Reasonable Restrictions on Freedom of High Seas by 'Marine Protected Areas on the High Seas': An Empirical Research

• Author: Yong Wang
• Position: Professor of International Law at East China University of Political Science and Law ('ECUPL'), China. LL.B./LL.M./Ph.D. (ECUPL). ORCID: http://orcid.org/0000-0002-4558-3663.
• Pages: 245-268

Yong Wang

∗

The UN member states have been consulting on the establishment of high seas MPAs

under the BBNJ Agreement since December 2017.This issue brings about the potential

      

of the high seas. Although it is generally accepted that the freedom of the high seas can

     

States on the specific forms, approaches and applicable scopes of the restrictions of

the high seas freedoms by the high seas MPAs. At present, there are four recognized

     

to the interpretation of the reasonable restrictions on the freedom of the high seas.

Accordingly, this paper concludes that the international community should gradually

.

Keywords

High Seas Marine Protected Areas, Freedom of the High Seas,

Reasonable Restrictions, Positivist Analysis

∗ Professor of International Law at East China University of Political Science and Law (“ECUPL”), China. LL.B./LL.M.

/Ph.D. (ECUPL). ORCID: http://orcid.org/0000-0002-4558-3663. This paper is a phased research result of a major

project of China Association of Marine Affairs and Academy of Ocean of China entitled, “Research into the Marine

Exploitation and Utilization System under the Law of the Sea (CAMAZDA201701).” Much gratitude is extended to

Prof. Eric Y. J. Lee for his insightful advice. The author may be contacted at: yongyongsh@163.com/Address: Interna-

tional Law School, East China University of Political Science and Law, No. 1575 Wan hangdu Road, Shanghai, China,

200042. All the websites cited in this paper were last visited on September 23, 2019.

Reasonable Restrictions on

Freedom of High Seas by

“

Marine Protected Areas

on the High Seas

”

:

An Empirical Research

J. EAST ASIA & INT’L L. Vol. 12/No.2 (2019); 245-268

Publication type : Research Article

Section : Issue Focus

DOI : http://dx.doi.org/10.14330/jeail.2019.12.2.01

246 Yong Wang

I. Introduction

In the last four decades, marine vertebrates (fish, seabirds, sea turtles, and marine

mammals) have significantly declined by 22 percent on average.

1

A recent review

article in Science predicts a major extinction event in the oceans if human impacts

on the marine environment go unchecked.

2

Meanwhile, the protection of marine

environment on the high seas has also attracted great attention from the international

community. However, the legal and institutional frameworks that govern marine

biodiversity in areas beyond national jurisdiction (“ABNJ”) are widely perceived as

inadequate for ensuring the long-term health and equitable use of the living resources

in this vast area.

3

In order to protect marine environment in ABNJ, representatives

from over one hundred States, governments and NGOs participated in the

negotiations of drafting a BBNJ convention, which have already completed four pre-

committee meetings.

4

After serveral rounds of extensive negotiations, on July 21,

    

elements of a draft text of an international legally binding instrument (“ILBI”) under

the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) to the UN

General Assembly.

5

On December 24, 2017, the United Nations General Assembly

adopted Resolution 72/249 that decided to initiate formal governmental negotiations

on the issue, aiming at drafting a legally binding international document of biological

diversities beyond national jurisdiction (“BBNJ”).

6

One key issue about the BBNJ is the potential establishment of high seas Marine

Protected Areas (“MPAs”).

7

Arguably, the establishment of the high seas MPAs may

give rise to potential conflicts between the jurisdiction of high seas MPAs and the

1 D. McCauley et al., Marine defaunation: animal loss in the global ocean, 347 SCI. 247(2015).

2 Id.

3 A.-M. Hubert, UN General Assembly Resolution to Develop a New Legally Binding Instrument on the Conservation

and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (Aug. 14, 2015), available

at https://ablawg.ca/2015/08/14/un-general-assembly-resolution-to-develop-a-new-legally-binding-instrument-on-the-

conservation-and-sustainable-use-of-marine-biological-diversity-of-areas-beyond-national-jurisdiction.

4 BBNJ’s four pre committees were held in New York as follows: (1) Mar. 28 - Apr. 8, 2016; (2) Aug. 26 - Sept. 9, 2016;

(3) Mar. 27 - Apr. 7, 2017; (4) July 10-17, 2017.

5 Id.

6 G.A. Res.72/249, U.N. Doc. A/RES/72/249 (Jan. 19, 2018), available at https://undocs.org/en/A/AC.287/2017/PC.4/2.

7 Id. As the areas beyond national jurisdiction include the high seas and the Area, the MPAs beyond national jurisdiction

also include high seas MPAs and the Area MPAs. The paper only borrows the name of high seas MPAs, so the high

seas MPAs in this paper not only refer to marine protected areas located on the high seas, but also the international

seabed area.