation, scientific data, and the review process. On the questions of voting procedure by consensus and fragmentation, it can have positive or negative effects depending on the final UN BBNJ agreement.

Key words

Marine protected areas, UNCLOS, UN BBNJ agreement, OSPAR, CAMLR, ABNJ, high seas

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Content Table

FOREWORD ... II ABSTRACT ... III CONTENT TABLE ... IV ABBREVIATIONS ... VI

1 INTRODUCTION ... 1

1.1 Background ... 1

1.2 Research question, importance, and limitations ... 2

1.3 Methodology ... 4

1.4 Structure ... 6

2 MARINE PROTECTED AREAS IN AREAS BEYOND NATIONAL JURISDICTION . 8 2.1 Definition and types of MPAs ... 8

2.2 Importance of MPAs in ABNJ ... 11

2.3 Main challenges of MPAs in the ABNJ ... 12

3 CURRENT APPLICABLE LEGISLATION TO MPAS IN THE ABNJ ... 15

3.1 UN Convention on the Law of the Sea ... 15

3.1.1 The different maritime zones ... 15

3.1.2 Freedom of the high seas ... 19

3.2 General legal framework MPAs in the ABNJ ... 21

3.3 OSPAR ... 22

3.3.1 Designation ... 23

3.3.2 Management and enforcement ... 23

3.3.3 Evaluating Effectiveness and Gaps ... 25

3.4 CAMLR ... 26

3.4.3 Evaluating Effectiveness and Gaps ... 28

3.5 Lessons to learn from current MPA regimes in the ABNJ ... 29

4 MPAS UNDER THE NEW UN BBNJ AGREEMENT ... 32

4.1 Negotiations towards the new framework ... 32

4.2 Currently negotiated framework ... 37

4.3 Outstanding issues ... 40

5 IMPLICATIONS OF THE DRAFT UN BBNJ AGREEMENT ... 47

5.1 Positive and negative effects? ... 47

5.2 Relationship to other legal frameworks ... 52

5.2.1 General frameworks ... 52

5.2.2 Marine Protected Area frameworks ... 54

5.3 Effect on the already designated MPAs in the ABNJ ... 56

6 CONCLUSION ... 59

7 REFERENCES ... 61

7.1 Law ... 61

7.2 Official Sources ... 61

7.3 Interview ... 63

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7.4 Liturature ... 63 7.5 Internet sources ... 69

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Abbreviations

ABNJ Areas Beyond National Jurisdiction\

AOSIS Alliance of Small Island States

Art. Article

BAT best available techniques

BEP best environmental practices

BBNJ Biodiversity in areas Beyond National Jurisdiction

CARICOM Caribbean Community

CAMLR Convention Convention on the Conservation of Antarctic Marine Living Resources

CCAMLR Commission for the Conservation of Antarctic Marine Living Resources

CBD Convention on Biological Diversity

CLCS Commission on the Limits of the Continental Shelf

COFI Committee on Fisheries

Draft UN BBNJ agreement draft text of an agreement 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

EEZ Exclusive Economic zone

EU European Union

G77/China Group of 77 and China

GA General Assembly

GPS Global Positioning System

FAO UN Food and Agriculture Organization

IMO International Maritime Organization

ISA International Seabed Authority

IUCN International Union of the Conservation of Nature MARPOL International Convention for the Prevention of Pollution

MPA Marine Protected Area

NASCO North Atlantic Salmon Conservation Organization NEAFC North-East Atlantic Fisheries Commission

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OSPAR The Protection of the Marine Environment of the North-east Atlantic

p. page

PSIDS Pacific Small Island Developing States

res Resolution

RFMOs regional fisheries management organizations

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNFSA United Nations Fish Stocks Agreement

USA United States of America

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1 Introduction 1.1 Background

Oceans comprise out of highly diverse ecosystems and cover over 70% of the world’s surface¹. Marine ecosystems provide ecosystem services, meaning the benefits that the ocean brings to people.² These include services to support human societies, health, well-being, and the economy.³ The ocean is further responsible for our weather system, it provides us with food and energy, it produces a large part of our oxygen, and it is host to the most diverse ecosystem in the world.⁴ It is this ecosystem that is threatened by rising ocean temperatures, due to climate change. Also, overexploitation of marine resources, such as overfishing, is causing a decline in the overall health of marine life.⁵

Currently, there are three main causes of declining marine biodiversity: ocean acidification, pollution, and overfishing.⁶ One of the key management tools used to protect marine ecosystems is Marine Protected Areas (MPAs), which comprise out of designated areas that are governed by rules delineating their use. In 2000, the ocean area covered by MPAs was around 2 million km². This equals roughly 0.7% of the total ocean surface globally. As of 2020, the coverage of MPAs has increased to almost 28 million km² or 7.68% of the ocean surface.⁷ Several definitions exist on what is considered an MPA, but most definitions include that it is a geographical marine area created to achieve protection/conservation objectives. A more in-depth discussion can be found in the next chapter.

