Abstract
The paper analyses the opportunities to establish marine protected areas (MPAs) beyond national jurisdiction in the Arctic Ocean. For this, the author scrutinises the legal processes allowing UNCLOS to adapt to current and future ocean governance challenges concerning biological diversity and the limits of such adaptability. Some significant limitations are found in areas beyond national jurisdiction (ABNJ) in the Arctic Ocean. The low political commitment of Arctic States to cooperate in fora such the Arctic Council leaves the ABNJ of the Arctic Ocean in a very precarious situation. With extensive areas of the seabed potentially falling under national jurisdiction and the water column remaining as ‘high seas,’ there is a possibility that Arctic cooperation will be eroded.
1 Introduction
The law of the sea intertwines both individual interests of States and community interests. The protection of biological diversity is an example par excellence of community interest posing governance1 challenges. Community interests are re-shaping the law of the sea with the introduction of governance tools to promote integrated ocean management, e.g., marine protected areas (MPAs).
This paper analyses the dynamic and formal legal processes allowing UNCLOS to adapt to current and future ocean governance challenges concerning biological diversity and the limits of such adaptability. Dynamic legal processes include: evolutive treaty interpretation and normative development carried out by international organisations (i.e., soft law, hard law, cross-fertilization between related legal regimes). UNCLOS’s success in meeting contemporary environmental challenges while preserving its integrity lies in the dialogue between the above-referred processes. Alongside these dynamic legal processes, formal legal processes include treaty amendment and modification and customary law development. Concerning UNCLOS and biological diversity, negotiations are taking place to adopt a binding agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ).
I assess these legal processes from a law of the sea perspective. Then the paper examines MPAs for the protection of biological diversity in ABNJ of the Arctic Ocean. The changing Arctic marine environment is particularly vulnerable to climate change and the pressure on biological diversity has not gone unnoticed. MPAs and the protection of biological diversity are analysed through the theoretical lens of international law as a normative system product of legal processes.2
2 International Law-Making and the Law of the Sea
Sources of international law are far from static. It is not uncommon to find references to ‘treaty evolution’3 or ‘living instruments’4 or to evince customary law rapid development to reflect political, social, and economic realities, e.g., the continental shelf’s status. In the face of an international outcry, law-making occurs quickly, such as the phasing out of single-hull tankers after the Erika and Prestige disasters or it could take longer periods as in the case of integrated ocean management where careful choices have to be made. For instance, jurisdictional issues, scientific categories, and potential rights and obligations of international law subjects must be cautiously considered. These choices, as Higgins points out, are part of the legal process where policy, although being characterized as an ‘extra-legal’ factor, influences law-making.5
UNCLOS’ Part XII includes three legal approaches evincing the in-built flexibility of this treaty. First, States are subject to the general obligation “to protect and preserve the marine environment.”6 Such a broad prescription allows treaty interpretation in a contemporary context to address challenges not foreseen by the negotiating parties, e.g., protection of biological diversity. Second, Part XII constantly refers to general accepted rules and standards (GAIRS), measures, standards, recommended practices, and guidelines for its implementation. As a result, UNCLOS can accommodate normative development by referring not only to other treaty law sources but also to soft law and droit dérivé, i.e., “laws and regulations adopted by a body that is empowered to do so by a treaty.”7 Such normative development facilitates cross-fertilization between related legal regimes, including, for example, the 1992 Convention on Biological Diversity (CBD).8 Finally, Part XII requires States to cooperate on a regional or global basis directly or through competent international organisations, e.g., the Arctic Council.9
Part XII offers a glance at international law-making as a fluid legal process, where a treaty text enters into a dialogue with other sources of law, both hard and soft. This dialogue results, for instance, in evolutive treaty interpretation. Law development is also a dynamic process of State, institutional, and judicial practices. In this sense, UNCLOS’ legal development becomes predictable since it is based on a continuous legal process not exclusively governed by individual States or confined to judicial interpretation or treaty amendment procedures.
3 Biological Diversity and UNCLOS
According to Article 2 of the CBD Convention, biological diversity concerns “the variability among living organisms from all sources … and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.” UNCLOS does not refer to biodiversity, but it does provide a framework for the prevention of marine pollution and the management of marine living resources.10 Such a framework contributes to the conservation of marine biological diversity.
As legal categories, pollution and resources are certainly narrower than biological diversity in the sense that the former categories do not necessarily consider the complex interrelationships taking place in the marine environment. Guruswamy, for instance, criticizes pollution regulation for creating “a legacy of transformations and transfers.”11 A similar critic can be raised concerning marine living resource management since States’ rights and obligations depend heavily on maritime zones.12 This does not mean that UNCLOS reduces marine living resource management to a zonal approach. The Convention does take into account, albeit in a limited fashion, the holistic nature of the marine environment.13 For instance, the obligations imposed on coastal States to maintain or restore ‘harvested species’ populations found in the Exclusive Economic Zone (EEZ) require considering the interdependence of stocks and the “effects on species associated with or dependent upon harvested species.”14 Since maritime zones emerged as a result of historical and political processes,15 the zonal division of the ocean does not always match marine ecosystems. UNCLOS prescribes obligations to conserve certain species considering their migration patterns across maritime zones, including shared fished stocks and highly migratory species.16 The 1995 Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks amplifies UNCLOS obligations with the introduction of the precautionary approach and stronger emphasis on marine ecosystems.17 UNCLOS also introduces cooperation-related obligations to conserve vulnerable species such as marine mammals.18
Biological diversity protection prompted an environmental governance ‘paradigm shift’19 based on an ecosystem approach. Notwithstanding the controversies surrounding the concept and substantive elements of such an approach, the Conference of the Parties (COP) to the CBD characterises it as the main framework for the conservation and sustainable use of biodiversity.20 In broad terms, the ecosystem approach is “a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way.”21 Its implementation includes a wide array of area-based management tools, e.g., marine spatial planning or MPAs. This article is concerned with integrated MPAs that are cross-sectoral, i.e., “where all human activities within the defined area are addressed and managed for the purpose of conservation of marine biodiversity.”22 While numerous MPAs have been established in areas within national jurisdiction, very few MPAs exist today in ABNJ (none of them in the Arctic Ocean). The most remarkable examples are those established under the OSPAR Convention23 and the Convention on the Conservation of Antarctic Living Marine Resources (CCAMLR).24
