Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC

Abstract

To address the question how a future instrument for areas beyond national jurisdiction (ABNJ) might give consideration to the rights and obligations of coastal States and other States in establishing marine protected areas (MPAs) in ABNJ, the current article discusses the options that have been tabled in this respect in the preparatory meetings for the intergovernmental conference that will be negotiating that instrument. In considering the current legal framework, the focus is on the United Nations Convention on the Law of the Sea (LOSC), as the new instrument is to be elaborated under the LOSC and is required to be fully consistent with it. The article analyses the relevant practice of four specific regions that have established MPAs in ABNJ. The article concludes that due regard is fundamental in addressing interactions between coastal States and other States and considers some options to provide it with specific content.

Biodiversity beyond National Jurisdiction and the Limit of the Commons

“…Consultation will normally be required with the rights-holding State.84 However, despite these judicial statements, there are aspects of the relationship between States that the ilbi will need to more explicitly elucidated rather than rely on a general principle. 85 The formulation in draft article 4(2) does not apply due regard. Instead, the "rights and jurisdiction of coastal States … shall be respected."…”

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

“…RFMOs (Tladi, 2015) Secretariat (DOALOS) (Tladi, 2015) legal, scientific and/or technical commission (Tladi, 2015) COP for adoption (Marciniak, 2017); decision-making body (Tladi, 2015;Gjerde et al, 2016Gjerde et al, , 2019 Involvement of all relevant sectors stakeholders (De Santo, 2018), including the fisheries industry and scientific community, in monitoring, control and surveillance activities through e.g., data collection and sharing UNCLOS Duty to "protect and preserve the marine environment" (Tladi, 2015) Art. 194( 5): Legal basis for the establishment of MPAs in ABNJ, but no provision regarding procedures for their designation and management (Elferink, 2019) Due regard and adjacency: "Due regard" provides the general benchmark for addressing the relationship between coastal States and States carrying out activities in ABNJ (necessary for BBNJ, otherwise not consistent with UNCLOS); "adjacency" only in the context of the regime for fisheries (Elferink, 2018) UNFSA "Duty to cooperate" to influence organizations without undermining them; "ecosystem approach"; "precautionary approach"; "science based approach" (Art.5); mechanisms for international cooperation (Part III) (Gjerde et al, 2019) Compatibility and adjacency of Article 7, ensuring that measures for the high seas "do not undermine the effectiveness" of measures adopted by coastal State; "compatibility" elaborates on rights and obligations of States to cooperate in relation to straddling fish stocks and highly migratory fish stocks (Elferink, 2018 et al, 2018) CBD Capacities of regional organizations vary (Ribeiro, 2017;De Santo, 2018;Mossop, 2018) Limited geographical coverage of ABNJ through existing instruments: Abidjan convention (Dias et al, 2017;Ribeiro, 2017), Cartagena Convention (Ribeiro, 2017); abyssal regions in OSPAR MPAs (Evans et al, 2015); no coverage of South American Atlantic waters (Dias et al, 2017) Limited powers of OSPAR and NEAFC to prosecute individuals and need commitment of commercial industries, such as fishing and shipping (Evans et al, 2015) Failure of South Orkney Islands MPA, which leaves several pelagic bioregions and geomorphic zones unrepresented and adjacent regions with highest conversation value unprotected in or...…”

“…Frontiers in Marine Science | www.frontiersin.org "Global instrument with most relevance to MPAs in ABNJ" applicable to Parties "[i]n the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control," including ABNJ (Elferink, 2018) Preamble recognizes the "intrinsic value" of biodiversity and the "ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components, including its importance for evolution and for maintaining life sustaining systems of the biosphere" (Gjerde et al, 2019) Art. 5 requires cooperation among Parties in ABNJ "for the conservation and sustainable use of biological diversity" for implementation of Art.…”

Data_Sheet_1.pdf

“…RFMOs (Tladi, 2015) Secretariat (DOALOS) (Tladi, 2015) legal, scientific and/or technical commission (Tladi, 2015) COP for adoption (Marciniak, 2017); decision-making body (Tladi, 2015;Gjerde et al, 2016Gjerde et al, , 2019 Involvement of all relevant sectors stakeholders (De Santo, 2018), including the fisheries industry and scientific community, in monitoring, control and surveillance activities through e.g., data collection and sharing UNCLOS Duty to "protect and preserve the marine environment" (Tladi, 2015) Art. 194 5: Legal basis for the establishment of MPAs in ABNJ, but no provision regarding procedures for their designation and management (Elferink, 2019) Due regard and adjacency: "Due regard" provides the general benchmark for addressing the relationship between coastal States and States carrying out activities in ABNJ (necessary for BBNJ, otherwise not consistent with UNCLOS); "adjacency" only in the context of the regime for fisheries (Elferink, 2018) UNFSA "Duty to cooperate" to influence organizations without undermining them; "ecosystem approach"; "precautionary approach"; "science based approach" (Art.5); mechanisms for international cooperation (Part III) (Gjerde et al, 2019) Compatibility and adjacency of Article 7, ensuring that measures for the high seas "do not undermine the effectiveness" of measures adopted by coastal State; "compatibility" elaborates on rights and obligations of States to cooperate in relation to straddling fish stocks and highly migratory fish stocks (Elferink, (Ribeiro, 2017;De Santo, 2018;Mossop, 2018) Limited geographical coverage of ABNJ through existing instruments: Abidjan convention (Dias et al, 2017;Ribeiro, 2017), Cartagena Convention (Ribeiro, 2017); abyssal regions in OSPAR MPAs (Evans et al, 2015); no coverage of South American Atlantic waters (Dias et al, 2017) Limited powers of OSPAR and NEAFC to prosecute individuals and need commitment of commercial industries, such as fishing and shipping (Evans et al, 2015) Failure of South Orkney Islands MPA, which leaves several pelagic bioregions and geomorphic zones unrepresented and adjacent regions with highest conversation value unprotected in order not to interfere with krill fishery (Smith and Jabour, 2018) OSPAR NEAFC/OSPAR MoU…”

“…The interplay between frameworks receives much attention, namely: between the future BBNJ agreement and the existing fisheries framework (Matz-Luck and Fuchs, 2014; Marciniak, 2017), UNCLOS (Gjerde et al, 2019), and the ATS (Johnson, 2017;Li, 2018). Other issues include how the BBNJ agreement can enhance the performance of existing governance frameworks in the southern hemisphere (Warner, 2017), the special circumstances of the Arctic and implications for the BBNJ agreement (De Lucia, 2017; Kraabel, in press), "forum shopping" in institutions (Tsuru, 2017), the role of coastal states in BBNJ, and adjacency and due regard (Elferink, 2018;Mossop, 2018;Mossop and Schofield, 2020).…”