Marine Protected Areas play a crucial role in the protection of marine biodiversity. As mentioned before MPAs play a role in the preservation of ecosystem services.⁸ In addition, MPAs are beneficial as they can prevent overfishing and habitat destruction. This was also one of the reasons for its first use.⁹ Moreover, MPAs play a role in the fight against climate change. Oceans are important as they ensure carbon sequestration. The ocean absorbs one-

1 UN Environmental Programme, “Why do oceans and seas matter?”.

2 Protected Planet, “What are protected areas, and what are they for?”, 21 March 2019.

3 Protected Planet, “Marine Protected Areas”.

4 European Union, “Marine Protected Areas”, 29 October 2018.

5 UN Sustainable development goals, “Goal 14: Conserve and sustainably use the oceans, seas and marine resources”.

8 Protected Planet, “What are protected areas, and what are they for?”, 21 March 2019.

9 OECD, (2017), Marine Protected Areas: Economics, Management and Effective Policy Mixes, p29-30.

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third of the carbon dioxide that results from human activities. But while the ocean can absorb an enormous amount of carbon dioxide, there is a limit. With human ocean activities expected to double by 2030, the question is when this limit will be reached.¹⁰ Besides carbon dioxide the ocean has also absorbed around 90% of the excess heat in the climate system, reducing global warming.¹¹

Currently, marine protected areas are most often found in areas within national jurisdiction, meaning the territorial waters and the Exclusive Economical Zone (EEZ). The main reason for this is that several national instruments can be utilized for the designation and management of these MPAs.¹² While there are some MPAs created in the areas beyond national jurisdiction (ABNJ), this is limited because state authority in the high seas is limited.

The lack of MPAs in the ABNJ is a significant issue, as scientists have increasingly stated the value of this area. Besides the scientific perspective, the importance of the ABNJ has also grown over the past few decades for individual countries. Due to this increasing importance of the ABNJ and the lack of a legal framework in the ABNJ, a new legal instrument is being negotiated to address several issues concerning biodiversity in areas beyond national jurisdiction (BBNJ), including MPAs.

1.2 Research question, importance, and limitations

The main research question of this thesis is to figure out which potential effects the new draft text of an agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) will have on the legal framework of current and future MPAs.

Likewise, I aim to analyze the gaps in UNCLOS and other legal frameworks regarding MPAs and then study how the new agreement would possibly resolve these issues and if it will improve the current situation.

To answer my main research question, three sub-questions will be asked. The first group of sub-questions is to guide the reader. As it was a debate in the negotiations of the new BBNJ agreement, it is important to understand what is considered to be an MPA. Besides, the

10 OECD, (2017), Marine Protected Areas: Economics, Management and Effective Policy Mixes, p23.

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difference between areas under national jurisdiction and the ABNJ needs to be explained. A further question concerns why MPAs in the ABNJ are important.

The second group of sub-questions focuses on the legal analysis of the current legal framework. First of all the question needs to be answered on if there are current legal frameworks governing MPAs in the ABNJ. Then a legal analysis needs to be made to determine how the MPAs in the ABNJ under these frameworks are designated, managed, and monitored. This legal analysis would help to answer the question of what the gaps are in the current legal framework so the question can be answered on how these gaps can be resolved.

The third group of sub-questions focuses on the legal analysis of the current draft UN BBNJ agreement. Within this legal analysis, similar questions pertaining to the designation, management, and monitoring of MPAs in the ABNJ will be posed to allow a comparison between the current legal frameworks and the new UN BBNJ framework. This legal analysis in addition to the legal analysis of the current legal framework should help to answer the question of if the new agreement answers the current gaps and how. Additionally, an important sub-question is how the current legal frameworks and the new agreement will interact with each other concerning the designation, management, and monitoring of MPAs in the ABNJ. The aim is that the answers to all these sub-questions will lead to an answer to my main research question.

The creation of the new agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) is also the reason why this thesis will only focus on MPAs in the ABNJ. In 2020, only a general obligation to conserve the marine environment has provided any protection for the ABNJ. The UN Convention on the Law of the Sea (UNCLOS) does not provide any specific mechanisms or processes to conserve the marine environment.¹³ As of August 2019, the UN General Assembly has adopted a draft text.¹⁴ This draft text pertains to the current agreement made on the conservation and sustainable use of biological diversity in the ABNJ.¹⁵ The final version of the text was supposed to be agreed

13 IUCN, “Governing areas beyond national jurisdiction”, 2020.

14 IUCN, “Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ)”, 2020.

15 UNGA Conf (2020) 232/3.

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upon in the fourth session, at the end of March. Sadly, due to the coronavirus, this has been rescheduled.¹⁶

The topic of ABNJ and the draft UN BBNJ agreement have been debated and analyzed many times in legal scholarship. It should be noticed that the legal doctrine found focuses mostly on genetic resources and the environmental impact assessment. This will be the first extensive research that will be focused on marine protected areas after the new draft UN BBNJ agreement legislation on the ABNJ.

1.3 Methodology

For this thesis, I will be using several different methodologies. The main methodology I will be using is the doctrinal legal research method. This method means that the researcher will focus on using primary sources to answer the research questions.¹⁷ The starting point of the research in this thesis will be the law and the accompanying legal documents such as preliminary negotiations that will be used to further explain the meaning of the law. These sources will be used in both an analytic and descriptive manner. In chapter 2, this pertains to the CBD and the draft UN BBNJ agreement. For chapter 3 this means the use of UNCLOS, the Protection of the Marine Environment of the Northeast Atlantic (OSPAR) Convention, and the Convention on the Conservation of the Antarctic Marine Living Resources (CAMLR convention). In chapter 4, I will be using the draft UN BBNJ agreement and its accompanying preliminary negotiations. Lastly, in chapter 5, I will be using all the above-mentioned primary sources.

