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Christopher Cousin
117 Two Gates Str, Senglea, Malta, ISL 1202
[email protected]
0035621802969
Policy and law
Marine Protected Areas beyond the Territorial Sea in the Mediterranean
Sea
Marine protected areas, high sea, ocean governance, Mediterranean
Sea
Abstract:
1. Problem statement/rationale, including reference to key literature:
Marine protected areas (MPAs) are one of the tools employed to protect biodiversity. The
borders of areas over which a coastal state has sovereignty may not be identical to those
areas where biodiversity is to be protected if a coherent approach is to be adopted.
Coherence is important when connectivity of adjacent marine ecosystems and movement of
various species area taken into consideration. Additional considerations include those related
to socio-economic activities mainly because there are various activities of anthropogenic
origin which may affect various environmental features in areas beyond where activities
occur.
In the Mediterranean Sea, these factors have not gone unnoticed. Various coastal states
have shown their intent to protect biodiversity irrespective of political boundaries when they
ratified various nature-related conventions and UNCLOS. Indeed the most important
agreement is the Specially Protected Areas and Biological Diversity Protocol under the
Barcelona Convention. This Protocol calls for the designation of MPAs. Furthermore, recent
international and regional meetings, such as conference of the parties of various conventions,
have emphasised the importance of MPAs, including on the high sea. The acceptance of
MPAs on the high sea, their governance including enforcement of any regulations may lead to
different scenarios which need to be analysed.
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2. Research design and methods of data collection and analysis or method inquiry:
An extensive desktop study analysing various relevant legal instruments was carried out. They include
ones which may not necessarily be applicable to the Mediterranean. Peer reviewed allowed the
refinement of the identification of practical problems and to increase the familiarisation with the
subject. Various printed material was also accessed. Information is also being collected by actively
participating in international and regional meetings focussing on MPAs.
While at first instance the research may seem to be desktop based, in reality, it will include an
empirical aspect. A questionnaire has been devised so that a number of identified primary
stakeholders are interviewed. The stakeholders include various states, including Mediterranean states
and others which are deemed to have an interest in this Sea. Questions will be addressed either to the
office of the prime minister or the president, respectively. Other stakeholders include institutional and
non-governmental organisations, respectively; experts in fields related to the subject. It is expected
that this approach would lead to achieve a factual and practical picture. Some of the persons that
represent or are very close to stakeholder organisations including contacts from various states’
institutions are already acquainted to through professional relationship established with them during
international meetings which are personally attended to represent Malta. This may be a plus to
achieve a better response from questionnaires.
After data analysis, a number of recommendations will be presented. Different authors and
international organisations already gave various proposals. However, this is a challenge that is
expected to lead to some original recommendations while adapting and adopting existing ones.
3. Main findings:
Although a number of legal instruments call for the establishment of MPAs beyond the territorial sea,
there is a lacuna with regard to their management. Furthermore, the process with which they are to be
established may not be that clear if various variables are considered.
Among the most important tools identified are the SPA/BD Protocol and ACCOBAMS, under the Bonn
Convention. These agreements allow and demand MPA designation. EU member states are also
obligated to establish MPAs within their EEZ. The Marine Strategy Framework Directive (MSFD)
seeks the creation of a network of MPAs through other regulations and international agreements; it is
providing an impetus to states to actualise provisions beyond the EEZ noting that most Mediterranean
states have significant stretches of their continental shelf under the high sea water column.
In addition to MEAs, various fisheries legal tools such as decisions adopted by the General Fisheries
Commission for the Mediterranean and the EU Mediterranean Regulation were analysed. These refer
to protected areas to enhance various environmental features.
To add to complexity, while the states that ratified the agreements applicable to the Mediterranean
Sea may be expected to respect protected areas irrespective of which Parties and where such MPAs
are located, there are also issues that have to be tackled with regard to activities that do not originate
from state Parties. Such states may include those which have a distant fishing fleet, such as Taiwan
and those that are flag states of commercial vessels that make frequent use of the Mediterranean
Sea, by either transiting through this sea or make use ports of coastal states.
Furthermore, through research, various different situations reflecting political boundaries which would
impinge on the governance of MPAs were identified. These include situations when a coastal state
wants to establish a MPA:
 To protect features on its continental shelf that lies beneath the high sea water column
 To protect features on the high sea adjacent to a stretch of sea over which it has jurisdiction
and therefore on the continental shelf of another state
 Within its EEZ or its derivative.
For MPAs to be effective, a set of management measures have to be in place. If MPAs are on the high
sea these have to be agreed upon by the parties of the SPA/BD Protocol and probably more to ensure
that measures are effective. At present, a number of different international institutions, responsible for
different sectors, have to be involved. Noting that on the Mediterranean high sea it is not just the
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states that make regular use of it enjoy certain freedoms but also those which have no connection to it
and even distant non-coastal states, it is doubtful and questionable how measures are to be made
effective and by which states they are to be agreed to.
The last but not the least highlight that emerged from the research is how agreed measures can be
enforced. This revolves around which states are going to be obligated to allocate enforcement
resources, what enforcement jurisdiction would states have over citizens of other states and which
states would be allowed to monitor the activities and assess the impact of citizens of other states.
4. Discussion of implications:
It transpires that there seems to be a number of uncertainties on how to proceed to make effective
MPAs, particularly on the high sea. These lacunae may lead to a lengthy period during which there
might be little progress. Additional legal tools are needed to facilitate the process. In fact the UN has
already started work on various related aspects. A problem solving approach may adopt good
experiences from other parts around the globe. A new way of thinking as regards to politics of
enforcement between states and a higher level of collaboration between primary stakeholders, and a
means how to involve only states that have a real interest in an area may need to be elaborated.
5. List of key references/resources:
ACCOBAMS: The Agreement on the Conservation of Cetaceans in the Black Sea, Mediterranean Sea
and contiguous Atlantic area in November 2013.
Burns, W. C. G. “The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean
Sea and Contiguous Atlantic area (ACCOBAMS): A Regional Response to the Threats Facing
Cetaceans.” Journal of International Wildlife Law and Policy, 1, no. 1 (1998): 113-133.
Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a
framework for community action in the field of marine environmental policy (Marine Strategy
Framework Directive) (Text with EEA relevance) OJ L 164, 25.6.2008, p. 19–40.
Gjerde, M. Kristina and Rulska-Domino, Anna. “Marine Protected Areas beyond National Jurisdiction:
Some Practical Perspectives for Moving Ahead.” The International Journal of Marine and Coastal Law
27, (2012): 351–373.
Knockaert, Carolien. “Barcelona Convention.”
http://www.coastalwiki.org/wiki/Barcelona_Convention (accessed on 27-02-2016].
Molenaar, Erik J. “Managing Biodiversity in Areas Beyond National Jurisdiction.” The International
Journal of Marine and Coastal Law, 22, No 1, (2007): 89-124.
Scovazzi, Tullio. “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations.”
The International Journal of Marine and Coastal Law, 19, No 1, (2004): 1-17.
SPA/BD:, Protocol Concerning Specially Protected Areas and Biological Diversity Mediterranean,
adopted in November 1996.
Spadi, Fabio. “Navigation in Marine Protected Areas: National and International Law.” Ocean
Development and International Law, 31 (2000): 285-302.
Uggla, Ylva. “Environmental Protection and the Freedom of the High Seas: The Baltic Sea as a PSSA
from a Swedish Perspective.” Marine Policy, 31 (2007): 251–257.
UNCLOS: United Nations convention on the Law of the Sea adopted in July 1994.
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