The Law of the Sea Convention and Areas beyond National Jurisdiction

184 Pages·2015·6.8 MB·English

TULANE LAW SCHOOL
Rhodes, Greece
Maritime Law, Law of the Sea
& Ocean Management
SUMMER, 2015
LGRC-4720-01 The Management of Marine
Resources beyond National Jurisdiction
Professor Freestone
These materials are intended for classroom and study purposes only for students
enrolled in Tulane’s Rhodes Summer Program and may not be reproduced.
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Rhodes Academy 2015
Lecture Outline and Reading

The Management of Marine Resources in Areas beyond National Jurisdiction Professor
David Freestone
The legal regime for areas beyond national jurisdiction (ABNJ) has been described as
‘fractured.’ For the last decade an Ad Hoc Working Group established by the UN General
Assembly has been studying the issue involved in the conservation of biodiversity in ABNJ
(so called BBNJ Working Group) and is expected to recommend this year that negotiations
begin for a third Implementing Agreement to the 1982 UN Convention on the Law of the sea
(1982 Convention).
This course of lectures will start by flagging why the current regime governing ANBJ is
problematic. It will then examine in detail the current legal regime and the various sectoral
and regional bodies that have jurisdiction over diverse activities from deep seabed
exploration and mining to fishing, maritime transport and the conservation of species and
biodiversity.
It will then look at the arguments surrounding the development of a possible new
Implementing Agreement to the 1982 Convention and it possible or probably content. It will
also look at a number of initiatives – including the OSPAR Convention and the Sargasso Sea
Commission – that are attempting to seek protection for unique high seas ecosystems in
advance of the long negotiating process that a new agreement may entail.

Lecture One
Introduction: Problems of High Seas Governance
Reading
1982 Law of the Sea Convention
Part VII Arts 86-89; 116-120
Part XII Arts 192-206.

Freestone (2011) pp. 1-23 or Freestone (2012)pp 1-15
Freestone (2009) pp 1-10

Lecture Two
The Current High Seas Governance Regime- Sectoral Organizations
Reading
Freestone (2015) pp 1-26

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Lecture Three
The Current High Seas Governance Regime- Regional Organizations
Reading
Freestone (2010) pp. 1-10
Warner et al., (2014) pp 211-224.

Lecture Four
The Role of the Convention on Biological Diversity and the “Description” of Ecologically
and Biologically Significant Areas
Reading
CBD (2009) Azores Scientific Criteria and Guidance
https://www.cbd.int/doc/meetings/mar/ebsaws-2014-01/other/ebsaws-2014-01-azores-
brochure-en.pdf

http://www.ioseaturtles.org/pom_detail.php?id=120

Lecture Five
Sargasso Sea Project
Reading

Freestone et al., (2012) pp. 647-655
Freestone et al., (2015) pp. 21-26
Laffoley et al (2011) (review only)
at http://www.sargassoalliance.org/storage/documents/Sargasso.Report.9.12.pdf

Lecture Six
The UNGA and a New Implementing Agreement
Reading

BBNJ (2015)
Freestone et al. (2014) pp. 167- 175
Freestone (2015) pp. 7-9
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Full Reading list (page numbers in bold)

Law of the Sea Convention 1982 [pgs. 5-12]
Part VII Arts 86-89; 116-120
Part XII Arts 192-206.

BBNJ (2015) UN Doc A/69/780: Letter dated 13 February 2015 from the Co-Chairs of the Ad
Hoc Open-ended Informal Working Group to the President of the General Assembly
[pgs. 13-21]

