the Protection of the Marine Environment of the North-East Atlantic,
18 a recommendation
19 also contains a definition: “‘marine protected area’ means an area
within the maritime area for which protective, conservation, restorative or precautionary measures consistent with international law have been instituted for the
purpose of protecting and conserving species, habitats, ecosystems or ecological
processes of the marine environment”. The elements which are worth highlighting,
taking into account these definitions, are the legal mechanisms based on the establishment of these areas and their conformity with international law.
20 The establishment and implementation of these areas, either in spaces under national jurisdiction
or beyond, is generally accepted and promoted. In this context, it is also recognized
that the activities of conservation and exploitation must be compatible with the
regime of UNCLOS applicable to such spaces, and that these activities must respect
the precautionary principle, the ecosystem approach and the environmental impact.
21
In all cases, one should accept that some elements play a key role, namely the need to
ensure a solid scientific basis; establishing efficient systems of control and surveillance of the activities developed in these areas and of the restrictions that can take
place therein and the socio-economic implications, in particular those arising from
‘no take’ areas. Against this background, we should highlight elements that deserve
present and future consideration. Firstly, MPAs are an instrument, among others,
designed to manage marine resources and so efforts must be made in the sense of the
combined use of existing mechanisms. The establishment of these areas should also
take place by way of instruments of a binding nature or ensuring effective implementation. Secondly, we should mention the probable interference of conventional
regimes adopted in areas beyond national jurisdiction, where the appropriate
regional organizations play a role of regulation and enforcement, with the rights
and freedoms enjoyed by third States. In any event, if one takes into account the
pertinent provisions of UNCLOS,
22 one should conclude that the legal frameworks
instituting these areas must, in all cases, be deemed compatible with such provisions.
In order to ensure such conformity, it is important to avoid, at internal level, the
overlapping of potentially conflictual legislation and to render maximum clarity to
the relevant normative frameworks.
The United Nations Conference on the instrument on the conservation and
management of marine biodiversity in areas beyond national jurisdiction
23 will
have to deal with four items relevant to the exploitation of living marine resources:
18 The Convention entered into force on 25 March 1998.
19 Recommendation 2003/3 on a Network of Marine Protected Areas.
20 Cf., in general, Bailey (1996), pp. 544–579; Cochrane (2007), pp. 701–737; Tanaka (2008),
pp. 161–206; Scott (2013), pp. 175–183.
21 Cf. the Document of the United Nations General Assembly A/61/65 of 20 March 2006.
22 Arts 62 (4) (c), 117 and 192, UNCLOS.
23 Resolution 72/249 of 24 December 2017 of the United Nations General Assembly on the
international legally binding instrument under the UNCLOS on the conservation and sustainable
use of marine biological diversity in areas beyond national jurisdiction. Cf. also Resolution 69/292
of 6 July 2015.
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F. C. Cardoso
18 a recommendation
19 also contains a definition: “‘marine protected area’ means an area
within the maritime area for which protective, conservation, restorative or precautionary measures consistent with international law have been instituted for the
purpose of protecting and conserving species, habitats, ecosystems or ecological
processes of the marine environment”. The elements which are worth highlighting,
taking into account these definitions, are the legal mechanisms based on the establishment of these areas and their conformity with international law.
20 The establishment and implementation of these areas, either in spaces under national jurisdiction
or beyond, is generally accepted and promoted. In this context, it is also recognized
that the activities of conservation and exploitation must be compatible with the
regime of UNCLOS applicable to such spaces, and that these activities must respect
the precautionary principle, the ecosystem approach and the environmental impact.
21
In all cases, one should accept that some elements play a key role, namely the need to
ensure a solid scientific basis; establishing efficient systems of control and surveillance of the activities developed in these areas and of the restrictions that can take
place therein and the socio-economic implications, in particular those arising from
‘no take’ areas. Against this background, we should highlight elements that deserve
present and future consideration. Firstly, MPAs are an instrument, among others,
designed to manage marine resources and so efforts must be made in the sense of the
combined use of existing mechanisms. The establishment of these areas should also
take place by way of instruments of a binding nature or ensuring effective implementation. Secondly, we should mention the probable interference of conventional
regimes adopted in areas beyond national jurisdiction, where the appropriate
regional organizations play a role of regulation and enforcement, with the rights
and freedoms enjoyed by third States. In any event, if one takes into account the
pertinent provisions of UNCLOS,
22 one should conclude that the legal frameworks
instituting these areas must, in all cases, be deemed compatible with such provisions.
In order to ensure such conformity, it is important to avoid, at internal level, the
overlapping of potentially conflictual legislation and to render maximum clarity to
the relevant normative frameworks.
The United Nations Conference on the instrument on the conservation and
management of marine biodiversity in areas beyond national jurisdiction
23 will
have to deal with four items relevant to the exploitation of living marine resources:
18 The Convention entered into force on 25 March 1998.
19 Recommendation 2003/3 on a Network of Marine Protected Areas.
20 Cf., in general, Bailey (1996), pp. 544–579; Cochrane (2007), pp. 701–737; Tanaka (2008),
pp. 161–206; Scott (2013), pp. 175–183.
21 Cf. the Document of the United Nations General Assembly A/61/65 of 20 March 2006.
22 Arts 62 (4) (c), 117 and 192, UNCLOS.
23 Resolution 72/249 of 24 December 2017 of the United Nations General Assembly on the
international legally binding instrument under the UNCLOS on the conservation and sustainable
use of marine biological diversity in areas beyond national jurisdiction. Cf. also Resolution 69/292
of 6 July 2015.
116
F. C. Cardoso