Exploring the future of the institutional landscape of the oceans beyond national jurisdiction

• Published date: 01 November 2019
• DOI: http://doi.org/10.1111/reel.12301
• Author: Alex G. Oude Elferink
• Date: 01 November 2019

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  RECIEL. 2019;28:236–243.

wileyonlinelibrary.com/journal/reel

1 | INTRODUCTION

Without doubt , one of the main frontiers in deve loping the environ-

mental governan ce of the oceans currently is const ituted by the ne-

gotiations at the Un ited Nations (UN) on biological di versity beyond

national jurisd iction. Ocea n space beyond natio nal jurisdict ion is

comprised of the h igh seas and the inte rnational sea bed area (the

Area), jointly refe rred to as areas beyon d national jurisdic tion (ABNJ).1

These area s make up more t han 50 percent of t he oceans. Alth ough

certain asp ects of the gover nance and legal re gime of ABNJ have

been elaborated in considerable detail,2 it is generally considered that

this regime contains significant gaps and in particular does not offer a

sufficient l evel of protection f or the marine envi ronment of ABNJ.

The awareness of t hese gaps has grown togeth er with the increase of

activities i n ABNJ since the ad option of the UN Conve ntion on the

Law of the Sea (LOSC) i n 1982. These gaps inclu de: the lack of re-

gional environm ental instru ments covering ABNJ (most of these r e-

gimes only appl y to areas within nat ional jurisdic tion); the lack of

coordination be tween existing sect oral and regional instit utions; and

the lack of suff iciently detailed leg al obligations.

The road towards t he negotiation of an ins trument to set up a

comprehensive regime for ABNJ has been long.3 In particular since

the latter half of t he 2000s, the Conventio n on Biological Diversity

(CBD)4 star ted dealing with the protec tion and preservation of bi o-

diversity in A BNJ.5 The UN General A ssembly, which since 1945 has

1 These areas a nd their legal r egime are defin ed in the United Na tions Conventi on on the

Law of the Sea (a dopted 10 Decemb er 1982, entered into f orce 16 November 1994)

1833 UNTS 3 (LOSC ) art 1(1)(1) and Part s VII and XI. Par t XI of the Convent ion has been

adapted by the A greement re lating to the Imp lementation of P art XI of the Uni ted

Nations Conve ntion on the Law of t he Sea of 10 Decemb er 1982 (adopted 28 Jul y 1994,

entered into fo rce 28 July 1996) 1836 UNT S 42 (Part XI Agre ement).

2 This in partic ular concerns the re gime for mining set ou t in Part XI of the LOSC and the Par t

XI Agreeme nt, which have be en further e laborated by t he Internatio nal Seabed Au thority’s

(ISA) Mining C ode (on the latt er, see furthe r The Mining Cod e

mining-code>). Th e regime for cer tain fisher ies on the high s eas as containe d in the LOSC

has been elab orated signif icantly thr ough the Agr eement for the I mplementat ion of the

Provisions of t he United Natio ns Convention o n the Law of the Se a of 10 December 1982

Relating to th e Conservat ion and Manage ment of Straddl ing Fish Stocks a nd Highly

Migrator y Fish Stocks (ado pted 4 August 1995, e ntered into forc e 11 December 2011) 2167

UNTS 3 (Fish Sto cks Agreeme nt). Various ins titutions at t he global and re gional level, s uch as

the Internat ional Mariti me Organiza tion, the ISA an d regional fis heries manag ement

organizat ions and arran gements have a ddressed the r egulation of sp ecific acti vities in ABN J.

3 For an overvi ew of this process , see, e.g., D Free stone, ‘The UN P rocess to Develo p an

Internatio nal Legally Bin ding Instrum ent under the 1982 L aw of the Sea Convent ion:

Issues and Ch allenges’ in D Free stone (ed), Conserving Biodiversity in Areas beyond

National Jurisdiction (Brill/Nijhof f 2019) 3; G Wright et al, Th e Long and Windi ng Road:

Negotiating a Tre aty for the Cons ervation and S ustainable U se of Marine Biod iversity in

Areas beyon d National Juris diction (Ins titut du Dévelo ppement Dura ble et des Relati ons

Internationales 2018).

4 Convention on B iological Di versity (adop ted 5 June 1992, ente red into force 29

December 1993) 1760 U NTS 79 (CBD).

5 For a brief over view of the acti vities under t he CBD, see, e.g. , P Drankier, ‘Mar ine

Protected A reas in Areas bey ond National Ju risdiction’ (2 012) 27 Internati onal Journal of

Marine and Co astal Law 291, 29 8.

Received: 12 Feb ruary 2019 

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  Revised: 7 May 2019 

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  Accepted: 4 June 2019

DOI: 10 .1111/reel .12301

SPECIAL ISSUE ARTICLE

Exploring the future of the institutional landscape of the

oceans beyond national jurisdiction

Alex G. Oude Elferink

© 2019 John Wiley & Son s Ltd, 9600 Garsing ton Road, Oxford OX4 2D Q, UK and 350 Main Stre et, Malden, MA 02148, U SA.

Correspondence

Email: a.oudeelferink@uu.nl A comprehensive regime f or biodiversity in m arine areas beyond natio nal jurisdiction

(ABNJ) is currentl y being negotiated at an intergover nmental conference co nvened by

the United Nations. O ne of the aspects of t he negotiations concerns t he institutional

arrangements of t he treaty that is to be deve loped. Many acti vities in ABNJ curre ntly

are being regulated at th e sectoral and/or regional leve l, raising the ques tion how the

institutional ar rangements of the treaty are to inter act with these existing fra meworks.

The article fi rst provides some f urther informat ion on the backgrou nd to the current

negotiations, then lo oks at the current status of th ose negotiations and next at tempts to

sort out and app raise the options for instit utional arrangement s. Three main approaches

have been tabled: a glo bal approach, a regio nal approach or a combin ation of the two.

The article conc ludes that the institutional ar rangements of the treaty may be t he most

critical elemen t in accomplishing an effective regi me for the sustainability of ABN J.

