As I’ve blogged before, the position paper I was contracted to write with two Greek academics was discussed at the UN HQ in New York during a side event. The position paper does not have me as a co-author, yet I’m acknowledged as the drafter of section 2.
Yet the last draft I presented (27 pages) was substantially more than what had been published, and that was fair enough… The position paper focuses more on the vicissitudes of the flag state than on a compendium of existing MPAs in ABNJ and the technologies that can be used to surveil them.
While we discuss MPAs in ABNJ as a totally novel concept, they are not… What is novel is the framework in which they will exist under the BBNJ Agreement. Following my previous post on the opportunities for MCS in MPAs in the ABNJ, this entry focuses on the current challenges for MCS in the potential surveillance of MPAs in the ABNJ.
Beau in action on vessel that crossed a HS pocket
1.1 The challenges of Monitoring, Control, and Surveillance (MCS) for MPAs in ABNJ
MCS is generally understood as the mechanisms for implementing agreed-upon policies, plans, or strategies for fisheries management. Without effective MCS operations, a fisheries management scheme is incomplete and ineffective.
There is ample literature about MCS, and there are several definitions and interpretations; those commonly used by fisheries personnel stem from the FAO[1] MCS Conference of Experts in 1981 in Rome and are broadly defined as:
Monitoring - the continuous requirement for the measurement of fishing effort characteristics and resource yields (and catches);
Control - the regulatory conditions under which the exploitation of the resource may be conducted; and
Surveillance - the degree and types of observations required to maintain compliance with the regulatory controls imposed on fishing activities.
Although most MCS experiences in ABNJ are restricted to fisheries, other hazards arise and are governed by different legal frameworks. Consequently, MCS must be considered in a broader context when including spatial management measures, such as MPAs. Additionally, activities in a given area must account for threats affecting the water column, not just the seabed or floor.
The jurisdictional uniqueness of MPAs in ABJN challenges the existing MCS framework, and strategies must be considered when planning and establishing MPAs. Their effectiveness depends on a functional MCS system that enforces regulations, tracks compliance, and can adapt to emerging issues and challenges.
1.1.1 Regulatory Framework
An Implementation and Compliance Committee (ICC) was established by the Agreement on Conservation and Sustainable Use of Marine Biological Diversity in ABNJ (BBNJ Treaty). The ICC will supervise and facilitate the implementation while encouraging adherence to the treaty. The modalities and norms of procedure for the Committee are to be adopted by the Conference of the Parties (COP) meeting.
The BBNJ Treaty provides that during its work, the ICC will “consider issues of implementation and compliance at the individual and systemic levels, inter alia, and report periodically and make recommendations, as appropriate, while cognizant of respective national circumstances, to the Conference of the Parties” and that it, “may draw on appropriate information from bodies established under this Agreement, as well as relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, as may be required.”
While the institutionalisation of the ICC is very encouraging, the enforcement mechanisms, which are limited by the flag states’ performances, capabilities, and political willingness, pose a significant challenge for traditional MCS frameworks, such as those operated at the RFMO level, regarding serious environmental crimes occurring in ABNJ, as discussed in section XX.
Establishing a legal framework for MPAs on ABNJ raises questions about which jurisdiction can punish violators of these provisions. Could creating a specialised court help address the fragmented application of flag State law?
As discussed, PSMA and certain RFMO CMM members have the authority to prohibit access to their ports or the landing of illegal catches. They may also impose commercial sanctions or extend their jurisdiction to national shipowners who have transferred their vessels to operate under the flag of a third State. However, the RFMOs lack the power to impose sanctions as they still depend on the application of flag State law.
Based on this, the solution may involve developing an international convention that establishes a judicial international court to design surveillance mechanisms and encourage State Parties to act in the interests of the MPAs.
Yet, although enforcement is a state function and the control element of MCS (the regulatory conditions under which an activity can or cannot take place) is ultimately determined by ILBI and national legislation, civil society has successfully participated in aspects of monitoring and surveillance. This modus operandi can be further encouraged.