3.1 UNCLOS’ Evolutionary Interpretation
Evolutionary interpretation is one mechanism available to accommodate biological diversity protection from a holistic perspective under UNCLOS. By evolutionary interpretation, the author refers to changes in the meaning of treaty terms over time.25 Such changes relate to both contextual fluxes and legal progress. In the Gabčíkovo-Nagymaros case, the International Court of Justice (ICJ) stated that treaty law “is open to adapt to emerging norms of international law.”26 While acknowledging that interpretation is by no means limited to the courtroom, this section focuses on the role of the international judiciary as a source of authoritative interpretation.27 A treaty norm can evolve, according to the ICJ, if:
the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration,” the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.28
In the Chagos Marine Protected Area case, the Arbitral Tribunal found that UNCLOS’ Part XII is not only concerned with the prevention of marine pollution.29 The Tribunal’s analysis took into account Article 194 (5) that prescribes the States’ obligation to prevent marine pollution by taking measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” The explicit reference to Article 194(5) of UNCLOS evinces that biological diversity protection is compatible with the object and purpose of the Convention. Additionally, by virtue of Article 194(5), the Tribunal considered that measures could be “focused primarily on conservation and the preservation of ecosystems.”30 It should be pointed out that the Tribunal refers to ecosystems in general and not exclusively to those categorized as rare or fragile. The Tribunal also asserted that MPA is a measure within the meaning of Article 194(5).31 MPAs implementation, however, must consider the jurisdictional framework of the law of the sea. Concerning the obligation to prevent the harvesting of endangered species, the Tribunal in the South China Sea Arbitration case stressed that such obligation must be read in the light of Article 194(5).32
Article 192 of UNCLOS establishes the general obligation to “protect and preserve the marine environment.” The Tribunal in the South China Sea Arbitration case found that this duty is informed by Part XII of UNCLOS and other applicable rules of international law. According to the Tribunal, such rules include the CBD, which sheds light on Articles 192 and 194 of UNCLOS. Notably, the Tribunal substantiated the meaning of ecosystem according to Article 2 of the CBD.33
Overall, the international judiciary highlights an integral approach towards marine management. Integrated ocean tools (e.g., MPAs) and the conservation of biological diversity are compatible with UNCLOS and offer regulatory alternatives to comply with duties related to protecting and preserving the marine environment. As further analysed in the following section, International Organisations largely operationalise this systemic interpretation of international law.
3.2 MPAs and Normative Development through International Organisations
Neither UNCLOS nor the CBD Convention regulates integrated MPAs. In 2004, the COP to the CBD adopted the following definition of MPA:
any defined area … 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 that is surrounding34
The COP to the CBD has actively promoted MPAs as a regulatory tool for integrated ocean management focused on protecting and conserving biological diversity. Additionally, it has urged States parties to UNCLOS and other international organisations to establish MPAs in accordance with their competences.35 As Harrison notes, the COP to the CBD “has played a crucial catalytic role in ensuring that this matter has been placed firmly on the agenda of relevant institutions.”36
Since the early 2000s, the United Nations General Assembly (UNGA) has requested States to implement area-based management tools, including MPAs, to conserve and manage marine biological diversity.37 UNGA’s resolutions highlight the role of the CBD Convention in advancing ecosystem approaches to ocean management. The work of the COP to the CBD and UNGA enhances the systemic view of international law. Both organs attempt to build bridges between UNCLOS and the CBD to achieve the ultimate goal of protecting and preserving the marine environment as a whole. UNGA’s reports on the law of the sea bring an additional element of legitimacy to MPAs. Considering UNGA’s universal membership, “all states have in theory an equal voice and an equal vote in the General Assembly.”38 Therefore, it has become a significant forum to assess the degree of consensus over a law of the sea norm. In 1999, UNGA established the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (ICP), which in addition to States is open to entities qualified as observers in the work of UNGA (including NGOs) and other international organisations with competence in Ocean affairs.39 ICP has considered MPAs as a tool to implement the ecosystem approach.40 In these reports, the ICP encourages synergies of ocean-related matters with the CBD.
According to Article 197 of UNCLOS, States must cooperate on a global or regional basis to develop “international rules, standards and recommended practices and procedures … for the protection and preservation of the marine environment.” Such cooperation takes place mainly in global and regional organisations. For example, The Arctic Council, through its working group PAME developed a framework for a Pan-Arctic Network of MPAs.41
3.3 Limits
There are significant limitations concerning MPAs in ABNJ since their implementation could restrict freedoms of the seas. While the COP to the CBD Convention acknowledges that MPA’s implementation does not equate ipso facto with the prohibition of sea-related activities,42 it is up to the coastal State or relevant organisation to decide how to achieve a conservation goal in the light of the jurisdictional framework and freedoms of the sea established in UNCLOS. In the Chagos Marine Protected Area case, the Tribunal argued that the establishment of an MPA, in light of article 194(4) of UNCLOS, requires a balancing act “between competing rights, based upon an evaluation of the extent of the interference, the availability of alternatives, and the importance of the rights and policies at issue.”43 However, the Tribunal indicated that there could be ‘environmental considerations’ that could ‘potentially justify’ restrictions of fishing rights with the caveat of exploring “less restrictive alternatives.”44 Thus, to be effective, MPAs require close coordination with the regulation concerning marine pollution and fisheries. However, such coordination is far from successful. Particularly acute is the legal treatment of fisheries and marine biological diversity as separate issues and marine pollution regulation in a piecemeal fashion.45
The potential conflicts between the freedoms of the seas and MPAs are amplified in ABNJ. One may argue that the legal capacity to establish MPAs in ABNJ can be inferred from Articles 192, 194(5), and 197 of UNCLOS.46 Article 192 prescribes the obligation to protect the marine environment as a whole, including ABNJ. This obligation extends according to Article 194(5) and to the protection and preservation of “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Finally, Article 197 contemplates global and regional cooperation to formulate international rules and standards to protect the marine environment.
Nonetheless, States cannot claim sovereignty in ABNJ or their resources.47 It appears that no State or international organisation purports the legal standing to ‘represent’ the interests of the international community. Such representation is doubtful even on a regional basis. For instance, the Arctic coastal States declared their ‘stewardship role’ for the protection of the Arctic Marine Environment.48 This declaration appears as a rhetoric formulation that emphasizes regional cooperation’s pre-eminence rather than a privileged status to manage ABNJ in the Arctic Ocean.
