The Southern Ocean’s areas beyond national jurisdiction (
The Southern Ocean (
An Uncommon Ocean Area
A number of aspects of the
The location of the
The uncommonness of the
Perhaps the most uncommon feature of the legal regime of the
Content-wise, key philosophical foundations of the
An Uncommon Relationship with the
It would be expected that such States would be of the view that the
The Preparatory Committee established by Resolution 69/292 (Preparatory Committee) to recommend on elements of a draft text for the
Situations such as these have led to the observation that the
It is possible that the
Delegations to the Working Group were also concerned about how a new global regime might relate to existing regional mechanisms.50 To assist the work of the Preparatory Committee, the United Nations Division for Ocean Affairs and the Law of the Sea (
An Uncommon Approach to
In relation to conserving and sustainably using marine biological diversity, the Antarctic Treaty, in 1959, refers to preservation and conservation of Antarctic living resources in relation to its principles and objectives.55 Both the
The following part of the paper will examine some features of the
Measures Such as Area-based Management Tools, Including Marine Protected Areas
Spatial protection and management are prominent and longstanding features of the
The features of the Protocol on Environmental Protection’s system in this regard include extended comprehensive protection (beyond the Antarctic environment to its dependent and associated ecosystems),66 a systematic approach through an environmental-geographic framework67 and representativeness of ecosystems. These reflect the Antarctic Treaty’s inclusion of the preservation and conservation of living resources in Antarctica as part of its principles and objectives.68 Through its Annex v, the Protocol on Environmental Protection establishes a two-tiered system of specially managed or protected areas, in relation to which a specific management plan will prohibit, restrict or manage activities.69 The protected areas, which incur more stringent protections, are envisaged as being identified within a “systematic environmental-geographic framework” and as compiling a series which will include representative examples of major marine ecosystems and a range of other types of areas concerned with environmental values.70 The system in Annex V applies to both marine and terrestrial areas.71 Despite this, Annex V would appear to be under-utilised with relatively few marine areas designated under Annex v.72 In 2009, the
Since then the
The Ross Sea region marine protected area comprises three discrete zones, each of which serves different conservation purposes. The General Protection Zone, the largest of the zones which itself includes three different areas, aims to protect different representative habitats and bioregions, mitigate or eliminate specified fishing-sourced ecosystem threats and support scientific research and monitoring. The Special Research Zone is notable for including an important continental slope fishing area and providing a scientific reference area concerned with the effects of climate change and fishing and the science-based management of the relevant toothfish fishery. This zone also contributes to representative protection, particularly to some pelagic protection objectives. The third zone, the Krill Research Zone, whose late inclusion was a crucial factor in the marine protected area being accepted, is concerned with research activities related to Antarctic krill.76 The period of designation of the Ross Sea region marine protected area is 35 years with any extensions requiring consensus agreement.77 Further proposals have been submitted to the
Marine Genetic Resources, Including Questions on the Sharing of Benefits
The main instruments of the
The Protocol on Environmental Protection and the
Besides environmental protection, a central component of the
The issue of biological prospecting has been the subject of three
The Resolutions recommend a number of approaches to the exchange of information, including an annual exchange of information by governments94 and more recently reporting by governments “as appropriate” in relation to their respective legal regimes and encouraging governments to examine ways to improve information exchange (such as through adapting the
Another key feature of the Resolutions is the affirmation of the
Another outstanding issue for the
Despite its continuing consideration of issues concerning biological prospecting, no
It is noted that the issue of benefit sharing in relation to marine genetic resources is not dealt with by the
There has also been no specific inclusion of biological prospecting matters in the
Possible Future Challenges
Furthermore, given that the
As development of the
Scientific Committee of Antarctic Research, “Antarctic life is highly diverse and unusually structured”, available at http://www.scar.org/2015/753–antarctic-life-is-highly-diverse-and-unusually-structured; accessed 14 February 2017.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994), 1833
United Nations General Assembly Resolution 69/292, Development 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 Biological Diversity of Areas beyond National Jurisdiction, A/Res/69/292, 19 June 2015.
Australian Government, ‘The Southern Ocean’s Global Reach’ (2002) 4 Australian Antarctic Magazine, available at http://www.antarctica.gov.au/magazine/2001-2005/issue-4-spring-2002/feature2/the-southern-oceans-global-reach; accessed 13 February 2017. Also, Group of Experts of the Regular Process, First Global Integrated Marine Assessment. World Ocean Assessment i (United Nations, New York, 2016), chapter 36H, p. 1, available at http://www.un.org/Depts/los/global_reporting/WOA_RegProcess.htm; accessed 13 February 2017, at pp. 1, 3.