For instance, in the case of the Korean carrier Sun Flower 7[2] in 2023, the captain of a tuna purse seiner observed illegal behaviour by the vessel in the Exclusive Economic Zone (EEZ) of Kiribati and the adjacent high seas. He contacted the Marshall Islands Marine Resources Authority (MIMRA) officers he knew personally. MIMRA compiled AIS-based evidence of the vessel using the Starboard.nz platform, which was forwarded to the Kiribati Ministry of Fisheries and Marine Resources Development (MFMRD) as well as the fisheries contact of the flag state, Korea’s Ministry of Oceans and Fisheries (MOF), to no response. Subsequently, MIMRA officers-maintained observations of the vessel’s course. Once it became clear that it was heading to Bangkok, they contacted the Thai Department of Fisheries (TDF) and the Bangkok Environmental Justice Foundation (EJF) representative, providing the same evidence via the same platform. The TDF then boarded the vessel under the authority granted by the Port State Measures Agreement (PSMA) to search for evidence on board that could dispute the evidence supplied by MIMRA. As the master could not reasonably explain its actions, in coordination with MFMRD port use authorisation was denied. The vessel was required to return to the flag state to face prosecution and fines.
1.1.2 Using data to prosecute offenders
In 2014, Delfour-Samama and Leboeuf[3] already hypothesised that one of the significant issues in MDA technologies applied to MPAs is the legal value of satellite images and radar printouts, i.e., technical elements. No legal international framework can help solve this matter. At the national level, the regulations are fragmented, deriving from jurisprudence.
The adage nulla poena sine lege is a key principle within the various legal systems of international society. No one should be punished for actions that are not legally forbidden. However, in protecting MPAs, could jeopardy be considered an offence, and if so, under what conditions? Can technical proof, used to establish the reality of the facts, be the basis of the sanction?
Scholarly sources[4] consistently distinguish between the two, with ‘electronic evidence' as an umbrella term encompassing the subsets of ‘digital evidence’ (anything created or stored on a computer) and 'analogue evidence’ (vinyl records, audiotape, photographic film).
Norris 2024[5] analyses the use of Skylight[6] data in an adjudicative proceeding and how far satellite imagery can be pushed for a “legal finish.” As such, Skylight does not produce evidence or have any specific procedures or technology related to the chain of custody of evidence, and it has not been used in a court of law. However, similar to other fusion platforms analysed, it has been used to direct patrols, boardings, and port investigations that have led to fines and citations.
If platform users were to approach them for evidentiary purposes, the platform would refer them to relevant data vendors (i.e. Spire for AIS or Maxar, Sentinel or SPOT) for optical data. These providers could then furnish the "raw" data to the user, who can clearly articulate the interpretation of said data (tracking the behaviour of a vessel, or observations in the image) and how it relates to the elements of the crime or violation. They have established these connections for journalists to trace data integrity, but not yet for government use.
The provision of litigation support concerning the system's machine-learning algorithm and its application in specific cases remains unresolved. There is uncertainty regarding the willingness of these platforms to deploy engineers and researchers to foreign courts to provide testimony on the functioning of AI and the rationale behind specific activities or behaviours it exhibits.
1.1.3 Jurisdictional issues – The case of The Salas y Gomez and Nazca Ridge
While attention is generally focused on MPAs exclusively in the ABNJ, MPAs that overlap national jurisdictions and the ABNJ are also possible. The Salas y Gomez and Nazca Ridge (SyGNR) are possible, as they are expected to be the first High Seas MPA proposed under the Agreement at the second Conference of the Parties (COP).
The figure below[7] presents the SyGNR geographical position. The Convention on Biological Diversity (CBD) designated the area an Ecologically and Biologically Significant Area (EBSA) (outlined in purple). Furthermore, it has established marine protected areas (MPAs) within the jurisdiction of Peru and Chile (highlighted in green). The dotted lines represent the exclusive economic zones (EEZs) of Peru and Chile.
The Salas y Gomez and Nazca Ridges’ position and primary jurisdictions.
However, various international management organisations operate within the boundaries of the SyGNR (highlighted in purple), which in the figure below [8] extend from Peruvian national waters to Chilean waters around Rapa Nui Island.
At the fisheries level, the South Pacific Regional Fisheries Management Organisation (SPRFMO) is highlighted in orange, and its management extends across the southern Pacific Ocean. The Inter-American Tropical Tuna Commission (IATTC) is highlighted in yellow and covers the entirety of the eastern Pacific Ocean.