The legitimacy of unilateral declarations of MPAs in ABNJ comes into question. If such an MPA is subject to stricter regulations than those established at the international level, it may be categorized as creeping jurisdiction. As Freestone explains, international law does not envisage restrictions of “freedoms of the seas without the consent of affected States.”49 Consequently, MPAs’ regulations are exclusively applicable to the State, implementing them. The same can be said to MPAs implemented as a result of cooperation obligations under international organisations’ auspices. In this case, only the member States will be bound.
3.4 Implementation Agreement concerning Marine Biological Diversity in Areas beyond National Jurisdiction
As Freestone accurately argues, the 2017 UNGA’s Resolution 72/249, where the General Assembly convened an intergovernmental conference to negotiate an agreement under UNCLOS on the conservation and sustainable use of marine biological diversity in ABNJ, “was a long time in the making.”50 Early discussions about the necessity to adopt a binding instrument took place already in 2004 when UNGA established the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.51
The issues entrusted to the intergovernmental conference are, among others, area-based management tools, including, but not limited to MPAs.52 The negotiation and adoption of binding treaties is a manifestation of a formal legal process that facilitates legal development in several ways. First, treaties could address a legal gap and advance a desired legal development. Second, they shed light on the existing law through codification. Third, these instruments could establish both general principles as well as detailed rules.
UNGA’s Resolution 72/249 decided that the intergovernmental conference shall meet four times. By the time of writing, three meetings have taken place. Further negotiations should get traction since the intergovernmental conference’s President prepared a draft text for the negotiations. Several delegations have already submitted their comments to the proposed draft text.53 The following table summarizes the main issues about the negotiations about MPAs negotiations.
MPA’s main negotiation points
Citation: The Yearbook of Polar Law Online 13, 1 (2021) ; 10.1163/22116427_013010007
Table 6.1 provides a concise overview of the negotiation process taking place at the intergovernmental conference. On the one hand, the explicit commitment to regulate area-based management tools, including MPAs, adds legitimacy to the conservation efforts of marine biological diversity in ABNJ. On the other hand, the draft text does not explicitly acknowledge that the treaty may qualify or condition human activities in ABNJ, classically referred to as ‘freedoms of the high seas,’ including fishing and shipping. This is a lost opportunity since one of the major obstacles for the success of MPAs in ABNJ concerns the conflicts of freedoms of the high seas and conservation measures adopted within MPAs.
The coordination of MPAs with marine pollution and fisheries regimes must be at the centre of MPAs. The draft text outlines a cooperation and coordination framework with ‘relevant global, regional, subregional or sectoral bodies.’ In a broad sense, this general framework is inclusive enough to embrace cooperation and coordination with organisations dealing with shipping and fisheries. Many delegations point out that MPAs must not undermine relevant legal instruments and frameworks. Article 4 of the Draft is entitled ‘Relationship between this Agreement and the Convention and relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies.’ Paragraph 3 reads as follows:
This Agreement shall be interpreted and applied in a manner that [respects the competences of and] does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies. (emphasis mine)
“Not undermine” effectively acts as a deterrent to create institutions with overlapping mandates that could eventually limit the activities, the measures, and the powers exercised by existing organisations, such the IMO or Regional Fisheries Management Organisations (RFMOs). It is worth noting that provisions requiring ‘not undermining’ existing legal frameworks and institutions are subject to a wide range of interpretations. My interpretation implies that mandates and competences of existing organisations are to be left intact in accordance with Article 4 (3) of the Draft Agreement. Scalon posits that another interpretation is also possible that would eventually ‘disempower’ organisations. According to this author, to not undermine the effectiveness of existing legal frameworks and institutional arrangements, “could include, for example, the creation of a new global system with the authority to implement existing agreements more effectively, on the basis that this would strengthen – not undermine – the objectives of the existing legal framework.”54
Finally, a contested negotiation issue concerns coastal States’ rights and obligations that are ‘physically’ adjacent55 to an MPA in ABNJ. Many delegations suggest eliminating the word adjacent and include instead more inclusive wording, such as ‘most potentially affected’ and ‘all States’. These delegations stress that MPAs and other area-based management tools must have ‘due regard for the rights, duties and legitimate interests of all States.’ The negotiations denote the reluctance to accept any stewardship status or preferential right of ‘adjacent’ coastal States in cases where MPAs are established in ABNJ. It also reaffirms that high seas are open to all States on an equal footing. However, this matter is controversial because some delegations would like to emphasize the preferential role of adjacent States. The argument builds on the necessity to establish compatible measures, e.g., in the EEZ/continental shelf and ABNJ, to secure MPAs’ success. Some argue that compatibility is already implied in UNCLOS and as Molenaar accurately explains, adjacency is “a mechanism to address transboundary interactions between ABNJ and areas within national jurisdiction.”56 For instance, Article 116 establishes that fishing rights are subject to “the rights and duties as well as the interests of coastal States.”57 Nonetheless, compatibility has not been included in the draft text. One can also argue that physical adjacency is not extraneous to UNCLOS. Article 63(2) prescribes the obligation to cooperate between coastal States and other States fishing in areas adjacent to the EZZ. At the moment, a preeminent role of physically adjacent States to MPAs in ABNJ is somewhat limited. If the intergovernmental conference agrees upon such a limited role, regional ocean governance efforts could be undermined.
4 Biological Diversity in Areas beyond National Jurisdiction in the Arctic
Climate change has triggered profound changes in the Arctic marine environment. A warmer Arctic promotes economic opportunities. Ice-free waters during summer months could translate into new transport routes and support a booming cruise industry. The relocation of fish stocks while affecting some polar species like king crab could increase the commercial exploitation of others, including herring.58 Together with fish, sub-arctic species of mammals and birds will find a new home in the Arctic.59 The promise of economic development puts enormous pressure on the management and conservation of biological diversity. ABNJ in the Arctic offers a unique scenario since ecosystems “remain largely pristine”60 but not for long.61 Before resource exploitation and industrial development gain traction, MPAs’ implementation in ABNJ could crystalize a precautionary and integrative approach to ocean management.
