I wrote a few weeks ago about my involvement in a UNODC Issue Paper that was to be presented and discussed in 2 weeks in New York at the second meeting of the Preparatory Commission (PrepCom II) for the Entry into Force of the Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ) and the Convening of the First Meeting of the Conference of the Parties to the Agreement.
Although I won't be there, the Issue Paper now has a discussion room allocated on the side events list. If you are attending the meeting, please note that your feedback is crucial.
The session, titled “BBNJ in Practice: Enforcing and Managing MPAs in Areas Beyond National Jurisdiction,” will take place on August 27, 2025, from 13:15 to 14:30 (EST) in Conference Room 2 of the United Nations Headquarters Building in New York.
The premise of the study is straightforward: imagine a future where the first Marine Protected Area (MPA) on the High Seas has been established under the BBN Agreement, and several related protective measures have been adopted.
Now imagine the following hypothetical scenario: While steaming through the MPA, the GuriGuazu, a ship registered to Curuzu, a State not party to the BBNJ Agreement, violates the protective measures by dumping toxic waste. The GuriGuazu's operator is a corporation incorporated in a Member State of the KapitaMini Union, a regional bloc of countries that is a party to the BBNJ, and its master is a citizen of Itaibate, a BBNJ signatory State-party. The Automatic Identification System (AIS) of the GuriGuazu has been disabled, and it has no VMS as it is not a fishing vessel; hence, the vessel went “dark” shortly before entering the MPA. However, its activities have been detected by a Synthetic Aperture Radar satellite operated by Ace of Space, a private company registered in Sapukai, a BBNJ State-party.
When handling such complex situations, as well as other comparable situations that can occur in high seas MPAs, several practical questions arise. For example, which States have the authority to request and receive information on the vessel's questionable or suspicious activities? How can these States respond to implement the MPA's related measures? Most importantly, is it possible to claim that international law, including the exercise of criminal jurisdiction, may compel some of these States to do so? Precisely those and other related concerns are addressed in this UNODC Issue Paper.
My job was the easiest; I just had to deal with the “how”—how many Maritime Domain Awareness tools (MDAs) we have today that can handle the scenario, how they operate, how the Monitoring, Control and Surveillance (MCS) work, and how evidence could be produced. Yet my co-authors (two renowned academics, Antonios Tzanakopoulos and Efthymios Papastavridi) had to handle the complex part—“who” can do something about that scenario, and “what” they can do.
The study is divided into five parts, and i will share it once it has been released>
First, the Issue Paper outlines available methods and technology for Maritime Domain Awareness (MDA). Essentially, concerning High Seas MPAs, it describes how information and data about activities in and around such MPAs can be collected, analysed, compiled, shared, and utilised to help States prevent, assess risks, and suppress such activities. MDA relies on both "co-operative” tools (such as AIS, Vessel Monitoring Systems – VMS, and Long Range Identification Systems – LRIT) and “non-co-operative” tools (including drones, satellites, and other earth observation systems), enhanced by Artificial Intelligence systems for data collection and analysis.
Secondly, this Issue Paper presents the concept of State jurisdiction at sea. Understanding the jurisdictional powers of States in various maritime zones is essential for determining their authority to regulate conduct within these zones and to enforce the regulations they establish. These are known as prescriptive and enforcement jurisdiction. Importantly, the rules governing both prescriptive and enforcement jurisdiction under international law are generally permissive – they allow, rather than require, the assertion and exercise of jurisdiction. Moreover, prescriptive and enforcement jurisdiction are not necessarily co-extensive, particularly in the maritime domain.
Third, since the Issue Paper discusses High Seas MPAs, the obvious first “port of call” is not actually a port. It is rather the State of nationality of the vessel (the flag State), which holds “exclusive” jurisdiction over the High Seas. This part of the Issue Paper outlines the jurisdictional powers and obligations of the flag State concerning its vessels and their behaviour in High Seas MPAs. It details a set of obligations arising from the UN Convention on the Law of the Sea and other sources, which it combines to create a matrix of conduct (including intermediate steps for achieving results) that the flag State must follow to enforce High Seas MPAs. These include obligations to monitor the activities of its vessels, to take measures to regulate their conduct appropriately, to exercise vigilance, to report and share information, and to suppress unlawful activity, including through criminal sanctions.
Fourthly, ships cannot sail the High Seas indefinitely. Eventually, they must dock at a port. This raises the question of the jurisdictional powers of states other than the flag state. This section of the Issue Paper discusses the authority these states have over foreign-flagged vessels on the High Seas, within Territorial Seas, and in ports. It suggests that non-flag states can assert jurisdiction over foreign-flagged ships based on factors such as the nationality of the master, crew, or operator, and possibly also on the protective principle. It also presents an argument on how these jurisdictional powers might become obligations through internationally recognised standards developed from the practice of states exercising jurisdiction appropriately and the efforts of recognised international organisations.
Fifth, the Issue Paper examines how the UN Convention against Transnational Organised Crime might influence the typically permissive jurisdictional rules of international law by transforming permissions into obligations. This can be vital in requiring states to exercise their powers to enforce measures related to MPAs in the High Seas, including through the imposition of criminal sanctions, and to cooperate towards these goals.
The Issue Paper concludes by illustrating the scenario described above, along with other scenarios introduced at the beginning, based on the relevant rules of international law as explained and discussed in its various sections. The Issue Paper will assist States, including competent maritime, environmental, and law enforcement agencies, in understanding the legal framework and utilising their powers and all available technological tools to conduct effective surveillance and enforcement of High Seas MPAs.
As my first fishing captain told me: in life, either you should be making money or you are learning… on rare occasions, you get to do both! And this was one of them! I have learnt a great deal from writing this paper. Although my contribution is minimal, I am honoured to have collaborated with the co-authors, aiming to address, in what is (for me) currently the most complex challenge in MCS, MPAS in ABNJ, I hope it helps.