1 Introduction
the polar regions, notably [â¦] the maritime Antarctic, are experiencing impacts from climate change at magnitudes and rates that are among the highest in the world, and will become profoundly different in the near-term future (by 2050) under all warming scenarios.1
This presents a threat to the regionâs distinctive biodiversity,2 with rising temperatures projected to impact speciesâ abundance, migration patterns and distribution in the Antarctic, and alter speciesâ metabolic processes, influencing growth and reproduction.3 In addition to climate-associated stressors, the cumulative impacts of increased human activities in the region continue to affect Antarctic marine ecosystem functioning through extraction of living resources, habitat alteration, pollution and the introduction of invasive non-native species.4 The primary culprit is the mounting interest in industrial fishing, particularly in relation to Antarctic krill (Euphausia superba), considered
The main legal instrument of relevance in the region, the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), aims at the conservation of Antarctic marine living resources, with conservation understood as including rational use.8 It establishes the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) which has the competence to adopt a variety of conservation measures (CMs) in application of the Convention. It has done so in order to address various conservation concerns such as over-exploitation of targeted marine living resources, habitat degradation, or illegal, unreported and unregulated fishing.9 Over the years, it has gained a track record of conservation successes, and it garnered a reputation as a progressive international organisation and a pioneer of the ecosystem-based approach.10 However, there is growing recognition that CCAMLRâs existing body of CMs â although a positive step â is
It is widely acknowledged that the implementation of a network of marine protected areas (MPAs) protecting representative examples of marine ecosystems within the geographical area to which the Convention applies (Convention Area)12 presents one of the most effective conservation tools to combat these cumulative threats.13 While CCAMLR itself has not defined the term, an MPA is usually understood as â[a] clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural valuesâ.14
In 2009 and 2016, CCAMLR adopted two MPAs in the Convention Area. These are respectively the first ever and largest high seas MPAs, and both include strict non-use measures, such as no-take zones. However, following those early successes, it has been impossible for CCAMLR Members to agree to the establishment of further MPAs, notwithstanding the explicit commitment to do so.15 This chapter examines the existing CCAMLR MPAs, as well as the ones that have been put forward in proposals by Members. The questions that this chapter addresses relate in particular to the conditions of adoption of non-use measures and the prospects of adoption of further non-use measures within MPAs.
To do so, this chapter starts with a presentation of CCAMLR and its evolution towards the adoption of MPAs (section 2), before focusing on the two
2 CCAMLR and Its Evolution towards MPAs
2.1 Introduction to CCAMLR
CCAMLR was established pursuant to the CAMLR Convention,17 which was adopted largely in response to concerns that the rapid expansion in krill exploitation could endanger the entire Antarctic ecosystem.18 The Convention entered into force in 1982 and forms part of the Antarctic Treaty System (ATS), the multilateral regime regulating many human activities in Antarctica.19 A cornerstone of the ATS is Article IV of the Antarctic Treaty, according to which territorial claims in relation to Antarctica are frozen, a provision which is reiterated in Article IV of the CAMLR Convention. The seven States that had made territorial claims prior to the Antarctic Treaty are known as âclaimant Statesâ, while all others are ânon-claimant Statesâ. CCAMLR membership includes both categories.
The Conventionâs objective is the conservation of Antarctic marine living resources which form part of the Antarctic marine ecosystem, including populations of finfish, molluscs, crustaceans, birds and all other species of living organisms within the Convention Area.24 Pursuant to Article IX, the Commission was established to give effect to this objective. Although CCAMLR is generally considered as more than a regional fisheries management organisation, it does not directly involve itself with the conservation and management of marine mammals and seals25 and its material competence is âlimited to fishing, fishing-related activities and researchâ.26 Indeed, it does not regulate other activities that might have an impact on the conservation of Antarctic marine living resources.
Of note, in the context of the CAMLR Convention, conservation includes ârational useâ. This term, although not expressly defined in the Convention, is
Any harvesting and associated activities must comply with the provisions of the Convention and, in particular, three core conservation principles set out in Article II(3), which aim to: (i) prevent a decrease in harvested stocks below stable population levels, (ii) maintain ecological relationships between harvested and dependant species, and (iii) minimise the risk of impacts to the marine ecosystem which are not potentially reversible over two or three decades. These principles embody the precautionary and ecosystem approaches to the conservation of Antarctic marine living resources. The former encourages proactive and early action to minimise long-term adverse effects notwithstanding scientific uncertainty, which is particularly critical in the context of relatively data-poor Antarctica.29 Meanwhile, an ecosystem approach seeks to holistically minimise the impact of fishing on the ecosystem as a whole, rather than focusing upon a specific species or habitats.30
CCAMLR discharges its conservation mandate through the adoption of CMs and complementary non-binding resolutions during its annual meetings, based upon the âbest scientific evidence availableâ provided by an advisory Scientific Committee and its working groups.31 CMs are binding upon all CCAMLR Members, subject to limited exceptions such as the Chairmanâs Statement32 or the
2.2 CCAMLRâs First Steps towards MPAs
Although the CAMLR Convention does not explicitly refer to MPAs, the Commission has asserted its jurisdiction to establish MPAs in the Convention Area on the basis of its broad conservation mandate.36 The Commission has also expressly identified Article IX(2)(f) and (g) as a legal basis for the establishment of MPAs.37 These provisions enable the Commission to establish CMs designating âopen and closed seasons for harvestingâ and âthe opening and closing of areas, regions or sub-regionsâ for, amongst other things, conservation purposes.38
The valuable role of MPAs in furthering CCAMLRâs conservation objective has long been recognised within the Commission,39 with the idea of MPAs developed within CCAMLR first introduced by an International Union for Conservation of Nature observer at the 1996 Commission meeting.40 CCAMLR then included protected areas as a separate ongoing agenda item and established an advisory sub-group to consider the issue in 2002.41 The
In 2009, CCAMLR both adopted its first MPA and formally committed to the establishment of a representative network, or system, of MPAs in the Convention Area by 2012.43 To do so, CCAMLR started by identifying priority areas for MPA designation through bioregionalisation.44 Then, in 2011, at a CCAMLR workshop on MPAs, the Convention Area was divided into nine MPA planning domains.45 That same year, CCAMLR adopted a âGeneral framework for the establishment of CCAMLR Marine Protected Areasâ (MPA Framework).46 According to this instrument, the general objectives of MPAs encompass protecting key marine ecosystemsâ processes, habitats and species, representative ecosystems, biodiversity and habitats, local ecosystemsâ critical features and vulnerable areas, as well as building climate change resilience and adaptability and establishing scientific reference areas.47
3 Existing CCAMLR MPAs
As of September 2024, two MPAs have been established by CCAMLR: the South Orkney Islands southern shelf MPA (South Orkney Islands MPA) and the Ross Sea region MPA. Several other MPAs exist in the Convention Area but in areas under national jurisdiction48 and are hence not presented here.49
Adopted in 2009, the South Orkney Islands MPA was the first MPA in areas beyond national jurisdiction (ABNJ).50 The MPA will remain in place except if it is decided otherwise by consensus of the CCAMLR Members.