4.1 Institutional Practice
4.1.1 The Arctic Council
The Arctic Council is the leading inter-governmental institution promoting cooperation in the Arctic region. It has a tripartite structure, i.e., eight States, six Indigenous permanent participants and observers.62 Six working groups and tasks forces support the activities of the Arctic Council. The Conservation of Arctic Flora and Fauna (CAFF) and the Protection of the Arctic Marine Environment (PAME) address biological diversity and MPAs, respectively.63
As highlighted in Section 3, there is no single definition of MPA and their management objectives are also varied. In the arctic marine environment, CAFF and PAME have adopted the International Union Conservation for Nature (IUCN) management categories,64 i.e., strict nature reserve, wilderness area, national park, natural monument of feature, habitat/Species management area, protected landscape/seascape and protected area with sustainable use of natural resources. The IUCN classification represents a laudable effort to develop a unified protected areas’ catalogue that extends to the marine environment but the system has not been widely adopted65 yet. IUCN classification follows the management objective of the area. This paper focuses on cross-sectoral MPAs where all human activities are managed for marine biological diversity conservation and several IUCN areas fulfil such a criterium. Table 6.2 briefly summarizes the management approach of such areas.
MPAs in the Arctic Ocean
Citation: The Yearbook of Polar Law Online 13, 1 (2021) ; 10.1163/22116427_013010007
A characteristic endeavour of the Arctic Council and its working groups concerns the gathering, analysis, and dissemination of scientific reports coupled with general policy recommendations. CAFF and PAME have been instrumental in evaluating the status of biological diversity in the Arctic and providing an overview of current MPAs adopted by the Arctic Council’s member States.66 Concerning MPAs in ABNJ, action has been limited. In 2015, Canada, Denmark, Norway, Russia, and the United States of America agreed on a voluntary ban on commercial fishing in the Central Arctic Ocean High Seas.67 Such voluntary action put pressure on the conclusion of a regional agreement to prevent unregulated fishing. In 2018, the agreement to prevent unregulated high seas fisheries in the central Arctic Ocean was adopted, and entered into force on 25 June, 2021.68
In 2015, PAME developed a framework for a Pan-Arctic Network of MPAs.69 This is a crucial step to achieve integrated ocean management since networks provide a comprehensive overview of existing MPAs in a determined area of the ocean. Such an overview could enhance cooperation among stakeholders, facilitate information exchange, and enable conservation goals by establishing linkages between MPAs. The Pan-Arctic Network of MPAs emphasizes the need to complement MPAs in the Arctic with other area-based management tools that “contribute to the achievement of conservation objectives including MPA network objectives.”70 The ‘process to describe’ Ecologically or Biologically Significant Areas (EBSA process) under the CBD Convention falls within the broad description of ‘other area-based management tools.’ In 2008, the COP to the CBD adopted Decision IX/20 about scientific criteria for identifying marine EBSA(s) in need of protection of open-ocean waters and deep-sea habitats.71 EBSAs process may cover areas within and outside national jurisdiction, although, their description was “originally driven by the commitment to establish marine protected areas in areas beyond national jurisdiction.”72 The process to describe EBSAs does not include any conservation measure per se. Their identification intends to guide relevant actors, e.g., States and international organisations, in the selection process of MPAs networks73 and it is up to these actors to identify EBSAs. To facilitate this process, the COP to the CBD, in its tenth meeting, entrusted the CBD Executive Secretary the organisation of regional workshops.74 In the Arctic Ocean 11 EBSAs were identified, two of them falling in areas beyond national jurisdiction, i.e., Multi-year Ice of the Central Arctic Ocean and the Marginal Ice Zone and the Seasonal Ice-Cover Over the Deep Arctic Ocean.75
It is worth noting that Pan-Arctic Network of MPAs framework does not include ABNJ. The exclusion may be the result of several factors. First, member States to the Arctic Council continuously stress UNCLOS’ relevance for governing the Arctic Ocean.76 In this regard, no State (not even those adjacent to ABNJ) has privileged status concerning ABNJ’s management. Actions taken by coastal States on ABNJ concerning MPAs may be construed as creeping jurisdiction. Second, section 3.3. of this paper explained the potential conflicts of MPAs in ABNJ and freedoms of the high seas. These conflicts are latent in the increasing interest of Non-Arctic States in ABNJ of the Arctic Ocean. States like China argue that Arctic affairs are not exclusively regional, but have a significant international component.77 Third, the implementation of an MPA in ABNJ could potentially restrict certain human activities, e.g., exploitation of natural resources in extended continental shelves. Several Arctic States have either claimed or have submitted a continental shelf claim to the Commission on the Limits of the Continental Shelf.78 Finally, the Arctic Council is a soft law institution with no legal competence concerning ABNJ. Koivurova points out the low political commitment of the member States in the Arctic Council79 and this observation is painfully accurate concerning the implementation of area-based management tools in ABNJ. In 2014, PAME evaluated alternatives available to minimize associated shipping risks on the high seas.80 It was further suggested that Arctic States submit to the IMO a proposal to designate a Particularly Sensitive Sea Area (PSSA) on the high seas. A PSSA is exclusively concerned with shipping related measures. However, no Arctic State accepted such a recommendation81 and at the moment, no PSSA has been implemented in ABNJ.
Without the Arctic Council’s transformation into a treaty-based organisation with regulatory competences and a permanent budget, actions concerning the implementation of area-based management tools in ABNJ will remain limited. Inspired by the OSPAR Commission’s work on MPAs in ABNJ, authors like Hossain and Morris suggest developing a regional treaty under the auspices of the Arctic Council to designate MPAs in ABNJ.82 Such a treaty would potentially provide a robust normative framework to engage Arctic States. But even in this scenario, MPAs in ABNJ face potential conflicts with freedoms of the high seas.
4.1.2 OSPAR Commission and the North-East Atlantic Fisheries Commission
The OSPAR Convention is the result of regional cooperation as provided in Article 197 of UNCLOS. It covers the North-East Atlantic, which is divided into four regions. Region 1 covers Arctic waters, including minor portions of ABNJ. In 1998, the parties to the OSPAR Convention adopted Annex V regarding the protection and preservation of the ecosystems and biological diversity in the North-East Atlantic.