    

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been the main for um for initiating t he further d evelopment of the

legal regime for t he oceans, started ad dressing this issue in the fir st

half of the 200 0s, eventually resulting in t he convening of an inter-

governmental co nference, for which four subst antive sessions have

been planned currently.6 This whole process is also re ferred to as the

BBNJ process, w ith BBNJ standing for bio diversity beyond national

jurisdictio n. The con ference has been charged with elabo rating ‘an

international l egally binding instru ment under the LOSC on the con-

servation a nd sustainabl e use of marine biol ogical diversi ty of

[ABNJ]’.7 One of the aspects of t he instrument, w hich is also referred

to by the acronym ILB I (for international legally b inding instrument),

the conference is co nsidering is it s institutiona l framework. M any

activities i n ABNJ currently are being r egulated at the sectoral an d/

or regional level , raising the question how the i nstitutional arrange-

ments of the ILBI a re to interact with these exi sting frameworks. In

that connect ion, it may be noted that the Gener al Assembly has in-

structed the conference that the ILBI ‘should not undermine existing

relevant legal instruments and frameworks and relevant global, re-

gional and sectoral bodies’.8 This article discusses various aspects

related to the ins titutional arrange ments that may be include d in the

ILBI. The rema inder of this article firs t provides some further inf or-

mation on the bac kground to the cu rrent negotiatio ns at the inter-

governmental co nference. It then l ooks at the curre nt status of

those negotiati ons. The next section fo cuses on sorting out and a p-

praising the opt ions for institutional ar rangements. Finall y, the main

points of the ar ticle are summarized in th e conclusion.

2 | BACKGROUND TO THE ILBI

NEGOTIATIONS

The current negot iations on the ILB I have their origin in s everal is-

sues in relation to A BNJ that came to the for e after the conclusion of

the LOSC in 1982:9

• Agr eement at the political level that at least 10 percent of the

world’s oceans sho uld be protected areas;10

• The realization th at the genetic mater ial of living resources of in

particular the seabed beyond national jurisdiction had commercial

value and might pr oduce significant econo mic benefits;

• The v iew that the enviro nmental impac ts of activi ties in ABNJ

should be better monitored through strategic environmental assess-

ments (SEAs) and environmental impact assessments (EIAs); and

• The wish of deve loping States for effect ive capacity building an d

transfer of marine technology mechanisms.

The LOSC itself do es not address these m atters in detail an d/or is lack-

ing in effect ive means for thei r implementat ion. For instan ce, the

Convention is silen t on the legal status of the ge netic material of living

resources in th e Area. This has led some to ar gue that the legal regime

of freedom of the hig h seas is applicable to t hese resources, whil e oth-

ers argue that t he regime of common heritage of h umankind provides

the relevant legal framework.11 This difference of views h as also per-

meated the BBNJ p rocess, and has obviou s implications for th e institu-

tional struc ture of the ILBI . Applicabil ity of the regime of hi gh seas

freedoms, im plying freedom of acce ss and the absence of ben efit shar-

ing with the inter national communit y, would require little if no in terna-

tional institutional mechanism, while regulated access and such benefit

sharing obviously would require such mechanism.

It has been argue d that Articl e 194(5) of the LOSC provides a

legal basis for th e establishment of ma rine protected areas (M PAs) in

ABNJ.12 However, apart from that rudi mentary pr ovision and inter

alia the duty of coop eration enshri ned in Articl e 197 of the LOSC,

there is nothing i n the form of proced ures for the desig nation and

management of such a reas under the Conventi on. Work on this mat-

ter has among othe rs been taken up in the frame work of the CBD13

and in regional env ironmental an d fisheries reg imes. As a conse-

quence, the confe rence is not only faced with the que stion how to

implement the b asic rules of the LOSC, but als o how this implemen-

tation should r elate to existing work on the m atter.

Monitoring and environmental assessment is addressed in Articles

204–206 of the LOSC. Again, this concerns obligations of a general

nature that, to be effective, would require further operationalization

as regards the specific substantive and procedural obligations.14 The

same can be said to apply to capacity building and the transfer of ma-

rine technology. Part XIV of LOSC deals with this matter, but is largely

hortatory in nature.

6 The Confere nce has been conven ed on the basis of Un ited Nations Ge neral Assem bly

Resolutio n 72/249. UNGA ‘Internat ional Legally B inding Instr ument under the U nited

Nations Conve ntion on the Law of t he Sea on the Con servation an d Sustainabl e Use of

Marine Biol ogical Divers ity of Areas beyo nd National Ju risdiction’ U N Doc A/

RES/72/249 (19 Januar y 2018) (UNGA Reso lution 72/249).

7 ibid para 1.

8 ibid para 7.

9 For a furthe r discussion of th is point, see for i nstance the li terature ment ioned in n 3.

10 CBD ‘Decisi on X/2, The Strat egic Plan for Bio diversity 2011–2020 and t he Aichi

Biodiversi ty Targets’ UN Doc U NEP/CBD/COP/DEC/X/2 (29 Oct ober 2010) Target 11.

Several MPAs in A BNJ have been de signated throu gh actions at th e regional level ,

including in t he North-Ea st Atlantic and t he Southern O cean. For a recent d iscussion of

this regiona l practice, se e AG Oude Elferin k, ‘Coastal St ates and MPAs in AB NJ: Ensuring

Consistenc y with the LOSC’ ( 2018) 33 Internati onal Journal of M arine and Coas tal Law

437, 455–463.

11 See, e.g., E M orgera et al, ‘S ummary of the Fi rst Session of t he Intergovern mental

Conference o n an Internatio nal Legally Bin ding Instrum ent under the UN C onvention on

the Law of the Se a on the Conser vation and Sus tainable Use of M arine Biodive rsity of

Areas Beyon d National Juris diction: 4–17 Septem ber 2018’ (2018) 25 Ea rth Negotiati ons

Bulletin 1, 3 .

12 See, e.g., E J Molenaar and AG O ude Elferink, ‘ Marine Protec ted Areas in Are as beyond

National Jur isdiction: T he Pioneering Ef forts und er the OSPAR Convent ion’ (2009) 5

Utrecht Law R eview 5, 9–10.

13 The CBD provi des that its prov isions apply to ‘co mponents of bio logical diver sity, in

areas withi n the limits of it s national juris diction’; CBD (n 4) ar t 4. However, within A BNJ,

the CBD’s provi sions only appl y to ‘processes an d activitie s, regardless o f where their

effects o ccur, carried ou t under its juri sdiction or con trol’; ibid. Thi s could be seen as

limiting th e scope of the CBD to de al with biodive rsity in ABNJ; s ee, e.g., Wrigh t et al (n

3) 23, fn 55.

14 Admitted ly, the obligatio ns under intern ational law in thi s respect have be en

developed to s ome extent aft er the adoptio n of the LOSC. See, e .g., G Sander,

‘Internati onal Legal Obl igations for Envi ronmental Im pact Assess ment and Strate gic

Environmen tal Assessme nt in the Arcti c Ocean’ in Freesto ne (n 3) 211, 218–232. Sander

also provide s an overview of we aknesses in th e current legal r egime, which in cludes ‘a

weak coverage of A BNJ’; ibid 216–218.