Covering 94,000 km2, this MPA was identified as an area of âhigh conservation importance, and representative of key environmental and ecosystem characteristics in the regionâ.51 There, commercial fishing is prohibited, as are transhipment and discharges or dumping by fishing or fishing-related vessels. In addition to an emergency exception to the prohibitions, research activities can also take place if CCAMLRâs Scientific Committee gives its approval, in which case specific rules for scientific research apply.52
The South Orkney Islands MPA was adopted prior to the development of the CCAMLR MPA Framework; hence, there were no dedicated criteria or rules on how to develop and adopt the MPA proposal.53 On the basis of a proposal made by the United Kingdom, which excluded the regions adjacent to the South Orkney Islands that were the most biologically rich (but also important fishing ground),54 the MPA was adopted the same year that it was first put forward. This swift process was probably made possible by the fact that, from the outset, the proposal was designed not to interfere with existing fisheries, and concessions were then made in order to avoid interferences with potential future fisheries.55
3.2 Ross Sea Region MPA
The second CCAMLR MPA is the Ross Sea region MPA, which was adopted in 2016 after five years of negotiations.56 It has been designated for a period 35 years, and will consequently lapse at the end of the 2051â2052 fishing season,
Covering an area of 1.55 million km2, it is the largest high seas MPA in the world. The Ross Sea region MPA was established inter alia to conserve that areaâs ânatural ecological structure, dynamics and functionâ, to protect âlarge-scale ecosystem processes responsible for the productivity and functional integrity of the ecosystemâ, specific habitats and/or areas important for certain speciesâ crucial lifecycle stages, as well as to promote research.58 In the Ross Sea region MPA, as a default, fishing activities and transshipment activities by fishing vessels are not allowed, but exceptions to these prohibitions exist.
The MPA is divided in three zones, which are more or less strictly focused on non-use. In the largest zone, the General Protection Zone (GPZ), fishing other than for scientific research is prohibited. In the Krill Research Zone (KRZ), in addition to a scientific research exemption for species other than krill, exploratory fishing for krill is allowed.59 In the Special Research Zone (SRZ), exploratory krill and toothfish fishing are allowed.60
The Ross Sea region MPA was first proposed in 2012 by the United States and New Zealand. An in-depth study analysed the negotiation process, highlighting the main issues and steps that led to the MPAâs adoption in 2016.61 In 2012, many concerns were raised, in particular regarding the proposed MPAâs size and boundaries. Not long thereafter, it was acknowledged that the proposal met the criteria found in the MPA Framework,62 but further concerns about interference with fishing and the scientific basis for the proposed northern parts of the MPA were nonetheless voiced. The northern parts of the proposal were subsequently removed, but Russiaâs opposition, in particular, did not seem to abate and it even questioned the ability of CCAMLR to adopt MPAs. The 40% reduction in size led many fishing States to support the proposal, but consensus could still not be reached in 2013. By the end of the 2014
It appears that the adoption of the Ross Sea region MPA was made possible by the large reduction in size of the proposal, the introduction of a sunset clause, and high-level diplomatic pressure by the United States.
3.3 Analysis of Existing Non-use Measures
Both CCAMLR MPAs include non-use measures: fishing is, by default, prohibited. Some activities that are related to fishing are also covered by non-use measures. Indeed, in the South Orkney Islands MPA, in addition to commercial fishing, discharges or dumping by fishing or fishing-related vessels are prohibited, as is transshipment. In the Ross Sea region MPA, fishing vessels are not allowed to undertake transshipment activities, but dumping and discharges are only to be avoided, hence less strictly prohibited.
Yet, a variety of exceptions to the non-use measures exist, which allow some fishing or fishing-related activities to take place. First, a general emergency exception for the safety of life at sea is applicable in the South Orkney Islands MPA, while a similar one is included in the Ross Sea region MPA with regard to transhipment activities in particular.63 Second, in both MPAs, scientific research fishing is permitted to proceed. Such activity is however regulated by CCAMLR.64 Indeed, in the South Orkney Islands MPA, the approval of the Scientific Committee is required before scientific fishing can take place. In the
It is worth noting that exceptions to non-use measures could also be construed as measures regulating use, in particular here in the case of scientific fishing and exploratory fishing. However, whereas the heading of the relevant section in Conservation Measure 91â05 on the Ross Sea region MPA ambiguously reads âRestricted, prohibited and managed activitiesâ, the first paragraph clearly provides that â[e]xcept as authorised under paragraphs 8, 9 and 21 fishing activities are prohibited within the MPAâ, a non-use default situation. Nonetheless, depending on the scope of the exceptions, one can wonder whether the non-use measure description applied to fishing prohibitions in MPAs, in particular in the SRZ and KRZ of the Ross Sea region MPA, is fully warranted.
Many of CCAMLRâs other CMs include non-use measures, which are not discussed in detail here.67 These non-use measures can have a variety of foci: the species that cannot be caught, the time of the year when fishing is not permitted to take place, the areas where it is not allowed to occur, and the type of fishing gear that may not be used. Some measures are a mix of these categories. Examples include the prohibition of bottom fishing in registered Vulnerable Marine Ecosystems,68 and the prohibition of directed fishing of listed species in designated areas69 or during a given period.70 Some of these non-use
4 Current Situation
4.1 Blocked Proposals
In addition to the Weddell Sea MPA Phase 1 proposed in 2018 (on this, see the detailed discussion conducted by Teschke and Konijnenberg in chapter 12 of this volume),72 two further MPAs have been put forward over the years: East Antarctica in 2012 and the Antarctic Peninsula (Domain 1) in 2022 â and
4.1.1 East Antarctic MPA
The East Antarctic MPA (EAMPA) was first formally proposed in 2012 by Australia, France and the European Union, and by Australia and the European Union and its Members States from 2016 onwards. Several co-sponsors have joined since. The EAMPA is proposed as a âmulti-useâ, rather than a âno-takeâ, area. This allows for certain fishing activities, including research fishing and directed finfish and Antarctic krill fishing, subject to compliance with the MPAâs objectives74 and prescribed conditions.75 Hence, the proposed EAMPA includes restricted-use rather than non-use measures.
Proponents emphasise the EAMPAâs potential to maintain the long-term resilience of Antarctic ecosystems and conserve representative areas of biodiversity, as well as to provide scientific reference areas â particularly as the region serves as foraging grounds for a range of predators and nursery grounds for key species such as Antarctic krill, toothfish and silverfish.76 Since the EAMPA was initially proposed in 2012, it has attracted support from a broad range of co-proponents and has been refined in response to scientific discoveries and Member feedback.77 For instance, the geographical scope of the proposal has been significantly narrowed from seven to three scientific representative zones,78 decreasing the MPAâs spatial coverage from 1.8 million km2 to
4.1.2 Domain 1 MPA
The proposal for the Antarctic Peninsula region MPA, also known as âDomain 1 MPAâ, was submitted in 2018 by Argentina and Chile.81 The Domain 1 MPA covers approximately 670,000 km2 in the Western Antarctic Peninsula and South Scotia Arc region. This region is one of the most productive Antarctic regions, with 75% of the circumpolar Antarctic krill population occurring in it,82 and it is considered a biodiversity hotspot.83 It is also particularly vulnerable to the impacts of climate change and already subject to increasing environmental variability, impacting krill populations.84 The Domain 1 MPA, which would have a limited duration of 70 years,85 currently comprises a no-take GPZ (representing over 60% of the MPA) and a krill fishing zone (KFZ) which includes important fishing areas around the Antarctic Peninsula, the South Shetland Islands, and the South Orkney Islands.86 Hence, the current Domain 1 MPA proposal prohibits fishing activities, except for research fishing in the whole MPA (conducted in accordance with specified CMs and consistent with the MPA objectives) and directed krill fishing in the KFZ (during a prescribed fishing season and subject to conditions).87 The current proposal has been significantly adjusted and streamlined since 2018,88 as, for instance, a âspecial fishery
The Domain 1 MPA is expected to âsubstantially increase the representativeness of MPAs in the Convention Areaâ,90 protect key life-cycle areas for krill and predators, and boost ecosystem resilience against climate change.91 Proponents also emphasise prospective future benefits for krill harvesting activities due to increased productivity and a potential âspill-overâ effectâ.92
4.2 Main Arguments of Opponents
The States that oppose the adoption of new MPAs in the Convention Area have presented a variety of arguments, which often reflect, more or less transparently, these Statesâ fishing interests and world vision. Indeed, without always explicitly acknowledging it, those States fear that non-use measures will interfere with their fishing interests, both present and future.93 Several of the arguments presented below might be strategies to block progress on MPAs adoption rather than arguments in a good faith negotiation process, particularly as the opposing States have been criticised for failing to properly substantiate their concerns or engage in constructive discussions.
