Adapted from Wolfish and Smith (2000)

There is currently no overarching legal regime that affords for the designation of MPAs in the high seas, but there is for regionally managed high seas multiple use protected areas (with no-take zones) established in the North-East Atlantic under the OSPAR Commission11OSPAR Commission for the 1992 Convention for the protection of the marine environment of the North-East Atlantic. and in the Southern Ocean under CCAMLR22Commission for the 1982 Convention on the Conservation of Antarctic Marine Living Resources.. Discussions on the proposed BBNJ instrument are underway and expected to be concluded in 2020 that if successfully negotiated and implemented could prove to be a major driver of change. Successful negotiation and implementation must involve the principles of fairness (such as the application of ‘the veil of ignorance’) described in this paper.

Agreed conservation objectives, principles and values is another key driver of change. In order to effectively establish and implement a network of MPAs there must be international agreement on the concept of MPAs as a tool to conserve and sustainably manage marine resources, in addition to agreement on what a MPA is. Misunderstanding of terminology (e.g. MPA definition) or misinterpretation of legal terms (e.g. different interpretation of ‘rational use’ in the CCAMLR Convention (Smith, McGee and Jabour 2016) can lead to ineffective MPAs, conflict and exploitation.

Political commitment and willingness are essential components to success in establishing a global network of MPAs. Without such commitment, legal conflicts such as unregulated boundary issues may be intractable and legal complexities may be used as reasons to stall or deter engagement. High-level political commitments and willingness to sustainable oceans need to balance the ability to manage resources through conservation of fisheries habitat, protection of the complexity of trophic levels and food webs, and maintenance of livelihoods. This is key to addressing fairness.

A question remains, too, over the extent to which MPAs embody principles of fairness, or whether they can inadvertently extend the “conservation burden”(Hanich and Ota 2013) on developing states that depend on ocean resources for food security and economic development. Fairness also incorporates trust, meaning that knowledge sharing and open communication is an important driver of change. Information needs to be transparent, supporting the building of trust, enhancing the legitimacy of decision makers. Transparency also enhances engagement with citizens and communities in enhancing our understanding of sustainable ocean use. The inclusion and cooperation of different stakeholders (such as traditional owners and custodians of sea country all around the world, Fischer et al 2020 this issue; Mustonen et al. 2020 this issue), is important in the governance process and will increase our understanding of sustainable ocean use and also considerably influence the effectiveness MPAs.

Whilst the current global MPA coverage targets (Aichi Target 11 and SDG 14.5) have not been met, these milestones were certainly formidable drivers resulting in significant work undertaken to date towards achieving these goals. Building on and incorporating global targets with measurable outcomes will be a major driver of change in the establishment of a global network of MPAs. However, it is important to point out that these goals need to be feasibly achievable and measurable. The next section develops the two future scenarios (Business-as-usual and More Sustainable ) that seek to illustrate and contrast the pathways forward in oceans governance on MPAs by 2030.

In this scenario, commitments to developing a global network of MPAs that reaches the target of 30% coverage of the World’s oceans by 2030 are maintained in a formal sense, but powerful interests focused on marine resource harvesting remain to weaken their implementation and effectiveness. The Rawlsian ‘veil of ignorance’ plays little or no role in decision making of key states and decision makers within those states. The notions of equitable sharing of marine resources, based on sustainable and ecosystem-based extraction limits, a position supportable for all states from Rawls ‘original position’, is not accepted. Instead, key states seek to maximise their own short-term economic interests in marine resources extraction within the restraints of longstanding, but failed, management principles such as locating MPAs away from areas of use (Stevenson et al. 2020). The interests of other less able states, based on fairness concerns derived from Rawls original position, are disputed as utopia thinking, inconsistent with the hard-headed pragmatism of pursuing national interests through international relations.

The BBNJ treaty’s commitment to capacity building and technology transfer have had some notional impact but are limited in efficacy. Agreed conservation objectives and principles are more visible through the BBNJ instrument although there is less practical commitment to binding targets. Engagement with non-state actors (including first nations peoples and the populations of SIDS remain at a formal level. As a result of formal commitments to benefit sharing (in a wide range of forms) embedded in the BBNJ instrument provides a road map to improve fairness, but inequity remains. Major fishing states retain their control over much of the worlds highs seas fisheries. Attempts to instate MPAs and a means to enhance sustainable use of these and other resources is constrained.