In addition to the doctrinal method, other methods were also used in more specific parts of this thesis. In the introduction and chapter 2, desk research is used. Desk research is another name for secondary research; it means the summary, synthesis, and/or collation of existing research that is then used for literature review.¹⁸

For chapter 3 an interview was held with the deputy secretary of OSPAR to gain a better grasp on the designation, management, review, and effectiveness of the MPAs in the ABNJ under OSPAR. It was difficult to find recent and concrete information through the OSPAR

16 IUCN, “Governing areas beyond national jurisdiction”, 2020.

17 Hutchinson 2017, p13-15.

18 Hutchinson 2017, p18.

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website and the available jurisprudence. The interview was held after I had done my research, allowing me to ask open, but precise, questions. The interview was held through Zoom in a semi-structured way.¹⁹ The reason was to be able to ask the questions I still had after my initial analysis, but also allow the opportunity to be guided by the answers provided. During the interview, handwritten notes were taken that were later written down in an online document. This document was sent to the interviewee allowing her to make any changes to the material that is used in this thesis. The interviewee has permitted me to utilize her name when referencing the interview. A proposal was also sent to CAMLR for a similar interview, but this request was denied. They did direct me to the documents on their website that should have the answers.

Also for chapter 3, the effectiveness of both OSPAR and CAMLR was determined. For this thesis, I am using two different measures to determine the effectiveness of the legal frameworks. The first measure to determine the effectiveness is the legal effectiveness or the output. For this measure, I will look at how demanding and stringent the rules are within the regime. The common idea is that regimes with specific rules, such as targets and timelines, are more effective. When analysing the effectiveness we look at how many countries comply with these rules.²⁰ The second measure to determine the effectiveness is the ecological effectiveness or the impact. This pertains to the question of the extent to which the regime has been able to solve the problem.²¹ The question to be asked here is if the MPA regime established through the OSPAR convention is enough to satisfactorily conserve the marine environment in the ABNJ. The ecological effectiveness of an MPA depends on five key characteristics: fishing permitted, enforcement, MPA age, size, and continuous habitat.²² For chapter 5, the comparative method is also utilized to compare the current legal framework with the draft UN BBNJ agreement, to determine the positive and negative effects of the latter. The comparative method is a critical analysis of each legal framework and then find then analyze the differences between them.²³

19 Adams 2015, p493.

20 Andresen, 2015, p441.

21 Andresen, 2015, p441.

22 Edgar, 2014, p216.

23 Samuel, 2017, p124.

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1.4 Structure

This thesis will consist out of an introduction, four main chapters, that will all create the answer to my main research question, and a conclusion. The first chapter is this chapter and gives an introduction to the thesis. The second chapter will provide an in-depth discussion on the definition given to an MPA and what different types of MPAs there are. In addition, it will shortly touch upon the importance of MPAs in the ABNJ and the main challenges that these MPAs face.

In the third chapter of this thesis, I will critically analyze the relevant current legal framework of MPAs in the ABNJ. The first part will look into the UNCLOS, as it is this convention, which forms the basis of the possible new agreement. This part will give a theoretical background of the different maritime zones and analyze how the principle of the freedom of the high seas can be restricted. Secondly, this chapter will analyze the two current legal frameworks that have established a MPA in the ABNJ, OSPAR, and CAMLR. The same analyzing structure will be used for both frameworks. How the MPA is designated and then how it is managed will be analyzed to then determine the effectiveness of each legal framework. The analysis of both the principle of freedom of the high seas and OSPAR &

CAMLR will be used to determine gaps and issues in the current legal framework. As such, it can be determined which lessons we have learned to improve the effectiveness of MPAs in the ABNJ.

The fourth chapter will look into the possible new legal framework governing MPAs in the ABNJ. I will be critically analyzing the draft UN BBNJ agreement, to be able to see its possible effects. In the first instance, this chapter will look at the negotiations that predate the current draft UN BBNJ agreement. The same analyzing structure will be used here as well.

Answering the questions on how the MPA will be designated, managed, and reviewed. Sadly, the effectiveness cannot be evaluated since the draft UN BBNJ agreement is still in the drafting stages. But, since there is already a preliminary draft text available this allows us to analyze outstanding issues and possible answers provided.

The fifth, and final main chapter of this thesis will use all the previous information gathered to answer my main research question on what the effects will be of the draft UN BBNJ agreement legislation on MPAs in the ABNJ. This chapter will look into the positive and negative effects of the new legislation. Moreover, it will also discuss possible effects to the

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already established MPAs in the ABNJ. Do they need to be reestablished? In case of conflict, which instrument has precedence?

After the introduction and the above-mentioned four main chapters, I will end this thesis with a conclusion. This conclusion will summarize the answer to my main research question and will also include some last thoughts and comments.

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2 Marine Protected areas in areas beyond national jurisdiction

This chapter will provide an in-depth discussion on the definition of a MPA and what are the different types of MPAs. Furthermore, it will shortly touch upon the importance of MPAs in the ABNJ and the main challenges that these MPAs face.

2.1 Definition and types of MPAs

Currently, there is no single definition to describe Marine Protected areas (MPAs) within international law. In the negotiations for the biodiversity beyond national jurisdiction (BBNJ) agreement the usefulness of creating a unified definition was discussed.²⁴ What this definition would be posed a harder question as several definitions are in existence.

The current draft text of an agreement 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 (draft UN BBNJ agreement), has defined MPAs in its text. It defines an MPA as “a geographically defined marine area that is designated and managed to achieve specific [long-term biodiversity] conservation and sustainable use objectives [and that affords higher protection than the surrounding areas].”²⁵ As can be seen, this definition has not been completely agreed upon. Further analysis of the negotiations on this definition will be discussed under chapter 4 of this thesis.

Currently, three main definitions are in use to define MPAs. Most are definitions for protected areas in general, applied to the marine environment. The two main definitions whereon the draft UN BBNJ agreement definition is based are the International Union of the Conservation of Nature (IUCN) and Convention on Biological Diversity (CBD) definitions. In addition, the European Union (EU) has also created its own definition.