CBD (2009) AZORES SCIENTIFIC CRITERIA AND GUIDANCE for identifying ecologically or
biologically significant marine areas and designing representative networks of marine
protected areas in open ocean waters and deep sea habitats. 10 pp [pgs. 22-33]
Freestone (2009) “High Seas Fisheries” in Max Planck Encyclopedia of Public International
Law (Rüdiger Wolfrum, ed.) OUP, 2009, 12pp. [pgs. 34-46]
Freestone (2010) “International Fisheries Commissions and Organizations” in Max Planck
Encyclopedia of Public International Law (Rüdiger Wolfrum, ed.) OUP, 2010, 10pp.
[pgs. 47-58]
Freestone (2011) David Freestone “Problems of High Seas Governance” in The World Ocean
in Globalisation: Challenges and Responses, (Davor Vidas and Peter Johan Schei, eds.)
Martinus Nijhoff, 2011, pp. 99-130. [pgs. 59-90]
Freestone et al., (2012) David Freestone and Kate Morrison (2012) “The Sargasso Sea
Alliance: Seeking to Protect the Sargasso Sea.” (2012) 27 International Journal of Marine and
Coastal Law pp. 647-655 [pgs. 91-100]

Freestone (2013) David Freestone, “The Final Frontier: The Law of the Sea Convention and
Areas beyond National Jurisdiction” in Proceedings of the 2012 Law of the Sea Institute
Conference on Securing the Ocean for the Next Generation. Volume 1, Law of the Sea Institute
Conference Papers Series, Martinus Nijhoff, 2013, pp. 1-15. [pgs. 101-115]
Freestone and Morrison (2014) David Freestone and Kate Morrison (2014) “The Signing of
the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea: A new
paradigm for high seas conservation?” (2014) 28 International Journal of Marine and Coastal
Law pp 345-362. [pgs. 116-133]

Freestone et al., (2014) David Freestone with David Johnson, Jeff Ardron, Sebastian Unger,
and Kate Morrison (2014), “Can existing institutions protect biodiversity in areas beyond
national jurisdiction? Experiences from two on-going processes” (2014) 42 Marine Policy pp.
167-175. [pgs. 134-142]
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Freestone (2015) David Freestone (2015) “Governance of Areas beyond National
Jurisdiction: An Unfinished Agenda of the 1982 Convention?” in Proceedings of International
Conference: UNCLOS at 30, British Institute of International and Comparative Law, London,
2015, Belfast. 30pp. [pgs. 143-168]
Dan Laffoley et al., (2011) The Protection and Management of the Sargasso Sea: The golden floating
rainforest of the Atlantic Ocean. http://www.sargassoseacommission.org

Warner et al., (2014) Robin Warner, Kristina Gjerde and David Freestone (2014) “Regional
Governance for Fisheries and Biodiversity” in Governance for Fisheries and Marine
Conservation: interactions and co-evolution. (S.M. Garcia, J. Rice, and A.T. Charles, eds.) Wiley-
Blackwell, 2014, pp. 211-224. [pgs. 169-182]
Key Websites