Ocean governance therefore continues to be dominated by a small number of economically powerful distant water fishing states from Europe, North America and North Asia. National interests lead to concern over competition for resources rather than trust building and equitable sharing of resources. At times this competition leads to some formal collaboration in international relations, as the US and China broker bilateral agreements with other countries that suits their immediate shared interests, but fails to engage with the interests of other states or the international community. Russia retains a key influence in oceans forums and furthers its key interests in harvesting and marine resource extraction. This leads to the World’s fisheries coming under further pressure from overfishing and risk of stock collapse (Farmery et al. 2020 this issue).

The BBNJ legal instrument enters into force, but unresolved issues and differing views during the negotiation process have limited its original ambition and its influence is constrained. Key states note the commitment not to undermine existing agreements and institutions, with the result that the BBNJ Convention operates in parallel to, but with little influence on regional fisheries management organisations and regional treaties/agreements. The current high seas MPAs that were established under the OSPAR Convention area continue to be recognised within the regional agreements but not within the global community. To complicate matters the OSPAR Convention does not cover all human uses of the oceans that may interfere with MPAs because its mandate does not include fisheries management (Article 4(1)) or maritime transport (Article 4(2)). This raises questions as to the effectiveness of the OSPAR high seas MPAs (Smith and Jabour 2017; Matz-Lück and Fuchs 2014). However, the OSPAR Commission develops and implements operational objectives for biodiversity for the North East Atlantic Environment Strategy 2030 (OSPAR 2020). OSPAR continues to engage with the North East Atlantic Fisheries Commission through the Collective Arrangement (OSPAR 2018a) and efforts to bring on board other key regimes, such as ISA and IMO, are continuing to result in largely positive but to date non-committal responses.

The current stalemate on conflicting scientific and political interests within the CCAMLR Convention member meetings continues. No further CCAMLR MPA proposals are accepted and this causes further tension and distrust which has a knock on affect into the international political arena (the Antarctic Treaty system and UNCLOS share significant cross-membership). Despite proposals put forward, negotiations result in little more than discussions with no concrete actions made to establish further MPAs in the high seas. There is continued effort in the negotiations between CCAMLR members to adopt the Ross Sea region MPA Research and Monitoring Plan (RMP) prove unsuccessful (CCAMLR 2019; para 6.35 and 6.38) and a political deadlock continues (Sykora-Bodie 2019). Without an approved and agreed RMP the Ross Sea region MPA cannot be effectively implemented. This sticking point also raises uncertainty over the South Orkney Island Southern Shelf (SOISS) MPA RMP. Monitoring activities have been undertaken since it was designated in 2009 however, some CCAMLR members continue to argue that the Commission did not approve the RMP (CCAMLR 2019; para 6.26 and 6.27). Negotiations continue over the scientific criteria of the SOISS RMP. Thus, making it difficult to ascertain whether or not SOISS MPA is achieving the MPA objectives. For this reason, both the Ross Sea region MPA and the SOISS MPA are represented on Figure 3 a) Business-as-usual scenarioas hatched lines to illustrate the uncertainty over their future.

On a state level, increased education and awareness for conserving national interests result in more MPAs in national waters being established and measures implemented to improve the management of existing territorial MPAs. Although the national MPAs go some way to reaching the global target of 30% coverage more work is needed to incorporate climate change refugia and interconnectedness towards building a global network of MPAs.

By 2030 the global community reach the previous 10% MPA coverage (Aichi target 11 and SDG 14) mainly due to increasing national MPAs but the new target of 30% global coverage by 2030 is far from reach.

In this scenario, the BBNJ Convention is agreed upon after lengthy discussions and additional intergovernmental conference meetings being held however, once it was agreed upon the instrument was more robust. The concluding session of the BBNJ conference see strategies put forward and negotiation measures prove to be successful between opposing states, reflecting states’ recognition of their potential losses under any alternative outcome. Adopting Rawls ‘original position’, each stakeholder hypothetically considers the total situation of all stakeholders from behind the ‘veil of ignorance’ and designs a system assuming they could occupy any position in the situation. By doing so key states recognise that their endowments of fishing capacities, or geography of coastal state oceans access, should not be the key determinant in deciding the distribution of the benefits of marine resources. Consideration is given to including the interests a wider set of states who have not traditionally had the technical or economic capacities to be significantly involved in marine recourse extraction. The interests include the importance of conserving and protecting the World’s marine resources and ecosystem services for all states and both current and future generations. Key states are therefore reluctant to use their individual power to make bilateral agreements with weaker countries that give short term sacrifice ecosystem services and economic gain and the expense of the interests of the international community and future generations.

