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

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

236  

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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 <https ://www.isa.org.jm/

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.