continental shelf. Namely, exclusive jurisdiction for the purpose of exploring and
exploiting its natural resources,
27 with the exception of the obligation to make
contributions to the International Seabed Authority (ISA), in case of exploitation
of non-living resources of the OCS.
28 The exercise of these rights shall not infringe
or unjustifiably interfere with the rights and freedoms of other States provided for by
UNCLOS.
29
The HS represent the water column beyond the exclusive economic zone (EEZ),
the territorial sea, the internal waters or the archipelagic waters of any State.
30 The
HS are subject to the principle of freedom of the HS which includes the following
freedoms: navigation, overflight, laying of pipelines and cables, fishing, scientific
research and construction of artificial islands and installations.
31 These freedoms
should be exercised with due regard for the rights and interests of other States.
32
It is important to point out that the exercise of jurisdiction in both the HS and the
OCS is subject to the obligation to protect and preserve the marine environment, and
the obligation to cooperate and exchange information with other States and International Organizations in its protection and preservation.
33 Nevertheless, these obligations are very broad and do not set specific duties or guidelines for States on how
to cooperate or avoid activities that have a negative impact in the marine environment and its biodiversity.
34
2.1.2 The Legal Framework of MPAs
Even though UNCLOS does not textually provide a legal basis for the establishment
of MPAs, it encourages the use of area-based management tools and other measures
in pursuit of the obligations described above, and MPAs can, with all certainty, be
considered as one of these tools and measures.
35
The protection and preservation of the marine environment through MPAs, in
particular of its marine biodiversity, has not only been widely recognized as the best
mechanism to secure it, but has also become a worldwide political priority.
36
27 Art. 77, UNCLOS; Mossop (2016), p. 176.
28 Art. 82, UNCLOS; Heidar (2004), pp. 35–36.
29 Art. 78, UNCLOS; Mossop (2016), p. 182.
30 Art. 86, UNCLOS; Salpin and Germani (2010), p. 179; Gjerde (2001), p. 524.
31 Art. 87 (1), UNCLOS; Gjerde (2001), p. 524.
32 Art. 87 (2), UNCLOS; Mossop (2016), p. 176; Salpin and Germani (2010), p. 179; Tanaka
(2004), p. 487.
33 Arts 192 to 237, UNCLOS; Jakobsen (2016), pp. 13 and 58–60; Tanaka (2008), pp. 203–205;
Tanaka (2012a), p. 317; Gjerde (2001), p. 515; Heidar (2017), pp. 101–103; Caron and Minas
(2018), pp. 529–552.
34 Jakobsen (2016), pp. 13 and 58–60; Tladi (2015), pp. 659–660.
35 Tladi (2015), p. 657; Jakobsen (2016), pp. 51–52; Scott (2012), p. 851.
36 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24,
Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; United Nations,
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
427
exploiting its natural resources,
27 with the exception of the obligation to make
contributions to the International Seabed Authority (ISA), in case of exploitation
of non-living resources of the OCS.
28 The exercise of these rights shall not infringe
or unjustifiably interfere with the rights and freedoms of other States provided for by
UNCLOS.
29
The HS represent the water column beyond the exclusive economic zone (EEZ),
the territorial sea, the internal waters or the archipelagic waters of any State.
30 The
HS are subject to the principle of freedom of the HS which includes the following
freedoms: navigation, overflight, laying of pipelines and cables, fishing, scientific
research and construction of artificial islands and installations.
31 These freedoms
should be exercised with due regard for the rights and interests of other States.
32
It is important to point out that the exercise of jurisdiction in both the HS and the
OCS is subject to the obligation to protect and preserve the marine environment, and
the obligation to cooperate and exchange information with other States and International Organizations in its protection and preservation.
33 Nevertheless, these obligations are very broad and do not set specific duties or guidelines for States on how
to cooperate or avoid activities that have a negative impact in the marine environment and its biodiversity.
34
2.1.2 The Legal Framework of MPAs
Even though UNCLOS does not textually provide a legal basis for the establishment
of MPAs, it encourages the use of area-based management tools and other measures
in pursuit of the obligations described above, and MPAs can, with all certainty, be
considered as one of these tools and measures.
35
The protection and preservation of the marine environment through MPAs, in
particular of its marine biodiversity, has not only been widely recognized as the best
mechanism to secure it, but has also become a worldwide political priority.
36
27 Art. 77, UNCLOS; Mossop (2016), p. 176.
28 Art. 82, UNCLOS; Heidar (2004), pp. 35–36.
29 Art. 78, UNCLOS; Mossop (2016), p. 182.
30 Art. 86, UNCLOS; Salpin and Germani (2010), p. 179; Gjerde (2001), p. 524.
31 Art. 87 (1), UNCLOS; Gjerde (2001), p. 524.
32 Art. 87 (2), UNCLOS; Mossop (2016), p. 176; Salpin and Germani (2010), p. 179; Tanaka
(2004), p. 487.
33 Arts 192 to 237, UNCLOS; Jakobsen (2016), pp. 13 and 58–60; Tanaka (2008), pp. 203–205;
Tanaka (2012a), p. 317; Gjerde (2001), p. 515; Heidar (2017), pp. 101–103; Caron and Minas
(2018), pp. 529–552.
34 Jakobsen (2016), pp. 13 and 58–60; Tladi (2015), pp. 659–660.
35 Tladi (2015), p. 657; Jakobsen (2016), pp. 51–52; Scott (2012), p. 851.
36 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24,
Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; United Nations,
22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign. . .
427