The relevance of the concept of “beyond national jurisdiction” in polar marine areas under contemporary international law

Ms Ilaria Tani1

1University of Milan-Bicocca, , Italy

In the Arctic, a considerable portion of the water column lies “beyond national jurisdiction”. More limited, in terms of extension, are destined to be the spaces falling under the regime of the Area, due to the fact that, although the overall situation still needs to be comprehensively assessed by the Commission on the Limits of the Continental Shelf, portions of the Arctic seabed and subsoil today “beyond national jurisdiction” will – sooner or later – fall under the regime of the outer continental shelf. The position of the Arctic States, though unique, does not put into question the law of the sea, nor the rights of the non-Arctic States and the International Seabed Authority. Moreover, at present, there are no overlaps with the matters regulated by the Arctic Council (search and rescue; oil pollution preparedness; scientific cooperation) and those negotiated by the BBNJ Intergovernmental Conference.

In the Antarctic, marine areas included in the claims of seven States are nevertheless considered by non-claiming States as falling “beyond national jurisdiction”. The position tacitly taken by the Antarctic System’s States, which actually manage activities under the System’s rules, i.e. as if no sovereignty, jurisdiction, freedom or common heritage of mankind applied, evidently does put into question the law of the sea (for instance, by regulating mining). Moreover, the BBNJ Intergovernmental Conference does address matters considered by the Antarctic System (environmental impact assessments; genetic resources; marine protected areas).

This essay aims at analyzing the localized maritime regime that, in the Antarctic marine areas, moved away from the law of the sea codified in the UNCLOS, in parallel with considerations on the different approach of the Arctic coastal States. In both scenarios, the concept of “beyond national jurisdiction” within the developments of the work of the BBNJ Intergovernmental Conference may provide an opportunity for thoughts and comparisons.


Lawyer (Milan Bar Association); Adjunct Professor in International Law of the Sea and Marine Environment Protection in the international master degree in Marine Sciences, offered by the University of Milan-Bicocca (Milan, Italy); former Associate Legal Officer of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations Secretariat (New York, United States); occasionally member of the Italian delegation in negotiations relating to the law of the sea in Brussels and New York.

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