What if the obligation to protect and preserve the marine environment was enforced in the Southern Ocean?

Anna von Rebay, Founder & CEO at Ocean Vision Legal

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Key words: Antarctica, Southern Ocean, MPAs, CCAMLR, Ocean Governance

The Southern Ocean: not unprotected but institutionally blocked

Seemingly pristine and far removed from human influence, the Southern Ocean is under increasing pressure. Expanding krill fisheries, growing vessel traffic and other cumulative human impacts are threatening one of the world’s remotest marine ecosystems.

International law is not silent. Under the UN Convention for the Law of the Sea (UNCLOS), States have accepted obligations to protect and preserve the marine environment, to cooperate in doing so, and to take measures necessary to protect rare or fragile ecosystems and the habitats of threatened species. In 2023, the BBNJ Agreement was adopted to give effect to these obligations in areas beyond national jurisdiction. Also global conservation targets, including the objective of protecting 30% of the Ocean by 2030, point in the same direction.

Yet, in the Southern Ocean protection remains stalled. New marine protected areas (MPAs) have been blocked within the Commission for the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR Commission), the central institution for Antarctic marine conservation, because the required consensus among its members has not been reached.

What if the above mentioned legal commitments were given practical effect? Rather than treating the obligation to protect and preserve the marine environment as a broad policy aspiration, what if it were recognised as a legal obligation capable of shaping how States act within institutions such as CCAMLR? In certain circumstances, could that obligation require States to support, or at least not obstruct, the designation of marine protected areas?

MPAs under the obligation to protect and preserve the marine environment

Under Art. 192 UNCLOS States have the obligation to protect and preserve the marine environment. UNCLOS, also called the “Constitution of the Ocean”, is the most comprehensive international treaty in the law of the sea and applies across all maritime zones of the Southern Ocean. Very recently, this obligation was a central element of three Climate Change Advisory Opinions including by the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS), which further concretised its content: The obligation to protect and preserve the marine environment is not merely symbolic. It is a legally binding obligation of conduct, requiring States to act with due diligence and to take active measures to prevent harm and preserve marine ecosystems. A breach of this obligation may even incur international responsibility. The specific content of the obligation is informed, among others, by the best available science, the precautionary approach, subsequent UNCLOS provisions, external rules, and relevant international reports, frameworks and resolutions of international bodies. 

One way of giving  practical effect to this obligation is through spatial protection. While UNCLOS itself does not define MPAs, the Convention on Biological Diversity (CBD) provides a widely accepted definition according to which: 

"Protected area" means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.

Humpback whales near an iceberg, Antarctic Peninsula (Credit: Lars von Ritter Zahony / Ocean Image Bank)

MPAs are thus legal tools that aim to achieve conservation objectives by restricting, regulating or managing activities in a defined marine area. 

In the Southern Ocean, several legal rules point specifically towards this kind of spatial protection, additionally to Art. 192 UNCLOS. Art. 194 (5) UNCLOS requires States to take measures necessary to protect rare or fragile ecosystems and the habitats of depleted, threatened or endangered species and other forms of marine life. CCAMLR likewise provides for conservation measures, including the opening and closing of areas, regions or sub-regions for purposes of conservation and scientific study, including special areas for protection (Art. IX (1) lit. f, (2) lit. g CCAMLR). The BBNJ Agreement dedicates its entire Part XII to area-based management tools, including MPAs, as instruments for conserving and sustainably using marine biodiversity in areas beyond national jurisdiction. The latter compelled ITLOS to find in its Climate Change Advisory Opinion, that: 

Although MPAs are not expressly mentioned in UNCLOS, they may constitute a valid measure for complying with the obligation to protect and preserve the marine environment.

Applying the further findings of the Climate Change Advisory opinions (see above) to the Southern Ocean, this means that where the best available science, interpreted in light of the precautionary approach, indicates that area-based protection is necessary, MPAs may become more than a policy option. The same may follow where relevant international rules, reports, frameworks or resolutions of competent international bodies point to the need for spatial protection. In such circumstances, the obligation to protect and preserve the marine environment may concretise into a requirement to designate, support or at least not obstruct MPAs in the relevant marine area.

Where the best available science, international rules, reports, frameworks or resolutions of competent international bodies provide that spatial protection is necessary, MPAs may cease to be merely a policy choice. States’ discretion may narrow, and the obligation to protect and preserve the marine environment may require them to support, or at least not obstruct, their designation by giving consent.

The issue is thus no longer a political deadlock. It is whether States can lawfully continue to block protection that may be required under international law.

The implications extend well beyond Antarctica. 

Clarifying that States may be legally required to support MPAs where spatial protection is necessary would strengthen the legal foundation for global conservation efforts, including the target to protect 30% of the Ocean by 2030. It would help move 30 by 30 from political promise towards practical legal implementation.

CCAMLR and the limits of institutional discretion

What does this mean for CCAMLR?

Also under CCAMLR, Members are obliged to adopt conservation measures on the basis of the best available scientific evidence, expressly including the opening and closing of areas, regions or sub-regions for purposes of conservation and scientific study, including special areas for protection (Art. IX (1) lit. f, (2) lit. g CCAMLR). The designation of MPAs is therefore not foreign to the CCAMLR system. It is one of the conservation tools available under it.