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The above issues have b een discussed in tand em during the BBNJ

process and in 2011, th e General Ass embly, acting upon the recom-

mendation of the A d Hoc Open-end ed Informal Workin g Group to

study issues re lating to the conservation and s ustainable use of ma-

rine biologic al diversity beyond area s of national jurisdictio n, decided

that these four issues had to be considered ‘together and as a whole’.15

This brief summa ry of the back ground to the negoti ations of the

ILBI aptly indi cates the intricacie s involved in designing its in stitutional

framework. T he following points m ay be noted in this connec tion. First,

the ILBI is required to address four distinct issues, which may require

different ins titutional responses. S econd, the ILBI will become par t of

the existing gl obal and regional framewor ks dealing with biologica l di-

versity beyond national jurisdiction. The General Assembly in defining

the mandate of the intergovernmental conference has provided that

‘the process and its result should not undermine existing relevant legal

instruments and frameworks and relevant global, regional and sectoral

bodies’.16 Moreover, the General Assembly resolution provides that the

‘work and results of the conference should be fully consistent with the

provisions’ of the LOSC .17 Third, the matter is furt her complicated by

the fact that t here is a strong resista nce against the conferen ce touch-

ing upon the regim e of international fisher ies.18 However, fishing most

likely is the act ivity that impacts most o n biological diversity in AB NJ

and not addressi ng that activity in the ILB I and its institutional fr ame-

work, in that light , might seem to be a fatal we akness.

3 | THE CURR ENT STATUS OF THE

NEGOTIATIONS

The debate at the first substantive session of the intergovernmental

conference, whic h was convened from 4 to 17 Sep tember 2018,

confirmed that the different elements of the package under consid-

eration will require their own institutional responses.19 In relation

to marine genetic r esources, the options th at were tabled for regu-

lating access ra nged from setting up a licensing pe rmit or notifica-

tion scheme to not d ealing with the re gulation of access to t hese

resources at all .20 In dealing with the sharing of m onetary benefits

from these res ources various op tions were propo sed, taking into

account existin g frameworks; while for intelle ctual property right s

both a tailor-made sy stem under the ILBI and leavi ng the matter to

existing institutions were suggested.21 Pos sible bodies und er an

ILBI for dealing with marine genetic resources that were mentioned

included a decision-making body, a scientific and technical body

with advisor y competence, a s ecretariat, a c learing-house m echa-

nism and an access and benefit-sharing mechanism.22

The summary of t he discussions on area-b ased management tools

‘identified a “spectrum of opt ions” across global, hybrid, and regio nal

proposals’.23 The following options were specifically mentioned:

• establishing a coherent process for the establishment, implemen-

tation and enforcement of area-based management tools applica-

ble to all States to ad dress fragmenta tion, envisaging pa rticipation

by competent organizations;

• relying more extensive ly on existing p rocesses and fr ameworks,

with some global-level decision making aimed at cooperation and

coordination;

• s trengthening exis ting regional bodies fo r enhanced cooperatio n and

coordination be tween these and ot her relevant bodie s, on the basis of

model cooper ation agreement s that could be annexed t o the ILBI; and

• outlining general principles and approaches under the ILBI, with-

out oversight from a g lobal mechanism and w ith States consideri ng

establishi ng competent organizati ons where they do not exist .24

Options that were m entioned in conn ection with a gl obal body

(e.g. the power to make bi nding decisions , including on th e es-

tablishment of m ulti-purpose MPAs,25 presumably implying that

fishing activities would also be regulated), further illustrate the

divide about th e role for existi ng bodies and a pos sible future

global body. Proponents of a global body with decision-making

power argued th at this would be the only way of maki ng the ILBI

an effective instrument for coherently managing BBNJ. Under

this scenario, t he mandate of existing sector al and regional bod-

ies would be limite d to a consultative ro le.26 The so‐called ‘hy-

brid approach’ wo uld seek to share co mpetences bet ween

existing bodi es and a new global b ody to be set up unde r the

ILBI. The form er in that case presumably woul d be charged with

actual imple mentation of obligatio ns flowing from the ILBI , while

the new global bo dy’s task would be mostl y involved in assessing

the overall performance of regional bodies.27 Proponents of a

regional appro ach, that is, giving prominenc e to existing bodies,

considered that t he ILBI should b e limited to stand ard setting

and not create a glob al body to deal with the is sues of area-based

management tools.28 It was also sugges ted that the ILBI s hould

15 UNGA ‘Lett er Dated 30 June 20 11 from the Co‐Cha irs of the Ad Hoc Op en‐ended

Informal Work ing Group to the P resident of the G eneral Assem bly’ UN Doc A/66/119

(30 June 2011) Ann ex, para 1(b); UNG A ‘Oceans and L aw of the Sea’ UN Doc A /

RES/66/231 (5 April 201 2) para 167. This decision to t reat the packa ge identified i n 2011

together and a s a whole was recon firmed in UNGA R esolution 72/249 (n 6) pa ra 2. This

package was pu t together as a com promise deal be tween develop ed and developi ng

countries.

16 UNGA Resolu tion 72/249 (n 6) para 7.

17 ibid para 6.

18 See, e.g., C Bl anchard, ‘Fra gmentation in H igh Seas Fishe ries: Prelimin ary Reflect ions

on a Global Oce ans Governanc e Approach’ (2017 ) 84 Marine Polic y 327.

19 The followi ng summary is ba sed on the repor ting on the fir st session cont ained in

UNGA ‘State ment by the Presi dent of the Confer ence at the Closi ng of the First Se ssion’

UN Doc A/CONF.232 /2018/7 (20 Septemb er 2018) (Stateme nt by the Presiden t – First

Session); an d Morgera et al (n 11).

20 Morgera et al (n 11) 6; St atement by the Pr esident – Firs t Session (n 19) 22.

21 Morgera et al (n 11) 6 .

22 Statement by th e President – Fir st Session (n 19) 22.

23 Morgera et al (n 11) 9.

24 ibid; see also i bid 16.

25 ibid 9.

26 ibid 16.

27 See also ibid .

28 ibid.

