The Legal Regime for Marine Protected Areas (MPAs) in International Law: Balancing Conservation Efforts with Maritime Navigation Rights
Abstract:
Marine Protected Areas (MPAs) have emerged as a crucial tool for preserving marine biodiversity and ecosystems. However, the establishment and management of MPAs often come into conflict with the long-standing principle of freedom of navigation in international maritime law. This paper explores the legal framework governing MPAs in international law, focusing on the balance between conservation efforts and the rights of states to navigate freely on the high seas. It examines the relevant provisions of the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), and other international legal instruments. The paper also analyzes the challenges and opportunities for reconciling these competing interests and proposes recommendations for strengthening the legal regime for MPAs while respecting navigational rights.
Introduction:
The world’s oceans are facing unprecedented threats from human activities, including overfishing, pollution, and climate change. In response, the international community has increasingly turned to Marine Protected Areas (MPAs) as a means of conserving marine biodiversity and promoting sustainable use of ocean resources. MPAs are defined as “any area of the marine environment that has been reserved by federal, state, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein” (NOAA, 2021). However, the establishment and management of MPAs often come into conflict with the principle of freedom of navigation, which is a cornerstone of international maritime law. This paper explores the legal framework governing MPAs in international law, with a particular focus on balancing conservation efforts with the rights of states to navigate freely on the high seas.
The United Nations Convention on the Law of the Sea (UNCLOS) and MPAs:
The United Nations Convention on the Law of the Sea (UNCLOS) is the primary international legal instrument governing the use and protection of the world’s oceans. Adopted in 1982 and entered into force in 1994, UNCLOS establishes a comprehensive legal framework for the governance of the oceans, including the rights and responsibilities of states in different maritime zones (United Nations, 1982). While UNCLOS does not specifically mention MPAs, it does provide a legal basis for their establishment and management.
Under UNCLOS, states have the sovereign right to establish MPAs within their territorial sea, which extends up to 12 nautical miles from the baseline (Article 2). Within the territorial sea, states have full jurisdiction over the protection and preservation of the marine environment (Article 21). However, states must also respect the right of innocent passage for foreign vessels, which means that ships of all states have the right to navigate through the territorial sea as long as they do not engage in activities that are prejudicial to the peace, good order, or security of the coastal state (Article 17).
Beyond the territorial sea, states may also establish MPAs within their exclusive economic zone (EEZ), which extends up to 200 nautical miles from the baseline (Article 56). Within the EEZ, states have sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources, both living and non-living (Article 56). However, states must also respect the freedoms of navigation and overflight, as well as the laying of submarine cables and pipelines, which are enjoyed by all states in the EEZ (Article 58).
On the high seas, which are the areas beyond national jurisdiction, the principle of freedom of navigation is paramount. Under UNCLOS, all states have the right to navigate freely on the high seas, subject only to the conditions laid down in the convention and other rules of international law (Article 87). However, UNCLOS also imposes a general obligation on states to protect and preserve the marine environment (Article 192) and to cooperate on a global or regional basis in formulating and elaborating international rules, standards, and recommended practices and procedures for the protection and preservation of the marine environment (Article 197).
The Convention on Biological Diversity (CBD) and MPAs:
The Convention on Biological Diversity (CBD) is another important international legal instrument that is relevant to the establishment and management of MPAs. Adopted in 1992 and entered into force in 1993, the CBD aims to promote the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the utilization of genetic resources (United Nations, 1992). The CBD recognizes the importance of in-situ conservation, which includes the establishment of protected areas, as a means of achieving its objectives (Article 8).
In 2010, the parties to the CBD adopted the Strategic Plan for Biodiversity 2011-2020, which includes the Aichi Biodiversity Targets. Target 11 calls for the conservation of at least 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, through effectively and equitably managed, ecologically representative, and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes (CBD, 2010). This target has been widely adopted by the international community and has spurred the creation of new MPAs around the world.
However, the CBD also recognizes the need to respect the rights and obligations of states under international law, including those related to freedom of navigation. Article 22 of the CBD states that the provisions of the convention shall not affect the rights and obligations of any contracting party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity (United Nations, 1992). This provision suggests that the establishment of MPAs under the CBD must be balanced against the navigational rights of states under UNCLOS and other international legal instruments.
Challenges and Opportunities for Reconciling Conservation and Navigation:
The establishment and management of MPAs in international law face several challenges and opportunities for reconciling conservation efforts with navigational rights. One of the main challenges is the lack of a clear and comprehensive legal framework for MPAs, particularly in areas beyond national jurisdiction. While UNCLOS and the CBD provide a legal basis for the establishment of MPAs, they do not provide detailed guidance on their design, management, and enforcement (Gjerde et al., 2019). This has led to a patchwork of different approaches and standards for MPAs around the world, which can create confusion and inconsistency for states and other stakeholders.
Another challenge is the potential for conflict between MPAs and navigational rights, particularly in areas of high traffic or strategic importance. For example, the establishment of large-scale MPAs in the high seas could restrict the ability of states to navigate freely or to engage in certain activities, such as fishing or mineral exploration (Wagner et al., 2020). This could lead to disputes between states and undermine the effectiveness of MPAs in achieving their conservation objectives.
To address these challenges, there is a need for greater cooperation and coordination among states and other stakeholders in the establishment and management of MPAs. This could include the development of a new international legal instrument specifically focused on MPAs, which could provide a more comprehensive and consistent framework for their design, management, and enforcement (Gjerde et al., 2019). Such an instrument could also include provisions for the resolution of disputes between states and for the equitable sharing of the benefits and costs of MPAs.
Another opportunity for reconciling conservation and navigation is through the use of zoning and other management tools within MPAs. By dividing MPAs into different zones with varying levels of protection and use, it may be possible to balance conservation objectives with navigational rights and other human activities (Day et al., 2019). For example, some zones could be designated as no-take areas where all extractive activities are prohibited, while other zones could allow for limited fishing or other sustainable uses. Zoning could also be used to establish shipping lanes or other navigational measures within MPAs to minimize the impact of vessel traffic on sensitive marine ecosystems.
The legal regime for Marine Protected Areas (MPAs) in international law is a complex and evolving area that requires careful balancing of conservation efforts with navigational rights. While UNCLOS and the CBD provide a legal basis for the establishment and management of MPAs, they also recognize the importance of freedom of navigation and the need to respect the rights and obligations of states under international law. To reconcile these competing interests, there is a need for greater cooperation and coordination among states and other stakeholders in the design, management, and enforcement of MPAs. This could include the development of a new international legal instrument specifically focused on MPAs, as well as the use of zoning and other management tools to balance conservation objectives with human activities. By working together to strengthen the legal regime for MPAs while respecting navigational rights, the international community can help to protect the world’s oceans and the vital ecosystem services they provide for current and future generations.
References:
CBD. (2010). Strategic Plan for Biodiversity 2011-2020, including Aichi Biodiversity Targets. Convention on Biological Diversity. https://www.cbd.int/sp/
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United Nations. (1982). United Nations Convention on the Law of the Sea. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
United Nations. (1992). Convention on Biological Diversity. https://www.cbd.int/doc/legal/cbd-en.pdf
Wagner, D., Friedlander, A. M., Pyle, R. L., Brooks, C. M., Gjerde, K. M., & Wilhelm, T. ‘Aulani. (2020). Coral Reefs of the High Seas: Hidden Biodiversity Hotspots in Need of Protection. Frontiers in Marine Science, 7. https://doi.org/10.3389/fmars.2020.567428