OSPAR is, without a doubt, an example of legal development and harmonized regime interaction. Annex V explicitly relies on the CBD Convention as the basis to elaborate further obligations concerning biological diversity. Nonetheless, a significant limitation of Annex V is the exclusion of fisheries. There are also some limitations regarding the regulation of shipping.83 This means that any conservation measure would not cover all human activities taking place in the area. The OSPAR Commission has entered into a collaboration and coordination agreement with the North-East Atlantic Fisheries Commission (NEAFC) to minimize such a regulatory deficit.84 Concerning Arctic waters, no such agreement exists because no Regional Fisheries Management Organisation (RFMO) is covering these waters yet. Whether their efforts would result in comprehensive area-based management tools is doubtful since invitations encouraging the IMO and the International Seabed Authority (ISA) collaboration have been met with scepticism. Both the IMO and ISA appear to consider such collaboration initiatives as premature.85
In 2003, the Parties to the OSPAR Convention recommended establishing a network of MPAs, which could include ABNJ.86 Since then, the OSPAR Commission has been extraordinarily active in legitimizing the implementation of MPAs in ABNJ by emphasizing its compatibility with general obligations prescribed in UNCLOS. Particularly, obligations for protecting the marine environment and the protection and preservation of rare or fragile ecosystems87 have been advanced as the legal basis to protect ABNJ. Under OSPAR auspices, there are seven MPAs in ABNJ,88 none of them located in Arctic Waters, i.e., Region 1. Such an absence evince the lack of commitment of Arctic States to take a stand concerning the protection of ABNJ.
Overall, several instruments, including UNCLOS and the CBD Convention, provide support for establishing area-based management tools in ABNJ. However, important issues remain to be addressed, including the role of non-State parties and other international organisations with competences in a particular area, including, for instance, the IMO and RFMOs. Identifying a suitable actor to coordinate relevant stakeholders to establish and implement MPAs in ABNJ is also an unresolved issue. In 2019, the OSPAR Commission took a positive step in this regard by adopting an agreement to implement a consultation procedure for establishing MPAs in ABNJ.89 States that are ‘more likely affected’ will be invited to participate in the consultation process. It is immaterial whether these States are parties to the OSPAR Convention. Also, contracting parties may invite international and civil society organisations.90 The consultation issues are organized under three headings: a) relevance on the species, habitats, and ecosystems; b) current and potential human activities; and c) current and potential management actions.91 The benefits of a consultation process are plentiful, including adding transparency and legitimacy in adopting and implementing MPAs in ABNJ. By including more actors, further compliance may be induced among non-parties to the OSPAR Convention.
4.2 Potential Impact of the Agreement concerning Marine Biological Diversity in Areas beyond National Jurisdiction
Considering the current legal limitations to establish MPAs in ABNJ, adopting a binding agreement is a welcomed development. The ‘adjacency concept,’ found in the draft text, supports a regional approach to MPAs in ABNJ and place ‘adjacent’ coastal States in a privileged position. With the potential of an ice-free Arctic, the tension between regionalization and internationalization is growing. Since 1998 several non-Arctic States have become observers in the Arctic Council.92 In 2018, China enacted its Arctic policy,93 while the EU pursues to build its Arctic identity based on a “combination of history, geography, economy, and research.”94 Koivurova and Caddell point out that the agreement should prioritize regional cooperation concerning the conservation of biodiversity in ABNJ.95 Article 4 of the draft proposal clarifies the relationship of the agreement with other instruments. In principle, this agreement will not undermine global, regional, or subregional instruments and frameworks. Concerning MPAs, Article 15(1) of the draft call States to cooperate and coordinate activities through global, regional, and subregional institutions. This article includes a proposal that could impact Arctic management. It reads as follows:
[Where there is no relevant legal instrument or framework or relevant global, regional, subregional or sectoral body to establish area-based management tools, including marine protected areas, States Parties shall cooperate to establish such an instrument, framework or body and shall participate in its work to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.]96
If adopted, such wording could trigger the transformation of the Arctic Council into a treaty-based organisation and regulatory powers, which is the desirable next step. Since the Arctic Council is a soft-law institution, De Lucia suggests that it does not qualify as an existent regional organisation.97 Considering the interest at stake in the Arctic, there is a possibility that such a provision sets in motion the creation of another organisation that could effectively undermine the current Arctic management framework.
Another layer of complexity for cooperation and coordination in the Arctic concerns extended continental shelves. Article 15(5) of the draft agreement reads as follows:
[i]n cases where an area-based management tool, including a marine protected area, established under this Part subsequently falls under the national jurisdiction of a coastal State, either wholly or in part, it shall be adapted to cover any remaining area beyond national jurisdiction or otherwise cease to be in force.
The inactivity on ABNJ in the Arctic shows Arctic States’ reluctance to establish protecting measures for biodiversity since such measures could undermine future natural resource exploitation. Article 15(5) of the draft agreement leaves ABNJ in the Arctic in a state of vulnerability. This state of vulnerability is amplified since Arctic States do not have a common position in the negotiation of this agreement. For example, Russia and the United States of America, have been sceptical about the adoption of a binding instrument,98 Canada values the potential benefits of such agreement99 while Norway and Iceland advocate for a regional approach.100 Iceland and Russia consider that the agreement shall not apply to the management and conservation of fisheries101 while Norway sees it as an opportunity to “strengthen and develop regional cooperative mechanisms, particularly regional seas conventions building on UN Fish Stocks Agreement.”102
5 Conclusions
This article showed how international law-making processes, both dynamic and formal, allow UNCLOS to accommodate contemporary issues of ocean management concerning the protection of marine biological diversity. Evolutionary interpretation highlights the compatibility of marine biological diversity protection with the object and purpose of the Convention. Such an interpretative endeavour also opens the possibility to adopt and implement integrated and cross-sectoral MPAs to comply with the obligation to protect the marine environment. Normative development through international organisations has proven to be a fundamental piece for regime interaction between UNCLOS and the CBD Convention. The COP to the CBD Convention is responsible for transforming MPAs into a priority within international fora. UNGA, on its yearly assessments of UNCLOS’ implementation, advanced the introduction of area-based management tools, including MPAs, while relying on the work undertaken by the COP of the CBD. Overall, the introduction of MPAs, within areas of national jurisdiction, into the law of the sea was a relatively smooth process. Some significant limitations are however, found in ABNJ. These limitations can be summarized under three headings: a) legitimacy and competence to adopt and implement MPAs in ABNJ, b) potential conflicts with freedoms of the high seas, and c) potential conflicts among organisations operating in a particular area with distinct or even overlapping mandates.