The Permanent Commission for the South Pacific (CPPS) is highlighted in white. Its management area encompasses the EEZs of Colombia, Ecuador, Peru, and Chile. The CPPS focuses on protecting and preserving the marine environment and coastal regions of the Southeast Pacific from all types and sources of pollution.
The darker blue background of the International Seabed Authority (ISA) encompasses all Areas Beyond National Jurisdiction (ABNJ) in the world’s oceans. Its dual mission is to authorise and control the development of mineral-related operations in the international seabed, regarded as the "common heritage of all mankind," and to protect the ecosystem of the seabed, ocean floor, and subsoil in "The Area" beyond national jurisdiction.
Finally, the figure does not include the International Maritime Organisation (IMO), pertaining to the entire ocean.
International management organisations operating within the boundaries of the Salas y Gomez and Nazca Ridges
1.1.3.1 Existing MCS and enforcement regimes
The SyGNRs were recognised as EBSAs in 2014. While EBSAs are identified as marine areas that need protection or enhanced management, their status does not provide a compliance mechanism or management. As the EBSA encompasses, the responsibility of protecting the region falls to the states and management bodies that govern it.
Following the EBSA designation, Peru and Chile have created protected areas within their EEZs of this region. In June 2021, Peru designated the Nazca Ridge National Reserve, which encompasses 62,392 km2—the entirety of the seafloor portion of the EBSA in Peru’s EEZ. However, the Peruvian government allows industrial fishing over two seamounts within the reserve, and the concept of “reserve” under Peruvian legislation does not imply a non-take area.
Similarly, in the past decade, Chile has designated three large-scale protected areas that encompass the entirety of the EBSA within their EEZ: the Motu Motiro Hiva Marine Park (a fully no-take MPA that protects 150,000 km2 around Salas y Gomez Island), the Rapa Nui Coastal and Marine Multiple-Use MPA (a multi-use area that bans industrial fishing and deep-sea mining for 579, 368 km2 around Rapa Nui Island), and the Nazca Desventuradas Marine Park (a fully no-take MPA that protects 300,035 km2 around San Ambrosio and San Felix Islands).
MCS and enforcement responsibilities and actions are bestowed to Peru and Chile, respectively, as coastal States, yet only for potential infractions and crimes inside the limits of the MPAs and their EEZ. The remaining SyGNRs areas (~73%) within ABNJ lack the same legal protections.
The nature and regulatory framework of identified infractions and crimes in the SyGNRs ABNJ portion will determine the jurisdiction of various organisations and what compliance and enforcement regime applies, with the common factor that the primary responsibility is always on the flag state.
SyGNRs involve multiple stakeholders from various large-scale sectors, including mining and shipping managing operations across different geographic scales, such as the IMO, CBD, FAO, and ISA, as well as existing conventions and agreements such as UNCLOS and UNFSA (a UN multilateral treaty aimed at enhancing cooperative management of highly migratory and straddling stock fishing resources)
This region's international bodies are also in charge of designating conservation classifications, such as EBSAs (defined under the CBD), VMEs (for which the FAO provides guidelines for identification and conservation, but legal protection rests with States and RFMOs under UNGA resolutions 61/105 and 59/25), particularly sensitive sea areas (PSSAs) (defined and designated under the IMO), and areas of particular environmental interest (APEIs) (as defined under the ISA).
Furthermore, existing conventions and agreements have encouraged the formation of RFMOs, such as the SPRFMO, established in 2012. In contrast, the IATTC was established in 1949, well before the 1995 UNFSA summit, which urged UNCLOS signatories to establish RFMOs to attain the fisheries and conservation objectives outlined in UNCLOS. Consequently, member countries, including Peru and Chile, have contributed to RFMOs.
Chaves Molina et al. (2023)[9] argue that the SPRFMO Convention affirms that its conservation measures are compatible with those of the United Nations and the Member States party to their Convention. This provides two critical pathways for the protection of the SyGNRs: 1) a regional pathway that relies on political compatibility with international organisations with jurisdiction over this region (under the SPRFMO compliance regime), and 2) a national pathway that relies on extending Peru’s and Chile’s conservation measures to the high seas under the SPRFMO Convention and noting the limitations that MPAs conditions would have to be agreed upon under the RFMO consensus system and the specific protections would need to be framed inside fisheries-related Conservation and Management Measures and through the process flag state responsibility reporting to SPRFMO compliance process[10].