    

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not create a hierarchical relationship between a body under its

aegis and regiona l and sectoral bodies. 29

The report of t he facilitator o n EIAs indicate s the absence of

convergence between delegations on institutional arrangements.30

Delegates in favo ur of a role for an international com ponent to EIA,

and not leaving th e whole process of impleme ntation at the national

level, proposed ‘a decision‐making bod y, a scientific body and a sec-

retariat. Pro posals were also p ut forward for a f und for the inst ru-

ment and a complia nce body.’31

For the issue of cap acity buildin g and the trans fer of marine

technology, the re was a general reco gnition that the re would be a

need for a mechan ism to manage the implementat ion of ILBI in this

respect. I n that connecti on, it was both sug gested to set up such a

mechanism und er the ILBI or to use existing m echanisms.32

The report s of the facilitators on t he four issue areas to the co nfer-

ence contain a reference to the ‘not undermining’ requirement con-

tained in the General Assembly Resolution setting up the conference in

relation to thre e of those issue areas (marine geneti c resources, area-

based manageme nt tools and EIAs).33 The report s suggest that in the

case of area-based management tools the reference is actively used in

support of the r egional approa ch and using exist ing mechanisms a nd

resisting the c alls for a strong global b ody, while in the other two cas es

the focus rathe r seems to be on avoidin g unnecessar y duplicatio ns.

This may in large par t be explained by the fa ct that existing intere sts in

ABNJ are much mor e entrenched in existing i nstitutions in the case of

area-based mana gement tools. For the other two is sue areas it would

be much harder to cr edibly argue that existin g bodies provide an ade-

quate regulatory framework, which would be ‘undermined’ by a pro-

posed institu tional structure under t he ILBI. That said, the role of th e

‘not undermining’ requirement in the negotiations should n ot be over-

estimated. Th e specific lang uage of the resolu tion was accepta ble to

the various inte rests involved and cer tainly is flexible en ough to justify

different app roaches to the institu tional framework of the IL BI. For in-

stance, a str ong institutional compone nt to the ILBI could be justified

because it would enhance the effectiveness and coherence of the re-

gime applicab le to biodiversity in ABNJ. Regio nal and sectoral bodies

could also be said t o benefit from be ing embedded i n such a global

regime.34

In January 2019, the Presid ent’s aid to negotiati ons for the

second session of t he conference, which was convene d from 25

March to 5 April 2019, was made avail able.35 This document was

prepared upon a req uest of the conference to the President ‘to

prepare a document with the aim of facilitating focused discus-

sions and text-based negotiation’.36 The document provides an

overview of the di fferent options that have b een tabled for deal-

ing with the indi vidual issue areas.37 The op tions for the institu-

tional arrang ements of the ILB I were set out in a sepa rate

Section IV,38 while the sections deal ing with the subs tantive

issue areas make cro ss-references to this separ ate section in ad-

dressing insti tutional arrangemen ts. Section IV prese nts a broad

range of options, i ncluding the option to have no tex t in relation

to any of the options it co ntains, for ins tance the ILBI in t hat

case would not have any i nstitutional arrangem ents. Apart from

that ‘no institutional arrangements’ option, Sec tion IV pr esents

options for a decision-making body/forum; a scientific/technical

body; other subsidiary bodies; and a secretariat.39 In setting out

the options of the v arious bodies t hat might be includ ed in the

institution al arrangements of the I LBI, reference is made both t o

bodies to be set up u nder the instrument an d using existing bod-

ies. The Presid ent’s aid to negotiat ions contains thr ee options

for addressing the requirement formulated by the General

Assembly that the ILBI should not undermine existing relevant

legal instruments and frameworks and relevant global, regional

and sectoral bodies.40 These options provide an ind ication of the

different ways of providing the requirement with specific con-

tent. Option II o nly repeats th e requirement , without provid ing

additional tex t. Option I emphasizes t he need to respect exis ting

instrument s, frameworks and bo dies. On the other hand, O ption

III refers to mutu al support be tween the ILBI a nd the existing

instrument s, framework s and bodies, a nd only requires d ue re-

gard to be given to the latter ‘provided that they are supportive

of and do not run counte r to the objecti ves of the Convention

and [the ILBI]’.41 The pre sence of these options su ggests that the

design of the inst itutional fra mework of the ILBI wi ll not be

based on a specific in terpretation of the term ‘not undermine’.

Rather, both issues m ost likely will be se ttled in tan dem, or the

provision dealin g with the relati onship of the ILBI wi th existing

29 Statement by th e President – Fir st Session (n 19) 11.

30 ibid 20.

31 ibid; see also M orgera et al (n 11) 12.

32 Statement by t he President – Fi rst Session (n 19) 8.

33 ibid 11, 16–17 and 24.

34 For a further di scussion of this is sue, see, e.g., Z Sc anlon, ‘The A rt of “Not Under mining”:

Possibilities within Existing Architecture to Improve Environmental Protections in Areas

beyond Natio nal Jurisdic tion’ (2017) 75 ICES J ournal of Marin e Science 1; A Friedm an,

‘Beyond “Not U ndermining ”: Possibilities f or Global Coope ration to Improv e

Environmen tal Protecti on in Areas beyon d National Juri sdiction’ (2019) 76 ICE S Journal of

Marine Scie nce 452. Scanlon am ong others conc ludes that ‘rath er than seekin g simply to

“not undermi ne” existing arc hitecture in AB NJ, focussing on a nd facilitat ing their effor ts

and abilitie s to take action a nd to adapt to impr ove environmen tal protecti ons would be

highly bene ficial’ (Scan lon, ibid 415). Frie dman submits t hat consultat ion between ex isting

bodies and th e ILBI’s institu tional framew ork ‘would cat alyze regional a nd global

cooperati on to improve conse rvation and m anagement out comes in ABNJ’ ( Friedman, ibid

455). For a furth er discussion of t he implicati ons of the requir ement of not unde rmining

for the BBNJ pr ocess, see the t ext at the end of th e next paragr aph.

35 UNGA ‘Presi dent’s Aid to Nego tiations’ UN Do c A/CONF.232/2019/1 (3 Decembe r

2018, reissue d 29 January 2019) (Pr esident’s Aid ). Although th e original docu ment is

dated 3 Decemb er 2018, it was not av ailable throu gh the UN website un til the second

half of January 2019.

36 ibid paras 4–5.

37 As the intro duction of the do cument indic ates: ‘The orde r in which option s appear in

the present d ocument shoul d be taken neith er as indicatin g any suggested o rder of

priority, no r as an indicatio n of the level of supp ort for any par ticular optio n’; ibid para 7.

38 In addition, S ection V sets o ut the options in r elation to a clea ring‐house mec hanism,

which is most ly intended as a me ans of exchangin g relevant infor mation.

39 A footnote to the h eader of Sect ion IV indicate s that ‘[s]uggesti ons were made to ta ke

into account th e structure , lessons lear ned and best pr actices of [exis ting] bodies a nd

framework s in developing p rovisions on ins titutional ar rangements ’ and ‘to utilize

existing bo dies’; ibid 57, fn 13.

40 ibid 7, Section II. 4(2).

41 ibid.