Under the new global BBNJ treaty a Conference of Parties (COP) is established to facilitate coordination between states, regional and international organisations and implement actions within areas of the four packages, e.g. area-based management tools, including MPAs. Eight ecologically or biologically significant marine areas (EBSAs) on the high seas were previously identified for protection through a scientific and technical process launched under the Convention for Biological Diversity (The Pew Charitable Trust 2016; CBD Secretariat 2009). These areas are agreed upon and adopted through the new treaty (these areas are represented Figure 3 b) Sustainable futures scenario ).

UNESCO previously identified five areas in the high seas of potential ‘Outstanding Universal Value’ (UNESCO 2016). These areas were considered so significant as to justify recognition and inscription on the World Heritage List for protection under the 1972 World Heritage Convention (these areas are represented Figure 3 b) Sustainable futures scenario ). Further agreements and Memorandum of Understandings are put into place between RFMOs and other industries such as IMO and ISA. These arrangements enhance state action to increase conservation activities by regional fisheries arrangements, and strong controls over resource extraction activities in vulnerable deep-sea areas and enhance the work of the ISA in these matters.

Under the new BBNJ treaty, existing MPAs in the high seas recognised by the regional treaty agreements, are put forward to the BBNJ COP to be considered as proposals for global recognition. During this process, an extensive consultation phase is undertaken to include the global communities’ interests. Whilst this is a lengthy process and some changes to the MPA proposals are made, this approach enabled global acceptance and implementation of these high seas MPAs. Other new high seas MPA proposals are put through the same system, which facilitated more productive negotiations. This process enabled the current CCAMLR MPA proposals (the Weddell Sea MPA proposal; East Antarctic MPA proposal, and the Antarctic Peninsula MPA proposal) to be approved (shown on Figure 3 b) Sustainable futures scenario ). In addition the OSPAR North Atlantic Current and Evlanov Seamount MPA proposal (OSPAR 2018b) is approved by the BBNJ COP (shown onFigure 3 b) Sustainable futures scenario ). On a state level, designation of MPAs in national waters continues but more focus is on the effective management, monitoring and enforcement of these MPAs and incorporating the future impacts of climate change into the sustainable management of marine resources, with increasing adoption of Dynamic Ocean Management approaches in response to climate-driven redistribution of biodiversity values (Melbourne-Thomas et al. 2020 this issue; Ward et al. 2020 this issue). Further work continues to identify ecological hot spots in the high seas and within state waters in need of protection and management (Greenpeace 2019; The Pews Charitable Trust 2020; Sylvia Earle Alliance/Mission Blue 2020).

Under the BBNJ treaty, commitments to capacity building and technology transfer has provided direct benefits to training and management capacity in SIDS. The level of trust amongst different nation states has improved but collaboration is still key to decision making. The norms, values and relationships give the regimes strength and there is acceptance of these norms and values by members. As a result of formal commitments to benefit sharing (in a wide range of forms) embedded in the BBNJ instrument fairness in international ocean governess is enhanced. Benefit sharing in a range of ways is a key to the emerging regime, technology transfer and capacity building enhances the ability of developing states to provide stewardship of their ocean areas and contribute to shared aspirations in similar commitment in the high seas.

As with the ‘Business-as-usual’ scenario outcomes in international system are still significantly influenced by the national interests and actions of states but sustainability is accepted as a key principle. This principle is operationalised through a number of objectives, with clear targets and commitments to reports on these targets. The Aichi Target 11 of 10% of the oceans being protected by 2020 leads to strong commitment to increase the target to 30% by 2030, which is met largely due to the designation of areas of the high seas. An emerging global network of MPAs is in place and although further work is required to improve the implementation and management stages, the ecological coherence and addressing the impacts of climate change, it is providing the base for continued discourse on fair use of the ocean.