1. MPAs adjacent to or adjoining areas under national jurisdiction: legal and practical challenges Workshop on an ILBI on ABNJ Government of Portugal and the High Seas Alliance Lisbon, 2 and 3 March 2017
Alex Oude Elferink
Netherlands Institute for the law of the sea
Utrecht Centre for oceans water and sustainability law, Utrecht University
K.G. Jebsen Centre for the law of the sea
University of Tromsø

2. Questions of the organizers
How should the ILBI guarantee that the establishment of an MPA will have due regard for the rights of coastal States established under the United Nations Convention on the Law of the Sea (LOSC)?
What role should coastal States play in the establishment of MPAs adjacent to or adjoining areas under the jurisdiction of those States?
How should the ILBI address the need for/desirability of compatibility, complementarity and integration of measures across different jurisdictions?

3. Possible issues requiring further discussion on ABMT and MPAs as identified by PrepCom II Chair*
The decision to designate an MPA, especially in areas which adjoin areas under national jurisdiction, should be taken with the consent of neighboring coastal States and management of the MPA should be entrusted to the coastal States
The decision to designate an MPA should be taken after a consultation process which seeks to take into consideration the views and concerns of all stakeholders, including any neighboring coastal States as well as humankind as a whole
Need to look at the special case of SIDS
Are these positions on designation and management of MPAs in accordance with the jurisdictional framework of the LOSC?
PrepCom II Chair’s understanding of possible areas of convergence of views and possible issues for further discussion emanating from the discussions in the Informal working group on measures such as area-based management tools, including marine protected areas

4. Due regard – The legal framework of the LOSC 1
LOSC contains a number of standards to asses the interactions between coastal States and other States
EEZ: mutual due regard in exercising rights and performing duties under the Convention (articles 56 and 58)
Continental shelf (within and beyond 200 nautical miles): exercise of rights by coastal State must not infringe or result in any unjustifiable interference with rights and freedoms of other States as provided for in the LOSC (article 78)
High seas: exercise freedoms with due regard for the interest of other States in the exercise of these freedoms; in case of freedom of fishing additionally reference to rights and duties and interests of coastal State (subject to) (article 116)
Area (mining): due regard to rights and interests of coastal State in relation to deposits that straddle the Area and AWNJ (article 142; and see article 137)

5. Due regard – The legal framework of the LOSC 2
LOSC is not comprehensive in defining the standard for interactions between the coastal State and other states
Would seem reasonable to adopt due regard as a general standard (confirmed by Bangladesh/Myanmar, para 475)
Standard for fisheries on the high seas is due regard and additional requirement of section 2 of Part VII
Elaborated in Fish Stocks Agreement (FSA) through standard of compatibility (FSA, article 7)
Due regard is a two-way street: both the coastal State and other States are required to have due regard to the rights and obligations of the other

6. Due regard – Content Not defined in the LOSC
Bangladesh/Myanmar, judgment of 14 March 2012
There are many ways in which the Parties may ensure the discharge of their obligations in this respect, including the conclusion of specific agreements or the establishment of appropriate cooperative arrangements. It is for the Parties to determine the measures that they consider appropriate for this purpose (para. 476)
Bangladesh v. India, award of 7 July 2014
Confirms Bangladesh/Myanmar, adding
The Tribunal is confident that the Parties will act, both jointly and individually, to ensure that each is able to exercise its rights and perform its duties within this area (para. 508; emphasis provided)

7. Due regard – Content Chagos arbitration, Award of 18 March 2015
Did UK as coastal State have due regard for the rights of Mauritius?
Due regard means the UK having “such regard for the rights of Mauritius as is called for by the circumstances and by the nature of those rights” (para. 519)
“Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of Mauritius’ rights; nor does it uniformly permit the United Kingdom to proceed as it wishes, merely noting such rights” (ibid.)
Requires balancing of rights of UK and Mauritius and looking at alternative approaches (ibid.)
In majority of cases requires “at least some consultation with the rights-holding State” (ibid.)

8. How should the ILBI guarantee for due regard for the rights of coastal States?
Right question would seem to be: How to guarantee that the “two-way street” due regard obligation contained in the LOSC is reflected in the ILBI?
Possible formula to achieve this
States shall exercise their rights and perform their obligations under the Convention and this Agreement with due regard for the rights and obligations of other States under the Convention and this Agreement
In view of the Convention’s reliance on the concept of due regard, it would be counterproductive to introduce the new concept of ‘respect for the sovereign rights of the coastal State’

9. Role coastal States in establishing MPAs adjacent to or adjoining areas under their jurisdiction?
Under the LOSC the role of the coastal State is defined by the requirement of due regard
Does not imply need for consent of the coastal State
Due regard is case-specific
Due regard may require
Need for consultation with the coastal State
Need to assess how rights and obligations may be balanced with those of the coastal State
Need to consider alternative approaches
Acknowledging the specific case of SIDS, e.g. with reference to proportionate burden sharing
Due regard thus may imply that there is an impact on the rights and obligations of the other side involved (no absolute requirements of avoiding any negative effects)
Mechanisms for establishing MPAs have to be inclusive

10. ILBI and compatibility, complementarity and integration of measures across jurisdictions
Build on existing legal framework, e.g.:
Fisheries – cross-reference to Convention and article 7 Fish Stocks Agreement (FSA)
Mining – cross-reference to Convention (articles 137 and 142)
Ensure applicability substantive rules for identifying the need for ABMT and MPAs to ABNJ and AWNJ
Might involve a need for funding for AWNJ
Perceived need for compatibility, complementarity and integration of measures across jurisdictions could be a trigger for applying specific due regard requirements listed in the Chagos Award

11. Summing up Possible formula to achieve this
Both coastal States and other States have to have due regard
Possible formula to achieve this
States shall exercise their rights and perform their obligations under the Convention and this Agreement with due regard for the rights and obligations of other States under the Convention and this Agreement
Due regard
Does not imply need for consent of the coastal State
Due regard is case-specific
Due regard may require
Need for consultation with the coastal State
Need to assess how rights and obligations may be balanced with those of the coastal State
Need to consider alternative approaches
Acknowledging the specific case of SIDS, e.g. with reference to proportionate burden sharing