MPAs that could be established on the high seas.
88 It remains to be seen what will
happen in the future treaty.
3.3 National Jurisdiction in ABNJs
There are marine areas “under” national jurisdiction (national marine territory, EEZ,
CS), and marine areas “beyond” national jurisdiction (high seas, the Area). However, in ABNJs the regime of freedom of the high seas
89 leads to state jurisdiction.
Hence, vessels located in the high seas must respect the regulations (governing
fishing, navigation, research, the laying and repair of submarine cables and pipelines,
etc.) of their flag state
90 and are subject to the flag state’s control. Other than the port
states’ jurisdiction,
91 and the right of coastal states to intervene on the high seas in
cases of pollution casualties,
92 the general rule on the high seas is the jurisdiction of
the flag state.
If several states agree to take measures to preserve a marine area on the high seas,
the vessels flying the flags of those states must comply with those measures. States
generally do this within the framework of organisations. Thus, North East Atlantic
MPAs are adopted in OSPAR. This will be discussed in the following section.
One particular issue concerning state jurisdiction on the high seas has to do with
ice islands. Despite the attention paid by the literature to the legal status of some sea
ice formations,
93 especially ice islands, the only legal feature of sea ice recognised in
international law of the sea is the “Arctic exception”, which makes it possible to
strengthen the coastal state’s competences within the limits of its EEZ.
94 The legal
uncertainty surrounding ice islands is relevant insofar as they can be occupied. The
occupation of ice islands began in the middle of the last century in the form of
scientific missions undertaken by Americans, Soviets and Canadians,
95 but that is
88 On the concern expressed by some states during the work of the preparatory committee, see, e.g.:
Branco (2017).
89 Art. 87 UNCLOS.
90 See, e.g.: Barnes (2015) and Mansell (2009).
91 Territorial jurisdiction over vessels voluntarily within a port or at an off-shore terminal of a state.
Particularly, the right to enforcement by port states against foreign vessels in respect of discharges
taking place in marine areas beyond their jurisdiction in so far as these discharges were in violation
of applicable international rules and standards (Art. 218 UNCLOS). Ringbom and T. Henriksen
remark that this provision has been relatively sparingly used in practice (Ringbom and Henriksen
2017, p. 28).
92 Art. 221 UNCLOS.
93 Joyner (2001) addresses, from the perspective of international law, the different ice formations
that may occur on land (glacier) or in the sea (sea ice on the surface, blocks of ice on the bottom, and
icebergs formed by detaching from glaciers and that may become true islands of ice).
94 Art. 234 UNCLOS.
95 See Jeffries (1992), pp. 248 and 250.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
459
88 It remains to be seen what will
happen in the future treaty.
3.3 National Jurisdiction in ABNJs
There are marine areas “under” national jurisdiction (national marine territory, EEZ,
CS), and marine areas “beyond” national jurisdiction (high seas, the Area). However, in ABNJs the regime of freedom of the high seas
89 leads to state jurisdiction.
Hence, vessels located in the high seas must respect the regulations (governing
fishing, navigation, research, the laying and repair of submarine cables and pipelines,
etc.) of their flag state
90 and are subject to the flag state’s control. Other than the port
states’ jurisdiction,
91 and the right of coastal states to intervene on the high seas in
cases of pollution casualties,
92 the general rule on the high seas is the jurisdiction of
the flag state.
If several states agree to take measures to preserve a marine area on the high seas,
the vessels flying the flags of those states must comply with those measures. States
generally do this within the framework of organisations. Thus, North East Atlantic
MPAs are adopted in OSPAR. This will be discussed in the following section.
One particular issue concerning state jurisdiction on the high seas has to do with
ice islands. Despite the attention paid by the literature to the legal status of some sea
ice formations,
93 especially ice islands, the only legal feature of sea ice recognised in
international law of the sea is the “Arctic exception”, which makes it possible to
strengthen the coastal state’s competences within the limits of its EEZ.
94 The legal
uncertainty surrounding ice islands is relevant insofar as they can be occupied. The
occupation of ice islands began in the middle of the last century in the form of
scientific missions undertaken by Americans, Soviets and Canadians,
95 but that is
88 On the concern expressed by some states during the work of the preparatory committee, see, e.g.:
Branco (2017).
89 Art. 87 UNCLOS.
90 See, e.g.: Barnes (2015) and Mansell (2009).
91 Territorial jurisdiction over vessels voluntarily within a port or at an off-shore terminal of a state.
Particularly, the right to enforcement by port states against foreign vessels in respect of discharges
taking place in marine areas beyond their jurisdiction in so far as these discharges were in violation
of applicable international rules and standards (Art. 218 UNCLOS). Ringbom and T. Henriksen
remark that this provision has been relatively sparingly used in practice (Ringbom and Henriksen
2017, p. 28).
92 Art. 221 UNCLOS.
93 Joyner (2001) addresses, from the perspective of international law, the different ice formations
that may occur on land (glacier) or in the sea (sea ice on the surface, blocks of ice on the bottom, and
icebergs formed by detaching from glaciers and that may become true islands of ice).
94 Art. 234 UNCLOS.
95 See Jeffries (1992), pp. 248 and 250.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
459