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

  • David Freestone (a1)
Extract

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

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 See UN Convention on the Law of the Sea arts. 192, 195(4), 197, Dec. 10, 1982, 1883 UNTS 397 [hereinafter UNCLOS].

2 G.A. Res. 69/292 (July 6, 2015).

3 See David Freestone, Governance of Areas Beyond National Jurisdiction: An Unfinished Agenda?, in Law of the Sea: UNCLOS as a Living Treaty 231 (Jill Barrett & Richard Barnes eds., 2016).

5 Id. at 668.

6 Id. at 670.

7 UNCLOS, supra note 1, art. 87 (identifying, subject to certain conditions, freedom of navigation; freedom of overflight; freedom to lay submarine cables and pipelines; freedom to construct artificial islands and other installations permitted under international law; freedom of fishing; and freedom of scientific research).

8 The IMO currently has 173 member states and three associate members.

9 However, states parties to the 1995 UN Fish Stocks Agreement that fish for covered species within the area of a regional convention are also obliged to become members of the convention or agree to abide by its conservation and management measures in order to continue fishing. UN Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Migratory Fish Stocks arts. 8(3) & 8(4), Dec. 4, 1995, 34 I.L.M. 1542.

10 Int'l Union for Conservation of Nature, Guidelines for Applying Protected Area Management Categories (Nigel Dudley ed., 2013).

12 Int'l Maritime Org., Assembly Resolution A.982(24) (Dec. 1, 2005); see also K. Gjerde & D. Freestone, eds., Special Issue: Particularly Sensitive Sea Areas: an Important Environmental Concept at a Turning Point, 9 Int'l J. Marine & Coastal L. 431 (1994).

13 See also Julian Roberts et al., Area-Based Management on the High Seas: Possible Application of the IMO's Particularly Sensitive Sea Area Concept, 25 Int'l J. Marine & Coastal L. 483 (2010); David Freestone & Viva Harris, Particularly Sensitive Sea Areas beyond National Jurisdiction: Time to Chart a New Course?, in International Marine Economy: Law and Policy 322 (Myron Nordquist et al. eds., 2017).

14 G.A. Res. 59/25 para. 66 (Nov. 17, 2004); G.A. Res 61/105 paras. 80–90 (Dec. 8, 2006).

16 For a map of such closures, see Vulnerable Marine Ecoystems Database, Food & Agriculture Org.

18 History, Pelagos Sanctuary.

20 Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069 (OSPAR Convention).

22 See South Orkneys Marine Protected Area, Brit. Antarctic Survey (Nov. 20, 2009).

23 See CCAMLR to Create World's Largest Marine Protected Area, Comm'n for the Conservation of Antarctic Marine Living Resources (Feb. 24, 2017).

24 See About Our Work, Sargasso Sea Comm'n.

26 See About the Commission, Sargasso Sea.

27 Daniela Diz, The Seamounts of the Sargasso Sea: Adequately Protected?, 31 Int'l J. Marine & Coastal L. 359 (2016).

28 Howard Roe et al., Sargasso Sea, in The First Global Integrated Marine Assessment (2016).

29 See Int'l Comm'n for the Conservation of Atlantic Tunas, 2 Report for the biennial period, 2012–2013, at 336 (2014).

31 See David Freestone & Kate Killerlain Morrison, The Signing of the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea: A New Paradigm for High Seas Conservation?, 29 Int'l J. Marine & Coastal L. 345, 354–462 (2014).

32 See Freestone & Gjerde, supra note 30.

The author thanks Kristina Gjerde for her comments.

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