However, the most robust pathway relies intrinsically on the BBNJ Agreement. However, this process could take decades.
1.1.4 A complementary path for MCS for MPAs in ABNJ?
The example above illustrates a potential path for collaboration in enforcement through participative reporting, civil society support, and government involvement. It sets a parallel path that willing stakeholders can establish.
1.1.4.1 Participative Reporting
Potential incidents or suspected serious crimes (e.g., unregistered vessels and pollution incidents) could be identified and transmitted through participative reporting involving:
Commercial navigation, including cargo ships, cruise liners, and fishing vessels. These vessels often have advanced sensors, navigation systems, and real-time communications infrastructure that could report anomalous activities. They observe during transit.
NGOs and environmental groups that use MDA tools monitor specific aspects (e.g., pollution, dumping or wildlife activity).
Academia and research institutes that use MDA tools in their work on security, the marine environment, and human activities in the ABNJ.
These three distinctive groups can identify (directly or indirectly) and report suspicious activities or incidents, logging them on public participatory platforms (e.g., mobile apps or web portals) for professional analysis and sharing among stakeholders.
For example, EarthRanger utilises Field Reports to record, report, map, and display information about events within a protected area. Reports are listed in the system in chronological order. Anyone registered with authorised access to the system can enter reports, classified under three main sections: Security, Monitoring, and Logistics. Each classification has its own set of report types.
For instance, the Security classification includes reports such as Accident, Animal Control, Arrest, and Carcass. The reporter selects the classification that most closely matches what they intend to report. The reporter provides their identity, date/time, location, and notes and has the option to attach files and images. Many reporters can report and contribute to the same event.
1.1.4.2 Civil Society
The CCAMLR and OSPAR regimes have granted NGOs observer status to meetings, which have ‘championed’ proposals for MPAs. Many NGOs have long supported fisheries compliance efforts despite the limitations of the present legal regimes in which their activities take place. Nevertheless, NGOs have a formal role in regional compliance procedures under the International Commission for the Conservation of Atlantic Tuna (ICCAT) and SPRFMO[11]. Similarly, they could foster and fund MCS efforts on MPAs in ABNJ along established roles[12].
Logging activities or vessels of interest into a participative fusion platform (as outlined in section xx) allows for integrating and standardising various inputs, analysing the available data, and using expert opinions to evaluate the evidence and/or choices to uncover additional evidence. As required, the platform can also prepare and present a case to the respective authorities at the flag and/or port state.
Hence, civil society's initial role will be to fund the operation of dedicated channels at the fusion platforms to log incidents, analyse them, incorporate evidence from satellite and technology tools, if available, and, if relevant, prepare cases to present in courts based on the nature of the event and the regulatory framework applicable.
To an extent, such a collaborative initiative known as the Joint Analytical Cell (JAC)[13] exists within the fisheries sector. The JAC is coordinated by the International MCS Network (iMCSn)[14], a voluntary intergovernmental framework group, along with the previously mentioned fusion platforms Global Fishing Watch and Skylight and the intelligence-focused NGOs TMT[15] and C4ADS.[16]
The JAC aims to serve as a representative model for collaborative work in achieving shared objectives through a coalition of like-minded organisations. It provides a hub for data, technology, operational support, and capacity development. Additionally, it seeks to develop Fisheries MCS analytical methods, routines, and operational procedures that are scalable, efficient, and effective, ensuring they can be delivered wherever needed.
The JAC example opens the possibility for ad hoc collaboration and/or merger among some of the existing fusion platforms into a specific one aimed at meeting the needs of ABNJ MPAs, particularly concerning the detection and identification of vessels, which would be relevant for court purposes. Such a collaboration or merger, leveraging the capabilities of each organisation, could facilitate compliance and serve as a deterrent.