International Bathymetric Chart of the Southern Ocean, “Background”, available online at https://www.iho.int/srv1/index.php?option=com_content&view=Article&id=300&Itemid=744&lang=en; accessed 13 February 2017.
For example, the United States describes the location of the Southern Ocean as the “the body of water between 60 degrees south latitude [sic] and Antarctica”. See Central Intelligence Agency, “The World Factbook. Oceans: Southern Ocean. Geography: Southern Ocean”, available at https://www.cia.gov/Library/publications/the-world-factbook/geos/oo.html; accessed 5 February 2017.
Australian Hydrographic Service, “Names and Limits of Oceans and Seas around Australia”, available at http://www.hydro.gov.au/factsheets/WFS_Names_and_Limits_of_Oceans_and_Seas_Around_Australia.pdf; accessed 13 February 2013.
For example, see Group of Experts of the Regular Process (n 4) at p. 1.
Australian Government, ‘What is the Southern Ocean?’ (2002) 4 Australian Antarctic Magazine, available at http://www.antarctica.gov.au/magazine/2001-2005/issue-4-spring-2002/feature2/what-is-the-southern-ocean; accessed 13 February 2017.
Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991, in force 14 January 1998) 30
The Antarctic Treaty (Washington,
Antarctic Treaty, Art. vi.
Protocol on Environmental Protection, Art. 2.
Antarctic Treaty, Art. iv(1).
Antarctic Treaty, Art. iv(2).
Antarctic Treaty, Arts. I, ii.
Antarctic Treaty, Art. iv.
Antarctic Treaty, Art. ix(1)(a)–(e).
Antarctic Treaty, Art. ix (1)(f).
Protocol on Environmental Protection, Arts. 2 and 7, respectively.
Protocol on Environmental Protection, Art. 3.
Protocol on Environmental Protection, Art. 8 and Annexes i–v, respectively.
Commented upon by, for example,
See discussion in AG Oude Elferink, ‘The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?’ 2009 xl Netherlands Yearbook of International Law 121–181 at, for example, p. 165.
For example, the United States as referred to in S Kaye, Australia’s Maritime Boundaries, 2nd ed, (Centre for Maritime Policy, University of Wollongong, Wollongong, 2001) at p. 185.
Resolution 69/292, para 1(a); “Chair’s overview of the first session of the Preparatory Committee”, available at http://www.un.org/depts/los/biodiversity/prepcom.htm; accessed 16 February 2016, at p. 4.
CC Joyner, ‘The Antarctic Treaty and the law of the sea: fifty years on’ (2010) 46 Polar Record 14–17, at p. 15 (
Secretariat of the Antarctic Treaty, “Parties”, available at http://www.ats.aq/devas/ats_parties.aspx?lang=e; accessed 15 September 2016. Also United Nations, “Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part xi of the Convention and of the Agreement for the implementation of the provisions of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks.” Available at http://www.un.org/depts/los/reference_files/status2010.pdf; accessed 15 September 2016.
See discussion in KN Scott and DL VanderZwaag, ‘Polar Oceans and Law of the Sea’ in DR Rothwell, AG Oude Elferink, KN Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015) 724–751 at pp. 738–739.
Ibid., at p. 739.
For further discussion see ibid., at p. 740.
Ibid. It is noted that the Antarctic Treaty Consultative Meeting (
The Chair of the fourth session of the Preparatory Committee sometimes referred to the
Resolution 69/292, para 1.
Resolution 69/292, paras 1 (g), (h).
Hubert (n 3 ) at p. 3.
Refer to C Johnson, ‘When Worlds Collide: Reflection on the Relationship between the New Regime for Areas Beyond National Jurisdiction and the Antarctic Treaty System’ (2017) 9 Yearbook of Polar Law (in press).
Resolution 69/292, para 3.
Annex to Letter dated 25 July 2014 (n 42), at para 19.
Ibid., para 22.
Ibid., para 19.
Food and Agriculture Organization, ‘Regional Fishery Bodies (RFBs)’, available at http://www.fao.org/fishery/rfb/search/en; accessed 5 December 2016.
International Union for Conservation of Nature, ‘Cross-Cutting Issues. Suggested responses to questions regarding three cross-cutting issues based on the document entitled, “Chair’s indicative suggestions of clusters of issues and questions to assist further discussions in the informal working groups at the second session of the Preparatory Committee” ’, at pp. 4 ,7, 15, available at http://www.un.org/depts/los/biodiversity/prepcom_files/Cross_cutting_issues.pdf; accessed 4 December 2016.