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instrument s, frameworks and bodie s will be settled after agre e-

ment on institu tional design has been reach ed.42

The President ’s aid to negotiations for the se cond session of the

conference met th e wish of the conference to have a do cument that

will assist ‘ facilitating focused discussions and text‐based negotia-

tio n’.43 At the sa me time, the docu ment indicated t hat all options

are still on the t able. The President ’s aid was at the centre of discus-

sions during the s econd session of t he conference, and t he out-

comes of the secon d session suggest that t he President’s aid hel ped

narrowing down th e options.44 The President’s statement at the

end of the second s ession indicates tha t there seemed to be conver-

gence on endowing t he ILBI with a conference of the pa rties, a sci-

entific and/or technical body and a secretariat.45 At the same time,

different views were expressed concerning the functions of these

bodies and the n eed for furth er considerati on of the matter.46 In

advance of the thi rd session of the conf erence, the Pres ident in-

tends to make available a text that ‘would likely be structure d in a

form more akin to a t reaty, and containing treat y language’.47

4 | SORTING OUT AND APPR AISING

THE OP TIONS FOR IN STITUTIONAL

ARRANGEMENTS

In view of the widel y diverging views on both the s ubstantive issues

and instituti onal arrangement s to be included in the ILB I, the current

section aims to te ase out some of the advanta ges and drawbacks of

the options that h ave been proposed and to envi sage what the insti-

tutional arrangements of the ILBI, or the absence thereof, would

imply for the (ef fectiveness of the) exis ting regime of the oceans be -

yond national jurisdiction.48

To provide structu re to the present discussion, it wi ll start from

the broad thre efold distinc tion that has also b een made at the

conference:49

(i) the global approach, with strong global institutional arrangements

as part of the ILB I with decision-making power in rel ation to the

substantive is sue areas of the ILBI;

(ii) the hybrid approach, which would entail a focus on coordination

and collaborat ion between the ILBI’s inst itutions and existing re-

gional and sec toral instruments w ithout any hierarchy; and

(iii) the regional app roach, implying t he (near) absence of insti-

tutional arrangement of the ILBI, which for its implementation

would depend on existing regional and sectoral frameworks.50

The appeal of the r egional approach at face val ue is easily justified. It

could be said to be co st-effective, as it doe s not require setti ng up new

institution s that will for instance re quire funding, could l ead to further

fragmentat ion of the institu tional landsc ape for oceans’ gover nance,

require the nee d to coordinate with existi ng bodies, lead to additi onal

reporting o bligations and take up addit ional meeting time of often a l-

ready overburdened national government bodies.51 Moreover, the ab-

sence of new institutional arrangements under the ILBI, circumvents

the difficu lt question of how to g ive specific exp ression to the rela -

tionship of the ILB I to existing institut ional frameworks. 52

However, as has been argu ed in the discussio ns on area-based

management tool s, not creating an in stitutional f ramework unde r

the ILBI for this is sue would imply that the ILBI woul d be limited to

expressing glo bal principle s and would likely fa il to accomplish th e

goal of a represent ative global network of MPAs.53 In t hat connec-

tion, referenc e was made to the expe rience of the Fish Sto cks

Agreement, which takes a similar approach. The Agreement pro-

vides general p rinciples for the ma nagement of straddl ing fish stocks

and highly migr atory fish sto cks, and assigns a ce ntral role in the ir

implementat ion to regional bo dies. The review m echanism of the

Agreement la cks decision-makin g power in relation to thes e regional

bodies.54

42 The Preside nt’s statemen t on the outcomes o f the second sess ion of the confere nce

suggests t hat the discuss ion concerning ‘ not undermini ng’ focused on t he role the

instituti onal framewor k of the ILBI could p lay in ‘promotin g coherence, com plementari ty

and synerg ies’ (UNGA ‘Sta tement by the Pre sident of the Conf erence at the Clo sing of

the Second Se ssion’ UN Doc A/CO NF.232/2019/5 (18 April 2019) (Statem ent by the

President – Se cond Session) 11; c f E Morgera et al, ‘ Summary of th e Second Sessio n of

the Intergovernmental Conference on an International Legally Binding Instrument under

the UN Convent ion on the Law of th e Sea on the Conse rvation and Su stainable Us e of

Marine Biod iversity of Ar eas Beyond Natio nal Jurisdic tion: 25 March–5 Apr il 2018’

(2019) 25 Earth Ne gotiations Bul letin 1, 18). The Pr esident’s Stat ement does not re fer

explicitl y to the concept of ‘no t undermining ’ in connectio n with the summa ry of the

discussion s concerning th e institution al arrangeme nts of the ILBI, b ut does mention t hat

it would be usef ul to look at the rel ationship of th e ILBI’s main body ‘ to relevant glo bal,

regional and s ectoral bod ies’ (Statemen t by the President – S econd Sessio n, ibid 21–22).

43 President’s A id (n 35) 2.

44 See also Statem ent by the Presid ent – Second Sess ion (n 42) 3–4.

45 ibid 21–22. For informat ion of the specif ic support fo r these differ ent options, se e

Morgera et al (n 42 ) 13–14. States differed ove r whether the IL BI should est ablish other

subsidiar y bodies apar t from the scient ific and/or techn ical body. An alte rnative would

be to assign a conf erence of the par ties with the co mpetence to est ablish subsid iary

bodies (Stat ement by the Pres ident – Second Se ssion (n 42) 22).

46 Statement by th e President – Sec ond Session (n 42) 21–22.

47 ibid 2.

48 The current an alysis does not fo cus on the diff erences in inst itutional arr angements

that may be requ ired to deal with t he four issue are as under consid eration at the

conference . It is acknowledg ed that these fo ur issue areas may r esult in differ ent

institutional approaches in the ILBI.

49 A similar thre efold compari son has for inst ance been made in t he Pew Charita ble

Trusts, ‘Toward s a Global Solut ion for High Seas C onservatio n: Protecting M arine

Biodiversity beyond National Jurisdiction’ (March 2017).

50 It may be noted tha t there is genera l agreement tha t the ILBI will have t o account for

the fact tha t there are exis ting regional an d sectoral ar rangements (s ee Morgera et al (n

11) 16). At the same tim e, that recognit ion obviously d oes little to in form the option s that

are availabl e to set up institu tional arran gements unde r the ILBI. Prop onents of a stro ng

global body a s part of the ILBI h ave also emphasi zed the signific ance of regiona l

instituti ons for transla ting global com mitment to the re gional level. Se e, e.g., K Gjerd e et

al, ‘Conser vation and Sus tainable Use of M arine Biodive rsity in Area s Beyond Nationa l

Jurisdict ion: Options fo r Underpinnin g a Strong Globa l BBNJ Agreem ent through

Regional and S ectoral Gove rnance’ (STRON G High Seas 2018) 11 and 14; se e also C

Durussel, E S oto Oyarzún an d O Urrutia, ‘St rengtheni ng the Legal and In stitutiona l

Framework of th e Southeast P acific: Focus o n the BBNJ Packa ge Elements’ (20 17) 32

Internatio nal Journal for M arine and Coas tal Law 635, 637.