The lack of a uniform definition has caused some confusion in the past. Many fisheries advisory bodies claimed several areas as MPAs while these areas still exploited fish. Wanting to create a uniform framework the IUCN created guidelines in 2012. At the time the IUCN claimed that around 50% of the MPAs were wrongly designated.²⁶ In the 2020 guidelines on MPAs, the IUCN stated that MPAs fall under the designation of protected areas by the IUCN.

24 PrepCom established by GA res. 69/292, (2016), second session, p5.

25 Art 1 (10) UNGA Conf (2020) 232/3, p5.

26 IUCN, “When is a Marine Protected Area really a Marine Protected Area”, 8 September 2012.

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The IUCN defines a protected area as “A clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”.²⁷ It is important to note that to qualify as a protected area, and more specifically as an MPA, the primary aim should be nature conservation. Important to note is that this definition does not have any legal power.

The EU on the other hand describes MPAs as “geographically distinct zones for which protection objectives are set.”²⁸ Additionally, the EU finds that MPAs contribute to a globally connected system. This system safeguards biodiversity and maintains the health of the marine ecosystem and the supply of ecosystem services.²⁹ This description has some similarities to the IUCN definition but is more open to interpretation. Its primary focus, as well, is on the protection objective of the designated zone.

Within the CBD a protected area is defined as “a geographically defined area, which is designated or regulated and managed to achieve specific conservation objectives.”³⁰ Besides this general definition of protected areas, the CBD Technical Expert Group on Marine and Coastal Protected Areas has created a definition specific to marine and coastal protected areas. In it MPAs are a “defined area within or adjacent to the marine environment, together with its overlying waters and associated flora, fauna, and historical and cultural features, which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings.”³¹

While several parties and international organizations have proposed all the above definitions, it is clear that States have used the CBD general definition as a basis. Almost the entire CBD definition, “a geographically defined area, which is designated ... and managed to achieve specific conservation objectives”³² can be found in the current draft UN BBNJ agreement definition on MPAs. This definition also uses the more general ‘geographically defined area”

27 IUCN Guidelines, (2019), Guidelines for applying the IUCN protected area management categories to marine protected areas, p.8.

30 Art 2 CBD (1982).

31 Secretariat of the Convention on Biological Diversity, (2004), technical advice on the establishment and Management of a national system of marine and coastal protected areas, p8.

32 Art 2 CBD (1982).

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instead of the IUCN “clearly defined geographical space”. The main reason is that clearly defining the MPA zone/boundaries is difficult due to the changing of the tides. As a result, most countries use the high-resolution latitude and longitude coordinates, as determined by Global Positioning System (GPS) instruments to define the MPA boundaries.³³

A distinct part of the IUCN definition, which is still up for debate, is the inclusion of “long- term biodiversity objectives.” The IUCN guidelines require MPAs to be managed and protected on a long-term basis. Short-term MPAs do not qualify under their definition.³⁴ Interesting to note is the addition of sustainable use. This term has been often seen in recent environmental law texts, since the sustainable development goals.

Different types of MPAs need to be distinguished. Some MPAs might prohibit any human activity, while others might just establish fishing limits or what type of boat is allowed.³⁵ The four categories created for MPAs are based on the type of protection that they offer. The first category is the multiple-use MPA. This category allows some extractive activities within set restrictions. The second category is the no-take MPA. People are free to use this MPA, but any extraction is prohibited as well as any destruction of the area. The third category is the no-impact MPA. Access by people is allowed as long as no impact is made. This is often noted under “research only” zones. The last category is the no-access MPA. As it says, all access is restricted.³⁶

One entire MPA does not necessarily need to fall within one category. For example, the Great Barrier Reef Marine Park is split into multiple zones. Each zone has a specific category that can differ from another zone.³⁷ Just as with defining a MPA, these categories are not internationally recognized. Each country and/or organization has its own name for each category, or might even have more than four categories. Some countries, like the United States of America (USA), also categorize based on the duration of the protection and the

33 IUCN Guidelines, (2019), Guidelines for applying the IUCN protected area management categories to marine protected areas, p17.

34 IUCN Guidelines, (2019), Guidelines for applying the IUCN protected area management categories to marine protected areas, p15-16.

35 National Geographic, “Marine Protected Areas”.

36 Ocean Tracks, “Types and design of Marine Protected Areas”.

37 IUCN Guidelines, (2019), Guidelines for applying the IUCN protected area management categories to marine protected areas.

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season within a year protection is provided.³⁸ As mentioned earlier, the IUCN only recognizes long-term (or permanent) and all year-round protected marine zones as MPAs.

2.2 Importance of MPAs in ABNJ

The ABNJ contains 90% of the earth’s biomass. The high seas are increasingly threatened by human activities. These activities include pollution, overfishing, mining, and geoengineering.³⁹

Marine Protected Areas in the ABNJ are important to have a healthy marine environment.

Protecting marine species within the coastal states’ national water and beaches lose its effect when the species spends a lot of its time in the high seas.⁴⁰ For example overfishing of key species in the high seas, directly affects the fishing opportunities of a coastal state within its national waters. For developing coastal countries this can tremendously affect their food security.⁴¹ Before, countries mainly focused on using the resources found in the waters under their national jurisdiction. Due to the depletion of the marine resources found in the national waters, countries have increasingly been utilizing resources found in the ABNJ.⁴² For example, overfishing has highlighted the importance of marine protected areas in the ABNJ.