Due to these difficulties, a formal law-making process is currently taking place, i.e., the negotiation of a binding agreement concerning marine biological diversity in ABNJ. The commitment to regulate area-based management tools together with the inclusion of contemporary principles of ocean governance, e.g., ecosystem approach, adds legitimacy to the conservation efforts of marine biological diversity in ABNJ. Nonetheless, the draft agreement falls short in clearly stating that freedoms of the high seas are not absolute and that such freedoms may indeed be conditioned in the light of measures undertaken for the protection, conservation and sustainable use of marine biological diversity. Additionally, it is not entirely clear how regional and international interests will be balanced and how cooperation and coordination with sectoral frameworks governing fishing and shipping will be successfully assisted.
The paper provides an overview of marine biological diversity in ABNJ in the Arctic through the lens of the governance structure in place. The most relevant forum for Arctic cooperation is the Arctic Council. Its activities are currently confined to the generation and dissemination of scientific information about biological diversity status. Policy recommendations concerning area-based management tools in ABNJ have found no support among its member States. No concrete action has been taken in ABNJ. Arctic States have not established conservation measures in ABNJ and have consistently proclaimed that UNCLOS is sufficiently adequate to govern the Arctic. The low political commitment of Arctic States to cooperate in fora such as the Arctic Council leaves the ABNJ of the Arctic in a very precarious situation. With extensive areas of the seabed potentially falling under national jurisdiction and the water column remaining as ‘high seas,’ there is a possibility that Arctic cooperation will be further eroded.
University of Gothenburg.
For the purpose of this chapter, I define governance as a process for policy and decision making that involves multiple scales, i.e., legal and spatial and their correspondent interactions.
Abram Chayes, International Legal Process: Materials for an Introductory Course (NYC: Little, Brown and Co., 1968); Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd edn (NYC: Columbia University Press, 1979); Rosalyn Higgins, Problems & Process: International Law and How we Use it (Oxford: Oxford University Press, 2004); Anne-Marie Slaughter-Burley, “International Law and International Relations Theory: A Dual Agenda,” The American Journal of International Law 87, no. 2 (1993): 213.
Alan Boyle, “Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change,” in The Law of the Sea: Progress and Prospects, eds. David Freestone, Richard Barnes and David Ong, (Oxford: Oxford University Press, 2006).
See for example, Tyrer v United Kingdom, Merits (ECHR 2), 1978, para. 3; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion. Separate Opinion of Judge Lucky, ICGJ 493 (ITLOS Case no. 21), 2015, para. 18.
Rosalyn Higgins, “Integration of Authority and Control: Trends in the Literature in International Law and International Relations” in Toward World Order and Human Dignity: Essays in Honor of Myres McDougal, eds. Michael Reisman and Burns Weston (NYC: Free Press, 1976): 85.
See Article 192 of UNCLOS.
Pierre-Marie Dupuy and Jorge Viñuales, International Environmental Law, 2nd edn (Cambridge: Cambridge University Press, 2018), 41.
Convention on Biological Diversity (CBD), Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 ILM 822.
Dupuy and Viñuales notice that some international organisations express State practice while others “seek to influence this practice by adopting various instruments.” Dupuy and Viñuales, International Environmental Law, 41.
Part XII of UNCLOS is concerned with the protection and preservation of the marine environment. Article 194 of the Convention identifies six sources of marine pollution, i.e., pollution from land-based sources (Articles 207, 213); pollution from seabed activities subject to national jurisdiction (Article 208, 214); pollution from activities in the Area (Articles 209, 215), dumping (Articles 210, 216), ship-source pollution (Articles 211, 217, 218, 219, 220, 221) and pollution from or through the atmosphere (Articles 212, 222). On the management of marine living resources, see Articles 21(1)(d), 42 (1)(c), 56(1), 61–73, 77(1), 87(1)(e), 116–120, 123 (a), 145(b).
Lakshman Guruswamy, “The Promise of the United Nations Convention on the Law of the Sea (UNCLOS): Justice in Trade and Environment Disputes,” Ecology Law Quarterly 25, no. 2 (1998): 189–218.
As Rothwell and Stephens accurately explain, UNCLOS “also remained animated to a large degree by a zonal approach, therefore did not itself establish a truly holistic and ‘integrated’ system for marine resource management.” Donald Rothwell and Tim Stephens, The International Law of the Sea, 2nd edn (Oxford: Hart Publishing Ltd, 2016), 308.
Articles 192 and 194(5) of UNCLOS.
Article 61(3)(4) of UNCLOS.
David Bederman, “The Sea,” in The Oxford Handbook of the History of International Law, eds. Fassbender Bardo and Anne Peters (Oxford: Oxford University Press, 2012).
See Articles 63 (1) and 64, of UNCLOS respectively. See also Rothwell and Stephens, The International Law of the Sea 332–337.
See Articles 5 and 6 of the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 4 August, 1995, in force 11 December 2001, 2167 UNTS 3, 34 ILM 1542. On Post-UNCLOS developments concerning the management of marine living resource See Richard Caddell and Erik J. Molenaar, eds., Strengthening International Fisheries Law in an Era of Changing Oceans (Oxford: Hart Publishing, 2019).
See Article 65 and 120 of UNCLOS.
Vito De Lucia, “Competing Narratives and Complex Genealogies: The Ecosystem Approach in International Environmental Law,” Journal of Environmental Law 27, no. 1 (2015): 92.
COP to the Convention on Biological Diversity, Decision II/8 Preliminary Consideration of Components of Biological Diversity particularly under Threat and Action which could be taken under the Convention (1995).
COP to the Convention on Biological Diversity, Decision V/6 Ecosystem Approach (2000).
Ingvild Ulrikke Jakobsen, Marine Protected Areas in International Law: An Arctic perspective (Leiden: Brill Nijhoff, 2016), 5; Hai Dang Vu, Marine Protected Areas Network in the South China Sea: Charting a Course for Future Cooperation (Leiden: Martinus Nijhoff, 2014), Chapter II.
Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 22 September 1992, in force 25 March 1998, 2354 UNTS 67, 32 ILM 1072.
Convention on the Conservation of Antarctic Living Marine Resources (CCAMLR), Canberra, 20 May 1980, in force 7 April 1982, 19 ILM 841; See also Elizabeth De Santo, “Implementation Challenges of Area-Based Management Tools (ABMTs) for Biodiversity Beyond National Jurisdiction (BBNJ),” Marine Policy 97 (2018): 34.
Sondre Torp Helmersen, “Evolutive Treaty Interpretation: Legality, Semantics and Distinctions,” European Journal of Legal Studies 6 (Summer 2013): 161–162; Eirik Bjorge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014), 188.
