(in the Area), the principle of freedom of the high seas leads to the jurisdiction of
states (mainly flag states). It is on the basis of this national jurisdiction that international organisations can build their competence in ABNJs. In relation to the MPAs
located beyond national jurisdiction in the North East Atlantic, the relevant organisation is OSPAR (environmental protection). However, to be effective, OSPAR has
to work in conjunction with any other organisation with competence to contribute to
the protection of biodiversity in ABNJs in the North East Atlantic (fisheries,
maritime and air traffic, mining exploitation, etc.). OSPAR has therefore signed
Memoranda of Understanding with some such organisations in order to enhance the
overall effectiveness of the MPAs. The environmental protection of the ABNJ does
not depend on a single organisation; coordination and collaboration between organisations is essential. It is currently organised through agreements concluded by the
organisations themselves, as in the North East Atlantic. The future treaty could
establish other mechanisms.
In addition to the position of any state, there is that of the coastal states. As noted,
classically, there were only two kinds of marine areas: the territory of states and the
high seas. However, over the twentieth century, the high seas were reduced in
various ways. As regards the coastal states, not only was their marine territory
extended, but they were also granted jurisdiction in adjacent areas (EEZ, CS).
Thus, today, there is no adjacency between the marine territory of states and the
high seas. Neither is there adjacency with the deep seabed. In other words, the
external margin of the ABNJ does not border on national marine territories but rather
marine areas under national jurisdiction. Under UNCLOS, other than the case of a
serious pollution casualty threatening its coastline or related interests, the position of
a state with jurisdiction in marine areas bordering ABNJs is no different from that of
any other state. However, in some forums (such as the current UN intergovernmental
conference, but also OSPAR) some states claim a reinforced position as relevant
coastal states. Amongst other things, this claim has been used to deny the OSPAR’s
competence to establish an MPA in its region I (Arctic Waters) with the argument
that, unlike in the Arctic Council, not all the relevant coastal states are parties.
Furthermore, coastal states with extended CSs have a special position for three
main reasons. First, the silence of UNCLOS on the matter makes it impossible to
legally identify the sedentary species within the high seas water column or the deep
seabed. Their management is thus the responsibility of coastal states with regard to
extended CSs (as, for example, in the case of the Loop Hole) and is left to the
competent RFMO/As, where applicable, with regard to ABNJs (as with NEAFC).
However, sedentary species are much more than fishing resources as they can be
exploited as marine genetic resources. That is the approach taken in the intergovernmental conference in relation to sedentary species. The second reason is the harm
caused by high-seas bottom fisheries. It corresponds to RFMO/As to close high seas
areas to bottom fisheries to protect vulnerable marine ecosystems, whether they are
located under national jurisdiction (extended CS) or beyond (deep seabed); hence,
NEAFC’s actions. However, these kinds of measures adopted by RFMO/As can lead
coastal states to react, as happened in the North East Atlantic. Tensions have mostly
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
463
states (mainly flag states). It is on the basis of this national jurisdiction that international organisations can build their competence in ABNJs. In relation to the MPAs
located beyond national jurisdiction in the North East Atlantic, the relevant organisation is OSPAR (environmental protection). However, to be effective, OSPAR has
to work in conjunction with any other organisation with competence to contribute to
the protection of biodiversity in ABNJs in the North East Atlantic (fisheries,
maritime and air traffic, mining exploitation, etc.). OSPAR has therefore signed
Memoranda of Understanding with some such organisations in order to enhance the
overall effectiveness of the MPAs. The environmental protection of the ABNJ does
not depend on a single organisation; coordination and collaboration between organisations is essential. It is currently organised through agreements concluded by the
organisations themselves, as in the North East Atlantic. The future treaty could
establish other mechanisms.
In addition to the position of any state, there is that of the coastal states. As noted,
classically, there were only two kinds of marine areas: the territory of states and the
high seas. However, over the twentieth century, the high seas were reduced in
various ways. As regards the coastal states, not only was their marine territory
extended, but they were also granted jurisdiction in adjacent areas (EEZ, CS).
Thus, today, there is no adjacency between the marine territory of states and the
high seas. Neither is there adjacency with the deep seabed. In other words, the
external margin of the ABNJ does not border on national marine territories but rather
marine areas under national jurisdiction. Under UNCLOS, other than the case of a
serious pollution casualty threatening its coastline or related interests, the position of
a state with jurisdiction in marine areas bordering ABNJs is no different from that of
any other state. However, in some forums (such as the current UN intergovernmental
conference, but also OSPAR) some states claim a reinforced position as relevant
coastal states. Amongst other things, this claim has been used to deny the OSPAR’s
competence to establish an MPA in its region I (Arctic Waters) with the argument
that, unlike in the Arctic Council, not all the relevant coastal states are parties.
Furthermore, coastal states with extended CSs have a special position for three
main reasons. First, the silence of UNCLOS on the matter makes it impossible to
legally identify the sedentary species within the high seas water column or the deep
seabed. Their management is thus the responsibility of coastal states with regard to
extended CSs (as, for example, in the case of the Loop Hole) and is left to the
competent RFMO/As, where applicable, with regard to ABNJs (as with NEAFC).
However, sedentary species are much more than fishing resources as they can be
exploited as marine genetic resources. That is the approach taken in the intergovernmental conference in relation to sedentary species. The second reason is the harm
caused by high-seas bottom fisheries. It corresponds to RFMO/As to close high seas
areas to bottom fisheries to protect vulnerable marine ecosystems, whether they are
located under national jurisdiction (extended CS) or beyond (deep seabed); hence,
NEAFC’s actions. However, these kinds of measures adopted by RFMO/As can lead
coastal states to react, as happened in the North East Atlantic. Tensions have mostly
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
463