fisheries conducted within an area under the jurisdiction of a contracting party if the
contracting party in question so requests.
33
A different issue concerning sedentary species in ABNJs is the regulation of
activities that take place in the water column beyond national jurisdiction (high seas)
and can harm sedentary species. Of particular interest are bottom fisheries
34 that
impact vulnerable marine ecosystems.
35 It corresponds to RFMO/As to close high
seas areas to bottom fisheries to protect vulnerable marine ecosystems,
36 whether
these vulnerable marine ecosystems are located under national jurisdiction (extended
CSs) or beyond (deep seabed). However, this does not prevent tensions from arising
with the affected coastal state.
37 As will be outlined below, this occurs in the North
East Atlantic.
2.2 Recognition of the Area and Its Resources as Common
Heritage of Mankind
According to UNCLOS, “The Area and its resources are the common heritage of
mankind.”
38 In this regard, is the Area synonymous with the deep seabed?
33 At the time of the amendment of the NEAFC Convention, Molenaar (2007, p. 125) stated that “As
regards the new NEAFC Convention, the term ‘jurisdiction’ replaces the term ‘fisheries jurisdiction’ in Arts 5 and 6. This means that NEAFC will only regulate sedentary species on coastal States’
outer continental shelves if these coastal States so request.”
34 According to the definition used by NEAFC, “bottom fishing activities means the use of fishing
gear that is likely to contact the seafloor during the normal course of fishing operations”. See Article
2.a) of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC
Regulatory Area (NEAFC Recommendation 19:2014, as amended by Recommendations 09:2015
and 10:2018).
35 NEAFC refers to FAO. For NEAFC, “vulnerable marine ecosystems, hereafter VMEs, has the
same meaning and characteristics as those contained in paragraphs 42 and 43 of the FAO
International Guidelines for the Management of Deep-Sea Fisheries in the High Seas” (Article 2.
g), NEAFC Recommendation 19:2014). And according to the cited paragraphs of the FAO
Guidelines: “42. A marine ecosystem should be classified as vulnerable based on the characteristics
that it possesses. The following list of characteristics should be used as criteria in the identification
of VMEs. i. Uniqueness or rarity (. . .). ii. Functional significance of the habitat (. . .). iii. Fragility
(. . .). iv. Life-history traits of component species that make recovery difficult (. . .). v. Structural
complexity (. . .). Examples of potentially vulnerable species groups, communities and habitats, as
well as features that potentially support them are contained in the Annex. 43. These criteria should
be adapted and additional criteria should be developed as experience and knowledge accumulate, or
to address particular local or regional needs” (FAO 2008).
36 On the role of RFMOs in protecting vulnerable marine ecosystems through bottom fisheries
closures in ABNJs, see: Wright et al. (2015).
37 Takei (2013), p. 197.
38 Art. 136 UNCLOS.
450
M. Sobrido-Prieto
contracting party in question so requests.
33
A different issue concerning sedentary species in ABNJs is the regulation of
activities that take place in the water column beyond national jurisdiction (high seas)
and can harm sedentary species. Of particular interest are bottom fisheries
34 that
impact vulnerable marine ecosystems.
35 It corresponds to RFMO/As to close high
seas areas to bottom fisheries to protect vulnerable marine ecosystems,
36 whether
these vulnerable marine ecosystems are located under national jurisdiction (extended
CSs) or beyond (deep seabed). However, this does not prevent tensions from arising
with the affected coastal state.
37 As will be outlined below, this occurs in the North
East Atlantic.
2.2 Recognition of the Area and Its Resources as Common
Heritage of Mankind
According to UNCLOS, “The Area and its resources are the common heritage of
mankind.”
38 In this regard, is the Area synonymous with the deep seabed?
33 At the time of the amendment of the NEAFC Convention, Molenaar (2007, p. 125) stated that “As
regards the new NEAFC Convention, the term ‘jurisdiction’ replaces the term ‘fisheries jurisdiction’ in Arts 5 and 6. This means that NEAFC will only regulate sedentary species on coastal States’
outer continental shelves if these coastal States so request.”
34 According to the definition used by NEAFC, “bottom fishing activities means the use of fishing
gear that is likely to contact the seafloor during the normal course of fishing operations”. See Article
2.a) of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC
Regulatory Area (NEAFC Recommendation 19:2014, as amended by Recommendations 09:2015
and 10:2018).
35 NEAFC refers to FAO. For NEAFC, “vulnerable marine ecosystems, hereafter VMEs, has the
same meaning and characteristics as those contained in paragraphs 42 and 43 of the FAO
International Guidelines for the Management of Deep-Sea Fisheries in the High Seas” (Article 2.
g), NEAFC Recommendation 19:2014). And according to the cited paragraphs of the FAO
Guidelines: “42. A marine ecosystem should be classified as vulnerable based on the characteristics
that it possesses. The following list of characteristics should be used as criteria in the identification
of VMEs. i. Uniqueness or rarity (. . .). ii. Functional significance of the habitat (. . .). iii. Fragility
(. . .). iv. Life-history traits of component species that make recovery difficult (. . .). v. Structural
complexity (. . .). Examples of potentially vulnerable species groups, communities and habitats, as
well as features that potentially support them are contained in the Annex. 43. These criteria should
be adapted and additional criteria should be developed as experience and knowledge accumulate, or
to address particular local or regional needs” (FAO 2008).
36 On the role of RFMOs in protecting vulnerable marine ecosystems through bottom fisheries
closures in ABNJs, see: Wright et al. (2015).
37 Takei (2013), p. 197.
38 Art. 136 UNCLOS.
450
M. Sobrido-Prieto