The Arctic ice high seas marine protected area under the OSPAR convention : legal complexities and future prospects

Abstract

So far, the biodiversity governance in the Arctic Ocean is fragmented and does not offer coherent and holistic protection, especially in Areas Beyond National Jurisdiction (ABNJs). Considering the obligation set in articles 192 and 197 of the UN Convention on the Law of the Sea (UNCLOS) for contracting parties to protect and preserve the marine environment in cooperation with global or regional organisations, the OSPAR Convention pioneers in introducing Marine Protected Areas (MPAs) on the high seas. In 2016, OSPAR approached the Arctic Council with a proposal to establish an MPA under its mandate in the Arctic waters beyond national jurisdiction. The respective area had also been described to meet the criteria set by the Convention of Biological Diversity (CBD) for an “Ecologically or Biologically Significant Area (EBSA)”. Nevertheless, introducing an MPA in the Arctic high seas raises serious legal questions concerning the competence overlapping among existing institutions in the region and the obligations and consequences for parties and non-parties of the OSPAR Convention. Issues regarding the restriction of the high sea’s freedoms under Article 87 of UNCLOS and the outer continental shelf submissions by the Arctic states -following Article 76 of UNCLOS – are also under consideration. This thesis aims to identify the legal challenges in this effort. It also analyses the importance of a multi-sector cooperative approach in the region to legitimise OSPAR’s regulatory measures in the Arctic ABNJ and to ensure the broadest possible participation of non-member States. Lastly, it intends to highlight the role of the new Internationally Legally Binding (ILBI) instrument – the BBNJ instrument - in protecting biodiversity in ABNJ.