Can Marine Protected Areas be Established in the South China Sea under the BBNJ Agreement?

This article considers the possible role of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) in the conservation and sustainable use of marine biodiversity in the South China Sea, where there are different views on whether an area of the high seas exists. It first explains the process for establishing area-based management tools, including marine protected areas (ABMT s/MPA s) under the BBNJ Agreement, and then examines how a proposal of an ABMT/MPA for the "high seas area" of the South China Sea could be treated according to the Agreement. It further considers the possibility of issues being resolved by judicial bodies through advisory proceedings and dispute settlement procedures. It concludes that there is nothing in the Agreement that hinders the conference of the parties from adopting an ABMT/MPA in the South China Sea as a matter of procedure. However, it also concludes that how the resulting legal situation is to be addressed and whether the advisory proceedings and dispute settlement procedure could be utilized to prevent or resolve issues are not entirely clear due to different arguments that may be advanced in favor of and against the jurisdiction of a court or tribunal under the BBNJ Agreement.