three other OSPAR MPAs beyond national jurisdiction protected only by the
contracting party claiming the area.
16
Both processes, i.e. in the CCAMLR and the OSPAR Commission, are complex
and relevant in different ways.
17 Given the special status of Antarctica as a space of
collective environmental management where territorial claims have remained
unresolved and frozen for decades,
18 CCAMLR is not a standard reference to
observe; especially considering the increasing importance of the “relevant coastal
states” in the debate about marine protection in ABNJs, in particular when those
states have—or claim—extended CSs. On the contrary, the North East Atlantic experience provides a good reference.
This chapter will first address the geographic scope of MPAs beyond national
jurisdiction (Sect. 2), which is controversial in relation to the seabed, in terms of both
jurisdiction over sedentary species and the scope of the recognition of the Area and
its resources as common heritage of mankind. Second, it will analyse the role played
by state jurisdiction (Sect. 3); in the case of the coastal states, because of their
proximity, and in all others, because of their status as a flag state.
2 Marine Areas Beyond National Jurisdiction
Classically, there were two marine areas: the belt of sea adjacent to the land territory
that was part of the national territory and, therefore, subject to national sovereignty;
and the high seas, governed by the principle of freedom. Over the twentieth century,
the high seas were reduced in two ways.
19 First, they were reduced in favour of the
coastal states, not only because their territory increased as a consequence of the
greater breadth of the territorial sea, but also, and mainly, because of the recognition
of certain competences and jurisdiction in adjacent marine spaces: the contiguous
2010/2); Altair Seamount High Seas MPA (OSPAR Decision 2010/3); Antialtair Seamount High
Seas MPA (OSPAR Decision 2010/4); Josephine Seamount High Seas MPA (OSPAR Decision
2010/5); and Mid-Atlantic Ridge North of the Azores High Seas MPA (OSPAR Decision 2010/6).
One MPA beyond national jurisdiction was established in 2012: Charlie-Gibbs North High Seas
MPA (OSPAR Decision 2012/1).
16 Rainbow Hydrothermal Vent Field MPA (Portugal, 2006); Hatton-Rockall Basin (United Kingdom, 2011); Hatton Bank SAC (United Kingdom, 2012).
17 “The Southern Ocean MPAs were adopted by Members of the (. . .) (CCAMLR) in a complex,
slow and challenging process. The North-East Atlantic MPAs were established under the OSPAR
Convention and although the MPA network was established swiftly, doubts remain about whether it
was a successful institutional development for the protection of marine biodiversity or just a
network of ‘paper parks’” (Smith and Jabour 2018, p. 417).
18 The Antarctic Treaty was signed in 1959 and entered into force in 1961. The number of Parties to
the Treaty is now 54. According to Art. IV, the Treaty freezes any territorial claim.
19 Regarding this development, see e.g. Jiménez Piernas (2013).
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M. Sobrido-Prieto
contracting party claiming the area.
16
Both processes, i.e. in the CCAMLR and the OSPAR Commission, are complex
and relevant in different ways.
17 Given the special status of Antarctica as a space of
collective environmental management where territorial claims have remained
unresolved and frozen for decades,
18 CCAMLR is not a standard reference to
observe; especially considering the increasing importance of the “relevant coastal
states” in the debate about marine protection in ABNJs, in particular when those
states have—or claim—extended CSs. On the contrary, the North East Atlantic experience provides a good reference.
This chapter will first address the geographic scope of MPAs beyond national
jurisdiction (Sect. 2), which is controversial in relation to the seabed, in terms of both
jurisdiction over sedentary species and the scope of the recognition of the Area and
its resources as common heritage of mankind. Second, it will analyse the role played
by state jurisdiction (Sect. 3); in the case of the coastal states, because of their
proximity, and in all others, because of their status as a flag state.
2 Marine Areas Beyond National Jurisdiction
Classically, there were two marine areas: the belt of sea adjacent to the land territory
that was part of the national territory and, therefore, subject to national sovereignty;
and the high seas, governed by the principle of freedom. Over the twentieth century,
the high seas were reduced in two ways.
19 First, they were reduced in favour of the
coastal states, not only because their territory increased as a consequence of the
greater breadth of the territorial sea, but also, and mainly, because of the recognition
of certain competences and jurisdiction in adjacent marine spaces: the contiguous
2010/2); Altair Seamount High Seas MPA (OSPAR Decision 2010/3); Antialtair Seamount High
Seas MPA (OSPAR Decision 2010/4); Josephine Seamount High Seas MPA (OSPAR Decision
2010/5); and Mid-Atlantic Ridge North of the Azores High Seas MPA (OSPAR Decision 2010/6).
One MPA beyond national jurisdiction was established in 2012: Charlie-Gibbs North High Seas
MPA (OSPAR Decision 2012/1).
16 Rainbow Hydrothermal Vent Field MPA (Portugal, 2006); Hatton-Rockall Basin (United Kingdom, 2011); Hatton Bank SAC (United Kingdom, 2012).
17 “The Southern Ocean MPAs were adopted by Members of the (. . .) (CCAMLR) in a complex,
slow and challenging process. The North-East Atlantic MPAs were established under the OSPAR
Convention and although the MPA network was established swiftly, doubts remain about whether it
was a successful institutional development for the protection of marine biodiversity or just a
network of ‘paper parks’” (Smith and Jabour 2018, p. 417).
18 The Antarctic Treaty was signed in 1959 and entered into force in 1961. The number of Parties to
the Treaty is now 54. According to Art. IV, the Treaty freezes any territorial claim.
19 Regarding this development, see e.g. Jiménez Piernas (2013).
446
M. Sobrido-Prieto