Such fishing interest is often presented under the guise of defending the ârational useâ objective of the CAMLR Convention. Russia and China in particular have frequently invoked that concept to oppose the current MPA proposals,94 asserting that conservation and rational use are separate goals that ought to be balanced in MPA designation.95 China has made it clear that they
Second, China and Russia have rejected MPA proposals due to what they perceive as a lack of supporting scientific data,98 including where proposals had already been certified by the CCAMLR Scientific Committee as constituting âbest available scientific dataâ.99 Notably, recent objections have referred to a lack of âsufficient dataâ or âsound scientific evidenceâ,100 with Russia even proposing to amend CCAMLRâs MPA Framework to incorporate this stricter standard.101 This proposed departure from the âbest available scienceâ standard enshrined in Article IX(1)(f) of the Convention and applicable to all CMs has attracted significant criticism from other Members as failing to align with the precautionary approach and presenting an âunachievable barrierâ to the adoption of MPAs.102 Members have expressed particular concern about the continued blocking of the Domain 1 MPA proposal which is supported by a significant amount of data.103
In relation to this, both Russia and China have also persistently rejected MPA proposals on the basis that there is insufficient evidence that climate change
Third, Russia is of the opinion that the CCAMLR MPA Framework must be amended before any further MPA can be established.108 Indeed, it asserts that the Framework is âbrief and does not contain enough procedural and implementation measures to manage a unified process for designating MPAsâ.109 Proposed amendments include an agreed definition of an MPA,110 as well as the clarification of MPA proposal data requirements and of the criteria for assessing whether an MPAâs objectives are achieved.111 Whilst other Members have displayed a willingness to consider improvements to the MPA Framework, they have emphasised that this should not be considered a precondition for the adoption of the current MPA proposals, since the current Framework is âfit for purposeâ.112
Finally, it has also been argued, although to a lesser extent, that MPAs are used by proponent States as a political tool to assert sovereignty and exclude other non-claimant Members from the relevant regions. This assertion, raised by Russia,113 is founded on the fact that all MPA proposals have been led (at least
5 Analysis and Way Forward
5.1 Successes and Challenges
It is worth asking whether CCAMLR MPAs can be considered successful, not only in attaining the stated goals in the relevant CCAMLR instruments, but also as much lauded conservation tools for the marine biodiversity of the Southern Ocean.
The CCAMLR MPAs impose actual obligations with (non-use) measures on State Parties, which have the potential to achieve conservation objectives. Obligations not to catch fish and/or krill, to refrain from certain transhipment activities, and clear rules regarding the implementation of exceptions are noteworthy in their stringency. This is in clear contrast to other high seas MPAs, in particular those in the North-East Atlantic (region under the mandate of the OSPAR Convention), which have conservation objectives but few concrete management measures in place to achieve them.116 Overall, it has been said that CCAMLR MPAs have the potential to build ecosystem-level climate resilience and adaptation to climate change by reducing human stressors, such as population depletion, food web disruption, habitat damage, pollution, and invasion of alien species.117 Other benefits of MPAs include addressing ongoing knowledge gaps by providing critical climate reference areas and baselines allowing for the monitoring of long-term impacts from human activities and climate change;118 increasing productivity of adjacent fisheries through a
Nonetheless, the CCAMLR situation in terms of substantive obligations is not perfect either. Indeed, in order for the relevant proposals to be adopted, they are structured in such a way as to exclude fishing grounds, which are usually also crucial areas of biodiversity. Even then, such proposals are not always acceptable to some CCAMLR Members, and further concessions are made. Whether the adopted MPAs are sufficient to achieve all the stated objectives remains to be seen. The usual problem in multilateral fora â especially those ruled by consensus â of having to compromise for a measure to be adopted means that, oftentimes, the content of a regulatory instrument is not such as to enable its success. For example, in the case of the Ross Sea region MPA, the size decreases were significant (reaching 40â50%) and boundaries were modified, with some ecologically significant ecosystem components excluded from the revised proposals, all in the name of compromise.122 Moreover, with the concession of a 35-year time limit in order to reach consensus, it is unclear whether such a protection period will be sufficient to cover the lifespan of many relevant species.123
However, this risk of watered-down measures might appear, at present, a best-case scenario. Indeed, the current deadlock in adopting further MPAs has not been solved by âsimplyâ giving in a little more to fishing States. This situation means that, overall, CCAMLR has failed its own objectives of a representative
One can also point to a further challenge, related to the question of representativeness. Indeed, a recent study demonstrates that existing MPAs do not protect the full range of biodiversity in the Antarctic Ocean.127 Even if the three proposed MPAs were adopted and included no-take zones, some areas would still be left unprotected.128 While proposals have been developed â and in some cases adopted â in relation to Domains 1 (South Orkney Islands MPA; Antarctic Peninsula), 3 and 4 (Weddell Sea), 7 (East Antarctica), 8 (Ross Sea region MPA), there are also domains with no proposals.129 Whether it would be worth the investment of time and resources to develop such proposals in the current situation where consensus cannot be achieved is questionable. It would nonetheless be necessary in order to achieve the representativeness objective of a network of CCAMLR MPAs. Moreover, the development of a proposal for Domain 9 in particular, which corresponds to the Convention Area sector with no claims,130 would counteract the Russian argument that MPAs are used by proponent States as a political tool to support their territorial claims.
