New book about the legal regime in areas beyond national jurisdiction!

Vito De Lucia, professor at UiT The Arctic University of Norway and the Norwegian Center for the Law of the Sea (NCLOS), has edited the anthology "International Law and Marine Areas Beyond National Jurisdiction" (Brill 2022), together with Alex Oude Elferink, director of the Netherlands Institute of the Law of the Sea (NILOS) and Lan Ngoc Nguyen, Associate Professor at the Utrecht University School of Law.

The term “areas beyond national jurisdiction” (ABNJ) includes all maritime areas that do not fall within the jurisdiction of a coastal state. In volume, this constitutes approximately 90-95 % of the oceans, and in area, about half of the ocean surface.

Professor De Lucia points out that even though the term is new, areas beyond national jurisdiction as a concept has always been a part of the law of the Sea. Prior to the United Nations Convention on the Law of the Sea (UNCLOS) being signed in 1982, an overwhelming part of the ocean surface was in fact outside national jurisdiction.

Since then, coastal states have made claim to exclusive economic zones that extend 200 nautical miles into the sea from the baseline, this has caused the share of the oceans outside national jurisdiction to be drastically reduced. UNCLOS, however, imposes obligations on coastal states to protect the marine environment within their own economic zones.

In the ABNJ, on the other hand, the freedom of the sea is the fundamental legal principle. This includes the freedom of navigation, fishing, laying cables and so on. A state by itself cannot implement measures that reduce these freedoms for other states. Such measures can only be implemented in agreement with other states, for example by negotiating a treaty. Until now it has been difficult to protect the marine environment and biodiversity in these marine areas, as there is no legal basis in UNCLOS for implementing marine protected areas in the ABNJ.

In 2017, to remedy this situation, the UN General Assembly decided to convene an Intergovernmental Conference (IGC) to consider establishing an international legally binding instrument on the conservation and sustainable use of biodiversity beyond national jurisdiction (BBNJ). The aim of this process (BBNJ process) is to create rules for the establishment of marine protected areas, for impact assessment and for access to bioprospecting and distribution of benefits from the use of marine genetic resources. The fourth and last meeting of the Conference had to be postponed, due to the Covid-19 pandemic, but is now tenatively scheduled to be held in March this year. Further postponements might however still affect the conference.

As the Introduction to the book explains, "A legal research project on ABNJ at this point in time necessarily will have to devote considerable attention to the BBNJ process. However, the project casts a significantly wider net than the negotiating agenda of the IGC, reflecting on broader theoretical questions, and questions that are not explicitly on that agenda but are nonetheless important for understanding the challenges that the legal regime for ABNJ may pose to the law of the sea.”

Accordingly, the chapters in the book address complex theoretical questions as well as more specific practical problems related to the governance of the ABNJ. The chapters however all revolve to a different degree around four overarching themes: justice, space, knowledge, and power. These themes also form the basis for the concluding reflections of the editors.

In addition to editing the book, Vito De Lucia has also contributed a chapter ("Ocean Commons and an 'Ethological' Nomos of the Sea"). Margherita Poto, Kristine Dalaker and Tore Henriksen, who are all affiliated with NCLOS, have also contributed a chapter each. The book can be ordered from the publisher Brill!