The UN Food and Agriculture Organization (FAO) stated that over 90% of the global fish stocks are either depleted or fully exploited.⁴³ New advances in technology in recent years have further changed fishing on the high seas. Vessels are now able to fish farther and deeper than before.⁴⁴ According to science, the fishing stocks might be no longer viable by 2050 if no action is taken.⁴⁵

Not only fishing but also deep-sea mining has been affected by advanced technologies. We can currently access energy and mineral resources that before were unattainable.⁴⁶ Aside from marine resources, the conservation of the ABNJ is also important as the ocean, just as trees, absorbs and stores a large quantity of excess CO2. In addition, the phytoplankton living in the

38 Ocean Tracks, “Types and design of Marine Protected Areas”.

39 Smith et al. 2018, p417.

40 PEW Trust, “How MPAs Safeguard the High Seas”, 19 August 2019.

41 Popova et al. 2019, p90-102.

42 Safety 4 Sea, “5 reasons why high seas need protection”, 18 July 2018.

44 Smith et al. 2018, p417.

45 Steward M. Patrick, “Why the U.N. Pact on High Seas Biodiversity Is Too Important to Fail”, 8 July 2019, World Politics Review.

46 Smith et al. 2018, p417.

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ABNJ produces half of the world’s oxygen.⁴⁷ The ABNJ is further home to about 95% of the marine biodiversity. It is estimated to be the home to around 2 million unidentified species, seeing as the ABNJ is very difficult to explore.⁴⁸ Even though the importance of MPAs in the ABNJ is undeniable, currently only 1% of the high seas are protected through MPA’s. This for example allows industrial fishing fleets to run rampant resulting in the disappearance of 90% of the world’s fish stocks. The creation of MPAs in the ABNJ would preferably offer protection to at least 30% of the ABNJ.⁴⁹

Not only are MPAs in themselves important, but also the total size of the MPA. In case the MPA is too small it cannot sustain the ecosystem resilience, and as such it does not fully deliver ecosystem services.⁵⁰ Not only the horizontal size but also the vertical depth of the MPA is important to consider.⁵¹ The creation of MPAs in the ABNJ is as a result important as it allows for larger MPAs. Currently the world’s largest MPA –the Ross Sea MPA- is located in the ABNJ and covers over 2 million-square-kilometer. Currently, there are ongoing proposals under the CAMLR framework for even larger MPAs.⁵²

2.3 Main challenges of MPAs in the ABNJ

The creation of MPAs within the marine areas under national jurisdiction has proven to be more popular. The waters falling under national jurisdiction represent 39% of the global ocean. Of these waters around 17.86% is designated as a MPA. Interesting to note is that some countries and/or territories have created MPAs that cover their entire national waters.

The main examples are the Cook Islands, Martinique, Palau, and Mayotte.⁵³ The high seas cover 61% of the world’s oceans. But in comparison to the MPA coverage in national waters, only 1.81% of the high seas are designated as a MPA.⁵⁴ Not only is there a lack of designation, but also the level of protection offered can be lacking. Only two of the MPAs in the ABNJ are highly till fully protected. The other MPAs are considered less protected.⁵⁵

49 Steward M. Patrick, “Why the U.N. Pact on High Seas Biodiversity Is Too Important to Fail”, 8 July 2019, World Politics Review.

52 PEW Trust, “The Need for a Network of Marine Protected Areas in the Southern Ocean”, 7 October 2020.

55 Marine Protection Atlas, “High seas”.

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One of the main challenges already discussed is the problem of jurisdiction. The water column, seabed, sea life, and foreshore do often fall under different jurisdictions creating difficulties in the management and designation of MPAs in the ABNJ. Not all areas can be designated in the ABNJ as a MPA and not all conservation measures can be taken by the same organization.⁵⁶ This will be further explained in the next chapter that will be focusing on the legal aspect of MPAs in the ABNJ.

The creation of MPAs within ABNJ is not only hindered due to lack of legislation but also due to a lack of scientific knowledge. Little is known about the ecological processes and the environmental state of the ABNJ.⁵⁷ Even with this lack of scientific knowledge, it is still important to designate the appropriate area for a MPA and also which activities can be allowed within.⁵⁸

Besides issues in the designation of MPAs in the ABNJ, there are also practical and monetary issues once a MPA is established in the ABNJ. In practice, there are challenges with the enforcement, monitoring, and surveillance of the MPAs in the ABNJ. As opposed to a terrestrial protected area, restricting entry and activities in a MPA is hard to accomplish. It is impossible to fence off the MPA and thus often multiple access points make it difficult to patrol the area. Another issue is the lack of visibility. It is often not visibly seen which area is protected as a MPA. Besides this damage to the MPA is rarely seen without appropriate, and often expensive monitoring or surveillance.⁵⁹

The goal of the MPAs in the ABNJ is also to be larger and as such be more effective. This also proves to be challenging, as an increase in size makes it even harder to monitor and enforce. As compared to smaller MPAs the cost of ensuring these will be much higher.

Mainly these vast areas will require much more expensive technologies.⁶⁰ Again here there is both a practical and monetary challenge that needs to be overcome.

56 IUCN Guidelines, (2019), Guidelines for applying the IUCN protected area management categories to marine protected areas, p20.

57 Scott 2016, p484-485, Oxford Handbook.

60 Wilhelm et al. 2014, p27.

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The hope is that the new legislation pertaining to the ABNJ will simplify the process to create and manage a MPA within the ABNJ. This would then hopefully increase the amount of MPAs within the ABNJ.⁶¹ Not only the designation of more MPAs in the ABNJ, but there is also the hope that the new legal framework will increase the effectiveness of these areas. The designation of these MPAs must go beyond a piece of paper. There is a need for concrete objectives, management plans, and enforcement methods.⁶²

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3 Current applicable legislation to MPAs in the ABNJ

This chapter will be analyzing the relevant current legal framework on MPAs in the ABNJ.