Another concern is that, as most non-use measures in the global commons, and definitely as most MPAs in the high seas, CCAMLR MPAs are largely single-sectoral only. The prohibitions of use relate to fishing and fishing-related activities, hence not tackling other uses of the Southern Ocean which also impact â or may impact â the Antarctic marine living resources under CCAMLRâs mandate, let alone the whole marine environment. However, a number of other human activities are regulated with other non-use measures within the ATS, such as seal hunting and mining, with the Convention for the Conservation
5.2 Potential Way Forwards through the BBNJ Agreement
The extended stalemate on MPAs within CCAMLR, which shows no signs of abating,137 necessitates consideration of alternative avenues to resolve or circumvent the deadlock. In this context, and also in light of the limitations of single-sectoral MPAs, the recent adoption of the BBNJ Agreement on 19 June 2023 may present a promising way forward. The Agreement aims to âensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long termâ.138 As of September 2024, it was ratified by 13 States (including one CCAMLR Member
The BBNJ Agreement applies to ABNJ.141 Accordingly, upon its entry in force, the Agreement will apply to Antarctic areas comprising the high seas and the Area.142 The Agreement is particularly pertinent to the discussion of Antarctic MPAs, as Part III of the new Agreement seeks to establish a global legal framework for area-based management tools (ABMTs), including MPAs, in ABNJ.143 The BBNJ Agreement establishes a Conference of the Parties (COP) which is vested with the powers, inter alia, to establish MPAs and to adopt emergency measures.144 The Agreement also establishes an MPA designation process and criteria.145 Moreover, in contrast to the CAMLR Convention, it provides for qualified majority voting in the event that consensus cannot be reached.146 There is also a relatively constrained ability for Parties to âopt-outâ of ABMT decisions adopted by the COP under Part III.147
The exact role of the BBNJ Agreement in directly establishing MPAs and related measures in the Antarctic is largely dependent on the interpretation of several key provisions governing the interaction of the Agreement with the existing legal framework governing ABNJ. This was the focus of extensive and heated debate during the negotiations,148 driven by tensions between delegates
Foremostly, the Agreement is to be âinterpreted and applied in a manner that does not undermineâ relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies (IFBs) and that âpromotes coherence and coordination with those instruments, frameworks and bodiesâ.149 In relation to ABMTs, this duty is further operationalised by paragraphs (1)(c) and (2) of Article 22 concerning decisions by the COP to establish ABMTs and adopt management measures. The former provision states that, where proposed measures fall within the competences of other IFBs, the COP may only make recommendations to promote the adoption of such measures. This is reinforced by Article 22(2) which reiterates the COPâs obligation âto not undermineâ relevant IFBs and further stipulates that the COP must ârespect the competences ofâ relevant IFBs. These directives are likely to extend to CCAMLR as a relevant IFB for the purposes of the BBNJ Agreement (including Part III),150 although here again the exact definitions of IFB and ârelevantâ IFB are subject to interpretation.
Despite the centrality of the directives to ânot undermineâ and ârespect the competencesâ of existing IFBs to the future implementation of the BBNJ Agreement, there remains ambiguity as to the meaning of these provisions.151 The scope of the obligation not to undermine varies depending on whether the focus is on âbodiesâ or âinstruments or frameworksâ.152 An emphasis on the former would promote the continued primacy of IFBs and prevent any interference by the COP with existing regimes, while the latter may give the COP more flexibility provided that the effectiveness or objectives of existing regimes are
Depending on the interpretation adopted, there may be legal scope for the COP to establish an MPA in the Antarctic under Article 22 of the Agreement. However, the scope of the specific activities that could be regulated under such an MPA would have to fall outside CCAMLRâs competence. This would significantly limit the effectiveness of any future Antarctic MPA established by the BBNJ COP, as it would likely be limited to regulating activities not related to fishing.
Alternatively, there is likely to be greater scope for the COP to establish interim, temporary emergency measures under Article 24 of the Agreement. This provision must still be interpreted in light of the overarching obligation not to undermine,154 however it is unconstrained by the deferential approach to the âcompetencesâ of relevant IFBs embodied in Article 22(1)(c) and 22(2). Accordingly, provided that the preconditions set out in Article 24 are met, an emergency measure could be adopted in ABNJ in the Antarctic regardless of whether it interferes with any of CCAMLRâs competences in relation to Antarctic marine living resources â including fishing.
Ultimately, the COPâs decision to establish MPAs and related measures in the Antarctic is also likely to be influenced by political considerations such as the future relationships that the COP, once established, will have â or seek to have â with IFBs, including CCAMLR. Promoting international cooperation and coordination (particularly in the use of ABMTs) is a critical component of the overarching objective of the BBNJ Agreement.155 CCAMLRâs experience in designing, establishing, and implementing high seas MPAs can also be expected to be beneficial to the implementation of Part III of the Agreement. Hence, in practice, the COP is unlikely to risk jeopardising future cooperation with CCAMLR by establishing an Antarctic MPA in opposition to, or even without the full support of, the Commission.
Notwithstanding these potential legal and political barriers to the COPâs direct establishment of future Antarctic MPAs, the BBNJ Agreement deserves
The BBNJ Agreement may also influence CCAMLRâs governance of MPAs through the promotion of the Agreementâs overlapping objectives, principles and standards within the Commission. CAMLR Members that are also parties to the BBNJ Agreement will be required to promote the adoption of measures within CCAMLR to support the implementation of ABMTs, MPAs and relevant measures established by the COP under Part III, as well as more broadly to work towards the Agreementâs objectives when participating in CCAMLR decision-making.159 Further, the COPâs implementation of the precautionary and ecosystem approaches, enshrined in the Agreementâs preamble,160 and the âbest available scienceâ standard for ABMT proposals161 may carry normative weight and influence the development of these concepts within CCAMLR.162 These concepts are central to CCAMLRâs CMs and have recently been subject of
6 Conclusion
CCAMLR, as part of its mandate to conserve Antarctic marine living resources, has adopted many novel conservation and management tools that have served as examples worldwide. In 2009, it adopted the first MPA fully in the high seas and then, in 2016, the largest one. Both these ABMTs include binding non-use measures prohibiting fishing, except in certain specific cases. These exceptions are generally focused on research fishing and exploratory fishing, which are both subject to other CCAMLR rules. The default situation is one where use is prohibited, but the large scope of these exceptions blurs the line between non-use and restricted-use measures.
Nonetheless, despite these successes, issues remain with the existing MPAs, particularly as they were watered down in order to become acceptable by consensus, and even more so with the three proposals that are on the table. While the Ross Sea region MPA could be adopted in 2016 thanks, inter alia, to compromises and high-level diplomacy, the MPA adoption process has, de facto, been deadlocked since. This is due to the growing polarisation of Statesâ views between those that seek increased environmental protection and those that focus on the ârational useâ of resources. This issue is compounded by a regime dominated by consensus-based decision-making, where a single Stateâs opposition blocks the adoption of a measure for all.
The BBNJ Agreement can be a potential tool in resolving the Antarctic MPA impasse. Firstly, it may present an alternative legal pathway for the establishment of MPAs and related measures in the Antarctic. Further, it is also likely to indirectly influence CCAMLRâs future establishment of MPAs through regime interaction, especially at institutional and normative levels. The implications of the BBNJ Agreement for CCAMLR can be expected to become a highly topical issue, particularly as this has already been raised during a special CCAMLR meeting focused on MPAs163 and in several State declarations made upon signing and ratifying the BBNJ Agreement.164
The difficulties faced by CCAMLR in adopting new MPAs might, unfortunately, be contributors to and/or signals of wider issues within that regime
Acknowledgments
The author would like to thank Matilda Kelly for her precious research assistance, as well as Erik Molenaar and Catherine Blanchard for their constructive comments on early versions of this contribution.
A. Constable et al, âCross-Chapter Paper 6: Polar Regionsâ in IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability. Working Group II Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2022) 2319, 2321.
S. L. Chown et al, âAntarctic Climate Change and the Environment: A Decadal Synopsis and Recommendations for Actionâ (2022) Scientific Committee on Antarctic Research, available at <https://documents.ats.aq/atcm44/att/atcm44_att111_e.pdf> accessed 22 September 2024.
