Biodiversity beyond national jurisdiction (BBNJ) Blog Ecosystem approach Law of the Sea Convention (UNCLOS) Marine Protected Areas Rights of Nature

Introduction to the outcomes of the 2023 NCLOS Conference on “Ocean Commons”

By: Konstantinos Deligiannis-Virvos (UiT, Norwegian Centre for the Law of the Sea)

Matter commented on: NCLOS Conference on Ocean Commons, 1-3 November 2023, Tromsø, Norway.


The term “commons” usually brings into mind the problem of the tragedy of the commons: a concept in environmental science and economics that describes a situation in which individuals belonging to a group, acting out of self-interest, deplete shared resources, leading to the detriment of the entire group (Hardin, 1968). Within the law of the sea, the term “ocean commons” generally refers to marine areas beyond national jurisdiction, where no State holds sovereignty, sovereign rights, or exclusive jurisdiction. This designation aligns with the United Nations Convention for the Law of the Sea (UNCLOS), which distinguishes between maritime zones under national jurisdiction and areas beyond national jurisdiction.

Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Recognizing Recognition: An Indispensable Element in a Global Regime for High Seas Marine Protected Areas

By: Bastiaan Ewoud Klerk

Matter commented on: Recognition of regional and sectoral marine protected areas (MPAs) under the international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ)

PDF Version: Bastiaan E Klerk_270722_NCLOS_blog post.pdf

1         Introduction

In the midst of global biodiversity and climate crises, global policymakers are resuming negotiations for a new implementing agreement under United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ) in August 2022 (UN General Assembly Resolution 76/564). Following the fourth session of the intergovernmental conference (IGC-) in March, which by some has been remarked the “most productive of the entire process” (IISD, IGC-4 summary, at p. 20), expectations for the fifth session of the IGC- (IGC-5) are high. Given the unprecedented decline of global biodiversity, with a recorded average 68% decrease in monitored populations of mammals, birds, amphibians, reptiles and fish between 1970 and 2016, (WWF Living Planet Report, 2020) there is an obvious and urgent need for a treaty that allows for better protection of high seas biodiversity. The high seas, covering approximately half the Earth and comprising nearly 95% of the ocean’s total volume, are an indispensable link in global efforts to halt biodiversity loss (Parliaments for Global Action, 2020). They harbour diverse and abundant life and are essential to many species who migrate through and over them – whales, seals, tuna sharks, albatross, and many more. Yet, at present, only 1,2% of the high seas are covered by marine protected areas (MPAs) (Protected Planet Report, 2020).

Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Can the BBNJ Treaty Support Dynamic Management for Arctic MPAs?

By: Andrea M. Fisher

Matter commented on: BBNJ Treaty and dynamic management of MPAs

PDF Version: Fisher_BlogPost_26052022-_Final.pdf

1. Introduction

The ongoing negotiations for a global treaty on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) in part seek to fill the legal and governance gap for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ). The likely outcome — an Internationally Legally Binding Instrument (ILBI) — will facilitate the designation of new MPAs in ABNJ. Since negotiations are ongoing, a platform remains for discussing how the MPA mechanism of the ILBI can support advances in science and technology and potentially better respond to evolving risks to BBNJ.

This blog post, based on the author’s master’s thesis (Fisher, ‘‘Technical and Legal Implications for Dynamic Legalities…,’ 2021’’ and hereafter, ‘Fisher, LL.M. Thesis, 2021’), highlights one novel approach to area-based management called Dynamic Ocean Management (DOM). With DOM, spatial and temporal regulatory measures can constantly be updated to reflect changes to the marine environment in near real-time (see, e.g., Welch et al., 2019). For MPAs, it can lead to ongoing shifts of protected area boundaries or management regulations based on new ocean conditions (e.g., the presence of a vulnerable species). The approach could prove especially effective for conservation of BBNJ in marine environments facing rapid change and uncertainty, such as the Central Arctic Ocean (hereafter, Central Arctic Ocean is used to describe the ABNJ of the Central Arctic Ocean).

Scholars have discussed DOM’s promising potential for BBNJ conservation (see, Crespo et al., 2020 and Maxwell et al., 2020), inspiring a more specific question addressed in this post: how can the BBNJ Treaty accommodate DOM decision-making for Arctic MPAs? The decision-making focus is due to a notable juxtaposition: DOM’s ongoing, near real-time decision-making process and international law’s consent-based procedures that value stability and certainty. The Arctic focus emerges due to the potential usefulness of a DOM approach for a rapidly changing Central Arctic Ocean and simultaneously grounds the discussion in specific BBNJ relevant entities and context. Before exploring how the ILBI could support a DOM approach to Arctic MPAs, a brief overview of DOM and its potential for Central Arctic Ocean MPAs is provided.

Fisheries Marine Protected Areas

The Chagos Marine Protected Area Arbitral Award and its Ruling on Fishing Rights

By: Endalew Lijalem Enyew

PDF Version: The Chagos Marine Protected Area Arbitral Award and its Ruling on Fishing Rights

Decision commented on:  The Matter of the Chagos Marine Protected Area Arbitration, Between the Republic of Mauritius and The United Kingdom of Great Britain and Northern Ireland (hereafter UK), Award of 18 March 2015 (Registry, the Permanent Court of Arbitration).

Pursuant to Articles 286, 287 and Article 1 of Annex VII of the Convention on the Law of the Sea (LOSC), on 20 December 2010, the Republic of Mauritius instituted arbitral proceedings concerning the decision of the United Kingdom to establish a Marine Protected Area around the Chagos Archipelago. The Arbitral Tribunal (hereafter Tribunal) was fully constituted on 25 March 2011.

Mauritius made four submissions requesting the Tribunal to find that:

  1. The UK is not entitled to declare a marine protected area (MPA) or other maritime zones because it is not the ‘coastal state’ within the meaning of, inter alia, Articles 2, 55, 56, and 76 of the LOSC; and/or
  2. Having regard to the commitments that it has made to Mauritius in relation to the Chagos Archipelago, the UK is not entitled unilaterally to declare an MPA or other maritime zones because Mauritius has rights as a ‘coastal state’ within the meaning of, inter alia, Article 56(1)(b)(iii) and 76(8) of the LOSC;
  3. The UK shall take no step that may prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission that Mauritius may make to the Commission regarding the Chagos Archipelago under Article 76 of the LOSC;
  4. The UK`s purported MPA is incompatible with the substantive and procedural obligations of UK under the LOSC, including inter alia Articles 2, 55, 56, 63, 64, 194, and 300, as well as Article 7 of the 1995 UN Fish Stock Agreement.