The purpose of this chapter is to determine any gaps and issues in the current legal framework. In the first instance, I will be analyzing UNCLOS as this currently forms the basis for the creation of MPAs. This chapter will be focusing on the different maritime zones and the principle of freedom of the high seas, which provide a backdrop to governing the seas, including the establishment of MPAs. To further be able to determine gaps and issues, this chapter will be analyzing The Protection of the Marine Environment of the North-east Atlantic (OSPAR) & Convention on the Conservation of Antarctic Marine Living Resources (CAMLR), as they are prime examples of established MPAs in the ABNJ. Within the frameworks, the focus will be on the designation and the management and enforcement.

3.1 UN Convention on the Law of the Sea 3.1.1 The different maritime zones

To understand which marine areas are considered areas beyond national jurisdiction, it is important to understand which marine areas are considered within national jurisdiction. The national jurisdiction of countries is spread across four different marine areas.

The first marine area that falls within national jurisdiction is the territorial sea. While there is no obligation a State can claim up to 12 nautical miles, starting from the baseline, as their

Picture 1: visual of the different maritime zones; Harden-Davies 2017.

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territorial sea.⁶³ The baseline determines the outer limits of nations’ internal waters. The

‘normal baseline’ is considered the low-water line (also called the line of low-tide). There are of course exceptions to the normal baseline such as the straight baseline and the archipelagic baseline.⁶⁴ These exceptions will not be further discussed for this thesis, but more information can be found in UNCLOS articles 5 – 16. The claim of 12 nautical miles is considered a maximum, and many countries do not reach the 12 nautical miles.⁶⁵ The territorial sea, the airspace above, and the bed and subsoil all fall under the sovereignty of the coastal State.⁶⁶ Nevertheless, there are also limitations to the enforcement of a coastal State’s sovereignty.

The most important limitation is the navigational rights of foreign-flag vessels. As any vessel has the right of innocent passage.⁶⁷

The second marine area within national jurisdiction is the contiguous zone. This zone is adjacent to the territorial sea of a coastal State. According to UNCLOS, the contiguous zone may not extend beyond 24 nautical miles.⁶⁸ The jurisdiction of the coastal state in this marine area is limited to customs, fiscal, immigration, and sanitary laws. Furthermore, the contiguous zone only includes the water column.⁶⁹ Due to the extension of the territorial sea to 12 nautical miles and the emergence of the Exclusive Economic Zone (EEZ), the contiguous zone is barely used today.⁷⁰

The EEZ is the third marine area that falls within national jurisdiction. The EEZ is the area beyond and adjacent to the territorial sea of a coastal state.⁷¹ It can extend a maximum of 200 nautical miles, from the baseline.⁷² Coastal States are given sovereign rights over living and non-living resources, as well as all exploration and economic exploitation within the EEZ.⁷³ Another important aspect is that the coastal state is given jurisdictional rights over areas such as scientific research and the protection and preservation of the marine environment.⁷⁴ The EEZ allows the coastal state to determine the fishing activities within this maritime area. As

63 Art 3 UNCLOS (1982).

64 Lathrop 2016, p70-74, Oxford Handbook.

65 Noyes 2016, p91-95, Oxford Handbook

66 Art 2 UNCLOS (1982).

67 Noyes 2016, p98, Oxford Handbook.

68 Art 33 UNCLOS (1982).

69 Noyes 2016, p107-110, Oxford Handbook.

70 Noyes 2016, p110-111, Oxford Handbook.

71 Art 55 UNCLOS (1982).

72 Art 57 UNCLOS (1982).

73 Andreone 2016, p 165, Oxford Handbook.

74 Art 56 (1) (b) UNCLOS (1982).

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such, the coastal state is allowed to place regulations that limit or prohibit fishing within the EEZ.⁷⁵ Two main freedoms also exist in the EEZ, the right to navigation and overflight, and the right to lay submarine cables and pipes.⁷⁶ The freedoms of navigation and laying pipes and submarine cables will be further discussed in the next sub-chapter pertaining to freedom to the high seas.

The final maritime area within national jurisdiction is the continental shelf. The continental shelf comprises the seabed and the subsoil that extend beyond the territorial sea. It can extend to a maximum of 200 nautical miles from the baseline.⁷⁷ While this is the standard rule, there is an increasing number of countries of which the continental shelf extends beyond the 200 nautical miles limit. This extension is based upon the physical attributes of the seafloor itself.⁷⁸ An extension needs to be approved by the Commission on the Limits of the Continental Shelf (CLCS).⁷⁹ The coastal state enjoys sovereign rights for the exploration and exploitation of natural resources within the continental shelf.⁸⁰

It is up to each coastal state to determine all four maritime zones in accordance with the rules provided by UNCLOS. Furthermore, each coastal state needs to claim its maritime zones by submitting a nautical chart to the Secretary-General of the United Nations.⁸¹ Every part of the ocean that is claimed and approved through this method is considered part to fall under national jurisdiction. All areas of the ocean outside these four maritime zones are considered the part of the ABNJ. The ABNJ consists of two maritime zones, the high sea and the Area (or deep seabed).

75 Andreone 2016, p166-168, Oxford Handbook.

76 Andreone 2016, p177-178, Oxford Handbook.

77 Art 76 UNCLOS (1982).

78 McDorman 2016, p182, Oxford Handbook.

79 McDorman 2016, p190, Oxford Handbook.

80 Art 77 UNCLOS (1982).

81 Art 16(2), 75(2), 76(9), and/or 84(2) UNCLOS (1982).

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The first important ABNJ marine area to discuss is the high seas. As the high seas is everything not included in the above-mentioned four maritime zones, there are no specific nautical miles provided. The high seas consist out of the water column and the airspace above.⁸² The basic principle applied to the high seas is the “freedom of the high seas”.