51 For a furth er discussion of t his point, see a lso Scanlon (n 34 ) 409–414.

52 For a discussi on of this point in re lation to the othe r two options, s ee below.

53 Morgera et al (n 11) 16.

54 See Fish Stock s Agreement (n 2) a rt 36. For a furt her discussio n of this point, se e also

below n 62.

    

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The argument t hat an ILBI that would only con tain substantive pr o-

visions, but woul d fail to include ef fective mac hinery for the ir imple-

mentation, wo uld be ineffecti ve, seemingly is convin cing. As a matter of

fact, most of t he principles th at have been suggested f or inclusion in the

ILBI are alread y part and parcel of dif ferent widely ratif ied conventions,

such as the LOSC and th e CBD, as well as customar y international law. 55

In other words, ma ny of these principles h ave been around for dec ades,

while the curre nt negotiations are a c lear indicatio n that there is a

broadly share d understanding that th ey have not been able to achieve

that biodivers ity in ABNJ is effect ively managed and conse rved.

An ILBI lacking s trong institutio nal arrangement s still might be able

to achieve a more det ailed elaboration and o perationalization of ex ist-

ing principles.56 The Fish Stock s Agreement could again be t aken as a

case in point. Even b efore its entry into force on 11 Dece mber 2001,

the principle s included in the Agree ment had been taken into accou nt

by States in reform ulating the mand ate of existing regi onal fisherie s

management org anizations and in agreeme nts setting up such organ i-

zations or arra ngements in new r egions. However, includi ng these

principles in t he constitutive instrum ents of organizations or ar range-

ments does not necessarily guarantee their effective implementation.

Apart from d etailing exist ing principle s, the ILBI could a lso be

used to, for examp le, create reporting oblig ations for its State par-

ties on their imp lementation of the ILBI in dividually and in regiona l

and sectoral bodies. An existing global body could be charged with

receiving and processing these reports. That obviously could in-

clude the possib ility of an obligation for St ate parties to the ILBI to

address issue s that the global body would consid er to be required

to ensure implementation of obligations existing under the ILBI.

Whether ther e actually is an existi ng global body that is ad equately

equipped to dea l effective ly with such a task m ay be doubted.

Moreover, it may be doubted whether the proponents of a re-

gional approa ch, who would seem to be satisfi ed with maintaining

the current status quo, actu ally would be willin g to provide it with

mechanisms tha t would make it more akin to the hybr id approach.

The other two approaches to the institutional arrangements of

the ILBI do raise t he question h ow those arrange ments would be

related to existi ng institutional fra meworks. The propone nts of the

hybrid approa ch have presented it as a possible compr omise solu-

tion between t he global and regional appro aches, under which the

existing mand ates of regional bodies coul d be largely unaffecte d.57

One cr itiqu e in this re spect has been that ‘th ose prop osing a hy brid

approach have not yet s pelled out what this may mea n’.58 Although

that criticism p robably could be a pplied equall y to proponents of

the other two approaches, ‘spelling out’ what the hybrid approach

means does indicate that it raises similar questions in defining the

relationship between the ILBI’s institutional arrangements as the

global approa ch does. For instance, h ow should these relation ships

be defined in legal terms, where the membership of the existing

frameworks m ay be very different from t hat of the ILBI?

The hybrid appr oach has the obviou s advantage that it m ay garner

widespread su pport and be part of a widel y supported compromise

text. At the sa me time, the hybr id approach car ries the risk of th e

ILBI ending up wit h institutional ar rangements that lac k the power to

have any real impac t on the implemen tation, or lack t hereof, at the

regional level. O n the other hand, a hybrid approa ch that does pro-

vide the ILBI’s institutional arrangements with teeth should perhaps

rather be char acterized as a variation of t he global approach, in stead

of being in the sepa rate category of the hybr id approach.

The inclusion of a co nference of the partie s or meeting of State

parties or another decision-making body/forum in the institutional

arrangements of the ILBI59 also raises the question how that body

would relate to the m eeting of State parties to the LOSC (S PLOS)

and the UN General Assembly.60 If included in the ILBI, suc h a

decision-maki ng body likely would have an impor tant role in rela-

tion to the (supervision of the) implementation of the instrument’s

substantive p rovisions. In that connec tion, the body might be co n-

fronted with issu es concerning the interp retation or applicat ion of

specific provi sions of the ILBI tha t may also be relevant to i nter-

pretation and a pplication of th e LOSC or the body cou ld be con-

fronted with pol icy choices in rel ation to the develo pment of the

regime for ABNJ. T he latter is a task that currentl y is also carried

out by the General Assembly, while the interpretation of the

Convention is a tas k that primarily is a prerog ative of its State par-

ties. This issue m ight in particular bec ome topical if the ILBI woul d

not attrac t broad partic ipation and the interests of th e parties to

the ILBI would dif fer significantly fro m the broader range of inter-

ests represented in the LOSC. Different interests could lead to

diverging views on the development of the law.61

55 See, e.g., AG O ude Elferink, ‘ Governance Pr inciples for Ar eas beyond Nati onal

Jurisdict ion’ (2012) 27 Inter national Jour nal of Marine and C oastal Law 205 . As is

observed by You ng and Friedman, ‘ [i]ndeed, th ere is already a ro bust set of enviro nmen-

tal obligat ions in areas beyo nd national jur isdiction. W hat is lacking is im plementati on

and complian ce by states, an d effective in stitutiona l support and ove rsight.’ MA Young

and A Friedman , ‘Biodiversi ty beyond Nati onal Jurisdic tion: Regimes a nd their

Interacti on’ (2018) 112 Americ an Journal of Int ernational L aw 123, 126.

56 See also Scan lon (n 34) 412–413.

57 See, e.g., Mo rgera et al (n 11) 15.

58 ibid.

59 These optio ns are include d in the Presiden t’s Aid (n 35) 57, Section I V.1.

60 The issue of the re lationship of th e institutio nal arrangeme nts of the ILBI wi th the

meeting of St ate parties to th e LOSC and the UN Ge neral Assemb ly was brought to my

attention by L iesbeth Lijn zaad. The curr ent elaborati on of this point is my s ole

responsibility.

