25 May 2021

The International Law of Marine Protected Areas

Although the rapid expansion of marine protected areas (MPAs) has become an emerging phenomenon over the years, MPA “paper parks” that are merely legislated on paper but offer inadequate actual protection in waters make up a significant portion of the global tally. A recent PhD dissertation by Viet Cuong Do argues that there is a sort of “general” or “common” international law of MPAs which can indeed be conductive to avoiding MPA misuses or non-conservation uses, and simultaneously, to supporting the conservation purposes pursued by the declaration of MPAs.

How did you come to choose your research topic?

In 2017, the first-ever United Nations Ocean Conference raised for the first time the notion of legal rights of the ocean. During this conference, I was inspired by and in favour of a campaign initiated by the US-based NGO Earth Law Center for legal rights for MPAs. It came to my mind, as the creation of MPAs has currently been on the international agenda with huge support from the global conservation community, that the campaign could be the tip of an iceberg in the attempt to secure legal rights for the entire ocean. 

The designation of MPAs, as I realised, has been one of the most politically and scientifically acceptable approaches to marine protection over the last few decades. MPAs are areas where human activities are restricted to varying degrees with the primary objective of ocean conservation. Nonetheless, MPA “paper parks” are becoming surprisingly common. Therefore, I wanted to investigate whether international law provides legal protection for MPAs as a conservation technique and furthermore how to strengthen MPA legislation.

Can you describe your thesis questions?

I divided the aforementioned major research question into a number of sub-questions. I started by asking a simple question of “what really is an MPA” as it still remains a generic term. The next step was to explore whether international law sets out an obligation of States to establish MPAs for ocean conservation purposes. I further assessed whether MPAs can be used in a manner different from the ones originally conceived, and, if yes, how international law can accommodate the misuse of MPAs. The central part of my thesis dealt with legal interactions between MPAs and single-sectoral economic activities at sea, including both traditional ones like fishing and shipping and emerging and evolving ones like submarine cables and offshore extractive activities. There, I examined if international legal instruments are sufficiently dynamic to sustain a balance of conflicts between MPAs for ocean conservation and human uses at sea, and if international law provides legal mechanisms to integrate and harmonise human uses in multi-use MPAs.

What methodology or methodologies did you use to approach those questions?

Apart from taking an instrument-by-instrument approach and analysing various law cases ruled by international, regional as well as national and domestic courts and tribunals, I would highlight that my thesis particularly employed a case study methodology because the thesis deals with novel concepts of MPA, ocean zoning, and marine spatial planning. A case study is a real-world in-depth investigation of a current complex phenomenon, thus using case studies helps to investigate phenomena within a real-life context, study perceptions of processes, understand how and why laws are applied and misapplied. Especially, I used a finer-grained methodology when observing and assessing the tactical behaviours and underlining motivations of States when they declare some sorts of MPAs. However, there are almost 17,000 MPAs, raising a question as to how to strike a balance between a large number of possible case studies and the desire to explore a few case studies in depth. I followed a two-step structure. The first step, providing a broad idea, dealt with a systematic dataset of representative samples of the 17,000 case studies which were categorised into four groups based on the jurisdiction of States in different maritime zones where MPAs are located. The second step, providing a finer-grained picture of the motives of States for creating MPAs, involved selecting and discussing certain in-depth case studies for each of the four groups.

What are your major findings?

The outcome of my dissertation consists of mapping the variety of existing MPA forms, and then providing an overview of different types of MPAs extracted from a vast population of some 17,000 examples. This review helps to identify misuses or non-conservation uses pursued through the declaration or operation of an MPA. By analysing the case studies and examples, I have found that there is a sort of “general” or “common” international law of MPAs. When this general law (the principles, rules, and standards of international law) is contravened (for example, unilaterally defined MPAs for dubious purposes) there is an outcry. Similarly, when too much room is left to non-conservation activities, that also raises inconsistencies. This finding justifies the need for an integrated approach to MPAs. By contrast, multilateral and genuine conservation MPAs are consistent with the wider foundations of general international law. I would say that the use of the dataset is broadly conductive to the main finding of my thesis, that an integrated approach to MPAs which builds upon international law can indeed be conductive to avoiding MPA misuses. In reaching this conclusion, I bring the role of principles of international law to bear in this integrated approach. In addition, my thesis, from a sectorial perspective, clarifies legal interactions by focusing on synergies and conflicts between MPAs and selected economic activities at sea. As the sectorial stressors of MPAs, these activities must be successfully managed for an MPA to be effective from a conservation standpoint. The sectorial analyses can be seen as paving the path for the integrated approach of multiple-use ocean zoning and marine spatial planning for the effective management of MPAs.

Can you give examples of current disputes over marine areas on which your thesis sheds a new light? 

My thesis demonstrates that the unilateral establishment of MPAs as an ocean conservation tool or technique may be the pretext for a hidden agenda to assert claims of sovereignty in disputed areas, and/or to undermine the rights of other States to access marine resources, which I call “politicisation of sea territorialisation”. Case studies to exemplify this issue, among others, include the Chagos Archipelago MPA and the Mauritius-UK dispute; the Southern Waters of Gibraltar MPA in the longstanding Anglo-Spanish dispute; the Savage Islands MPA in the North Atlantic Ocean and the Portuguese-Spanish dispute; and China’s unilateral fishing ban in the disputed South China Sea. This phenomenon can be recognised as “creeping jurisdiction” or “ocean grabbing” through unilateral “green closure” of ocean space.

What are the policy implications of your thesis? 

In order to provide strong legal protection for MPAs and to increase effectiveness in managing MPAs, I propose a set of guiding principles for the establishment and management of MPAs. Notably, case studies which are used to illustrate these principles are mostly sourced from PANORAMA – Solutions for a Healthy Planet. This platform allows practitioners to share and reflect on their experiences, to increase recognition for successful work, and to learn with their peers how similar challenges have been addressed around the globe – in short, to learn from existing best practice examples as there is “no need to reinvent the wheel if it already has been invented”.

I hope that apart from theoretical contributions, my thesis will also be a useful guide for the growing community of MPA practitioners. What is more, my thesis is also expected to raise awareness of the campaign for recognising the legal rights of MPAs and oceans, which seems to be an initiative whose time has come.

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Viet Cuong Do defended his PhD thesis in International Law in February 2021. Adjunct Professor Jorge Enrique Viñuales presided the committee, which included Professor Marcelo Kohen, supervisor, and Professor Laurence Boisson de Chazournes, Faculté de droit, Université de Genève.

Full citation of the PhD thesis
Do, Viet Cuong. “Ensuring an International Legal Protection Regime for Marine Protected Areas.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.

For access, please contact Dr Do.
Good to know: members of the Graduate Institute can download Dr Do’s PhD thesis via this page of the Institute’s repository.

Banner image: excerpt from a picture by logaen/