Nevertheless, such processes and initiatives incur expenses related to resources and personnel, to which civil society can uniquely contribute by providing funding for the required expertise. Collaborations and fundraising from private companies, non-profits, and, to an extent, the wider coastal communities as there is a growing body of evidence to suggest that the ABNJ and the coastal waters are tightly connected and that activities in the ABNJ are impacting the coastal zone, mainly where communities living along the coastlines are reliant on marine resources for their food security or livelihood (Popova et al.,2019)[17]. This broader group of stakeholders could enhance and ensure the platforms' and operators' data collection and analysis capabilities under a “protective principle” even behind the flag state, port state and personal active jurisdiction.
Moreover, as cases accumulate and expertise grows, the insights acquired can be utilised through coding algorithms and machine learning to enable platforms to identify swiftly and flag patterns or behaviours in the data, such as those in successfully prosecuted cases, thereby reducing reliance on participatory reporting.
Once a case with relevant evidence is established, the further role of civil society is to facilitate and maintain a network of pertinent contacts in the relevant flag and/or port states who could refer the cases to the appropriate authorities based on the type of issues and the vessel’s location.
However, it is essential to recognise that the potential prosecutor in the jurisdiction where the case will be heard primarily acts as the ‘end-user’ of evidence, which is mostly, if not entirely, collected by other officials and reporters within the enforcement chain. All these parties must understand the requirements for the admissibility of any evidence, whether electronic or otherwise, that they may gather for potential adjudicative purposes. This understanding can be further complicated by discrepancies in how evidence is collected, who collects it, when it is collected, where it is collected, how it is collected, and for what purpose.
Lastly, the parties involved must cover the costs of pursuing environmental cases in court. These expenses can vary significantly based on factors such as the complexity of the case, the number of jurisdictions involved, and the specific legal intricacies. Civil society organisations are ideally situated to assist with these costs.
1.1.4.3 Collaborative Governance
Ansell and Gash (2008)[18] define collaborative governance as “a governing arrangement where one or more public agencies directly engage non-state stakeholders in a collective decision-making process that is formal, consensus-oriented, and deliberative, and that aims to make or implement public policy or manage public programs or assets.” As such, collaborative governance is built and formalised over time and can be unique to the needs and context of the issues and community participation.
Since the 1990s, and in response to the inter-jurisdictional and global nature of environmental crimes, enforcement agencies have sought ways to increase their ‘regulatory reach’ and utilise environmental enforcement networks to achieve greater efficacy.[19] Hence, it is essential that, besides reliance on international agreements. Government agencies continue to invest in consolidating and strengthening networks to support improved environmental enforcement outcomes.
Establishing agencies such as INTERPOL[20] have, to an extent, fostered collaboration with governmental, non-governmental, and international organisations to disrupt transnational organised criminal groups involved in environmental crime.
Collaborations that improve the enforcement of cases related to offences in MPAs within ABNJ could be facilitated by existing models. For example, the Green Customs Initiative[21] (GCI) enhances the capacity of customs and border control officials to enforce and guarantee adherence to trade-related conventions, MEAs, and pertinent national legislation. This initiative serves as a forum for the coordinated and cost-effective development of tools, the delivery of training, and the promotion of awareness among customs and border control officers, leveraging the resources and expertise of its partners. It enhances and complements the current customs training initiatives under the respective agreements. GCI is a structured method of engaging with the customs community concerning legislation and information exchange for certain trade-related multilateral environmental agreements (MEAs).
Customs is involved in the arrival of foreign or domestic vessels from international waters or other countries. By leveraging the strength of the current network, actions against identified vessels can be facilitated by supporting the efforts of the relevant authorities in the port states.
Even with surveillance, enforcing regulations and prosecuting offenders is challenging due to the fragmented application of flag-state laws and the lack of an international judicial body.
1.1.4.4 Hypothetical path for enforcement of an environmental crime at an MPA
A vessel encounters evidence of dumping and discharge by another vessel inside an MPA in ABNJ covered by an ILBI. The vessel master collects information on the location and time of the event, digital pictures of the discharge found, and a water sample containing the discharged chemicals/fuel. As well as images from the radar sighting of vessels in various ranges and the corresponding data from the onboard AIS unit identifying the vessels in the radar image.
The digital information is then logged on an ad hoc portal at a fusion platform capable of collecting all relevant details, including the next destination port. During this process, the privacy of fishing vessels’ identities is assured. Otherwise, the information is passed to the vessel operators, who may log the event directly or via an NGO in the portal.