E Druel, P Ricard, J Rochette and C Martinez, Governance of Marine Biodiversity in Areas Beyond National Jurisdiction at the Regional Level: Filling the Gaps and Strengthening the Framework for Action: Case Studies from the North-East Atlantic, Southern Ocean, Western Indian Ocean, South West Pacific and the Sargasso Sea (
Antarctic Treaty, Art. ix (1)(f).
Protocol on Environmental Protection, Art. 2.
For example, see
For example, Australian Government, ‘A Proposal for a Representative System of Marine Protected Areas in the East Antarctic Planning Domain’ (Australian Antarctic Division, Hobart, 2016), available at http://www.antarctica.gov.au/law-and-treaty/ccamlr/marine-protected-areas; accessed 9 January 2017.
Conservation Measure 91–04 (2011) General Framework for the establishment of
Ibid., at para 3.
Protocol on Environmental Protection, Art. 2.
Annex V to the Protocol on Environmental Protection, Art. 3(2).
Antarctic Treaty, Art. ix(1)(f).
I.e., Antarctic Specially Managed Areas and Antarctic Specially Protected Areas—see Annex v to the Protocol on Environmental Protection, Art. 2.
Annex v to the Protocol on Environmental Protection, Art. 3(2).
Annex v to the Protocol on Environmental Protection, Arts. 3(1), 4(1).
Scott (n 61) at p. 131.
Final Report of the Thirty-second Antarctic Treaty Consultative Meeting (
Conservation Measure 91–03 (2009) Protection of the South Orkney Islands southern shelf, available at https://www.ccamlr.org/en/measure-91-03-2009; accessed 6 March 2017.
Conservation Measure 91–05 (2016) Ross Sea region marine protected area, available at https://www.ccamlr.org/en/measure-91-05-2016; accessed 6 March 2017.
Ibid., at 12–13.
Ibid., at 6.
See reference in Conservation Measure 91–04 (n 64), preamble.
Acknowledged in Conservation Measure 91–05 (n 75), preamble.
WP34 (United Kingdom) Spatial Protection and Management of Antarctic Marine Biodiversity’ (
E Morgera, ‘Summary of the Second Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction’ 2015 (25) Earth Negotiations Bulletin 8, available online at http://www.iisd.ca/oceans/bbnj/prepcom2/; accessed 16 February 2017.
International Union for Conservation of Nature, ‘Measures such as Area-based Management Tools, Including Marine Protected’, at 1.1, available at http://www.un.org/depts/los/biodiversity/prepcom_files/area_based_management_tools.pdf; accessed 4 December 2016. ‘Development of an International Legally Binding Instrument under the
Scott and VanderZwaag (n 38) at 748; Druel et al., (n 54) at p. 49.
Scott (n 61) at p. 129.
Morgera (n 82) at p. 3.
Antarctic Treaty, Art. ix; Protocol on Environmental Protection, Art. 3(1);
Protocol on Environmental Protection, Art. 3(2);
Antarctic Treaty, Art. iii(1).
J Mossop, ‘Marine Bioprospecting’ in Rothwell et al., (n 38) 825–842 at p. 825.
I.e., Resolution 7 (2005) Biological Prospecting (
Regarding the status of
Resolution 7 (n 92), para 2.
Resolution 6 (n 92).
For example, see Resolution 7 (n 92). Some parties also take the opportunity within the
For example, see Resolution 6 (n 92), para 1; and Resolution 9 (n 92), para 1.
Resolution 9 (n 92), para 2.
For example, see Final Report of the Thirty-seventh Antarctic Treaty Consultative Meeting (
Resolutions 6, 7 and 9 (n 92).
IP133 (Netherlands) An update on status and trends. Biological prospecting in Antarctic and Recent Policy developments at the international level (
Ibid., at pp. 3, 4 and 9.
Final Report of the Thirty-seventh Antarctic Treaty Consultative Meeting (n 99).
For example, Final Report of the Thirtieth Antarctic Treaty Consultative Meeting (
For example, most recently, Belgium—see Final Report of the Thirty-ninth Antarctic Treaty Consultative Meeting (n 96), para 137.
Final Report of the Thirty-seventh Antarctic Treaty Consultative Meeting (n 99), paras 346, 347.
Final Report of the Thirty-eighth Antarctic Treaty Consultative Meeting (n 99), para 388.
Resolution 9 (n 92).
J Jabour, ‘The Potential to Regulate Bioprospecting for Marine Genetic Resources: Two Case Studies’ in R Warner and S Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Taylor & Francis, London, 2016) 324–341 at p. 332.