Gabčíkovo Nagymaros Dam (Hungary/Slovakia) (Judgment, Merits), ICJ Reports, 1997, p. 7 para. 112.
Gleider Hernández, “Interpretative Authority and the International Judiciary,” in Interpretation in International Law, eds. Andrea Bianchi, Daniel Peat and Matthew Windsor (Oxford: Oxford University Press, 2015), 166–168.
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (Judgement), ICJ Reports, 2009, p. 213 para. 66.
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award), Permanent Court of Arbitration 2015, para. 320.
Ibid.
Ibid.
Case no. 2013–19 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) (Award), Permanent Court of Arbitration 2016, para. 959.
Ibid.
COP to the Convention on Biological Diversity, Decision VII/5. Marine and Coastal Biological Diversity, UNEP/CBD/COP/DEC/VII/5, 13 April, 2004, footnote 1.
COP to the Convention on Biological Diversity, Decision IX/20. Marine and Coastal Biodiversity, UNEP/CBD/COP/DEC/IX/20, May 2008, para. 26.
James Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (Oxford: Oxford University Press, 2017), 51.
See for example, United Nations General Assembly (UNGA), Oceans and the Law of the Sea, A/RES/74/19, December 2019, para. 263; United Nations General Assembly (UNGA), Oceans and the Law of the Sea, A/RES/73/124, 31 December, 2018, para. 257; United Nations General Assembly (UNGA), Oceans and the Law of the Sea, A/RES/71/257, December 2016, para. 251; United Nations General Assembly (UNGA), Oceans and the Law of the Sea, A/RES/62/215, December 2017, para. 111; United Nations General Assembly (UNGA), Oceans and the Law of the Sea, A/RES/57/141, December 2002, para. 53.
Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), 108.
United Nations General Assembly (UNGA), Results of the Review by the Commission on Sustainable Development of the Sectoral Theme of “Oceans and Seas”: International Coordination and Cooperation, A/RES/54/33, November 1999, numerals 2 and 3. A list of qualified observers in the sessions and the work of UNGA is found in United Nations General Assembly (UNGA), List of Non-Member States, Entities and Organisations Having Received a Standing Invitation to Participate as Observers in the Sessions and the Work of the General Assembly, A/INF/74/3, August 2019, 1–5.
United Nations General Assembly (UNGA), Report on the Work of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea at its Seventh Meeting, A/61/156 , July 2006, 4.
PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, PAME Secretariat, 2015,
COP to the Convention on Biological Diversity, Decision VII/5 Marine and Coastal Biological Diversity, UNEP/CBD/COP/DEC/VII/5, February 2004, para. 21.
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), para. 540.
Ibid.
David Freestone, ed., “The UN Process to Develop an International Legally Binding Instrument under the 1982 Law of the Sea Convention: Issues and Challenges,” in Conserving Biodiversity in Areas Beyond National Jurisdiction (Leiden: Brill Nijhoff, 2019), 9.
This has been the case of OSPAR’s MPAs in ABNJ. See OSPAR Commission, OSPAR’s Regulatory Regime for Establishing Marine Protected Areas (MPAs) in Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area, OSPAR 09/22/1-E, Annex 6, June 2009, 2.
See Articles 89 and 137 (1) of UNCLOS.
Arctic Ocean Conference, Ilulissat Declaration, Ilulissat, Greenland, 28 May, 2008,
Freestone, “The UN Process to Develop an International Legally Binding Instrument,” 14.
Ibid 3. See also, Christian Prip, “Arctic Ocean Governance in Light of an International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction,” Marine Policy 1 (December 2019),
United Nations General Assembly (UNGA), Oceans and the Law of the Sea, Resolution 59/24, November 2004, para. 73.
United Nations General Assembly (UNGA), 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/72/249, December 2017, para. 2. Other area-based management tools include multisectoral tools, such as marine spatial planning and integrated coastal management as well as single sectoral tools, including for example Particularly Sensitive Sea Area (PSSA) concerning shipping or fisheries closures. This is a classificatory effort developed by the International Union for Conservation of Nature and Natural Resources (IUCN). See IUCN, Measures Such as Area-Based Management Tools, Including Marine Protected Areas, accessed May 28, 2021,
Intergovernmental conference on 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, Textual Proposals Submitted by Delegations in Response to the Invitation by the President of the Conference in her Note of 18 November 2019, A/CONF.232/2020/3, February 2020.
Zoe Scalon, “The Art of “Not Undermining”: Possibilities Within Existing Architecture to Improve Environmental Protections in Areas Beyond National Jurisdiction” ICES Journal of Marine Science 75 (2018): 405–406.
“The term ‘adjacency’, with respect to maritime coastal boundaries, refers to a State’s spatial proximity with the open ocean and deep sea in ABNJ.” D.C. Dunn et al., Adjacency: How Legal Precedent, Ecological Connectivity, and Traditional Knowledge Inform our Understanding of Proximity, Policy Brief, 2017, 1. On adjacency, see also, Alex Oude Elferink, “Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC,” in Conserving Biodiversity in Areas Beyond National Jurisdiction, ed. David Freestone, (Leiden: Brill Nijhoff, 2019).
Erik J. Molenaar, “Multilateral Creeping Coastal State Jurisdiction and the BBNJ Negotiations,” The International Journal of Marine and Coastal Law 36 (2021): 5.
D.C. Dunn et al., Adjacency: How Legal Precedent, Ecological Connectivity, and Traditional Knowledge Inform our Understanding of Proximity, 3.
O.A. Anisimov et al., “Polar regions (Arctic and Antarctic) Climate Change 2007: Impacts, Adaptation and Vulnerability,” in Climate Change 2007: Impacts, Adaptation and Vulnerability Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, eds. M.L Parry et al. (Cambridge: Cambridge University Press, 2007), 669.
CAFF, State of the Arctic Marine Biodiversity: Key Findings and Advice for Monitoring, Arctic Council, 2017, 6,
Koivurova and Caddell, “Managing Biodiversity beyond National Jurisdiction in the Changing Arctic,” 135.
According to the Conservation of Arctic Flora and Fauna (CAFF) working group “Arctic marine species and ecosystems are undergoing pressure from cumulative changes in their physical, chemical and biological environment.” CAFF, State of the Arctic Marine Biodiversity Key Findings and Advice for Monitoring, 9.
Douglas Nord, The Arctic Council: Governance within the Far North (London: Routledge, 2016), chapter 2.