The portal/platform operators assess the information provided and, through a collaborative network akin to the one described in JAC above, undergo a prioritisation protocol for analysis. Information such as the AIS data from vessels near the incident for the last 12 and 24 hours is analysed, including assessments of vessel course and speed towards the MPA and the potential disabling of signals. Furthermore, oceanographic and weather data are also analysed to assess the course and speed of the discharge. This process narrows the search of potential vessels involved. Then, SAR, optical, and radiofrequency satellite acquisitions in that specific area and time are assessed to identify the most likely vessels, particularly if any of those vessels may not have their positioning systems signals on.
The identified “most likely” vessel/s is tagged for surveillance and followed toward the destination port. At the same time, the experts at the analysis portal/group compile and formalise the intelligence analysis and evidence used for the identification.
The evidence is then delivered to the appropriate environmental organisations associated with the analytical platform at the flag state (and port state, if applicable), for the case to be presented to the proper authorities. Upon arrival, boarding and inspection are conducted to collect evidence based on the provided intelligence and evidence. Ideally, if the samples collected by the denouncing vessel provided specific chemicals that can be used as markers, the presence of those on board the inspected vessels can strengthen the case.
Based on the strength of the intelligence and evidence collected during the boarding and inspection and the powers of the relevant authorities at the corresponding flag and/or port state, the prosecution would evaluate the potential for a case to be successfully tried in court or for administrative fines to be established, depending on the type and legal framework surrounding the infraction.
Nevertheless, implementing new technical surveillance arrangements has cost implications. Commercial satellites can observe the ocean at a cost that minimises the cost of observation, but at present, this reduces security guarantees, making legal action difficult. Furthermore, successful action depends on secure identification and accurate transmission of the vessel’s position; both issues, which have made significant advances, remain problematic.
Finally, while utilising new technologies to enhance data collection, analysis, and the traceability/chain of custody of evidence plays a fundamental role, the success of an MCS framework also depends on other equally important factors, such as trained personnel, enforcement capabilities, and sustainable financing mechanisms to support long-term MCS operations.
1.2 Discussion
Already in 2004, Scovazzi[22] noted the establishment of marine protected areas (MPAs) on the high seas not only fully complies with customary international law but is also the subject matter of specific obligations arising under several treaties and analysed that the time-honoured concept of freedom of the sea is to be understood in the context of the present range of marine activities and with all the potentially conflicting uses and interests, such as the protection of the marine environment.
This notion has a corollary: Identifying applicable avenues for MCS and enforcing appropriate regulatory frameworks should be part of the MPA creation process.
While significant progress has been achieved over the past two decades in establishing MPAs in ABNJ through regional organisations and the ABNJ agreement, limited advancements have been made concerning potential approaches for MCS and enforcement.
Research and experiences note that compliance in ABNJ MPAs is more complex than compliance within national jurisdiction. This is primarily due to limited capacities for identifying contraventions, flag State performance and the limitations in the existing legal frameworks governing MPAs under RFMOs and, more crucially, outside them.
Currently, we identify twelve MPAs established in ABNJ by regional management bodies: ten in the North East Atlantic under the OSPAR Convention and two in the Southern Ocean under CCAMLR. However, only the OSPAR MPAs possess a mandate extending beyond fisheries under the existing legislative instrument governing international cooperation on environmental protection.
The limited enforcement capacity in ABNJ MPAs outside the RFMO realm is not surprising, given that international treaties and conventions lack such mechanisms, and the options within the UNCLOS framework are limited. Therefore, it is also expected that if the negotiating parties in the ABNJ agreement choose not to include an enforcement mechanism—which currently seems to be the case—as part of the International Legally Binding Instrument (ILBI), this situation will likely persist.
The jurisdictional uniqueness of MPAs in ABJN challenges the current MCS framework, necessitating the consideration of methods when designing and developing MPAs. Their effectiveness relies on a functional MCS system that enforces regulations, monitors compliance, and adapts to emerging issues and obstacles.
Although the ILBI will not drastically alter the legal regime in ABNJ, specific tools consistent with the current legal regime are already available.
Firstly, satellite technologies and software-driven “fusion platforms” are being used to monitor the position of vessels in ABNJ. Secondly, Port State Measures (PSM) type arrangements have been used extensively regionally and internationally.