S. L. Chown et al, âChallenges to the Future Conservation of the Antarcticâ (2012) 337 Science 158; M. Meredith et al, âPolar Regionsâ in IPCC, IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (CUP 2019) 203, 230â234; D. G. M. Miller, âAntarctic Marine Living Resources: âThe Future Is Not What It Used to Beââ in T. Tin et al (eds), Antarctic Futures (Springer Netherlands 2014).
S. L. Chown, âAntarctic Environmental Challenges in a Global Contextâ in K. Dodds, A. D. Hemmings and P. Roberts (eds), Handbook on the Politics of Antarctica (Edward Elgar Publishing 2017); Miller (n 3); R. Warner, âAntarctic Environmental Security: Status and Challengesâ in C. Leuprecht and D. Causey (eds), Polar Cousins (University of Calgary Press 2022).
P. N. Trathan et al, âThe Ecosystem Approach to Management of the Antarctic Krill Fishery. The âDevils Are in the Detailâ at Small Spatial and Temporal Scalesâ (2022) 225 Journal of Marine Systems 1.
E. Cavan et al, âAntarctic Krill. Powerhouse of the Southern Oceanâ (2022) WWF Australia, available at <https://static1.squarespace.com/static/5fb210d07f71d5494d254bb9/t/6351341597777d4ed0422a3b/1666266204854/2022-WWF-AU-KRILL-REPORT-DIGITAL.pdf> accessed 22 September 2024; S. Nicol, J. Foster and S. Kawaguchi, âThe Fishery for Antarctic Krill â Recent Developmentsâ (2012) 13 Fish and Fisheries 30.
Cavan et al (n 6) 10; G. Dickie, âInsight: In Antarctica, Does a Burgeoning Krill Fishery Threaten Wildlife?â (Reuters, 24 February 2022), available at <https://www.reuters.com/business/cop/antarctica-does-burgeoning-krill-fishery-threaten-wildlife-2022-02-24/> accessed 1 May 2024.
Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47, art II(1)-(2).
A schedule of CCAMLRâs past and present conservation measures is available at <https://www.ccamlr.org/en/publications/past-conservation-measures> accessed 20 September 2024.
A. J. Constable, âLessons from CCAMLR on the Implementation of the Ecosystem Approach to Managing Fisheriesâ (2011) 12 Fish and Fisheries 138, 139; J. P. Croxall and S. Nicol, âManagement of Southern Ocean fisheries: global forces and future sustainabilityâ (2004) 16 Antarctic Science 569; K. H. Kock, âAntarctic Marine Living Resources â Exploitation and its Management in the Southern Oceanâ (2007) 19 Antarctic Science 231; Miller (n 3) 84; O. S. Stokke, âThe Effectiveness of CCAMLRâ in O. S. Stokke and D. Vidas (eds), Governing the Antarctic (CUP 1997) 120â151.
CCAMLR, âReport of the Third Special Meeting of the Commissionâ (2023) (Report SM-III), para 2.16; K. A. Hughes and S. M. Grant, âThe Spatial Distribution of Antarcticaâs Protected Areas: A Product of Pragmatism, Geopolitics or Conservation Need?â (2017) 72 Environmental Science & Policy 41, 42.
The Convention Area spans from the area south of 60° South latitude (the geographical scope of the Antarctic Treaty), as well as in the area between that latitude and the Antarctic Convergence (CAMLR Convention, art I(1)). The Antarctic convergence (or the âPolar Frontâ) is a varying natural boundary where cold and warmer waters meet, extending from the coast of Antarctica to latitudes between 45â60° South.
CCAMLR, âConservation Measure 91â04 (2011) General Framework for the Establishment of CCAMLR Marine Protected Areasâ (2011) CM 91â04, preamble and para 2(vi); âG20 Rome Leaders Declarationâ (2021), available at <https://www.governo.it/sites/governo.it/files/G20ROMELEADERSDECLARATION_0.pdf> accessed 24 June 2024; Report SM-III (n 11) para 2.4; Miller (n 3) 84.
N. Dudley (ed), Guidelines for Applying Protected Area Management Categories (International Union for Conservation of Nature and Natural Resources 2009) 8.
CCAMLR, âReport of the Twenty-Eighth Meeting of the Commissionâ (2009) (Report CCAMLRâ28), para 7.19; CM 91â04 (n 13) preamble; CCAMLR, âReport of the Fortieth Meeting of the Commissionâ (2021) (Report CCAMLRâ40), Annex 7, para 9.
Agreement under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, Document A/CONF.232/2023/4 (30 June 2023) (BBNJ Agreement).
CAMLR Convention, art VII(1).
Hughes and Grant (n 11) 42; K.-H. Kock, âUnderstanding CCAMLRâs Approach to Managementâ (2000) CCAMLR, para 2.1, available at <https://www.ccamlr.org/en/system/files/am-all.pdf> accessed 22 May 2024; Miller (n 3) 65.
The ATS is defined as the Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, the Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 3, the Convention for the Conservation of Antarctic Seals (CCAS) (adopted 1 June 1972, entered into force 11 March 1978) 1080 UNTS 175, the CAMLR Convention, and all the instruments adopted under these four treaties.
The status of the CAMLR Convention is available at <https://www.austlii.edu.au/au/other/dfat/treaty_list/depository/CCAMLR.html> accessed 21 September 2024.
CAMLR Convention, arts XII, XIX.
ibid arts VII(2)(b), XXIX. To become a CCAMLR Member, an Acceding Stateâs application for membership must be approved by consensus.
C. M. Brooks, âCompeting Values on the Antarctic High Seas: CCAMLR and the Challenge of Marine-Protected Areasâ (2013) 3 The Polar Journal 277, 294â295. The situation has not changed dramatically since that study, as only the Netherlands and Ecuador have joined the Commission in 2019 and 2022, respectively.
CAMLR Convention, arts I(2), II.
ibid art VI. Whales and seals are governed, respectively, by the International Convention for the Regulation of Whaling (ICRW) (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72, and by CCAS.
E. J. Molenaar, âParticipation in Regional Fisheries Management Organizationsâ in R. Caddell and E. J. Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart Publishing 2019) 103â129, 107.
J. Jacquet et al, ââRational Useâ in Antarctic Watersâ (2016) 63 Marine Policy 28, 32.
Brooks (n 23) 294â295; Jacquet et al (n 27) 32â33.
A. Fabra and V. Gascon, âThe Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approachâ (2008) 23 International Journal of Marine and Coastal Law 567, 570. On the precautionary approach and CCAMLR, see eg G. Parkes, âPrecautionary fisheries management: the CCAMLR approachâ (2000) 24 Marine Policy 83.
Constable (n 10) 140; Fabra and Gascon (n 29) 568â569; Kock (n 18) (III). While the ecosystem approach and ecosystem-based management can have different meanings, they seem to be used interchangeably in the CCAMLR context.
CAMLR Convention, art IX(1)(f); L. Wenzel et al, âPolar Opposites? Marine Conservation Tools and Experiences in the Changing Arctic and Antarcticâ (2016) 26 Aquatic Conservation: Marine and Freshwater Ecosystems 61, 71.