Relevant for this paper is that this means freedom of navigation, freedom to lay submarine cables and pipelines, freedom of fishing, and freedom of scientific research.⁸³ Concerning fishing, UNCLOS mainly serves as a framework convention. It more specifically asks states to cooperate in case nationals are targeting the same living resources. This cooperation will be accomplished by the creation of sub-regional and regional fisheries organizations.⁸⁴ This closely falls together with the rule that no state can claim part of the high seas under its sovereignty.⁸⁵

The last maritime area, also part of the ABNJ, is the Area. The Area pertains to both the seabed and the subsoil. Just as with the high seas, the Area is determined by a negative definition.⁸⁶ The UNCLOS further determines that no State can exercise sovereignty or claim sovereign rights over the Area. All resources found within the Area are the property of all

82 Guilfoye 2016, p204-206, Oxford Handbook.

83 Art 87 (1) UNCLOS (1982).

84 Guilfoye 2016, p207, Oxford Handbook.

85 Art 89 UNCLOS (1982).

86 Lodge 2016, p228-229, Oxford Handbook.

Picture 2: Marine Conservation Institute, “Atlas of Marine Protection: Map Gallery”, 2021.

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humankind.⁸⁷ In addition, the UNCLOS established the International Seabed Authority (ISA).

The ISA ensures that the financial and other economic benefits derived from the resources are equitably shared, in a non-discriminatory way.⁸⁸ Moreover, the ISA encourages marine scientific research within the Area.⁸⁹ Another important measure is that the ISA is tasked with the protection of the marine environment.⁹⁰ This includes the conservation and protection of natural resources and the prevention, reduction, and control of pollution and other hazards.⁹¹

3.1.2 Freedom of the high seas

As mentioned in the previous heading, “freedom of the high seas” means freedom of navigation, freedom to lay submarine cables and pipelines, freedom of fishing, and freedom of scientific research.⁹² Each State has the equal right to exercise these high seas freedoms. It would be logical to assume that any restriction or regulation of these freedoms would require the involvement of all States.⁹³ The existence of other rights and duties for States regarding the high seas has created the need to balance these freedoms with other interests.⁹⁴ In this case, it is important to look at the rights and duties, which have a collective character. As these belong to the international community as a whole.⁹⁵ The principle of freedom of the high seas has been restricted throughout time by multilateral treaties and customary law.⁹⁶ Several coastal states have, as early as the 1960s, established multilateral treaties that restrict the principle of freedom of the high seas. Treaties preventing marine pollution and resource conservation are prime examples of this.⁹⁷

Restrictions and limitations to the freedom of the high seas are crucial for the survival of the marine life in the ocean. Allowing everyone to fully exercise their rights under the principle of freedoms of the high seas will lead to a tragedy of the commons.⁹⁸ For example, the fishing boats today can capture and hold almost 50 times more fish than equivalent boats in the 19th century. As a result, the fish populations have started to crash, leading to only a third more

87 Art 137 UNCLOS (1982).

89 Art 143 UNCLOS (1982).

91 Art 145 (1) (2) UNCLOS (1982).

92 Art 87 (1) UNCLOS (1982).

93 Drankier 2012, p295.

94 Gjerde et al. 2012, p356.

95 Scovazzi 2004, p7.

96 Wang 2019, p249.

97 Wang 2019, p249.

98 Selvig 2013, p42.

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fish being caught compared to the 19th century. The truth is that the inexhaustible food and resource supply is no longer accurate.⁹⁹

One limitation is founded in the overarching duty, enforced by UNCLOS, to protect and preserve the marine environment.¹⁰⁰ States can fulfill this duty, through the establishment of measures such as area-based management tools that can protect rare and fragile ecosystems, and habitats of threatened, endangered, and depleted species.¹⁰¹ As such, States can no longer be sustained that States have the right to engage in a specific maritime activity, just because of the principle of freedom of the high seas.¹⁰²

Due to the vast range of different interests from different States concerning the high seas, it is important for States to enter negotiations to settle possible conflicting interests.¹⁰³ UNCLOS encourages states to cooperate.¹⁰⁴ A focus is a cooperation for the protection of marine biodiversity in the ABNJ. While the primary goal of UNCLOS is global cooperation, in cases where it is not possible to achieve global cooperation UNCLOS urges for at least regional cooperation.¹⁰⁵ Essential to note is that any high seas MPA declared under such a framework would only be binding on the States setting up the MPA.¹⁰⁶

International and regional cooperation has created multiple organizations that are responsible for different activities within the high seas. The most famous are the different Regional fisheries management organizations (RFMOs) that control all commercial fishing happening on the high seas. It is even so that an international agreement¹⁰⁷ has decided that only the Member States of these organizations, participants, or States that agree to follow the conservation and management measures have access to fishery resources. Moreover, the concept of sustainable development applies to the high seas creating the possibility of exclusion for States not following the conservation and management measures.¹⁰⁸

99 Selvig 2013, p38.

100 Art 192 UNCLOS (1982)

101 Gjerde et al. 2012, p356.

104 Art 118 UNCLOS (1982).

105 Art 197 UNCLOS (1982).

106 Drankier 2012, p295.

107 The Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 1995).

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But even with these different duties in mind, we see a reluctance of both States and organizations to limit the traditional high seas freedoms of navigation and fishing.¹⁰⁹ One example of this is that the International Maritime Organization (IMO) has established multiple Particularly Sensitive Sea Areas, but not one in the high seas.¹¹⁰

One of the freedoms of the high seas, fishing, is even harder for States to restrict themselves.

