most likely establish a new regime: free access but with benefit sharing
51 and/or a
common concern of humankind,
52 insofar as it is endowed with any content;
53 or
other new, as yet unformulated proposals. This, in turn, raises the question of this
new option’s compatibility with the current framework.
54
2.4 North East Atlantic Seabed
With regard to MPAs beyond national jurisdiction located in the North East Atlantic,
so far there are three different situations. First, there are two OSPAR MPAs
collectively protected in their entirety (“from top to bottom”, i.e., both the deep
seabed and the water column) by all OSPAR contracting parties.
55 Second, there are
five OSPAR MPAs encompassing only the water column because the status of the
seabed and subsoil is pending decision by the Commission on the Limits of the CS.
In four of these MPAs, the OSPAR contracting party claiming the area (Portugal)
has expressed the intention to assume the responsibility for taking measures to
protect the seabed and subsoil within these areas.
56 In the fifth, the OSPAR
contracting party claiming the area (Iceland) has not assumed any responsibility.
57
Finally, there are three MPAs covering only the seabed and subsoil; these areas are
OSPAR MPAs, although they are not protected collectively but rather by the
51 It remains to be seen what will happen in the intergovernmental conference, but as Tladi (2014,
pp. 122–123) has pointed out, there seem to be three positions regarding the regime that should
apply to marine genetic resources of the deep seabed: freedom of the high seas (most notably the
United States, Canada, Japan and Russia); common heritage of mankind of the Area (the Group of
77 and China); and options for benefit sharing (practical approach initially raised by the EU). That
author points out that, although the developing states continue to defend their initial position
(common heritage of mankind) formally, it seems that many of them would be willing to accept
the intermediate option (benefit sharing).
52 Bowling et al. (2016).
53 The debate over the legal content of the notion “common concern of humankind” has, in some
cases, led to the avoidance of its use in favour of simply referring to the concern of the international
community. See the International Law Commission (2018, pp. 200–201) commentaries to the
fourth preambular paragraph.
54 For example, Hubert and Craik (2018, p. 2) point out that the future treaty “might include
significant benefit sharing elements that could be viewed by some as inconsistent with the basic
rule of common access to high seas resources embodied in other marine agreements”.
55 Charlie-Gibbs South MPA; Milne Seamount Complex MPA.
56 The seabed and subsoil are not an OSPAR MPA; the MPA actually encompasses the column of
water: Mid-Atlantic Ridge North of the Azores Highs Seas MPA; Altair Seamount High Seas MPA;
Antialtair Seamount High Seas MPA; Josephine Seamount Complex Highs Seas MPA.
OSPAR Commission (2019), p. 18.
57 The seabed and the subsoil remain unprotected, but the water column is protected collectively by
all OSPAR contracting parties as an MPA: Charlie-Gibbs North High Seas MPA. Ibid.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
453
51 and/or a
common concern of humankind,
52 insofar as it is endowed with any content;
53 or
other new, as yet unformulated proposals. This, in turn, raises the question of this
new option’s compatibility with the current framework.
54
2.4 North East Atlantic Seabed
With regard to MPAs beyond national jurisdiction located in the North East Atlantic,
so far there are three different situations. First, there are two OSPAR MPAs
collectively protected in their entirety (“from top to bottom”, i.e., both the deep
seabed and the water column) by all OSPAR contracting parties.
55 Second, there are
five OSPAR MPAs encompassing only the water column because the status of the
seabed and subsoil is pending decision by the Commission on the Limits of the CS.
In four of these MPAs, the OSPAR contracting party claiming the area (Portugal)
has expressed the intention to assume the responsibility for taking measures to
protect the seabed and subsoil within these areas.
56 In the fifth, the OSPAR
contracting party claiming the area (Iceland) has not assumed any responsibility.
57
Finally, there are three MPAs covering only the seabed and subsoil; these areas are
OSPAR MPAs, although they are not protected collectively but rather by the
51 It remains to be seen what will happen in the intergovernmental conference, but as Tladi (2014,
pp. 122–123) has pointed out, there seem to be three positions regarding the regime that should
apply to marine genetic resources of the deep seabed: freedom of the high seas (most notably the
United States, Canada, Japan and Russia); common heritage of mankind of the Area (the Group of
77 and China); and options for benefit sharing (practical approach initially raised by the EU). That
author points out that, although the developing states continue to defend their initial position
(common heritage of mankind) formally, it seems that many of them would be willing to accept
the intermediate option (benefit sharing).
52 Bowling et al. (2016).
53 The debate over the legal content of the notion “common concern of humankind” has, in some
cases, led to the avoidance of its use in favour of simply referring to the concern of the international
community. See the International Law Commission (2018, pp. 200–201) commentaries to the
fourth preambular paragraph.
54 For example, Hubert and Craik (2018, p. 2) point out that the future treaty “might include
significant benefit sharing elements that could be viewed by some as inconsistent with the basic
rule of common access to high seas resources embodied in other marine agreements”.
55 Charlie-Gibbs South MPA; Milne Seamount Complex MPA.
56 The seabed and subsoil are not an OSPAR MPA; the MPA actually encompasses the column of
water: Mid-Atlantic Ridge North of the Azores Highs Seas MPA; Altair Seamount High Seas MPA;
Antialtair Seamount High Seas MPA; Josephine Seamount Complex Highs Seas MPA.
OSPAR Commission (2019), p. 18.
57 The seabed and the subsoil remain unprotected, but the water column is protected collectively by
all OSPAR contracting parties as an MPA: Charlie-Gibbs North High Seas MPA. Ibid.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
453