http://www.un.org/depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm

http://www.cbd.int/ebsa/

http://www.sargassoseacommission.org

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PART VII
HIGH SEAS
SECTION 1. GENERAL PROVISIONS
Article 86
Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of an archipelagic
State. This article does not entail any abridgement of the freedoms enjoyed
by all States in the exclusive economic zone in accordance with article 58.
Article 87
Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia,
both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to
Part VI;
(d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in
section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for
the interests of other States in their exercise of the freedom of the high seas,
and also with due regard for the rights under this Convention with respect to
activities in the Area.
Article 88
Reservation of the high seas for peaceful purposes
The high seas shall be reserved for peaceful purposes.
Article 89
Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its
sovereignty.
Article 90
Right of navigation
Every State, whether coastal or land-locked, has the right to sail ships
flying its flag on the high seas.
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Article 114
Breaking or injury by owners of a submarine cable or pipeline
of another submarine cable or pipeline
Every State shall adopt the laws and regulations necessary to provide
that, if persons subject to its jurisdiction who are the owners of a submarine
cable or pipeline beneath the high seas, in laying or repairing that cable or
pipeline, cause a break in or injury to another cable or pipeline, they shall
bear the cost of the repairs.
Article 115
Indemnity for loss incurred in avoiding injury
to a submarine cable or pipeline
Every State shall adopt the laws and regulations necessary to ensure that
the owners of ships who can prove that they have sacrificed an anchor, a net
or any other fishing gear, in order to avoid injuring a submarine cable or
pipeline, shall be indemnified by the owner of the cable or pipeline, provided
that the owner of the ship has taken all reasonable precautionary measures
beforehand.
SECTION 2. CONSERVATION AND MANAGEMENT OF THE
LIVING RESOURCES OF THE HIGH SEAS
Article 116
Right to fish on the high seas
All States have the right for their nationals to engage in fishing on the
high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States
provided for, inter alia, in article 63, paragraph 2, and articles 64
to 67; and
(c) the provisions of this section.
Article 117
Duty of States to adopt with respect to their nationals
measures for the conservation of the living resources of the high seas
All States have the duty to take, or to cooperate with other States in
taking, such measures for their respective nationals as may be necessary for
the conservation of the living resources of the high seas.
Article 118
Cooperation of States in the conservation and management
of living resources
States shall cooperate with each other in the conservation and
management of living resources in the areas of the high seas. States whose
nationals exploit identical living resources, or different living resources in the
same area, shall enter into negotiations with a view to taking the measures
necessary for the conservation of the living resources concerned. They shall,
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as appropriate, cooperate to establish subregional or regional fisheries
organizations to this end.
Article 119
Conservation of the living resources of the high seas
1. In determining the allowable catch and establishing other
conservation measures for the living resources in the high seas, States shall:
(a) take measures which are designed, on the best scientific
evidence available to the States concerned, to maintain or
restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant
environmental and economic factors, including the special
requirements of developing States, and taking into account
fishing patterns, the interdependence of stocks and any
generally recommended international minimum standards,
whether subregional, regional or global;
(b) take into consideration the effects on species associated with or
dependent upon harvested species with a view to maintaining or
restoring populations of such associated or dependent species
above levels at which their reproduction may become seriously
threatened.
2. Available scientific information, catch and fishing effort statistics,
and other data relevant to the conservation of fish stocks shall be contributed
and exchanged on a regular basis through competent international
organizations, whether subregional, regional or global, where appropriate and
with participation by all States concerned.
3. States concerned shall ensure that conservation measures and their
implementation do not discriminate in form or in fact against the fishermen
of any State.
Article 120
Marine mammals
Article 65 also applies to the conservation and management of marine
mammals in the high seas.
PART VIII
REGIME OF ISLANDS
Article 121
Regime of islands
1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf of an
island are determined in accordance with the provisions of this Convention
applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.
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2. If an action is brought against a State Party by a natural or juridical
person sponsored by another State Party in a dispute referred to in article 187,
subparagraph (c), the respondent State may request the State sponsoring that
person to appear in the proceedings on behalf of that person. Failing such
appearance, the respondent State may arrange to be represented by a juridical
person of its nationality.
Article 191
Advisory opinions
The Seabed Disputes Chamber shall give advisory opinions at the request
of the Assembly or the Council on legal questions arising within the scope of
their activities. Such opinions shall be given as a matter of urgency.
PART XII
PROTECTION AND PRESERVATION
OF THE MARINE ENVIRONMENT
SECTION 1. GENERAL PROVISIONS
Article 192
General obligation
States have the obligation to protect and preserve the marine
environment.
Article 193
Sovereign right of States to exploit their natural resources
States have the sovereign right to exploit their natural resources pursuant
to their environmental policies and in accordance with their duty to protect
and preserve the marine environment.
Article 194
Measures to prevent, reduce and control pollution
of the marine environment
1. States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and
control pollution of the marine environment from any source, using for this
purpose the best practicable means at their disposal and in accordance with
their capabilities, and they shall endeavour to harmonize their policies in this
connection.
2. States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause damage by
pollution to other States and their environment, and that pollution arising
from incidents or activities under their jurisdiction or control does not spread
beyond the areas where they exercise sovereign rights in accordance with this
Convention.
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