European Union’s external maritime borders are the outer limit of the European
Union Member States’ territorial sea.
This distinction between marine areas that are part of a state and those that are not
but are under its jurisdiction is not irrelevant. Indeed, that is Norway’s argument for
not allowing the inclusion of its EEZ and its CS as part of the European Economic
Area.
62 In contrast, the EEZs and CSs of the European Union Member States are
considered to be part of the European Economic Area due to the functional use that
the European Union makes of the term “territory”.
63 The OSPAR Convention,
which is the framework for the establishment of MPAs beyond national jurisdiction
in the North East Atlantic, has 16 contracting parties; all of them—except Switzerland—are part of the European Economic Area. The environment is covered by
Annex XX of the European Economic Area Agreement.
Very often
64 the marine areas adjacent to national territory are, in turn, adjacent to
ABNJs: waters under national jurisdiction (EEZ) adjacent to those of the high seas,
and the seabed and subsoil under national jurisdiction (CS) adjacent to the deep
seabed. In addition, this horizontal adjacency is sometimes accentuated vertically.
This is the case of extended CSs, in which the seabed and subsoil are under national
jurisdiction whilst the superjacent waters are high seas. Therefore, the state’s
territory is close to the ABNJ but not adjacent to it. It is the EEZ and CS that,
where applicable, are adjacent to the ABNJ.
3.2 Claims Based on Proximity-Adjacency
Certain coastal states claim they deserve a reinforced position in the ABNJs adjacent
to the areas under their jurisdiction. This “creeping jurisdiction” is embodied in a
long-standing practice (unilateral and multilateral actions) and was recently
presented in the preparatory committee debates as “adjacency” or even “the adjacency principle”.
65 Certainly, legal compartmentalisation of the sea does not cause
its physical compartmentalisation. However, this is also the case with neighbouring
62 Meld. St. 5 (2012–2013)—The EEA Agreement and Norway’s other agreements with the
EU, p. 13.
63 See, e.g.: Almestad (2016) and Sobrido-Prieto (2017). Specifically regarding marine environmental protection, see: Johansen (2017).
64 But not always. For example, in the Barents Sea, waters and CS under Norwegian jurisdiction are
adjacent to waters and CS under Russian jurisdiction, with the sole exception of the waters of the
so-called Loop Hole (high seas).
65 The “adjacency” or “adjacency principle” is not mentioned in the Report of the Preparatory
Committee (July 2017) but it was part of the debate. See the Chair’s non-paper (original version
issued on 28 February 2017, pp. 17 and 24), or the streamlined version issued prior to the July
meeting (pp. 10 and 15). From the streamlined version: (. . .) 44. Principle of adjacency. Coastal
States could be allowed a greater role in conserving, managing and regulating access to the
resources of high seas pocket areas” (pp. 10 and 15).
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
455
Union Member States’ territorial sea.
This distinction between marine areas that are part of a state and those that are not
but are under its jurisdiction is not irrelevant. Indeed, that is Norway’s argument for
not allowing the inclusion of its EEZ and its CS as part of the European Economic
Area.
62 In contrast, the EEZs and CSs of the European Union Member States are
considered to be part of the European Economic Area due to the functional use that
the European Union makes of the term “territory”.
63 The OSPAR Convention,
which is the framework for the establishment of MPAs beyond national jurisdiction
in the North East Atlantic, has 16 contracting parties; all of them—except Switzerland—are part of the European Economic Area. The environment is covered by
Annex XX of the European Economic Area Agreement.
Very often
64 the marine areas adjacent to national territory are, in turn, adjacent to
ABNJs: waters under national jurisdiction (EEZ) adjacent to those of the high seas,
and the seabed and subsoil under national jurisdiction (CS) adjacent to the deep
seabed. In addition, this horizontal adjacency is sometimes accentuated vertically.
This is the case of extended CSs, in which the seabed and subsoil are under national
jurisdiction whilst the superjacent waters are high seas. Therefore, the state’s
territory is close to the ABNJ but not adjacent to it. It is the EEZ and CS that,
where applicable, are adjacent to the ABNJ.
3.2 Claims Based on Proximity-Adjacency
Certain coastal states claim they deserve a reinforced position in the ABNJs adjacent
to the areas under their jurisdiction. This “creeping jurisdiction” is embodied in a
long-standing practice (unilateral and multilateral actions) and was recently
presented in the preparatory committee debates as “adjacency” or even “the adjacency principle”.
65 Certainly, legal compartmentalisation of the sea does not cause
its physical compartmentalisation. However, this is also the case with neighbouring
62 Meld. St. 5 (2012–2013)—The EEA Agreement and Norway’s other agreements with the
EU, p. 13.
63 See, e.g.: Almestad (2016) and Sobrido-Prieto (2017). Specifically regarding marine environmental protection, see: Johansen (2017).
64 But not always. For example, in the Barents Sea, waters and CS under Norwegian jurisdiction are
adjacent to waters and CS under Russian jurisdiction, with the sole exception of the waters of the
so-called Loop Hole (high seas).
65 The “adjacency” or “adjacency principle” is not mentioned in the Report of the Preparatory
Committee (July 2017) but it was part of the debate. See the Chair’s non-paper (original version
issued on 28 February 2017, pp. 17 and 24), or the streamlined version issued prior to the July
meeting (pp. 10 and 15). From the streamlined version: (. . .) 44. Principle of adjacency. Coastal
States could be allowed a greater role in conserving, managing and regulating access to the
resources of high seas pocket areas” (pp. 10 and 15).
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
455