Despite having no universally agreed legal definition, the notion of MPA covers a
wide range of marine areas established for different purposes and on different legal
basis, in which specific restrictions are applicable.
37 It is precisely due to this broad
range of purposes and protective/restrictive measures that MPAs need to be
established in the context of the particular legal and institutional framework in
which the selected area will lie.
38
The Legal Framework of MPAs in the OCS
As part of AWNJ, the mandate for the establishment of MPAs in the OCS lies with
the coastal State alone.
39 Even though not explicitly described in UNCLOS, the term
“sovereign rights for the purpose of exploring and exploiting its natural resources” is
regarded to include both prescriptive and enforcement jurisdiction and therefore, the
jurisdiction over the enforcement of protective measures of MPAs in the OCS of a
coastal State falls within the responsibility of that coastal State.
40
As such, it is clear that, in the OCS, the coastal State can, not only establish MPAs
but also, adopt measures that prevent his own vessels from undertaking certain
activities.
41 It remains unclear however, if such unilateral measures can also bind
vessels flying other flags, especially when such measures are not targeting sedentary
species.
42
The Legal Framework of MPAs in the HS
As part of ABNJ, no State is entitled to unilaterally establish MPAs, or to adopt
regulations on foreign vessels or other activities, in the HS that are binding upon
other States without their consent.
43
As a consequence of the principle of freedom of the HS, all States must agree with
the establishment of MPAs in the HS for them to acquire universal binding force and
recognition.
44 Accordingly, cooperation between States through agreements to
General Assembly, Letter dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended
Informal Working Group to the President of the General Assembly, A/65/68, 17 March 2010,
12, para. 58; See also Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended
Informal Working Group to the President of the General Assembly, A/66/119, 30 June 2011,
6, para. 23; Ribeiro (2014), pp. 179–181.
37 Salpin and Germani (2010), pp. 177–178; Jakobsen (2016), pp. 5–6; Wolf and Bischoff (2013).
38 Ibid.
39 Jakobsen (2016), pp. 19 and 61.
40 Jakobsen (2016), pp. 19, 50 and 61.
41 Wright et al. (2015), p. 182.
42 Wright et al. (2015), pp. 182–183; Jakobsen (2016), p. 49.
43 Jakobsen (2016), pp. 19 and 54; Tanaka (2012b), pp. 315–317.
44 Jakobsen (2016), pp. 52–53 and 61; Tanaka (2012b), pp. 315–317.
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I. Aguiar Branco
wide range of marine areas established for different purposes and on different legal
basis, in which specific restrictions are applicable.
37 It is precisely due to this broad
range of purposes and protective/restrictive measures that MPAs need to be
established in the context of the particular legal and institutional framework in
which the selected area will lie.
38
The Legal Framework of MPAs in the OCS
As part of AWNJ, the mandate for the establishment of MPAs in the OCS lies with
the coastal State alone.
39 Even though not explicitly described in UNCLOS, the term
“sovereign rights for the purpose of exploring and exploiting its natural resources” is
regarded to include both prescriptive and enforcement jurisdiction and therefore, the
jurisdiction over the enforcement of protective measures of MPAs in the OCS of a
coastal State falls within the responsibility of that coastal State.
40
As such, it is clear that, in the OCS, the coastal State can, not only establish MPAs
but also, adopt measures that prevent his own vessels from undertaking certain
activities.
41 It remains unclear however, if such unilateral measures can also bind
vessels flying other flags, especially when such measures are not targeting sedentary
species.
42
The Legal Framework of MPAs in the HS
As part of ABNJ, no State is entitled to unilaterally establish MPAs, or to adopt
regulations on foreign vessels or other activities, in the HS that are binding upon
other States without their consent.
43
As a consequence of the principle of freedom of the HS, all States must agree with
the establishment of MPAs in the HS for them to acquire universal binding force and
recognition.
44 Accordingly, cooperation between States through agreements to
General Assembly, Letter dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended
Informal Working Group to the President of the General Assembly, A/65/68, 17 March 2010,
12, para. 58; See also Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended
Informal Working Group to the President of the General Assembly, A/66/119, 30 June 2011,
6, para. 23; Ribeiro (2014), pp. 179–181.
37 Salpin and Germani (2010), pp. 177–178; Jakobsen (2016), pp. 5–6; Wolf and Bischoff (2013).
38 Ibid.
39 Jakobsen (2016), pp. 19 and 61.
40 Jakobsen (2016), pp. 19, 50 and 61.
41 Wright et al. (2015), p. 182.
42 Wright et al. (2015), pp. 182–183; Jakobsen (2016), p. 49.
43 Jakobsen (2016), pp. 19 and 54; Tanaka (2012b), pp. 315–317.
44 Jakobsen (2016), pp. 52–53 and 61; Tanaka (2012b), pp. 315–317.
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I. Aguiar Branco