in the functions of institutions as well as the measures and initiatives they adopt. On
the one hand, the problem of fragmentation is a valid one as regimes in the law of the
sea are largely ‘specialised’ regimes that operate within pre-determined mandates
assigned to it by States. This gives rise to the issue of competence when dealing with
matters that are not assigned to an individual regime, such as the protection of the
marine environment.
59 In the law of the sea, the modern approach of regulating
activities either by sectoral and spatial means has led to numerous occurrences of
shared competence (and in some instances, such as in areas beyond national jurisdiction, of no clear competence). Lack of coordination and even conflict between
regimes, such as differing efforts taken, for instance, is an example where the
proliferation of treaty regimes may not necessarily result in greater outcomes with
respect to the wellbeing of the marine environment.
60
On the other hand, while recognizing that the concern of fragmentation is
valid one, neither is it necessarily the case that the current conditions of multiplicity
in marine environmental protection are wholly dysfunctional, nor does it necessarily
operate as an obstacle to effective marine environmental protection. In fact, this
could mean that the matter at hand is regulated more extensively, such as designating
an ecologically important marine area (taking the example of the Great Barrier Reef
in Australia) as a marine protected area under national law, a ‘special area’ under
MARPOL and a PSSA through the IMO, as well as a World Heritage site under
UNESCO.
61
Thus, even though regimes typically operate in isolation (and yet concurrently) in
the furtherance of their own cause, there is the potential for some convergence,
e.g. the possibility for various measures to be adopted under different mandates to
protect the marine environment. It must be acknowledged, however, that different
regimes have different priorities, and that there are limits to their abilities to adopt
measures that might contradict with the purpose of their design. For instance, the
ISA’s raison d’être is to develop seabed mining regulations. Now, the prevailing
view is that seabed mining could cause potentially irreversible harm to the marine
environment, deep sea ecosystems, and its inhabitants.
62 However, in theory, the
ISA’s mandate to take effective measures to prevent harmful effects to the marine
environment from seabed mining activities provides an avenue to ensuring that some
parts of the international seabed (particularly the most vulnerable and highly sensitive areas) are closed to such activities and are accorded with some levels of
protection from human disturbances. In practice, however, this might not be the
case. In 2017, an exploration license for polymetallic sulphides was granted to
Poland despite it being pointed out to the Council of the ISA by a
non-governmental organization that parts of the concerned area, known informally
59 Harrison (2011), pp. 237–242.
60 Bodansky (2010), p. 35.
61 Van Dyke and Broder (2015), pp. 69–71.
62 Boetius and Matthias (2018).
50
P. A. Singh
the one hand, the problem of fragmentation is a valid one as regimes in the law of the
sea are largely ‘specialised’ regimes that operate within pre-determined mandates
assigned to it by States. This gives rise to the issue of competence when dealing with
matters that are not assigned to an individual regime, such as the protection of the
marine environment.
59 In the law of the sea, the modern approach of regulating
activities either by sectoral and spatial means has led to numerous occurrences of
shared competence (and in some instances, such as in areas beyond national jurisdiction, of no clear competence). Lack of coordination and even conflict between
regimes, such as differing efforts taken, for instance, is an example where the
proliferation of treaty regimes may not necessarily result in greater outcomes with
respect to the wellbeing of the marine environment.
60
On the other hand, while recognizing that the concern of fragmentation is
valid one, neither is it necessarily the case that the current conditions of multiplicity
in marine environmental protection are wholly dysfunctional, nor does it necessarily
operate as an obstacle to effective marine environmental protection. In fact, this
could mean that the matter at hand is regulated more extensively, such as designating
an ecologically important marine area (taking the example of the Great Barrier Reef
in Australia) as a marine protected area under national law, a ‘special area’ under
MARPOL and a PSSA through the IMO, as well as a World Heritage site under
UNESCO.
61
Thus, even though regimes typically operate in isolation (and yet concurrently) in
the furtherance of their own cause, there is the potential for some convergence,
e.g. the possibility for various measures to be adopted under different mandates to
protect the marine environment. It must be acknowledged, however, that different
regimes have different priorities, and that there are limits to their abilities to adopt
measures that might contradict with the purpose of their design. For instance, the
ISA’s raison d’être is to develop seabed mining regulations. Now, the prevailing
view is that seabed mining could cause potentially irreversible harm to the marine
environment, deep sea ecosystems, and its inhabitants.
62 However, in theory, the
ISA’s mandate to take effective measures to prevent harmful effects to the marine
environment from seabed mining activities provides an avenue to ensuring that some
parts of the international seabed (particularly the most vulnerable and highly sensitive areas) are closed to such activities and are accorded with some levels of
protection from human disturbances. In practice, however, this might not be the
case. In 2017, an exploration license for polymetallic sulphides was granted to
Poland despite it being pointed out to the Council of the ISA by a
non-governmental organization that parts of the concerned area, known informally
59 Harrison (2011), pp. 237–242.
60 Bodansky (2010), p. 35.
61 Van Dyke and Broder (2015), pp. 69–71.
62 Boetius and Matthias (2018).
50
P. A. Singh