We have often seen that exceptions are made to accommodate commercial fishing performed by a State.¹¹¹ A prime example is that the proposed boundaries of the South Orkney Island MPA were redrawn to allow commercial fishing.¹¹² Not only current commercial fishing, but also future fishing opportunities can cause countries to implement restrictions on the MPAs.¹¹³

The principle of freedom of the high seas is fundamental to the law of the sea. But, this does not mean that it automatically triumphs over the principles relating to environmental protection. To create effective MPAs it will be important to find a way to incorporate these freedoms, mainly fishing and navigation, in the MPA frameworks. If that cannot be achieved the MPAs in the ABNJ will be meaningless.¹¹⁴

3.2 General legal framework MPAs in the ABNJ

Other legal instruments besides UNCLOS have clauses, which provide that their implementation shall not affect UNCLOS. As such, to decide who has jurisdiction to create MPAs we must start with UNCLOS as the main legal framework.¹¹⁵

The creation of MPAs in the ABNJ is more difficult as there is no single legal authority that manages and regulates the entire ABNJ maritime zone. Some even dispute if the designation of MPAs in ABNJ is allowed, as there is no clear legal mandate permitting the designation.

Moreover, there are complex jurisdictional issues that arise from the separation of the water

109 Scott 2012, p855.

110 Selvig 2013, p65-66.

111 Scott 2012, p855.

112 Selvig 2013, p66.

113 Smith et al. 2018, p421-422.

114 Scott 2012, p856.

115 Jakobsen 2016, p18.

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column and the seabed in two different marine zones.¹¹⁶ The water column is regulated by the high seas regime of ‘freedom of the sea’ and the Area is regulated by the regime on the common heritage of mankind.¹¹⁷

In the case of the Area, this is managed by the ISA. As mentioned before they decide who can explore and exploit the resources found in seabed and subsoil. In the case of the high seas, the main problem globally there is a diverse network of international bodies and treaties that manage human activities in these waters. For example, you have fisheries organizations that can regulate the fish caught, but cannot regulate anything else.¹¹⁸ Each of them is different from the other in scope, objective, and even its legally binding nature. While there is some overlap in the jurisdiction, there is currently no mechanism that provides coordination across sectors and geographical areas.¹¹⁹

Presently, the legal regimes creating and managing MPAs in the ABNJ is fragmented. There is no comprehensive treaty or regime, resulting in the fact that all current MPAs are based on regional regimes.¹²⁰ These regimes include the International Convention for the Regulation of Whaling and the International Convention for the Prevention of Pollution (MARPOL). Whilst these regimes have created MPA in the ABNJ, these MPAs are focused upon a single or small range of marine environmental issues.¹²¹ Both the OSPAR Convention and the CAMLR Convention are examples of regimes that have established more general MPAs in the ABNJ.¹²²

3.3 OSPAR

Since 2010 OSPAR has designated seven MPAs in ABNJ. The creation of these MPAs in itself is important to show that countries are willing to create MPAs in the ABNJ. We do have to note that these MPAs are only binding on the member states that are parties to the treaties that have established these MPAs.¹²³ The OSPAR Convention pertains to the North-East Atlantic. It was originally created to combat marine pollution, but now also creates MPAs.

117 Jakobsen 2016, p19.

118 Jakobsen 2016, p53.

120 Li 2020, p53.

123 Freestone 2018, p132.

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The OSPAR Convention has a total of 15 Member States.¹²⁴ All member states are coastal countries that border the North-East Atlantic. The UN has estimated that around 50% of the OSPAR maritime area is part of the ABNJ.¹²⁵ OSPAR is allowed to adopt legally binding decisions on all activities excluding fishing and limited decisions regarding shipping.¹²⁶

3.3.1 Designation

The designation of an MPA under OSPAR happens according to a roadmap. In the first instance, relevant sites are determined through ecological criteria, such as threatened or declining species and habitats/biotopes. After the first selection, there is a second selection based on practical criteria, such as size and potential for restoration.¹²⁷ Succeeding this first selection the possible sites are then listed according to priority. Lastly, the sites are measured against the aims of the OSPAR convention, to create a final list.¹²⁸ Based upon this final list the OSPAR Commission has the final say to officially designate MPAs. MPAs under OSPAR are designated indefinitely. In case parties want to change the designated MPAs or even un- designate them they would need to raise this at the Commission. The process would be similar to the collective designation process of the MPAs in the ABNJ. ¹²⁹

The designation of an MPA by the OSPAR Commission only happens after consensus has been found between the member states.¹³⁰ The reason that consensus is needed is that these MPAs are likely to affect the rights of States under the ‘freedom of the high seas’ principle.

Any measures that can possibly restrict these freedoms require the consent of all the affected States.¹³¹ Moreover, the establishment of an MPA under OSPAR does not prejudice the sovereign rights and obligations of coastal states to their continental shelf.¹³²

3.3.2 Management and enforcement

The management of an established MPA is managed according to the obligations found in the OSPAR convention.¹³³ States are obliged to take all necessary measures to prevent and

124 Smith et al. 2018, p420.

125 OSPAR’s Regulatory Regime for establishing Marine Protected Areas in areas beyond national jurisdiction of the OSPAR Maritime Area, (2009).

126 Drankier 2012, p313.

127 OSPAR Agreement 2003-17.

128 OSPAR Agreement 2003-17.

129 Interview with Deputy secretary OSPAR, Lena Avellan, 12 January 2021, via Zoom.

130 Smith et al. 2018, p420.

131 Freestone 2018, p130.

132 Tanaka 2012, p312.

133 Tanaka 2012, p314.