The development of an Internationally Binding Legal Instrument (ILBI) for the conservation and sustainable management of marine biological diversity in areas beyond national jurisdiction (BBNJ) has profound implications for the future regulatory activities of a host of regional governance structures exercising competence over these waters. In the rather stilted vernacular of the BBNJ Process, the ILBI aspires to “not undermine” the work of preexisting institutions and initiatives. Inevitably, given the emphasis upon future institutional symbiosis, a key challenge facing the ILBI is to promote its four thematic priorities—marine genetic resources, area-based management tools, environmental assessment, and capacity building and technology transfer—in a manner that can be effectively harnessed by current regional and sectoral frameworks. One region in which the intriguing set of challenges and opportunities presented by the ILBI are strikingly manifested is the Arctic. Some have argued for a regional treaty or clearer recognition of the “special” nature of Arctic conditions. However, we view the ILBI as a potential milestone in Arctic governance that can provide a firm platform to build on current cooperative arrangements for these vulnerable and rapidly changing marine ecosystems. Moreover, we argue that the present legal and institutional framework for the Arctic need not be revisited at this juncture, as it provides a strong regime through which to implement the core objectives of the ILBI. Its ability to do so, however, will depend on whether the ILBI (1) is effectively designed to work with preexisting machinery and (2) succeeds in clarifying and advancing universally-agreed methodological requirements for its four priority areas.

On 18 September 2013, a team of Greenpeace activists attempted to board the Prirazlomnaya oil platform, situated within the Russian exclusive economic zone, intending to disrupt drilling activities and raise awareness of Arctic environmental issues. This action resulted in the subsequent arrest of 30 individuals associated with the protest, as well as that of the Arctic Sunrise, a Greenpeace support vessel sailing under the Dutch flag. The plight of the so-called ‘Arctic 30’ dominated global headlines until their release under a general amnesty by Russia in December 2013. Meanwhile, the arrest of the vessel prompted the commencement of arbitral proceedings by the Netherlands against Russia, a process that had yet to be concluded at the time of writing. In November 2013, however, the International Tribunal for the Law of the Sea upheld a Dutch petition for provisional measures, including the release of the vessel and its crew subject to the payment of a bond. In so doing, the Tribunal faced the issue of non-participation by a respondent state for the first time, while also developing arguably a ‘back-door’ position on prompt release. In the meantime, aspects of the legality of environmental activism at sea remain somewhat uncertain which, given that a considerable number of protest vessels are registered to the Netherlands, may engage the litigative attention of the Dutch authorities in future incidents.

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.