The 1980 Chairmanâs Statement allows coastal States of islands over which âthe existence of State sovereignty is recognised by all Contracting Partiesâ to lodge reservations to CMs, and instead adopt national measures, see CCAMLR, âStatement by the Chairman of the Conference on the Conservation of Antarctic Marine Living Resourcesâ (1980), available at <https://www.ccamlr.org/en/organisation/camlr-convention-text#Chair> accessed 22 September 2024. For example, both France and South Africa have lodged reservations to conservation measures requiring, inter alia, data reporting and notification for new or exploratory fisheries and in their respective waters (See D. G. M. Miller, âCCAMLR Conservation Measures: How the Chairmanâs Statement Worksâ (2015) 7 The Yearbook of Polar Law Online 501, 524, table 5). The application of the Statement to âdisputedâ islandsâ remains debated, as discussed by B. Arpi and J. McGee, âFishing around the South Georgia Islands and the âQuestion of the Falklands/Malvinasâ: Unprecedented Challenges for the Antarctic Treaty Systemâ (2022) 143 Marine Policy 105201, 1.
CAMLR Convention, art IX(6).
CAMLR Convention, art XII.
L. Goldsworthy, âConsensus Decision-Making in CCAMLR: Achillesâ Heel or Fundamental to Its Success?â (2022) 22 International Environmental Agreements: Politics, Law and Economics 411, 412.
CCAMLR, âReport of the CCAMLR Workshop on MPAsâ (2005), para 36; CCAMLR, âReport of the Twenty-Fourth Meeting of the Commissionâ (2005) (Report CCAMLRâ24), para 4.14.
CM 91â04 (n 13); preamble; CCAMLR, âConservation Measure 91â05 (2016) Ross Sea Region Marine Protected Areaâ (2016) CM 91â05, preamble.
CAMLR Convention, arts IX(2)(f)(g).
Report CCAMLR-24 (n 36) para 4.14.
CCAMLR, âReport of the Fifteenth Meeting of the Commissionâ (1996), para 11.13; Jacquet et al (n 27) 33.
CCAMLR, âReport of the Twenty-First Meeting of the Commissionâ (2002), paras 4.17, 4.20.
Report of the CCAMLR Workshop on MPAs (n 36); Report CCAMLR-24 (n 36) paras 4.12â4.14.
Report CCAMLR-28 (n 15) para 7.19; CM 91â04 (n 13).
CCAMLR, âReport of the Twenty-Seventh Meeting of the Commissionâ (2008), paras 7.1â7.2; CM 91â04 (n 13).
Scientific Committee for the Conservation of Antarctic Marine Living Resources, âReport of Thirtieth Meeting of the Scientific Committeeâ (2011) SC-CAMLR XXX, Annex 6, 296. For an overview of the planning domains, see CCAMLR, âMPA planning domainsâ, available at <https://www.ccamlr.org/en/science/mpa-planning-domains> accessed 22 September 2024.
CM 91â04 (n 13).
ibid.
The marine areas under national jurisdiction stem from the five groups of sub-Antarctic islands that fall under national jurisdiction and are located within the Convention Area (ie Crozet; Heard Island and McDonald Islands; Kerguelen; Prince Edward Islands; and South Georgia and South Sandwich Islands).
On this, see eg Brooks et al, âProgress towards a representative network of Southern Ocean protected areasâ (2020) 15(4) PLoS ONE e0231361.
CCAMLR, âConservation Measure 91â03 (2009) Protection of the South Orkney Islands Southern Shelfâ (2009) CM 91â03. On this MPA, see eg P. N. Trathan and S. M. Grant, âThe South Orkney Islands Southern Shelf Marine Protected Area: towards the establishment of marine spatial protection within international waters in the Southern Oceanâ in J. Humphreys and R. W. E. Clark (eds), Marine Protected Areas: Science, Policy and Management (Elsevier 2020) 67â98.
CM 91â03 (n 50) preamble.
CCAMLR, âConservation Measure 24â01 (2023) The application of conservation measures to scientific researchâ (2023) CM 24â01.
C. M. Brooks et al, âReaching Consensus for Conserving the Global Commons: The Case of the Ross Sea, Antarcticaâ (2020) 13 Conservation Letters e12676, 3.
Brooks (n 23) 282.
Brooks et al (n 53) 3.
CM 91â05 (n 37). On this MPA, see eg C. M. Brooks et al, âThe Ross Sea, Antarctica: A highly protected MPA in international watersâ (2021) 134 Marine Policy 104795.
CM 91â05 (n 37) para 20. The restrictions in the Special Research Zone will lapse after 30 years already.
ibid para 3.
An exploratory fishery is a fishery for which necessary information for sustainable management is not yet available, see eg CCAMLR, âConservation Measure 21â02 (2019) Exploratory Fisheriesâ (2019) CM 21â02. This type of fishery is a step towards fully establishing a new commercial fishery, but the total allowable catch is a precautionary one, at the level needed to obtain the necessary information.
CM 91â05 (n 37).
Brooks et al (n 53) 4â6.
Scientific Committee for the Conservation of Antarctic Marine Living Resources, âReport of the First Intersessional Meeting of the Scientific Committeeâ (2013), paras 2.30â2.33.
CM 91â03 (n 50) para 6; CM 91â05 (n 37) para 11.
CM 24â01 (n 52).
ibid paras 2â3; on this and the stringency of the process, see eg Brooks et al (n 53) 4.
See eg CCAMLR, âConservation Measure 41â09 (2023) Limits on the exploratory fishery for Dissostichus mawsoni in Statistical Subarea 88.1 in the 2023/24 seasonâ (2023) CM 41â09 for toothfish; and CCAMLR, âConservation Measure 51â04 (2023) General measure for exploratory fisheries for Euphasia superba in the Convention Area in the 2023/24 seasonâ (2023) CM 51â04 for krill.
On this, see the discussion by Urrutia in chapter 5 of this volume.
CCAMLR, âConservation Measure 22â09 (2012) Protection of registered vulnerable marine ecosystems in subareas, divisions, small-scale research units, or management areas open to bottom fishingâ (2012) CM 22â09.
CCAMLR, âConservation Measure 32â02 (2017) Prohibition of directed fishingâ (2017) CM 32â02.
CCAMLR, âConservation Measure 32â09 (2023) Prohibition of directed fishing for Dissostichus spp. Except in accordance with specific conservation measures in the 2023/34 seasonâ (2023) CM 32â09.
P. N. Trathan, âWhat Is Needed to Implement a Sustainable Expansion of the Antarctic Krill Fishery in the Southern Ocean?â (2023) 155 Marine Policy 105770, 8; Report SM-III (n 11) 2.8, 2.11, 2.16.
A first proposal for the Weddell Sea MPA was submitted in 2016. It was then divided into the current Phase 1 proposal and Phase 2 proposal (covering areas in Domain 4 east of the prime meridian) at the demand of Norway, which was concerned about data availability in the east Weddell Sea. The proposal for Phase 2, submitted by Norway in 2023, is currently in the earlier stages of development and will consequently not be examined here. At first glance, however, it seems designed with restricted-use measures in mind, rather than non-use measures.
Most recently, CCAMLR, âReport of the Forty-Second Meeting of the Commissionâ (2023) (Report CCAMLRâ42), paras 5.5â5.35. On this, see also K. N. Scott, âMPAs in the Southern Ocean under CCAMLRâ (2021) 9 The Korean Journal of International and Comparative Law 84, 100â102.