61 For a discussi on of this point, s ee also DR Rothwel l et al, ‘Charti ng the Future for t he

Law of the Sea’ in D R Rothwell et al (eds), T he Oxford Hand book of the Law of th e Sea

(Oxford Uni versity Pres s 2015) 888, 909–910. It co uld be argued th at the problem t hat is

signalled he re probably wou ld not arise. Fir st, the Gene ral Assembl y has instruct ed the

intergovern mental confer ence that its out come should be f ully consisten t with the LOSC

(UNGA Resol ution 72/249 (n 6) para 6). Th is likely is to resu lt in a provision in t he ILBI

addressin g its relations hip to the Convent ion. The Presid ent’s aid to the ne gotiations

contains th e following opti on on this point: ‘ Nothing in this i nstrument sh all prejudice

the rights , jurisdictio n and duties of Sta tes under the Co nvention. This i nstrument sh all

be interpret ed and applied i n the context of an d in a manner consis tent with the

Convention’ (P resident’s Ai d (n 35) 7). This is one of t he few provision s in the Presiden t’s

aid to negotiat ions that does no t contain diffe rent options. H owever, it is unlikely t hat

the inclusio n of such a provisio n completely exc ludes the poss ibility of diver ging practi ce

and interpr etations. At th e same time, havi ng such a provisio n provides State s with a

strong argu mentative too l to reject spec ific approac hes under the IL BI. Moreover, it

could be argu ed that the expe rience with the F ish Stocks Agr eement indic ates that the

relationsh ip between a bod y under the ILB I and other law of the s ea framework s should

not be proble matic. However, th e parties unde r the Fish Stock s Agreement ref lect a

broad range of i nterests tha t would not seem to b e dissimilar to th e range of interes ts

represente d in the LOSC.

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As the preceding discussion indicates, a major concern in negotiating

the ILBI is the avoid ance of the potential for fra gmentation of the law and

decision-maki ng procedures for impl ementing the law. The opti ons for the

institution al design that have been adv anced during the BBNJ p rocess, in-

cluding at the intergovernmental conference, have different implications

in that respec t, and at the sam e time also may indic ate that the States

concerned asse ss the risk of fragmentatio n or the need of avoiding it dif-

ferently. A regional fo cus, with the absence of a body with c oordinating

task at the globa l level, obviously ca rries the risk of regio nal differentiat ion.

Moreover, such an appro ach may lead to a lack of coordination b etween

the relevant regional bodies and between those bodies and sectoral bodies

operating at th e global level. Viewed from the p erspective of States wit h

strong region al interests, this has t he obvious advantage th at they can set

the agenda at the re gional level without involveme nt of or accountability

to a global body.

If the ILBI will be e quipped with a bo dy with decision -making

powers, the nat ure of those powers m ay vary signifi cantly. For in-

stance, glob al bodies that on ly review the per formance of regio nal

and sectora l bodies do not seem to be ab le to have much impact . The

current regime for ABNJ already contains various reporting and re-

view mechanisms , such as the Review conference of t he Fish Stocks

Agreement discussed above.62 And as has been obser ved by

Freestone in an ana lysis that focuses on the iss ue of MPAs:

it is clear that the exi sting system doe s not provide an

adequate framewor k for protecting high sea s areas.

There is little evi dence that basic envi ronmental pre-

cepts, includ ing the ecosystem an d precautionar y ap-

proaches (contained in the key international legal and

policy instru ments), are being effec tively applied by most

international sectoral bodies.63

Freestone concludes his review concerning the options for a global

body by observing that:

The idea of a new perm anent institution – su ch a[s] an Ocean

Governance Authority – seems unlikely to be acceptable to

the majority of sta tes. However, a centralized system with a

‘lighter touch’ for establishing MPAs in the high seas … seems

to offer the greatest c hance for success in achiev ing the con-

servation and sus tainable use of high seas b iodiversity.64

Freestone’s analys is indicates tha t this centralized s ystem would

imply decision- making powers of a gl obal body as rega rds the

designation of MPAs , but otherwis e would not affec t the role of

regional and sectoral bodies.65 Whether that approach would be suffi-

cient to create an ef fective regime is open to discuss ion. Much would

depend on how an ar ea’s status of MPA would impact on the m anage-

ment of existing a nd future activitie s, who would be responsib le for re-

viewing that management and who would be able to implement changes

in the managemen t system if it were to fail to accom plish the principles

set out in the ILBI . These are all ques tions that are direc tly related to the

institution al arrangement s to be containe d in the ILBI. In th at light,

Mahon and other s have argued that for the ILB I to be successful in en-

abling a coherent f ramework it should include: (i ) a clearly ident ifiable

overarching mechanism for integrated policy development and coordi-

nation; and (ii) ef fective science-polic y advisory mechanisms t o ensure

that critical s cientific knowledge is c ommunicated effec tively.66

The current negotiations on the ILBI illustrate the linkages between

substantive issues and the accompanying institutional arrangements.

The principles and rules that will be included in the ILBI will provide the

substantive parameters within which institutions dealing with ABNJ will

have to operate. On the other hand, the nature of the institutional ar-

rangements will determine to what extent they can effectively engage

with these principles and rules. It is submitted that the institutional

framework of the ILBI constitutes the more critical issue in designing a

regime that will accomplish the sustainability of ocean space beyond na-

tional jurisdiction. As the current analysis also indicates, there is no lack

of substantive principles and rules. What is missing are effective mecha-

nisms to ensure their successful implementation in practice.67

Moreover, it should be realized that the evolution of substantive

principles and rules is easier to achieve than the redefinition of the

institutional framework of a convention. This may be illustrated by

developments in relation to the LOSC itself. Notwithstanding at-

tempts by certain State parties to the Convention to broaden the

mandate of the SPLOS, that mandate remains narrowly defined. That

is most likely in line with the compromise when the Convention was

negotiated, which is reflected in the language of the relevant provi-

sions of the Convention.68 A significant redefinition of the mandate

of the SPLOS would require having recourse to the cumbersome

amendment procedures of the Convention.69 There can be little

doubt that this is an option that is not going to be tested in the fore-

seeable future. On the other hand, the Convention’s substantive

62 As has also be en observed by Youn g and Friedman (n 55) 128 : ‘For example, t he United

Nations Fish S tocks Agreem ent encourage s states to appl y guiding princ iples and

approaches within existing bodies without engaging in systematic or binding norm

developmen t. Attempts t o develop a cohere nt set of practi ces through pro cesses such as

the joint meet ings of the five t una RFMOs initi ated in Kobe, Japan , in 2007, have not

progressed.’

63 D Freestone, ‘ The Limits of Se ctoral and Reg ional Effort s to Designate Hig h Seas

Marine Prote cted Areas’ (20 18) 112 American Jo urnal of Interna tional Law 129, 133.

64 ibid.

65 ibid 130.

