International Maritime Organization or the International Seabed Authority), and
regional fisheries organizations or regional environmental frameworks have the
power to design sectorial and/or regional “protected areas”.
54 However, those
areas are only binding for member States of a specific organization, and the designation does not usually cover all the maritime areas or all activities at sea, thus
limiting the efficiency of these tools. This also explains the slow and limited
development of area-based management tools in areas beyond national jurisdiction
so far. The future regime, then, could be based on a global and centralized approach,
permitting the construction of a coherent network of marine protected areas (MPAs),
applicable to all members of the future agreement. It could also be designed
according to a regional approach, only encouraging the development of the regional
framework, or a “hybrid approach” could also be adopted, comprising both global
and regional perspectives. The European Union is advocating for the creation of a
hybrid regime for the creation of marine protected areas that is not totally centralized,
in order not to undermine the mandate of the regional organizations but without
overemphasizing the regional perspective. The hybrid approach calls for “including
in the MPA network those MPAs established under existing bodies; and further
elaborating on compatibility”, taking into account the relationship with future
measures to promote coherence and cooperation while underscoring the need for
reporting on implementation.
55 The main obstacle to the implementation of this
hybrid approach is the issue of enforceability of measures proposed by a global
secretariat (through the preparation of a draft management plan for instance or
general guidelines) but formally adopted at the regional level only.
Moreover, coastal States are strongly concerned by the future regime, not only
because the areas beyond national jurisdiction are adjacent to their maritime zones,
but also because there is an overlap between their extended continental shelf and the
high seas. The interests of the coastal States—including, some EU States—towards
the reaffirmation of their sovereignty over their extended continental shelf, are
significant issues for discussion, especially concerning the question of the establishment of an international regime for the creation of marine protected areas. For
instance, one of the questions raised within the Preparatory Committee is whether
the consent of the coastal State should be required for the creation of a protected area
in the water column situated over its continental shelf. Such consent would, on the
one hand, protect the sovereign rights of the coastal State for the exploitation of the
54 Rochette et al. (2015).
55 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, pp. 11–12 and IISD Reporting
service, “Summary of the First Session of the Intergovernmental Conference on an International
Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation
and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September
2018”, pp. 6–9. The EU, moreover, “suggested that: proposals include socio-economic mitigation
measures; and management plans, as part of final decisions, include measures identified by
competent international organizations and a communication strategy towards affected stakeholders”, showing one’s again its pragmatic approach. Oude Elferink (2018), pp. 437–466.
20 The European Union and the Future International Legally Binding Instrument on. . .
393
regional fisheries organizations or regional environmental frameworks have the
power to design sectorial and/or regional “protected areas”.
54 However, those
areas are only binding for member States of a specific organization, and the designation does not usually cover all the maritime areas or all activities at sea, thus
limiting the efficiency of these tools. This also explains the slow and limited
development of area-based management tools in areas beyond national jurisdiction
so far. The future regime, then, could be based on a global and centralized approach,
permitting the construction of a coherent network of marine protected areas (MPAs),
applicable to all members of the future agreement. It could also be designed
according to a regional approach, only encouraging the development of the regional
framework, or a “hybrid approach” could also be adopted, comprising both global
and regional perspectives. The European Union is advocating for the creation of a
hybrid regime for the creation of marine protected areas that is not totally centralized,
in order not to undermine the mandate of the regional organizations but without
overemphasizing the regional perspective. The hybrid approach calls for “including
in the MPA network those MPAs established under existing bodies; and further
elaborating on compatibility”, taking into account the relationship with future
measures to promote coherence and cooperation while underscoring the need for
reporting on implementation.
55 The main obstacle to the implementation of this
hybrid approach is the issue of enforceability of measures proposed by a global
secretariat (through the preparation of a draft management plan for instance or
general guidelines) but formally adopted at the regional level only.
Moreover, coastal States are strongly concerned by the future regime, not only
because the areas beyond national jurisdiction are adjacent to their maritime zones,
but also because there is an overlap between their extended continental shelf and the
high seas. The interests of the coastal States—including, some EU States—towards
the reaffirmation of their sovereignty over their extended continental shelf, are
significant issues for discussion, especially concerning the question of the establishment of an international regime for the creation of marine protected areas. For
instance, one of the questions raised within the Preparatory Committee is whether
the consent of the coastal State should be required for the creation of a protected area
in the water column situated over its continental shelf. Such consent would, on the
one hand, protect the sovereign rights of the coastal State for the exploitation of the
54 Rochette et al. (2015).
55 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, pp. 11–12 and IISD Reporting
service, “Summary of the First Session of the Intergovernmental Conference on an International
Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation
and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September
2018”, pp. 6–9. The EU, moreover, “suggested that: proposals include socio-economic mitigation
measures; and management plans, as part of final decisions, include measures identified by
competent international organizations and a communication strategy towards affected stakeholders”, showing one’s again its pragmatic approach. Oude Elferink (2018), pp. 437–466.
20 The European Union and the Future International Legally Binding Instrument on. . .
393