As technology advances, integrating satellite (utilising satellite imagery, AIS/VMS, artificial intelligence (AI), and its subset, machine learning (ML)), enhanced by computer vision technologies in software-driven capabilities, into “fusion platforms” with human experience does improve MPA surveillance in ABNJ.
However, no technology is perfect, and various aspects must be carefully considered, including prices, access, dependability, coverage, ease of manipulation, and privacy concerns. Furthermore, many data sources must be connected to produce reliable coverage of MPAs and adjacent areas in ABNJ.
Yet, although enforcement is a state function and the control element of MCS (the regulatory conditions under which an activity can or cannot take place) is ultimately determined by ILBI and national legislation, civil society has successfully participated in aspects of monitoring and surveillance through collaboration in enforcement across participative reporting, civil society support, and government involvement.
Albeit its limitations, this modus operandi can be further promoted until a more robust pathway is identified in the BBNJ Agreement by creating an international instrument that establishes a judicial international court to formulate surveillance mechanisms and motivate State Parties to act in the interests of the MPAs.
References
[1] https://www.fao.org/4/v4250e/V4250E03.htm#ref2
[2] https://starboard.nz/news-sun-flower-7/
[3] Delfour-Samama, O., and Leboeuf, C. 2014. Review of potential legal frameworks for effective implementation and enforcement of MPAs in the high seas. – ICES Journal of Marine Science, 71: 1031–1039. https://academic.oup.com/icesjms/article/71/5/1031/647372
[4] "See, e.g., Burkhard Schafer and Stephen Mason, ‘The characteristics of electronic evidence’, in Stephen Mason and Daniel Seng (eds), Electronic Evidence(4th edition), Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London 2017. https://www.jstor.org/stable/j.ctv512x65.9?seq=1
[5] Norris, A. 2024. Consolidated report on overall opportunities and recommendations on how digital evidence related to maritime crime cases can be presented at courts in Bangladesh, Maldives, and Sri Lanka. UNODC
[6] Ibid 37.
[7] Chavez-Molina, V. et all. 2023. Protecting the Salas y Gomez and Nazca Ridges: A review of policy pathways for creating conservation measures in the international waters of the Southeast Pacific. Marine Policy 152 (2023) 105594. https://doi.org/10.1016/j.marpol.2023.105594
[8] Ibid 32.
[9] Ibid 33
[10] https://www.sprfmo.int/fisheries/compliance/
[11] Guggisberg, S. 2019. The roles of nongovernmental actors in improving compliance with fisheries regulations. Review of European, Comparative and International Environmental Law 28,3. https://doi.org/10.1111/reel.12304
[12] Boonrueang, S. & , Reid, C. 2021. Conservation agreements and environmental governance: The role of nongovernmental actors. Review of European, Comparative and International Environmental Law, 30-1. https://doi.org/10.1111/reel.12375
[13] https://imcsnet.org/joint-analytical-cell
[15] https://www.tm-tracking.org
[17] Popova et al.,2019. Ecological connectivity between the areas beyond national jurisdiction and coastal waters: Safeguarding interests of coastal communities in developing countries, Marine Policy, Volume 104, https://doi.org/10.1016/j.marpol.2019.02.050
[18] Ansell C & Gash A. 2008. Collaborative Governance in Theory and Practice. In J. Public Administration Research and Theory, 18 (4): 543–571.https://www.researchgate.net/publication/31311629_Collaborative_Governance_in_Theory
[19]Grant Pink, 2011. Assessing the Utility of Environmental Enforcement Networks: Maximising Benefits to Members. Available from: https://www.researchgate.net/publication/228264986_Assessing_the_Utility_of_Environmental_Enforcement_Networks_Maximising_Benefits_to_Members
[20] https://www.interpol.int/en/Crimes/Environmental-crime/Environmental-crime-partnerships
[21] Green Customs Initiative Secretariat, Law Division, United Nations Environment Programme. Nairobi, Kenya. https://www.greencustoms.org
[22] Scovazzi, T. 2004. Marine Protected Areas on the High Seas: Some Legal and Policy Considerations. The International Journal of Marine and Coastal Law, 19(1), 1-17. https://doi.org/10.1163/157180804773788646