66 R Mahon et al, ‘Tran sboundary Wa ters Assessm ent Programme ( TWAP) Asses sment of

Governance A rrangement s for the Ocean. Vo lume 2: Areas Beyo nd National Jur isdiction’

(UNESCO-I OC 2015) as quoted in G jerde et al (n 50) 11.

67 It should howe ver be acknowle dged that this con sideration do es not apply even ly to all

of the four issu e areas under con sideration at t he conference. I n particular t he discussion

on the issue of ma rine genetic re sources could l ead to differe nt substantiv e outcomes,

which would ea ch imply the nee d for specific i nstitutiona l responses. F or a further

discussion of t his point, see G Voi gt‐Hanssen, ‘Cu rrent “Light ” and “Heavy ” Options for

Benefit-shar ing in the Contex t of the United Na tions Conventio n on the Law of the Se a’

in Freestone (n 3 ) 243.

68 This primari ly concerns LOSC (n 1) a rt 319(2)(e). For a fur ther discussi on of the

discussion s about the mand ate of the SPLOS, see AG O ude Elferink , ‘Reviewing th e

Implement ation of the LOS Conv ention: The Role o f the United Nati ons General

Assembly a nd the Meeting of S tates Partie s’ in AG Oude Elfer ink and DR Rothwell (e ds),

Oceans Manag ement in the 21st Cen tury: Instit utional Framewo rks and Respon ses (Martinus

Nijhoff 20 04) 295.

69 See LOSC (n 1) art s 312–316.

    

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framework has been augmented significantly by developments in

among others international environmental law after its adoption in

1982. An example is provided by the precautionary approach, which

became widely accepted after that date and the relevance of which

is among those recognized by the International Seabed Authority in

fulfilling its mandate under the Convention. The precautionary ap-

proach is also included in the Fish Stocks Agreement.70 As its Article

2 indicates, the Fish Stocks Agreement is intended to effectively im-

plement the Convention.

This adaptability in respect of substantive principles and rules is

explained by the fact that they may also develop outside of the

framework of the Convention and do not require to be incorpo-

rated into the Convention through its formal amendment proce-

dures. The Convention itself provides for flexibility in this respect.71

For instance, its Article 87 provides that ‘[f]reedom of the high seas

is exercised under the conditions laid down by this Convention and

by other rules of international law’.72 The latter reference does not

put any temporal limitation on the other rules of international law.

In addition, the rules of international law formation imply that sub-

sequent rules of customary law may also change or augment con-

ventional obligations without the existence of such an explicit

reference.

5 | CONCLUSIONS

The BBNJ process with the intergovernmental conference has en-

tered a critica l phase. At the prel iminary st ages of the conferen ce,

different opt ions are still on t he table. The ou tcome of the second

session indic ates that the ILBI will likely be end owed with a confer-

ence of the part ies, a scientific/techni cal body and a secreta riat, but

the functio ns of these bodies rema in to be decided. The re porting on

the second sess ion of the conference indicates t hat the latter point

in the furth er negotiations will be the main conte ntious issue as re-

gards the ILBI ’s institutional framewo rk.73

To better underst and the significance of t he negotiations, it shoul d

be realized that th ey are taking pla ce in the framewor k of a broader

debate on the rela tionship betwe en conservat ion and exploit ation of

the oceans.74 How to balance these inte rests is a question t hat the del-

egates at the confer ence also will have to answer. Is the ILBI going to

provide an effe ctive framewo rk for the susta inable governanc e of

ABNJ, which will a llow the regulatio n of, and eventually limi t or pro-

hibit, specif ic activities that a re at odds with that genera l objective?

The institut ional arrangement s of the ILBI are but one el ement of

a highly complex n egotiation. However, as this article su bmits, they

are a critical el ement and perh aps even the centra l battle groun d

for determinin g whether the ILBI has the potenti al to live up to the

expectation of providing an effective regime for the sustainability

of the oceans beyon d national jurisd iction. The ab sence of strong

global instit utional arrangeme nts in the ILBI, will li kely mean that the

current uncoordinated approach to governing ABNJ will remain one

of its central aspects.

ORCID

Alex G. Oude Elferink https://orcid.org/0000-0002-3837-5217

Alex Oude Elferink is the D irector of the Ne therlands Ins titute

for the Law of the Se a (NILOS) and an associ ate of the Utrecht

Centre for Ocean s, Water and Sustainabilit y Law, School of Law,

Utrecht Univer sity, the Netherland s. He also is an adjunct p rofes-

sor at the K.G. J ebsen Centre for the Law of the Se a, University

of Tromsø, Norway. He is the aut hor of The Delimitation of the

Continental Shelf between Denmark, Germany and the Netherlands:

Arguing Law, Practicing Politics? (Cambridge University Press

2013) and co-editor of Th e Oxford Handbook of the La w of the Sea

(Oxford Univer sity Press 2015). Together with Pe tra Drankier, he

was the guest ed itor of a special issue on Biol ogical Diversity a nd

Governance of Are as beyond Nationa l Jurisdictio n (2012) 27(2)

International J ournal of Marine and Coast al Law. His current re-

search is among ot hers concerne d with the legal re gime of ma-

rine areas beyon d jurisdictio n and the future of t he law of the

sea. I want to thank t he reviewer and the guest edit ors for their

comments on a pre vious version of this arti cle.

How to cite this article: O ude Elferink AG. Expl oring the future

of the institut ional landscape of the o ceans beyond national

jurisdiction. RECIEL. 2 019;28:236–243. htt ps : //do i .

org/1 0.1111/reel .12301

70 Fish Stocks A greement (n 2) ar t 6 and Annex II.

71 LOSC (n 1) arts 237 a nd 311, which regula te the relation of t he Convention wi th other

agreement s also envisage t he further de velopment of the l aw as contained i n the

Convention.

72 ibid art 87.

73 See also Morg era et al (n 42) passim .

74 A telling exa mple in this resp ect is the deba te on the establ ishment of MPAs in t he

Southern O cean that has bee n taking place i n the Commission o n the Conserv ation of

Antarcti c Marine Livin g Resources, wi th certain St ates advocatin g the need for a

comprehen sive network of ar eas, while othe r States have fru strated such at tempts

because of th e interest in fi shing activi ties, arguing t hat a balance has to b e struck

between con servation a nd exploitati on. See, e.g., S E arle, ‘Will C hina Cast its Vote f or

Antarcti ca, and the Pla net?’ (Eco-Busi ness, 26 Octob er 2018). A more deta iled review of

the argumen ts of both sides is p rovided by the re ports of the me etings of the

Commission, which are available through the Commission’s website: <https ://www.

ccamlr.org/en/meeti ngs/>.