Sustainable Management of Marine Protected Areas in the High Seas: From Regional Treaties to a Global New Agreement on Biodiversity in Areas beyond National Jurisdiction

Abstract

The conservation and sustainable use of marine biodiversity have recently received attention, and Marine Protected Areas (MPAs) have become key management tools that are gradually being applied to the high seas. However, the sustainable management of MPAs in the high seas requires legal regimes to support them, though relevant regimes are still immature. This paper summarizes the existing regional treaties governing high seas MPAs, and the agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ Agreement). After reviewing and comparing their law-making histories, it is argued that regional treaties have issues of legitimacy, democracy, and science and are not conducive to sustainable management. It is concluded that the BBNJ Agreement is better suited to the comprehensive and sustainable management of high seas MPAs and can overcome the limitations of regional treaties. As the BBNJ Agreement does not undermine existing instruments and frameworks, the management of high seas MPAs will face the co-existence of different legal regimes. In the context of “not undermining”, the Agreement should be applied preferentially, ensuring the universal participation of stakeholders in decision-making and the role of soft law for non-contracting parties.