The obligations under CCAMLR are thus quite in harmony with those under UNCLOS. The relationship clause under UNCLOS, Art. 237 UNCLOS, goes even further: while the obligation under Art. 192 UNCLOS is a general obligation, specific obligations under specialised environmental agreements, such as CCAMLR, shall not be prejudiced by Part XII UNCLOS anyway. This means that CCAMLR neither replaces UNCLOS nor operates as a separate legal island. Rather, the two regimes must, as far as possible, be interpreted consistently and in a mutually reinforcing manner. CCAMLR may therefore help define what marine environmental protection requires from States in the Southern Ocean, and thereby reinforces the need for the designation of MPAs as a viable tool to comply with the UNCLOS obligations. 

As to the conduct of States within institutional bodies, such as the CCAMLR Commission, the  second paragraph of Art. 237 UNCLOS goes even further by requiring States to carry out their obligations under those specialised agreements in a manner consistent with the general principles and objectives of UNCLOS. States do not leave their UNCLOS obligations at the door when they participate in decision-making within the CCAMLR Commission.

Therefore, when exercising decision-making powers within CCAMLR, including through the consensus mechanism or voting on conservation measures, States remain bound by their obligation to protect and preserve the marine environment under Part XII UNCLOS.

Institutional discretion is thus not unfettered. Consensus-based decision-making cannot become a legal excuse for indefinite inaction where international law requires effective marine protection. Even more, under the cooperation obligations under UNCLOS and customary international law, States must cooperate in good faith to develop and support measures necessary to protect and preserve the marine environment. The cooperation envisioned under Art. 197 UNCLOS is “expressly aimed at developing a common regulatory framework ‘for the protection and preservation of the marine environment.’” Thereby, international courts are unanimous in finding that mere adoption of a treaty, such as CCAMLR, does not discharge this obligation. The duty to cooperate is “an ongoing effort on the part of States in the development of new or revised regulatory instruments, in particular in light of the evolution of scientific knowledge.” States are obligated to continue on an ongoing basis to adopt rules, standards and practices that will effectively protect and preserve the Southern Ocean, which may require MPA designation.

Humpback whale diving, Western Antarctic Peninsula (Credit: Kim Nesbitt / Ocean Image Bank)

The BBNJ Agreement and the future of Southern Ocean protection

The BBNJ Agreement adds another important layer to this legal landscape. It does not replace CCAMLR, nor should it be presented as a way to bypass existing institutions. Its own text requires the Agreement to be interpreted and applied in a manner that does not undermine relevant legal instruments, frameworks and bodies, while also promoting coherence and coordination with them.

This balance is of particular relevance: While “not undermine” is unlikely to mean that the mere existence of CCAMLR does, by itself, exclude the relevance of the BBNJ Agreement in the Southern Ocean, a more likely reading provides that compatibility of measures under the BBNJ Agreement and the CCAMLR must be assessed at the level of specific measures. A BBNJ measure concerning the Southern Ocean would need to, at the very least, require BBNJ Parties to promote coherence with the CCAMLR Commission, strengthen cooperation and support the implementation of BBNJ decisions through CCAMLR institutions (Art. 5 (2), 8, 25 (4) BBNJ Agreement. 

The existence of CCAMLR does not, by itself, exclude the application of the BBNJ Agreement in the Southern Ocean. Rather, each proposed BBNJ measure must be assessed on its own merits to determine whether it is compatible with existing CCAMLR measures and whether it supports, rather than disrupts, CCAMLR’s mandate and objectives. 

The practical applicability of the BBNJ Agreement to overcome the current CCAMLR deadlock  remains somewhat uncertain for two reasons: some States, such as the Russian Federation, are not party to the BBNJ Agreement and would thus not be bound by an MPA established through this regime. Other States that oppose a proposed BBNJ MPA may make use of the opt out option of the BBNJ Agreement, which would mean that the MPAs would be established - but would not be binding for that opposing State. 

The BBNJ Agreement is therefore most useful here not as a competing regime, but as interpretative and institutional support. It recognises area-based management tools, including MPAs, as central instruments for biodiversity protection in ABNJ. It also reinforces duties of cooperation, coordination and coherence between States and relevant bodies. For States that are parties to both BBNJ and CCAMLR, this may strengthen the expectation that they promote effective MPA networks and do not frustrate necessary conservation measures when acting within CCAMLR.

Conclusion: from deadlock to legal accountability

The Southern Ocean is not legally unprotected. It is institutionally blocked. The key question is whether international law can help move the region from political impasse towards legal accountability.

If States remain bound by their obligations to protect and preserve the marine environment when acting within international institutions, then consensus-based decision-making cannot be treated as a blank cheque for inaction. Where the best available science shows that area-based protection is necessary, MPAs may be more than a policy option. They may be part of what international law requires.

None of this replaces political negotiation within CCAMLR. It does, however,change the legal framework within those negotiations take place. The issue is no longer only whether States can agree on new MPAs. It is whether they can lawfully continue to delay or obstruct protection that may be required to safeguard one of the most fragile and important marine ecosystems on Earth.

At Ocean Vision Legal, through our Ocean Litigation department, we are committed to working at the intersection of Ocean, Climate and Human Rights law, and enforcing existing legal obligations. Sign up for our newsletter to stay informed on our projects and advancements on Antarctica MPAs.