CCAMLR, âReport of the Forty-First Meeting of the Commissionâ (2022) (Report CCAMLRâ41), para 5.22.
CCAMLR, âDraft conservation measure for an East Antarctic Marine Protected Areaâ (Submitted by Delegations of Australia, the European Union and its Member States, India, New Zealand, Norway, the Republic of Korea, Ukraine, the United Kingdom, the United States of America and Uruguay) (2023) Doc CCAMLR-42/40 (Draft CM for EAMPA). For example, krill fishing would be prohibited in the DâUrville Sea-Merti area, one of the three EAMPA zones.
Report CCAMLR-41 (n 74) paras 5.21â5.22; Report CCAMLR-42 (n 73) para 5.9.
Report CCAMLR-41 (n 74) para 5.28; Report CCAMLR-42 (n 73) 122, para 5.12.
Draft CM for EAMPA (n 75) Attachment A para 1. For a description of each area, see eg Australian Antarctic Division, Commonwealth of Australia, âArea Based Marine Conservation Planning in East Antarcticaâ (2023), available at <https://www.antarctica.gov.au/site/assets/files/57808/eampa_explainer_eng_final_v3_16_06.pdf> accessed 18 August 2024.
Antarctic and Southern Ocean Coalition (ASOC), âEast Antarctic MPAâ (2024), available at <https://www.asoc.org/campaign/east-antarctic-mpa/> accessed 18 August 2024.
Draft CM for EAMPA (n 75) Attachment A para 18.
CCAMLR, âProposal for a Conservation Measure establishing a Marine Protected Area in Domain 1 (Western Antarctic Peninsula and South Scotia Arcâ (Submitted by the Delegations of Argentina and Chile) (2018) Doc CCAMLR-XXXVII/31.
CCAMLR, âRevised proposal for a Conservation Measure establishing a Marine Protected Area in Domain 1 (Western Antarctic Peninsula and South Scotia Arc)â (Submitted by the Delegations of Argentina and Chile) (2023) Doc CCAMLR-42/26 (Rev proposal CM Domain 1), 2.
ibid 5.
CCAMLR, âReport of the Thirty-Ninth Meeting of the Commissionâ (2020) (Report CCAMLRâ39), para 8.20.
Rev proposal CM Domain 1 (n 82) 13.
ibid 6, 19.
ibid 11.
Report CCAMLR-41 (n 74) para 5.11.
ASOC, âGreat Expectations: Moving towards consensus on CCAMLR MPAs in 2023â (2023) CCAMLR-SM-III/BG/03, 9.
CCAMLR, âReport of the Thirty-Seventh Meeting of the Commissionâ (2018), para 6.45; Report CCAMLR-42 (n 73) para 5.20.
Report CCAMLR-39 (n 84) para 8.20; Report CCAMLR-41 (n 74) para 5.18.
Report CCAMLR-41 (n 74) para 5.10.
For example, the desire to secure future access to fishing grounds is likely at the centre of the remaining opposition to the EAMPA proposal, since the region is not currently home to large fisheries and the proposal does not include areas fully closed to fishing (C. Brooks, âWhy are Talks over an East Antarctic Marine Park Still Deadlocked?â (The Conversation, 2018), available at <https://theconversation.com/why-are-talks-over-an-east-antarctic-marine-park-still-deadlocked-86681#:~:text=Competing%20national%20incentives%20among%20member,the%20bottom%20of%20the%20world.> accessed 22 September 2024.
Jacquet et al (n 27) 29, 30â31.
Report CCAMLR-39 (n 84) paras 8.29, 8.31; see also M. Haward and A. Jackson, âAntarctica: Geopolitical Challenges and Institutional Resilienceâ (2023) 13 The Polar Journal 31, 42.
CCAMLR, âReport of the Second Special Meetingâ (2013) (Report SM-II), para 3.34; CCAMLR, âReport of the Thirty-Third Meeting of the Commissionâ (2014) (Report CCAMLRâ33), para 7.69.
Jacquet et al (n 27) 33. On a critical view of ârational useâ as justification for fishing, see D. Ainley and C. Brooks, âExploiting the Southern Ocean: Rational Use or Reversion to Tragedy of the Commonsâ in A. Hemmings and D. Liggett (eds), Exploring Antarctic Values (Gateway Antarctica Special Publication Series 2013) 148â160.
Report CCAMLR-37 (n 90) para 6.34; CCAMLR, âReport of the Thirty-Eighth Meeting of the Commissionâ (2019) (Report CCAMLRâ38), para 6.43; Report CCAMLR-41 (n 74) paras 5.15, 5.25â5.26; Report CCAMLR-42 (n 73) paras 5.15, 5.34. Other States have also expressed concerns regarding data availability (in particular Norway when it came to the Weddell Sea proposal prior to the division into phases in 2018). A major difference however is that these Statesâ concerns could be alleviated and were not irreconcilable with the precautionary approach.
Report CCAMLR-38 (n 98) para 6.45.
Report CCAMLR-39 (n 84) para 8.31; Report SM-II (n 96) para 3.34; Report SM-III (n 11) paras 2.12, 3.8â3.9.
Report SM-III (n 11) para 3.8.
ibid; Report CCAMLR-38 (n 98) para 6.17.
Report CCAMLR-41 (n 74) paras 5.11, 5.19.
Report CCAMLR-39 (n 84) para 8.29; Report CCAMLR-41 (n 74) paras 5.14, 5.34; Working Group on Ecosystem Monitoring and Management, âReport of the Working Group on Ecosystem Monitoring and Management 2023â (2023) WG-EMM-2023 (Report WG-EMMâ2023), 239, para 7.11; Report CCAMLR-42 (n 73) para 5.16.
Report CCAMLR-41 (n 74) para 5.26; Report WG-EMM-2023 (n 104) paras 7.11, 7.12; Report CCAMLR-42 (n 73) paras 5.14, 5.8, 5.26.
Report CCAMLR-39 (n 84) para 8.23; Report CCAMLR-41 (n 74) paras 5.38, 5.27, 5.38; Report CCAMLR-42 (n 73) para 5.14, 6.7, 6.20.
Report CCAMLR-40 (n 15) para 7.17; Report WG-EMM-2023 (n 104) para 7.11; Report CCAMLR-42 (n 73) paras 5.9, 5.14, 5.15; E. Nyman, âProtecting the Poles: Marine Living Resource Conservation Approaches in the Arctic and Antarcticâ (2018) 151 Ocean & Coastal Management 193; Trathan (n 71).
Report SM-III (n 11) paras 2.12, 3.2, 3.9, 4.29; Report CCAMLR-42 (n 73) para 5.31.
Report CCAMLR-38 (n 98) para 6.15; Report CCAMLR-39 (n 84) para 8.29.
Report CCAMLR-38 (n 98) para 6.15; Report CCAMLR-39 (n 84) para 8.29; Report SM-III (n 11) para 3.2; Report CCAMLR-42 (n 73) para 5.30.
Report SM-III (n 11) para 3.9; Report WG-EMM-2023 (n 104) para 7.11.
Report SM-III (n 11) paras 1.19, 3.6; Report CCAMLR-42 (n 73) para 5.34.
Report CCAMLR-33 (n 96) para 7.65.
Hughes and Grant (n 11) 48, Table 2.
Report CCAMLR-33 (n 96) paras 7.53, 7.65â7.66.