In 2017 the Arctic Council established a mandate for the Task Force on Arctic Marine Cooperation to prepare terms of reference for a “possible new subsidiary body” due to the “increasing need for regional cooperation to promote the conservation and sustainable use of Arctic Marine Environment.” Arctic Council, Fairbanks Declaration: on the Occasion of the Tenth Ministerial Meeting of the Arctic Council, 2017, para. 12
CAFF and PAME, Arctic Protected Areas: Indicator Report, Tom Barry, Hólmgrímur Helgason and Soffía Guðmundsdóttir (Akureyri: CAFF and PAME, 2017), 4,
Dang Vu, Marine Protected Areas Network in the South China Sea: Charting a Course for Future Cooperation, 15.
CAFF, State of the Arctic Marine Biodiversity Key Findings and Advice for Monitoring, 22–26; CAFF and PAME, Arctic Protected Areas: Indicator Report, 1–11; PAME, MPA-Network Toolbox (2015–2017): Area-Based Conservation Measures and Ecological Connectivity, ed. Arctic Council Secretariat, PAME Secretariat, April 2017,
PAME, MPA-Network Toolbox, 78.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (Ilulissat, October 3, 2018, in force 25 June 2021), OJ L 73/3, March 15, 2019.
PAME, Framework for a Pan-Arctic Network of Marine Protected Areas.
Ibid.
COP to the Convention on Biological Diversity, Decision IX/20. Marine and Coastal Biodiversity, 7–11.
See also Daniel Dunn et al., “The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas: Origins, development, and current status,” Marine Policy 49 (2014): 137 for an explanation concerning the relationship between EBSAs and MPAs.
Freestone, “The UN Process to Develop an International Legally Binding Instrument,” 13–14. See also Dunn et al., “The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas: Origins, Development, and Current Status,” 142.
COP to the Convention on Biological Diversity, Decision X/29. Marine and Coastal Biodiversity, October 2010, para. 36.
Arctic Regional Workshop, Report of the Arctic Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine Areas, Helsinki, UNEP/CBD/EBSA/WS/2014/1/5, May 2014, 46,
Arctic Ocean Conference, Ilulissat Declaration, 1–2. See also, Koivurova and Caddell, “Managing Biodiversity beyond National Jurisdiction in the Changing Arctic,” 135.
Linda Jakobson, “China Prepares for An Ice-Free Arctic,” SIPRI Insights on Peace and Security 2 (2010): 1–13.
IBRU: Centre for Borders Research, Continental Shelf Submissions in the Central Arctic Ocean, Durham University Department of Geography, updated April 2021,
Timo Koivurova, “Limits and Possibilities of the Arctic Council in a Rapidly Changing Scene of Arctic Governance,” Polar Record 46 (2010): 146–148.
PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, 16; Det Norske Veritas, Specially Designated Marine Areas in the Arctic High Seas, 2013-1442/17 JTM1D-26, Oslo: Norwegian Environment Agency, March 2014,
PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, 16.
Kamrul Hossain and Kathleen Morris, “Protecting Arctic Ocean Marine Biodiversity in the Area Beyond National Jurisdiction: Plausible Legal Frameworks for Protecting High Arctic Waters,” in The Future of the Law of the Sea: Bridging Gaps Between National, Individual and Common Interests, ed. Gemma Andreone (NYC: Springer 2017): 121.
See article 4 of Annex V. Nele Matz-Lück and Johannes Fuchs, “The Impact of OSPAR on Protected Area Management Beyond National Jurisdiction: Effective Regional Cooperation or a Network of Paper Parks?,” Marine Policy 49 (2014): 155.
OSPAR Commission and North-East Atlantic Fisheries Commission, Collective Arrangement Between Competent International Organisations on Cooperation and Coordination Regarding Selected Areas in Areas Beyond National Jurisdiction in the North‐East Atlantic, (2018).
Richard Caddell, “International Fisheries Law and Interactions with Global Regimes and Processes,” in Strengthening International Fisheries Law in an Era of Changing Oceans, eds. Richard Caddell and Erik J. Molenaar, (Oxford: Hart Publishing, 2019): 154.
OSPAR Commission, OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas, Consolidated Text, Adopted by OSPAR, 2003, para. 3.1.,
OSPAR Commission, OSPAR’s Regulatory Regime for Establishing Marine Protected Areas (MPAs) in Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area, para. 2.5.
See “MPAs in Areas Beyond National Jurisdiction,” Marine Protected Areas, OSPAR Commission, accessed May 28, 2021,
OSPAR Commission, General Consultation Procedures for Establishing Marine Protected Areas in Areas Beyond National Jurisdiction of the OSPAR Maritime Area, OSPAR Agreement 2019‐09, 2019, 1–3,
See section 3.3. of the consultation procedure.
See section 3.2. of the consultation procedure.
The current observers are: China, France, Germany, India, Italy, Japan, Korea, the Netherlands, Poland, Singapore, Spain, Switzerland and the United Kingdom. See “Observers: Non Arctic States,” Arctic Council, accessed May 28, 2021,
State Council Information Office of the People’s Republic of China, China’s Arctic Policy,
European Parliament, An integrated European Union Policy for the Arctic, 2016/2228(INI), European Parliament 2014–2019 P8_TA(2017)0093, Resolution of 16 March 2017, numeral A.
Koivurova and Caddell, “Managing Biodiversity beyond National Jurisdiction in the Changing Arctic,” 138.
The brackets means that the text is under consideration and subject to further negotiation.
Vito De Lucia, “The BBNJ Negotiations and Ecosystem Governance in the Arctic,” Marine Policy 1 (2019), 5–6
Efthymios Papastavridis, “The Negotiations for a New Implementing Agreement Under the UN Convention on the Law of the Sea Concerning Marine Biodiversity,” International and Comparative Law Quarterly 69 (2020), 585–591.
Glen Wright et al., The Long and Winding Road: Negotiating a Treaty for the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction (Paris: IDDRI, 2018), 52.
See comments to Article 6 Textual Proposals Submitted by Delegations in Response to the Invitation by the President of the Conference in her Note of 18 November 2019, A/CONF.232/2020/3, February 2020, 52–56.
See Article 6 bis Textual Proposals Submitted by Delegations in Response to the Invitation by the President of the Conference in her Note of 18 November 2019, A/CONF.232/2020/3, February 2020, 57 and Wright et al., The Long and Winding Road, 54.
Wright et al., The Long and Winding Road, 52.