See the discussion by Klerk in chapter 4 of this volume.
CM 91â04 (n 13); Report SM-III (n 11) para 2.4; C. M. Brooks et al, âChallenging the âRight to Fishâ in a Fast-Changing Oceanâ (2014) 33 Standford Environmental Law Journal 289, 307; M. Lennan, âThe High Seas. Adapting to Changes in Pelagic Ecosystemsâ in P. G. Harris, Routledge Handbook of Marine Governance and Global Environmental Change (Routledge 2022) 246.
CCAMLR, âReport of the Thirtieth Meeting of the Commissionâ (2011), para 7.4; Report SM-III (n 11) para 2.16.
Report SM-III (n 11) paras 2.4, 2.16; C. M. Brooks et al, âProgress towards a Representative Network of Southern Ocean Protected Areasâ (2020) 15(4) PLoS ONE e0231361; D. Laffoley et al, âMarine Protected Areasâ in World Seas: An Environmental Evaluation (Elsevier 2019) 566.
Report SM-III (n 11) para 2.4; Cavan et al (n 6) 17; Laffoley et al (n 119) 554â566.
A. Grüss et al, âEvaluating the impacts of the Ross Sea region marine protected area for Antarctic toothfish (Dissostichus mawsoni) with a spatially-explicit population modelâ (2024) 249 Ocean and Coastal Management 106991.
ASOC, âA representative system of CCAMLR MPAs: Current proposals and beyondâ (2016) CCAMLR-XXXV/BG/26; ASOC, âThe Ross Sea Region Marine Protected Area: Current proposal and looking forwardâ (2015) CCAMLR-XXXIV/BG/27 (ASOC, âRoss Seaâ).
ASOC, âRoss Seaâ (n 122).
CCAMLR, âReport of the Thirty-First Meeting of the Commissionâ (2012), para 7.91.
Respectively, CBD COP, âThe strategic plan for biodiversity 2011â2020 and the Aichi Biodiversity Targetsâ (2010) Decision X/2, UNEP/CBD/COP/DEC/X/2, target 11; CBD COP, âKumming-Montreal Global Biodiversity Frameworkâ (2022) Decision 15/4, UN Doc.CBD/COP/DEC/15/4, target 3.
Brooks et al (n 119) 13.
ibid 14.
ibid.
If one takes into account the MPAs under national jurisdiction, only Domain 9 is not the target of an MPA or a proposal for one, see Brooks et al (n 119) 9.
On the perception of political motives behind proposals and the need for proposals across regional planning areas, see eg Hughes and Grant (n 11) 49â50.
Brooks et al (n 56) 2â3. On the mining moratorium, see the discussion by Kempf in chapter 14 of this volume.
ICRW, art V(1)(c), and Schedule (as amended at the 68th Meeting) para 7(b); K. N. Scott, âMarine Protected Areas in the Southern Oceanâ in E. J. Molenaar, A. G. Oude Elferink and D. R. Rothwell (eds), The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Brill 2014) 113, 126. On the whaling moratorium, see the discussion by Jeffries and Latos in chapter 7 of this volume.
International Convention for the Prevention of Pollution from Ships as amended by the 1978 Protocol (MARPOL 73/78) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61.
International Code for Ships Operating in Polar Waters (adopted 21 November 2014) resolution MSC.385(94).
Chown et al (n 3) 158â159.
On non-use measures in the climate change regime, see the discussion by Guggisberg and Lennan in chapter 17 of this volume.
Report SM-III (n 11).
BBNJ Agreement, art 2.
As of 29 September 2024. Signatures and ratifications are updated on UN Treaty Collection, âAgreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdictionâ, available at <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en> accessed 22 September 2024.
BBNJ Agreement, art 68(1).
ibid art 3. This is subject to an exception under art 28(2) concerning environmental impact assessment obligations for activities within national jurisdiction with potential impact in ABNJ.
As defined in UNCLOS, arts 1(1) and 86. For discussions about the classification of maritime zones within the Convention Area, see eg C. C. Joyner, âThe Antarctic Treaty and the Law of the Sea: Fifty Years Onâ (2010) 46 Polar Record 14, 15â16; P. Vigni, âAntarctic Maritime Claims: âFrozen Sovereigntyâ and the Law of the Seaâ in A. G. Oude Elferink and D. R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Brill Nijhoff 2001).
BBNJ Agreement, Part III.
ibid arts 22, 24.
ibid arts 19â23.
ibid art 23(2).
ibid art 23(4)-(9).
International Institute for Sustainable Development, âSummary of the Fifth Session of the IGC an ILBI under the UNCLOS on the Conservation and Sustainable Use of Marine BBNJâ (2022) 25(240) Earth Negotiations Bulletin.
BBNJ Agreement, art 5(2).
This view is supported by an indicative list of relevant treaties prepared by the United Nations Division for Ocean Affairs and Law of the Sea (UNDOALOS, âIndicative List of Regional Treatiesâ, available at <https://www.un.org/depts/los/biodiversity/prepcom_files/Indicative_list_of_regional_treaties.pdf> accessed 8 June 2024), as well as views expressed by various States during the treaty negotiations (on this see eg A. Langlet and A. B. M. Vadrot, âNot âUnderminingâ Who? Unpacking the Emerging BBNJ Regime Complexâ (2023) 147 Marine Policy 105372, 4).
E. J. Molenaar, âThe High Seas Treaty: Implications and Opportunities for the Arcticâ (2024) WWF Global Arctic Programme.
Z. Scanlon, âThe Art of âNot Underminingâ: Possibilities within Existing Architecture to Improve Environmental Protections in Areas beyond National Jurisdictionâ (2018) 75 ICES Journal of Marine Science 405.
A. Friedman, âBeyond âNot Underminingâ: Possibilities for Global Cooperation to Improve Environmental Protection in Areas beyond National Jurisdictionâ (2019) 76 ICES Journal of Marine Science 452.
BBNJ Agreement, art 5(2).
ibid arts 2, 8, 17(b).
The perceived institutional competition can indeed be fierce, as was noticed when Australia proposed to list Patagonian toothfish on Appendix II of the Convention on International Trade in Endangered Species of Fauna and Flora in 2002 (on this, see eg S. Guggisberg, The Use of CITES for Commercially-exploited Fish Species (Springer 2016), 328â329 and 351â353).
Editorial, âReform the Antarctic Treatyâ (2018) 558 Nature 161.
For example, renewed interest in mineral activities, a perceived inability to address ânewâ issues of relevance to Antarctica, such as climate change, tourism or bioprospecting, and more general problems in reaching consensus can be seen as causes for concern about the future of the ATS. The tense geopolitical climate is also influencing the ATSâ functioning. On some of these issues, see the discussions by Kempf in chapter 14, and by Roura and Guggisberg in chapter 15 of this volume.
BBNJ Agreement, arts 8(2), 25(4).
ibid art 7(e)(f); CAMLR Convention, art II.
BBNJ Agreement, arts 7(i), 19(3); CAMLR Convention, art IX(1)(f).
R. E. Kim, âThe Likely Impact of the BBNJ Agreement on the Architecture of Ocean Governanceâ (2024) 165 Marine Policy 106190.
Report SM-III (n 11) para 1.18.
UN Treaty Collection (n 139) (Chile, United Kingdom of Great Britain and Northern Ireland).